Islam v Minister for Immigration and Border Protection

The appeal 33 The appeal is in the nature of a rehearing in which error by the primary judge must be shown: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129. 34 The notice of appeal alleges that there were two errors. 35 The first alleged error is that Mr Islam was denied natural justice because the primary judge: (a) heard the application in his absence when he had "duly notified his illness and inability to attend the Court by phoning the registry on the very day of the hearing"; and (b) did not take this circumstance into consideration before finding in the Minister's favour. 36 Mr Islam filed an affidavit stating that he had "duly phone[d] the Court registry in [the] first hour of the hearing day" and "had notified of [his] illness". He claimed there was no reason to make a decision in the Minister's favour. 37 At the hearing the only submission Mr Islam made which was relevant to this ground was that the primary judge erred by proceeding to hear his case in his absence. His Honour had the power to do this and to dismiss the application on this account: Federal Circuit Court Rules 2001 (Cth) (FCCR), r 13.03C(1)(c). Consequently, the only way the primary judge could have erred is if it would have been a denial of procedural fairness in the particular circumstances to try the case in his absence. 38 The evidence in the affidavit filed on 4 August 2015 was vague as to the time Mr Islam informed the registry that he was ill. "In first hour of the hearing day" could be any time between 10.15 and 11.15 or between 11.15 and 12.15, bearing in mind the listing. Even so, Mr Islam did not state what his illness was. Nor did he say why it precluded him from attending Court on the day. He did not submit any medical evidence. Moreover, there was no evidence to suggest that the primary judge was aware of any call to the registry before he proceeded with the hearing. Several inferences are available: the call was made after and not before the hearing, that the registry did not pass on the message to the primary judge, or that no call was in fact made. There is no record in the Circuit Court file of any such call. When I drew this to Mr Islam's attention at the hearing, he confessed to having made no call. 39 The rules of natural justice or procedural fairness require that a party who might be adversely affected by a decision be given a reasonable opportunity to be heard. Mr Islam was afforded that opportunity. He appeared before the primary judge on 11 June 2015 when the matter was fixed for hearing. Both parties were then ordered to file and serve written submissions by 9 July 2015. Mr Islam was also given the opportunity to put on affidavit evidence. He could have filed written submissions but he did not. He could have filed additional evidence but he did not. The obligation of a decision-maker to afford a party an opportunity to be heard does not carry with it an obligation to ensure that the party takes advantage of the opportunity: Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383 (Deane J). When Mr Islam failed to appear at the hearing and had not previously signalled any difficulty attending, the primary judge was entitled to conclude that he had no intention of availing himself of the opportunity to be heard. 40 A failure to accede to a reasonable request for an adjournment may amount to procedural unfairness (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ)), but Mr Islam made no application for an adjournment. 41 Mr Islam could have applied to the Federal Circuit Court to set aside the order. Where an order has been made in the absence of a party, the Circuit Court has the power to vary or set aside any judgment or order, even after it has been entered: FCCR 16.05(2)(a). I considered whether I should give Mr Islam the opportunity to make such an application, though he did not seek it, on the assumption that he was unlikely to have been aware of the rule. Consequently, I raised this possibility with the parties. 42 Mr Islam pleaded with me to allow him time. But he did so, not to make an application to the Circuit Court for a variation of the judgment or order, but to enable him to sit an IELTS test for what he said would be the 24th occasion. When pressed, he said he would make an application to the Circuit Court. But the Minister opposed an adjournment and tendered a letter dated 19 August 2015 from his solicitors which drew FCCR 16.05(2)(a) to Mr Islam's attention and attached a copy of it. Mr Islam admitted to receiving the letter around the date it bears but claimed not to understand the rule. If that were so, he could have sought advice. Moreover, as the Minister submitted, any argument he could make to the Federal Circuit Court on the substance of his application, he could make to this Court. 43 In these circumstances I considered that Mr Islam had had sufficient opportunity to make the application and there was no good reason to adjourn the appeal. 44 The second ground of appeal alleges that the Tribunal "did not follow the procedural fairness in reviewing [the delegate's decision]" and that "[i]t is apparent that [the] Tribunal has not acted in accordance with the law". 45 No particulars were given. At the hearing Mr Islam declined to explain the basis for these allegations and made no submissions. 46 I respectfully agree with the primary judge that there is no basis for concluding that the Tribunal was actually biased against Mr Islam. For actual bias by reason of prejudgment it would have to be shown that the Tribunal was so committed to a preconceived conclusion that its mind was incapable of alteration, no matter what evidence or arguments were presented to it: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [72]. But, as I read the grounds of his application, that was not Mr Islam's allegation. His allegation was that there was a reasonable apprehension that the Tribunal was biased. To make good that allegation, it was necessary for him to establish that a fair-minded lay observer, with knowledge of the nature of the Tribunal's non-curial role and inquisitorial processes, might reasonably apprehend that the Tribunal might not bring an impartial mind to the determination of the issues: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[28]. The application of this test involves a two stage process: first, identifying what it is said which might lead the Tribunal to decide the case otherwise than on its merits; and secondly, showing a logical connection between the suggested reason and the feared deviation: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]. Mr Islam made no attempt to do either. 47 In the way in which the primary judge approached this question, his Honour appears to have imposed a more onerous test. Be that as it may, on the material before the Court there is no reason to conclude that the hypothetical lay observer might reasonably have apprehended that the Tribunal might not have brought an impartial mind to the determination of the issues before it. 48 In the absence of any submissions to the contrary, I also accept that the primary judge did not err in disposing of the remaining grounds of the application. While the primary judge did not mention s 359AA of the Act in his reasons, which was the first of the sections mentioned in Mr Islam's application in the court below, there was no apparent breach of that section. It states that: If an applicant is appearing before the Tribunal because of an invitation under section 360: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so-the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. 49 There is nothing in the material before the court to indicate that the obligations set out in para (b) were engaged. 50 Section 359A requires the Tribunal in certain circumstances to give to an applicant clear particulars of any information the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, ensure as far as is reasonably practicable that the applicant understands the relevance of the information to the review and the consequences of the Tribunal relying on it, and to invite him or her to respond. The subsection did not apply, however, because, as the primary judge observed, Mr Islam was the source of the adverse information. His Honour referred to s 359A(3)(b), no doubt because it was the Minister's submission (which his Honour adopted) that that was the relevant provision. The reference is wrong, but nothing turns on the error. In fact, the relevant provision is s 359A(4)(b). That paragraph provides that the section does not apply to information that the applicant gave for the purpose of the application for review. Both the information about the IELTS documents and the evidence and material submitted in support of a waiver would fall within this exception. 51 In his application to the court below Mr Islam also referred to s 363 which sets out the powers of the Tribunal. What aspect of s 363 he had in mind is a mystery. The Minister speculated that he might have been complaining that the Tribunal should have adjourned the hearing. Certainly, s 363(1)(b) gave the Tribunal the power to adjourn the review from time to time. As I have already observed, however, Mr Islam did not seek an adjournment. No transcript or recording of the hearing was tendered and there is no indication in the Tribunal's decision record that he did so. Yet, as I have also observed, there was material before the Tribunal to indicate that Mr Islam had booked additional IELTS tests. Consequently, the primary judge considered whether it was legally unreasonable for the Tribunal not to have adjourned the hearing. The relevant principles are set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration v Singh [2014] FCAFC 1; 308 ALR 280. Where, as here, Mr Islam had taken the tests 20 times previously without achieving a score of 6 in all four subjects, where, in any event, the decision of the Tribunal was not based on his failure to satisfy the English language competency criterion, and where no application for adjournment was apparently made, the primary judge was plainly correct to hold that there was no substance in the proposition that it was unreasonable for the Tribunal to proceed with the review.

Conclusion 52 Mr Islam failed in the Tribunal because he could not satisfy criterion 4020. The Tribunal considered whether or not the satisfaction of the criterion should be waived. The decision record shows that the Tribunal took into account the written material provided to the first Tribunal, Mr Islam's evidence and his oral submissions. There is no reason to conclude that the Tribunal erred in its approach to either question or denied Mr Islam procedural fairness. 53 The appeal must be dismissed. Costs should follow the event. There will be orders to this effect. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.