FNV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

PROCEDURAL BACKGROUND 3 On 31 December 2015, the Department of Immigration wrote to the first and second appellants separately informing them of an appointment for a visa interview on 22 January 2016 in respect of their applications. In subsequent correspondence the Department confirmed that the third appellant was not required to attend as he had not raised an independent claim but could attend if he wished. The appellants attended for interview on that date. 4 On 29 January 2016, the first appellant was notified of the delegate's decision to refuse to grant the appellants protection visas. On 12 February 2016, the appellants applied to have the delegate's decision reviewed by the Tribunal. The appellants informed the Tribunal that they would be represented by a migration agent and the first appellant provided the Tribunal with contact information. This included the email address and contact number of the appellants' migration agent and the first appellant's mobile number. According to the Tribunal's electronic records the appellants' registered migration agent was Ms Judy Mclallen of Migration Education Services. Her email address is shown as michaelabyers@optusnet.com.au ("the nominated email address"). 5 On 15 February 2016 the Tribunal sent an email to the nominated email address attaching a letter dated 15 February 2016 addressed to Ms Mclallen and a letter of the same date addressed to the three appellants acknowledging receipt of their application for review. 6 On 16 June 2017 the Tribunal sent another email to Ms Mclallen at the nominated email address enclosing letters of the same date providing information in relation to the appellants' application and noting that the file was being prepared for allocation to a Tribunal member. 7 The letter invited the appellants to submit any additional evidence relevant to their application as soon as possible, details of any change in representation, and a request that the appellants advise the Tribunal if there was any reason why they may not be able to attend a hearing at any time in the coming months. The letter also stated that, once a hearing date had been set, the date would only be changed if the Tribunal was satisfied there was a very good reason to do so. 8 On 25 September 2017 an email was sent from the nominated email address to the Tribunal attaching a form entitled "Change of Contact Details". That form advised a change of residential address for the first appellant and that there was no change to the authorised recipient's contact details, the representative's contact details or to the first appellant's mobile telephone number. 9 On 11 October 2017, the Tribunal sent an email to the nominated address which attached a letter of the same date informing the appellants that their application would be heard on 13 November 2017. Attached to the email was an additional letter addressed to Ms Mclallen advising that she should provide a written submission setting out all claims made and maintained by the appellants by 6 November 2017 and that this submission should be accompanied by a signed declaration from the appellants that the submission has been read and explained to them and that it accurately and completely presents their claims. The letter also said that if Ms Mclallen was proposing that a witness give evidence at the hearing, a witness statement setting out the witness' evidence should be provided to the Tribunal by 6 November 2017. Ms Mclallen does not appear to have responded to that email. 10 The letter of 11 October 2017 explained that if the appellants did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear. It also advised that they had a right, in the event their case was dismissed in such circumstances, to apply to have it reinstated within 14 days of receiving notice of the dismissal. 11 The Tribunal sent SMS reminders on 6 November 2017 and 10 November 2017 regarding the hearing date to the first appellant's mobile number which was the only contact mobile number nominated on the application for review. The reminder messages stated: Reminder - Your AAT hearing is on 13/11/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333. The first appellant did not act on either of the SMS messages. 12 The appellants did not attend the hearing on 13 November 2017. On the same day, the Tribunal dismissed the application under s 426A(1A)(b) of the Migration Act 1958 (Cth) ("the Act") and sent an email to the appellants' migration agent enclosing letters addressed to her and to the appellants. The letter addressed to the appellants notified them that their application had been dismissed due to their failure to attend the scheduled hearing. The letter also informed the appellants that they could apply in writing for a reinstatement of the application. Also attached to the email was a copy of the Tribunal's reasons for decision dated 13 November 2017. 13 On 14 November 2017, Michaela Byers forwarded an email to the Tribunal enclosing a letter requesting that the dismissed application be reinstated. In that letter she advised that the notification advising her of the hearing was "found … in our junk file". She said that she normally checked the junk file but said the email had not been looked at. She submitted that the first appellant was not at fault, that it was her office systems that had failed to detect the email containing the invitation to the hearing, and that it was she who was at fault. She also said that the first appellant had recently provided additional information in anticipation of the hearing which she attached to the email. The evidence includes written statements made by the first and second appellants signed and dated 30 July 2017 and 23 July 2017 respectively. Also attached to Ms Byers' email was another copy of the "Change of Contact Details" dated 25 September 2017. 14 Having regard to the date of those statements, it is likely that they had been prepared in July 2017 in response to the Tribunal's letter of 16 June 2017 which included a request that the appellants submit any additional evidence on which they wished to rely as soon as possible. There is nothing in the evidence to indicate that those documents were forwarded to the Tribunal before 14 November 2017. 15 Later in the day on 14 November 2017 Ms Byers sent another "Change of Contact Details" dated 14 November 2017 signed by the first appellant and nominating Ms Byers as the first appellant's representative. According to Ms Byers' email "[Ms] Mclallen is no longer employed by Migration Education Services". There is no indication as to on what date Ms Mclallen ceased to be so employed and when she ceased to be the appellants' representative. 16 Another letter was sent by Ms Byers to the Tribunal on 14 November 2017. Notations on the letter indicated that it was received by the Tribunal on 15 November 2017. Enclosed with that letter was additional information that Ms Byers sought to have included in the review application. Some of the attached documents comprise general information in relation to Falun Gong and some further information in relation to the appellants' involvement in the Falun Gong community. Also attached was a copy of a letter dated 4 August 2017 from Mr John Della, the secretary of Falun Dafa Association of Australia Inc supporting the first appellant's application for a protection visa, and letters of support provided by other Falun Gong practitioners.

The tribunal's decision 17 In its reasons for its decision dated 13 November 2017 dismissing the application for review under s 426A(1A)(b) of the Act the Tribunal referred to the invitation to appear issued to the appellants and their failure to appear at the hearing. The Tribunal was satisfied that the appellants had been properly invited to attend a hearing by email to their registered migration agent and that the Tribunal had also sent SMS messages to the mobile number of the first appellant about five business days and one business day respectively before the scheduled hearing. The Tribunal noted there was no evidence that the email invitation was not received or had "bounced back" and, similarly, there was no evidence that the SMS messages had failed to send. The Tribunal noted that no satisfactory reason for the appellants' non-appearance had been given. In those circumstances, the Tribunal said that it decided to dismiss the application without further consideration of the application. 18 On 17 November 2017, the Tribunal decided not to reinstate the appellants' application and confirmed the Tribunal's non-appearance decision under s 426A(1C)(b) of the Act. In its reasons for dismissing the reinstatement application, the Tribunal referred to Ms Byers' letter of 14 November 2017 which it noted had been sent from the same email address to which the hearing invitation had been sent. The Tribunal said in its reasons at [6]-[10]: 6. The notification that the agent referred to was the initial dismissal notice. While it is curious that the migration agent was able to receive the initial dismissal notice by email, but not the invitation hearing notice, the Tribunal accepts what the agent has written as truthful, as a migration agent would not mislead the Tribunal. That being said, if an agent elects to receive correspondence from the Tribunal by email that agent should take all necessary steps to ensure that correspondence can actually be received in that way, such as daily checking of junk mail files or taking steps to ensure that emails from@aat.gov.au are not identified of junk emails. Alternatively, the migration agent can always receive correspondence from the Tribunal by registered post to avoid the inherent risk of email communication not being delivered. 7. However, as noted in the initial dismissal decision of 13 November 2017, the Tribunal sent a text to remind the applicants of the hearing on both 6 November 2017 and 10 November 2017. Those text messages stated: "Reminder - Your AAT hearing is on 13/11/2017. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333." 8. The text messages were sent to Applicant 1's mobile telephone number 0455 576 443. This is the telephone number of the applicant provided in the application for review lodged with the Tribunal on 12 February 2016 and is the same number provided in the 'Change of Contact Details' submitted by the migration agent on behalf of the applicants on 25 September 2017. The Tribunal notes that Applicant 1 was an English translator in China. 9. The Tribunal also received, by post on 15 November 2015, additional documents from the registered migration agent. The additional documents do not explain why the applicants did not attend the hearing. 10. The applicants were reminded twice about the hearing and could have contacted the telephone number contained in the text message to find out the details of the hearing, or on receiving these text messages, contacted their migration agent. The Tribunal is mindful the applicants are applying for a protection visa, and the consequences of its decision for the applicants. Significant as those consequences are, the Tribunal does not think it is appropriate to reinstate the application, as it considers the applicants received adequate notice that the hearing was listed on 13 November 2017.

PRIMARY JUDGE'S DECISION 19 The appellants relied on three grounds of review before the Federal Circuit Court. The first ground was not pressed. The second ground was that the Tribunal acted unreasonably in considering the application for reinstatement and thereby fell into jurisdictional error. The primary judge found that the exercise of the discretionary power not to reinstate the application was within the scope of the Tribunal's powers and was not affected by jurisdictional error. 20 The third ground raised an allegation of apprehended bias. The primary judge dismissed this ground on the basis that there was no evidence to support it.

GROUNDS OF APPEAL 21 The appellant's notice of grounds of appeal includes two grounds. The first ground of appeal was not pressed. The second ground of appeal is as follows: The Federal Circuit Court erred in finding that it was not legally unreasonable for the Tribunal to refuse to reinstate the review application. Particulars (a) The applicant's agent explained in the application for reinstatement that it was her fault and not the fault of the applicants that they did not attend the hearing as the hearing invitation was overlooked by an administrative error/failing of office systems; Nevertheless the Tribunal refused to reinstate the review application based on the fact that two SMS reminders were sent to the first applicant only; (b) At no time did the Tribunal consider that the other 2 adult applicants were not notified of the hearing date nor being given hearing reminders, in particular the Second Applicant had provided an email address; (c) The Tribunal failed to consider its jurisdictional function under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) to consider that a combined review application of a family unit was 3 individual visa applications and each application had to be decided by reference to the visa criteria applicable to each individual visa application (SZBWJ v Minister for Immigration [2006] FCAFC 13. Therefore, the Tribunal technically dismissed the application of the first applicant leaving the other two family member's applications undecided; (e) In these circumstances it was legally unreasonable to refuse to reinstate a combined review application of three family members based on sending two SMS messages to one family member only; (f) The Federal Circuit Court erred in finding that the Tribunal's decision not to reinstate the review application was not legally unreasonable. 22 The arguments foreshadowed in paras (b), (c) and (e) of the Particulars were not developed by the appellant's counsel and were effectively abandoned. This no doubt reflects the fact that there was one application for review filed on behalf of all three appellants and that the only mobile phone number nominated in it was that of the first appellant.

Section 426A 23 Section 426A of the Act provides: 426A Failure of applicant to appear before Tribunal Scope (1) This section applies if the applicant: (a) is invited under section 425 to appear before the Tribunal; but (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear. Tribunal may make a decision on the review or dismiss proceedings (1A) The Tribunal may: (a) by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or (b) by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal. Reinstatement of application or confirmation of dismissal (1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application. (1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must: (a) if it considers it appropriate to do so - reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or (b) confirm the decision to dismiss the application, by written statement under section 430. … (notes omitted) 24 Section 430(1) provides that the where the Tribunal makes its decision on a review it must make a written statement that sets out the decision of the Tribunal, the reasons for the decision, its findings on any material questions of fact, and which refers to the evidence or any other material on which those findings were based. 25 Section 441G(1) of the Act requires the Tribunal to give the authorised recipient, instead of the applicant, any document that would otherwise have to be given to the applicant. Section 441G(2) provides that if the Tribunal has given a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant.

The Parties' Submissions 26 The appellants drew attention to the procedural history of their application with a view to demonstrating that, up until the scheduled hearing date, they were fully engaged in the review process. In this respect the appellants sought to distinguish their situation from that of the applicants in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 ("SZVFW"). In that case the applicants, a husband and wife, were refused protection visas by a delegate of the Minister. Their application for review of the delegate's decision specified a postal address, a mobile telephone number, and an email address. The Tribunal forwarded a letter to the postal address inviting the applicants to provide material in support of their application. Three months later another letter was sent by the Tribunal to the postal address inviting the applicants to appear before it. The applicants did not respond to either letter and did not appear before the Tribunal on the day of the review hearing. The High Court held that the Tribunal's decision to proceed to make a decision without taking any further action to allow or enable the applicants to appear before it was not legally unreasonable. 27 The appellants placed particular reliance on the observations of Gageler J in SZVFW at [59] where his Honour said that "[r]easonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary." In emphasizing the need for the Court to have regard to the broader context in which the Tribunal was required to consider the reinstatement application, the appellants also relied on the following statement by Nettle and Gordon JJ in SZVFW at [97]: The discretion in s 426A recognises that the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course the review has taken, the Tribunal's approach throughout the review, the applicant's situation and conduct throughout the review and the other surrounding circumstances. That is, there is an area within which the decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 363 [65]-[66]]. 28 The appellants also relied on the decision of North ACJ in AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144 ("AZAFB"). According to his Honour, the central issue in that case was whether the Refugee Review Tribunal fell into jurisdictional error by proceeding with the hearing of the review in the absence of the appellant. 29 In AZAFB the appellant had attended an interview with the delegate who later refused the appellant's application for a protection visa. At the time of applying for a review of the delegate's decision the appellant provided contact details including a postal address and an email address. He also provided a mobile phone number. 30 The appellant subsequently filed a five page written submission with an attached statement. The following year the Tribunal sent an invitation to the appellant to appear at the hearing at a review which took the form of a letter addressed to the appellant's postal address. The appellant did not appear at the hearing and the Tribunal proceeded to dismiss the application for review. Evidence called by the appellant at the hearing of the appeal showed that the appellant's postal address was updated on 13 May 2014, just a few days before the hearing. Evidence from the appellant also indicated that he had moved out of the house at the first address shortly before the letter notifying him of the hearing was despatched. Although the appellant notified the Department of his change of address, he had not advised the Tribunal of it. 31 Having referred to s 426A of the Act, and the judgment of the plurality in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 ("Li") at [68], [72] and [76], North ACJ said at [22]-[25]: [22] In the present case the Tribunal explained why it proceeded in the absence of the appellant. It said that the appellant was invited to appear and did not respond to the invitation. The Tribunal also said at [4]: That letter was addressed to his last given address, provided by himself, which was the same address used by the by the [sic] department. A check was made to see if any change of address had been notified and, none has been. [23] Thus the Tribunal checked the address on the letter of invitation with the address previously used by the Department, and checked, presumably in its own records, to see whether there was any indication of any notification of a change of address. These steps were taken by the Tribunal to determine whether the applicant may not have received the invitation to the hearing. That was, of course, an obvious thing to do in the circumstances. [24] The steps were obvious in the circumstances because, as was known to the Tribunal, the appellant had appeared at the hearing before the delegate, and had filed a substantial and serious written submission in the Tribunal. These factors suggested that the appellant intended to pursue the application for a visa and to attend the hearing. Further, the nature of the application demonstrated that if the claims made were established the appellant was at risk of serious harm if returned to Sri Lanka. [25] The Tribunal had in its own records in the application for review the mobile phone number of the appellant. His Honour went on to hold that the Tribunal fell into jurisdictional error by not seeking to contact the appellant on the phone number which he had given to the Tribunal and which was recorded in the "Hearing Record" which had been prepared by the Tribunal in advance of the scheduled hearing. His Honour held that the decision of the Tribunal to determine application for review in the appellant's absence was legally unreasonable in circumstances where the Tribunal had not attempted to contact the appellant on his mobile number. 32 The appellants submitted that by giving disproportionate weight to the SMS messages the Tribunal made a decision that was unreasonable in the legal sense: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41. They also submitted that the Tribunal should have taken into account that two of the appellants were Falun Gong practitioners and that the consequences for them were they to be returned to China are grave. 33 The appellants also submitted that in considering the reinstatement application it was necessary for the Tribunal to have regard to the merits of the appellants' application for review. 34 The Minister submitted that the primary judge was correct to uphold the decision of the Tribunal for the reasons given. It was submitted that, while there is scope to disagree as to whether or not it was appropriate to dismiss the reinstatement application, the decision to do so was not legally unreasonable. 35 The Minister placed emphasis in his submissions on the following matters: The invitation to attend the hearing had been sent to and received by the appellants' authorised representative at the email address nominated by the appellants. The Tribunal was not legally obliged to send reminder messages to the appellant but it sent two such messages by SMS to the first appellant's mobile phone number. The statements and other material to be relied upon by the appellants at the hearing of their application for review were not forwarded to the Tribunal until after the Tribunal dismissed the application for review on 13 November 2017. The Tribunal was not required to take into account the merits of the appellants' application for review when deciding whether or not to reinstate it. The merits of the application for review is not a mandatory consideration for the exercise of power of under s 426A and there is no basis for the contention that it constitutes legal error not consider the merits of the application for review. There was not disproportionate weight given to the SMS text reminders. The Tribunal was entitled to give them significant weight in circumstances where the appellants gave no evidence as to why they were not acted on by the first appellant.

Consideration 36 In relation to the appellants' submission concerning the failure of the Tribunal to have regard to the merits of the appellants' application for review, I do not understand the appellants to submit that this was a mandatory consideration to which the Tribunal was bound to have regard to for the purposes of exercising its power under s 426A. In my view there is nothing in that provision or the statutory context in which it appears which requires the Tribunal to have regard to the merits of the substantive application: cf s 420(b) of the Act. In circumstances where the power being exercised arises out of a failure on the part of an appellant to attend his or her hearing for the purpose of presenting evidence and making submissions in support of an application for review, it would be inconsistent with the nature and purpose of s 426A to hold that the Tribunal was bound to consider the merits of an application for review in circumstances where the appellant had failed to appear at the hearing. 37 That is not to say that in all circumstances no consideration of the merits is warranted. In an appropriate case the Tribunal may be required to give some consideration to the merits of the relevant application. At the very least this may involve looking at the material that has been filed in support of the application with a view to determining whether the appellants have taken genuine and reasonable efforts to further their application for review up until the time of their non-appearance. 38 The Full Court in Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459 considered s 362B in Pt 3, Div 5 of the Act in the context of a challenge to the decision of the Tribunal not to reinstate an application for review on various grounds including that the Tribunal had failed to consider matters relevant to its decision that were relied upon by the applicant and which were not addressed in the Tribunal's reasons. In that case Colvin J (with whom Kenny and Bromberg JJ agreed) said at [29]-[30]: [29] When s 362B(1C) says that on an application for reinstatement the Tribunal must, if it considers it appropriate to do so reinstate the application, it imposes a statutory responsibility on the Tribunal to form an opinion or make an assessment as to whether reinstatement is "appropriate" having regard to all of the circumstances advanced to support reinstatement. In such a context, the word "appropriate" connotes two aspects: fitness and propriety. That is, in order to be "appropriate", something must be both suited to the particular circumstances as well as sensible, right and proper. In Mitchell v The Queen (1996) 184 CLR 333 at 346, it was said by Dawson, Toohey, Gaudron, McHugh and Gummow JJ that: The phrase "considers … appropriate" indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper. [30] Relevantly for present purposes, the use of the word "appropriate" requires the Tribunal to make an assessment of all of the matters that are advanced to support reinstatement. If more is raised on an application to reinstate than the single issue as to whether the applicant was notified of the scheduled hearing, then the Tribunal could not properly form a view as to whether reinstatement was appropriate by confining consideration to the facts concerning notification. 39 In this case the reinstatement application was supported by only a brief and incomplete explanation for the appellants' non-appearance. According to Ms Byers' letter, the email notifying the appellants of the hearing date was received but went to the junk file and, although she normally checks the junk file, "… the email had not been looked at". The Tribunal accepted that evidence. However, Ms Byers' letter says nothing about the SMS reminders sent by the Tribunal to the first appellant. The letter did not include any indication as to whether those SMS messages had been received or, if they had, why they had not alerted the first appellant to the hearing date or at least prompted her to contact her migration agent or the Tribunal to seek some clarification. 40 The statements and other materials forwarded by Ms Byers to the Tribunal were said in her letter of 14 November 2017 to be documents provided "in anticipation of the hearing". It is clear from the context in which they appear that she was referring to a hearing of the application for review in the event that it was reinstated. There is no suggestion in her letter that the Tribunal was being invited to consider that material when determining whether the application should be reinstated. 41 In order to succeed in this appeal, the appellants must show that the decision of the Tribunal not to reinstate the dismissed application was unreasonable in the legal sense. They may do so if they demonstrate that the decision not to reinstate the dismissed application was illogical or irrational, arbitrary or capricious, or lacking in an evident or intelligible justification. In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ), Allsop CJ explained at [11] that when reviewing a decision for legal unreasonableness: … [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. … 42 A finding that a decision not to reinstate a dismissed application is legally unreasonable is not available where the decision is within an area in which the decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness: Li at [66] per Hayne, Kiefel and Bell JJ. In the present case it is not enough that reasonable minds might differ as to whether or not the Tribunal's decision not to reinstate the dismissed application was appropriate in the circumstances. 43 It is not surprising that the Tribunal placed some emphasis on the SMS messages. The Tribunal noted in its reasons that the first appellant, to whose mobile the SMS messages were sent, was an English translator in China. There is no suggestion that particular finding was not open to the Tribunal. Nor was there any material before the Tribunal at the time it decided not to reinstate the application for review to suggest that the SMS messages were not delivered to the first appellant or that they were not understood by her. 44 The Tribunal's reasons for dismissing the reinstatement application show that it was aware that the appellants were applying for protection visas and that the dismissal of the reinstatement application may have significant consequences for them. However, the Tribunal concluded that it did not think it appropriate to reinstate the application as it considered that the appellants had received adequate notice that the hearing was listed for 13 November 2017. 45 Although Ms Byers did not read the email that went to her "junk" box, the first appellant received two SMS messages reminding her that the hearing was listed for 13 November 2017, asking her to check the hearing invitation to confirm details, and inviting her to call the Tribunal if she had any questions. Nothing was put to the Tribunal which explained why she did not take any action after receiving those messages, including contacting her migration agent. In those circumstances I do not think the Tribunal's decision was unreasonable in the relevant sense. 46 It follows that I am not persuaded that the primary judge's decision was in error. I do not think the Tribunal's decision was unreasonable in the legal sense.

DISPOSITION 47 The appeal must be dismissed. 48 The appellants must pay the Minister's costs which I assess and fix in the amount of $5,813. 49 Orders accordingly. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.