Kumar v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2023-05-17|Before: O'Bryan J

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Solicitor for the Appellant: The Appellant was self-represented.

Solicitor for the First Respondent: Australian Government Solicitor

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by: O'BRYAN J DATE OF ORDER: 17 may 2023

The name of the First Respondent be amended to the Minister for Immigration, Citizenship and Multicultural Affairs.
The appeal be allowed.
Orders 1 and 2 of the Federal Circuit and Family Court of Australia (Division 2) made on 20 May 2022 be set aside and in lieu thereof, that: (a) there be an order in the nature of certiorari setting aside the decision of the Second Respondent made on 3 January 2017; (b) there be an order in the nature of mandamus remitting the matter to the Second Respondent for determination according to law; and (c) the Minister pay the Applicant's costs of the application for judicial review before the primary judge (if any).
The Minister pay the Appellant's costs of the appeal (if any). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (FCFOA) (Division 2) on 20 May 2022, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), made on 3 January 2017. 2 The appellant, Mr Kumar, is a citizen of India. He first arrived in Australia on 8 June 2009 as the holder of a Student (Class TU) (Subclass 572) visa. On 10 July 2013, Mr Kumar applied for a Partner (Class UK) (Temporary) (Subclass 820) visa (the temporary visa) and a Partner (Class BS) (Residence) (Subclass 801) visa (the residence visa) on the basis that he was in a spousal relationship with an Australian citizen. On 12 July 2015, a delegate of the Minister refused to grant the visas on the basis that he or she was not satisfied that Mr Kumar met the relevant requirements of the Migration Regulations 1994 (Cth). 3 On 6 August 2015, Mr Kumar lodged an application for review of the delegate's decision with the Tribunal. On 19 October 2016, the Tribunal invited Mr Kumar to attend a hearing to be held on 5 December 2016. The invitation and an accompanying fact sheet informed Mr Kumar that: (a) if he was unable to attend the hearing, he should advise the Tribunal of this as soon as possible and that he would need to provide a "very good reason" for an adjournment; (b) if an adjournment of the hearing was sought on medical grounds, a medical certificate stating why Mr Kumar would be unable to attend a hearing should be provided; and (c) if Mr Kumar failed to attend the hearing, the Tribunal may dismiss the application. 4 On 4 November 2016, Mr Kumar confirmed that he would take part in the upcoming hearing by sending a completed "response to hearing invitation" form to the Tribunal. 5 Mr Kumar did not attend the hearing on 5 December 2016. On 8 December 2016, the Tribunal dismissed the application by reason of Mr Kumar's non-appearance pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) (the Act). On that same date, the Tribunal notified Mr Kumar of this decision (non-appearance decision), and of his right to apply for reinstatement of the application for review within 14 days of receiving the non-appearance decision statement. 6 On 16 December 2016, Mr Kumar applied for reinstatement of his application for review. Mr Kumar provided a submission in support of reinstatement, which relevantly stated that: (a) on 3 December 2016, he slipped on his driveway and hurt his back and head; (b) he saw Dr Simha Govardhana Acchoor on 4 December 2016, who prescribed him medicine for a back injury and advised him to rest for three days; (c) he still thought that he would be able to attend the 5 December 2016 hearing - however, the medicine Dr Acchoor had given him was strong and he was unable to get out of bed on 5 December 2016; and (d) he was stressed about the situation and repeatedly attempted to call the Tribunal to advise of his situation, but the Tribunal officer could not hear him properly. 7 Mr Kumar's submission in support of reinstatement was accompanied by a medical certificate signed by Dr Acchoor. The certificate stated that Mr Kumar had attended the Hoppers Super Clinic on 4 December 2016, that Mr Kumar was suffering from a "Medical Condition" and that Mr Kumar was "unfit for work/school/child care" from 4 December 2016 to 7 December 2016 inclusive. 8 On 3 January 2017, the Tribunal confirmed the non-appearance decision (confirmation decision) pursuant to s 362B(1C)(b) of the Act. 9 On 25 January 2017, Mr Kumar lodged an application for judicial review of the Tribunal's confirmation decision with the then Federal Circuit Court. On 20 May 2022, the primary judge dismissed the application for judicial review: Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 374. 10 By his notice of appeal filed in this Court on 6 June 2022, Mr Kumar raised the following two grounds of appeal (errors in original): 1. The Court misapplied the Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 ("SZMDS") at [131]; MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 and ignored the facts about medical condition mentioned in paragraph 19 - 21, 29, 37. At Paragraph 66 Court ignored the fact that I informed AAT about medical condition on day of hearing. At paragraph 75 court ignored the facts of medical condition. Court accused that I did not informed during the my medical condition 2. The court misapplied Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [43]-[46] and Singh v Minister for Immigration and Border Protection [2018] FCAFC 184 and DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87]. 11 The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the primary judge was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541. 12 Mr Kumar was not legally represented before the Tribunal, the FCFOA, or this Court. He did not file written submissions prior to the hearing of the appeal and addressed the Court with the assistance of an interpreter. The basis on which Mr Kumar prepared the grounds of appeal, which refer to a number of authorities, was not made clear. Nevertheless, the principal contentions advanced by Mr Kumar at the hearing of the appeal were relatively straightforward: (a) he had been prevented from attending the Tribunal hearing by reason of a physical injury; (b) he had provided evidence of the injury and his inability to attend to the Tribunal; and (c) despite that, the Tribunal refused to reinstate his application and afford him a hearing. 13 Framed by reference to applicable legal principles, Mr Kumar's contentions can be understood as a submission that, in making the confirmation decision, the Tribunal had misunderstood the scope, nature or purpose of the power being exercised, had failed to take account of relevant considerations or had acted in a legally unreasonable manner. In the course of the hearing, I invited counsel for the Minister to address the question whether the Tribunal had erred in that manner. Counsel advanced submissions, which are referred to below. 14 For the reasons that follow, I consider that the decision of the Tribunal was affected by jurisdictional error and that the primary judge erred in failing to reach that conclusion. Accordingly, the appeal should be allowed. 15 There has been inordinate delay in the review of the Tribunal's decision which was made more than six years ago. Such delay is plainly unsatisfactory. At the hearing, counsel for the Minister indicated that the application for judicial review was first heard in the Federal Circuit Court on 21 July 2021. Shortly after that hearing, Mr Kumar raised issues as to the standard of the interpretation provided. The matter was then re-heard by the primary judge on 13 May 2022, with judgment delivered seven days later on 20 May 2022. A part of the delay in the review of the Tribunal's decision is therefore explained by that circumstance. There was, though, inordinate delay (of more than four years) between the filing of the application for judicial review on 25 January 2017 and the first hearing of that application on 21 July 2021. The inordinate delay in hearing the application for judicial review cannot bear upon the legality of the Tribunal's confirmation decision, nor the correctness of the primary judge' decision on review, which this Court is called upon to determine. Moreover, Mr Kumar is entitled to be heard on these matters, notwithstanding that they demand consideration of circumstances that arose more than six years ago.

The Tribunal's reasons for the confirmation decision 16 The Tribunal's reasons for the confirmation decision were relatively brief, comprising two pages and 14 paragraphs (Reasons). It is convenient to reproduce the relevant paragraphs of the Tribunal reasons that purport to explain why the Tribunal confirmed the non-appearance decision: 5. On 16 December 2016 the review applicant wrote to the Tribunal outlining his reasons for not attending the hearing on Monday 5 December. He claimed that he had been unfit to attend as he had fallen down on the evening of Saturday 3 December and had hurt his back and head. He took pain relieving medication that night but as he was still in pain the next day he went for a medical examination. On Sunday 4 December he was given a medical certificate stating that he was 'suffering from' a 'Medical Condition' and 'unfit for work/school/child care' from 4 to 7 December 2016 inclusive. A copy of the signed, stamped medical certificate was sent to the Tribunal with the letter. 6. The Tribunal considers this medical certificate to be insufficiently clear as to the reason that Mr Kumar was 'unfit for work/school/child care' from 4 to 7 December 2016. As the nature of Mr Kumar's medical condition is not explained, it is unclear whether the Tribunal may have been able to accommodate the condition - for example, by conducting the hearing by telephone. The Tribunal finds that the medical certificate provided is insufficient to satisfy the Tribunal of Mr Kumar's inability to attend the hearing. The Tribunal would not have accepted a request for postponement of the hearing based on the medical certificate provided. 7. In his letter to the Tribunal, Mr Kumar explained that I was still thinking I would attend My hearing however that medicine was strong and feeling unconscious (black out), when I wake up next day I was not fit even to get up from my bed. I was also stressed because it was very important hearing, I tried to ring many time to AAT to inform about my situation. But the officer on other side could not hear me properly. 8. On 19 October 2016, when Mr Kumar was invited to the hearing, he was provided with a leaflet entitled 'Information about hearings - MR Division'. The accompanying letter stated that this leaflet 'contains important information about hearings, dismissals and your rights'. The leaflet stated, amongst other things, that '[i]f you are not able to attend the scheduled hearing, you need to advise us as soon as possible'. It also stated that '[i]f you seek to adjourn your hearing for a medical reason, you must provide a doctor's certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason of this'. Further, it stated that non-attendance at the hearing may result in dismissal of the application for review. 9. The Tribunal is not satisfied that Mr Kumar did in fact contact the Tribunal to inform about his situation. Mr Kumar has provided no detail of the times at which he called or the name of the officer/s with whom he claims that he spoke. 10. Mr Kumar claims that the Tribunal officer/s could not hear him properly on the telephone. Given Mr Kumar's knowledge that the Tribunal was unaware that he would not be attending the scheduled hearing and that it was important to attend the hearing or inform the Tribunal of his situation, as his matter could be dismissed for non-appearance, the Tribunal is surprised that Mr Kumar did not seek to take other action to inform the Tribunal of his situation. Other modes of communication could have been pursued, such as sending an email, using a smart mobile telephone to send a photograph of his medical certificate, or asking a friend to assist him in informing the Tribunal of his circumstances until such time as he could be heard and understood by a Tribunal officer on the telephone himself. 11. The Tribunal notes that Mr Kumar's doctor considered that he would be fit for work and like activities on Wednesday 8 December. The Tribunal did not make its decision to dismiss the application until mid-morning that day. The Tribunal considers that Mr Kumar had an opportunity to inform the Tribunal of the reasons for his non-appearance on that morning - when his doctor considered that he would be well enough to attend work - but Mr Kumar did not avail himself of this opportunity, even though he knew that his appeal may be dismissed for non-appearance. 12. The only discoverable information before the Tribunal of Mr Kumar's attempts to contact the Tribunal is a file note on the Tribunal's file evidencing that Mr Kumar had telephoned the Tribunal on 16 December 2016 and spoken to an officer that day. 13. The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed. 17 The following observations can be made about the Tribunal's reasons. 18 First, the Tribunal did not expressly refer to s 362B(1C) of the Act, its understanding of the meaning of the word "appropriate" in the context of s 362B(1C), or the considerations that will ordinarily be relevant to an assessment of the appropriateness of reinstating an application for review under s 362B(1C). 19 Second, the Tribunal did not express any doubt about the authenticity of the medical certificate provided by Mr Kumar. The Tribunal merely concluded that the medical certificate did not explain the injury, and therefore the medical certificate (I interpolate, on its own) was insufficient to satisfy the Tribunal of Mr Kumar's inability to attend the hearing. In making that finding, it is apparent that the Tribunal had no regard to the accompanying submission provided by Mr Kumar to the Tribunal which explained that Mr Kumar had fallen down on the evening of Saturday 3 December 2016 and had hurt his back and head. Despite twice referring to Mr Kumar's submission in its Reasons, the Tribunal's findings and reasoning appeared to give the submission no weight. The Tribunal did not consider the medical certificate in conjunction with Mr Kumar's submission which provided a description of the injury suffered. The Tribunal did not explain why it placed no weight on Mr Kumar's submission. 20 Third, the Tribunal concluded that it was not satisfied that Mr Kumar contacted the Tribunal to inform it about his injury before the non-appearance decision was made. This appeared to be a significant factor in the Tribunal's decision, occupying four of the fourteen paragraphs of the decision. The relevance of that consideration to the statutory decision will be considered below.

Decision of the Federal Circuit and Family Court of Australia 21 On 25 January 2017, Mr Kumar lodged an application for judicial review of the Tribunal's confirmation decision with the then Federal Circuit Court (which is now Div 2 of the FCFOA). At the hearing of the application on 13 May 2022, the primary judge granted leave to Mr Kumar to amend his application for judicial review such that review was also sought of the non-appearance decision. 22 On 20 May 2022, the primary judge published a judgment concluding that Mr Kumar had not demonstrated jurisdictional error in the Tribunal's decision, and made orders dismissing the application for judicial review and publishing his Honour's reasons: Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 374 (J). 23 The primary judge summarised the procedural history of the application for judicial review and the matters raised at the hearing of the application for judicial review (J [34]-[49]). There were six grounds of review before the primary judge (J [34]), which were directed to both the non-appearance and confirmation decisions (J [42]). 24 With respect to grounds 1-5, which are not presently relevant to this appeal, the primary judge found that they constituted statements of various factual matters. They did not disclose jurisdictional error on the part of the Tribunal, nor could any such error be identified or inferred. Accordingly, the primary judge dismissed grounds 1-5 (J [51]-[57]). 25 Ground 6 of the application for judicial review before the primary judge was to the effect that Mr Kumar was not given an opportunity to explain his situation to the Tribunal, and the Tribunal did not consider the impact of his medical condition. The primary judge found that ground 6 raised three concerns: first, that Mr Kumar was denied procedural fairness; second, that the Tribunal failed to consider information provided by Mr Kumar before it made the confirmation decision; and third, the Tribunal's conclusions in relation to the medical evidence and Mr Kumar's explanation for failing to attend the Tribunal hearing were irrational or illogical (J [58]-[59]). 26 With respect to ground 6, the primary judge concluded as follows. (a) The Tribunal's non-appearance decision was not unreasonable in circumstances where: Mr Kumar was invited to the hearing scheduled for 5 December 2016; Mr Kumar was informed by the Tribunal of the consequences of failing to attend and what steps Mr Kumar should take if he were unable to attend; Mr Kumar signalled his intention to attend by completing and returning the "response to hearing invitation" form; Mr Kumar received reminders of the hearing; Mr Kumar then did not attend the hearing and did not ask the Tribunal for an adjournment nor contact the Tribunal advising that he was unable to attend the scheduled hearing (J [62]-[67]). No error arose, therefore, in this regard. (b) There was no error in relation to the Tribunal's procedural fairness obligations with respect to the confirmation decision in circumstances where: the Tribunal complied with the requirements under s 362C of the Act to notify Mr Kumar of his right to seek reinstatement; an officer of the Tribunal notified Mr Kumar orally of that right by telephone on 16 December 2016; and Mr Kumar in fact applied for reinstatement (J [68]-[71]). (c) In making the confirmation decision, the Tribunal did not fail to consider the explanation provided by Mr Kumar for his non-appearance at the scheduled hearing. The Tribunal was required to assess all of the matters advanced by Mr Kumar in support of reinstatement. The only matter raised was the impact of Mr Kumar's claimed medical condition on his capacity to attend the hearing, which the Tribunal did in fact consider. The Court was therefore satisfied that the Tribunal genuinely considered the information before it to the extent required in the authorities, such that no error arose (J [72]-[78]). (d) The Tribunal's confirmation decision was not irrational or illogical. It could not be said that the Tribunal's findings in relation to Mr Kumar's medical evidence and his explanation for his failure to attend were not open to it. The primary judge concluded that, given the nature of the evidence before the Tribunal and the Tribunal's forensic assessment of that evidence, the Tribunal's rejection of that evidence and its ultimate determination that this was not an appropriate case for reinstatement was entirely reasonable (J [82]-[84]). 27 Mr Kumar also sought to raise three other grounds of judicial review before the primary judge (J [86]). The first was to the effect that the Tribunal's decision was affected by jurisdictional error, citing Minister for Immigration and Border Protection v Singh [2016] FCA 575. The primary judge concluded that the relevance of that decision was not explained by Mr Kumar, nor was it self-evident. Consequently, no jurisdictional error arose in relation to this additional ground (J [89]-[91]). The second and third additional grounds concerned notifications made by the Department to the Tribunal which had the effect of limiting the disclosure of certain information obtained by the Department only to the Tribunal. Those grounds were not raised before this Court, and are not otherwise relevant to any issue in the present appeal. Accordingly, it is unnecessary to consider them further. It suffices to say that the primary judge considered those proposed additional grounds to be without merit (J [92]-[104]). 28 Mr Kumar having failed to identify any jurisdictional error in the Tribunal's non-appearance and confirmation decisions, and the Court being otherwise unable to identify any jurisdictional error, the primary judge dismissed the application for judicial review (J [105]-[106]).

Applicable principles concerning the power to reinstate 29 The delegate's decision refusing Mr Kumar's visa application was a "Part 5-reviewable decision" within the meaning of s 338 of the Act. The application to the Tribunal for review of that decision was therefore governed by the provisions of Pt 5 of the Act. 30 Division 5 of Pt 5 of the Act sets out the process by which the Tribunal must conduct its review of "Part 5-reviewable decisions". Relevantly, s 360(1) requires the Tribunal to invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, except in certain circumstances set out in s 360(2). Section 362B addresses the circumstance where an applicant has been invited to appear before the Tribunal but fails to do so. It is convenient to set out the section in its entirety. Scope (1) This section applies if the applicant: (a) is invited under section 360 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 368, 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 362C, dismiss the application without any further consideration of the application or information before the Tribunal. Note 1: Under section 368A, the Tribunal must notify the applicant of a decision on the review. Note 2: Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application. 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 362C, apply to the Tribunal for reinstatement of the application. Note: Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part. (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 362C; or (b) confirm the decision to dismiss the application, by written statement under section 368. Note 1: Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application. Note 2: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application. (1D) If the Tribunal reinstates the application: (a) the application is taken never to have been dismissed; and (b) the Tribunal must conduct (or continue to conduct) the review accordingly. (1E) If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368. Note: Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application. (1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed. (1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E). Other measures to deal with failure of applicant to appear (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled. 31 In the present case, by reason of Mr Kumar's non-appearance at the hearing scheduled for 5 December 2016, the Tribunal dismissed his application for review under s 362B(1A)(b) (referred to earlier as the non-appearance decision). In dismissing the application for review, the Tribunal was not required, and did not, give any consideration to the merits of Mr Kumar's application or information before the Tribunal. Mr Kumar applied for reinstatement of his application for review under s 362B(1B). On the reinstatement application, the Tribunal confirmed the earlier decision to dismiss the application for review under s 362B(1C). It is the exercise of that power by the Tribunal that is the subject of the present appeal. 32 To date, there has been limited judicial consideration of the power contained in s 362B(1C). 33 In Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459 (Singh), Colvin J observed (at [27]-[30], with Kenny and Bromberg JJ agreeing at [1] and [2] respectively): [27] The evident purpose of the right to apply for reinstatement is to provide an avenue by which the application may be dealt with on the merits rather than dismissed procedurally. It is a protection that is only afforded if there is due consideration of the reasons advanced on a reinstatement application. If consideration on a reinstatement is confined to whether a person has been "correctly notified" then little purpose would be served by the statutory provision allowing for an application to reinstate. It would confine reinstatement to those instances where the Tribunal itself had not followed the notification procedure in the Migration Act. However, there would be no need for such a right because a dismissal that occurred without proper notification would be no dismissal at all. As I have noted there is a statutory obligation to notify an applicant of a scheduled hearing. … … [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. 34 In Sran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 377, Greenwood J considered the statutory scheme constituted by Div 5 of Pt 5 of the Act, and the power conferred by s 362B. His Honour relevantly noted that: [116] Section 362B(1C) confers a power on the Tribunal to reinstate a dismissed application for review if the Tribunal considers it appropriate to do so. In reaching a decision as to whether it is or is not appropriate to do so, the Tribunal must necessarily have regard to the conferral and exercise of the power in the context of the subject matter, scope and purpose of the Act and particularly the scope and purpose of the provisions of the Act giving expression to the power: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, Dixon J at 505. The Tribunal must also keep in mind that Parliament is taken to intend that any statutory power conferred on the repository of the power will be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 ("Li"), French CJ at [29], Hayne, Kiefel and Bell JJ at [63], Gageler J at [88]; Kruger v The Commonwealth (1997) 190 CLR 1, Brennan CJ at 36. … [117] In exercising the power under s 362(1C) to decide whether it is appropriate or not to reinstate the review application or confirm the earlier dismissal of it, the Tribunal must have regard to the conferral of the power in the context of its statutory duty to review the underlying decision of the Minister's delegate to refuse to grant the visa to the applicants and the role of s 360(1) in that process as enabling an applicant to have the benefit of a meaningful hearing as described earlier at [103] of these reasons. 35 In respect of an application to reinstate under s 362B(1C), the Tribunal is required either to reinstate or to confirm the decision to dismiss the application. The Tribunal is required to reinstate the application for review "if it considers it appropriate to do so". The Act does not expressly identify the circumstances in which reinstatement may be "appropriate", nor the considerations that may be relevant in making that assessment. Nevertheless, such circumstances and considerations may be determined by implication from the subject-matter, scope and purpose of the provision: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J. 36 There are statutory analogues to s 362B of the Act in both the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and the Federal Court Rules 2011 (Cth) (FC Rules). Judicial consideration of those analogous powers provide guidance as to the considerations that will be relevant to an exercise of power under s 362B(1C). 37 Section 42A of the AAT Act relevantly provides: Dismissal if party fails to appear (2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may: (a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or (b) in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding. … Dismissal if party fails to appear - giving of appropriate notice (7) Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be. Reinstatement of application … (8A) If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application. (9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances. 38 The power of reinstatement set out in s 42(9) of the AAT Act is on substantially the same terms as that contained in s 362B(1C): that is, both provisions empower the Tribunal to reinstate an application "if it considers it appropriate to do so", and neither provision expressly conditions the exercise of that power by reference to particular criteria. 39 Justice O'Callaghan considered the power of reinstatement set out in s 42(9) of the AAT Act in Serpinli v Secretary, Department of Social Services [2019] FCA 2029. In that case, the applicant had sought judicial review of a decision of the Tribunal refusing to reinstate his application by reason of his non-appearance on that basis that, among other things, the Tribunal misinterpreted the statutory test. His Honour observed (at [25]-[26], emphasis added) [25] At the outset of the hearing in this case, the Tribunal confirmed that the issue before it was whether or not "it's appropriate that [the applicant's] case should be reinstated". The Tribunal said that in doing so it needed to consider: whether the applicant had a reasonable excuse for failing to attend the hearing, and whether the application had prospects of success. [26] In considering whether to reinstate an application, the Tribunal can have regard to a range of factors in determining whether it is "appropriate" to reinstate an application. These factors may vary from case to case, but include a consideration of the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at a hearing, the explanation for it. 40 His Honour concluded that the Tribunal did not err, having considered both the merits of the applicant's substantive application for review and his explanation for his non-attendance at the hearing: at [35], [38]. 41 The FC Rules contain numerous provisions to the effect that the Court may make an order dismissing an application if a party is absent at the hearing of a proceeding, and that the absent party may subsequently apply to set aside any such order. For example, r 30.21 provides as follows. (1) If a party is absent when a proceeding is called on for trial, another party may apply to the Court for an order that: (a) if the absent party is the applicant: (i) the application be dismissed; or (ii) the application be adjourned; or (iii) the trial proceed only if specified steps are taken; or (b) if the absent party is the respondent: (i) the hearing proceed generally or in relation to a particular aspect of the application; or (ii) the hearing be adjourned; or (iii) the trial proceed only if specified steps are taken. (2) If a trial proceeds in a party's absence and during or at the conclusion of the trial an order is made, the party who was absent may apply to the Court for an order: (a) setting aside or varying the order; and (b) for the further conduct of the proceeding. 42 Rules in identical form operate where a party is absent when an appeal is called on for hearing (r 36.75), when an application for leave to appeal is called on for hearing (r 35.33) and when an appeal from a decision of a body other than a court is called on for hearing (r 33.33). 43 More generally, r 5.23 of the FC Rules provides that if an applicant is in default, a respondent may apply to the Court for an order that the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant. While this rule extends to forms of default beyond a party's non-appearance at a hearing, it has been applied in circumstances including non-appearance: see, for example, Dauguet v Centrelink [2015] FCA 395 (Mortimer J, as her Honour then was). Rule 39.05(a) also relevantly provides that the Court may vary or set aside a judgment or order after it has been entered if it was made in the absence of a party. 44 The power of the Court to set aside or vary an order dismissing a proceeding contained in rr 30.21(2), 33.33(2), 35.33(2), 36.75(2) and 39.05(a) of the FC Rules is framed in different terms to the Tribunal's power of reinstatement in s 362B(1C) of the Act and in s 42A(9) of the AAT Act. The relevant rules do not use the language of "appropriateness", nor do they otherwise condition the exercise of power by the Court. Indeed, rr 33.33(2), 35.33(2) and 36.75(2) refer only to the right of an absent party to apply to the Court and not to the exercise by the Court of its power with respect to that application. Nonetheless, these rules have been construed and applied by this Court in a manner that is consistent with the construction of s 42A(9) of the AAT Act in Serpinli. 45 The Full Federal Court examined the application of the predecessor of r 36.75 of the FC Rules (being r 38A(2)(a) of the Federal Court Rules 1979 (Cth)), which was on substantially the same terms, in Prashar v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 197 (Prashar). Justice Katz concluded at [11] (with Branson J agreeing at [1] and Mansfield J agreeing at [4]) that: Order 52, r 38A(2)(a) of the Rules does not specify any criteria for the exercise by the Court of the power conferred on it by that provision. However, the considerations which, in my view, would be relevant in the exercise of that power would include at least whether the moving party has provided an acceptable explanation for that party's absence when the appeal was called on for hearing and the strength of that party's case on the appeal if the order dismissing the appeal were to be set aside. 46 Prashar has been followed repeatedly by this Court, both in relation to the current r 36.75 of the FC Rules and its cognate provisions: see Barah v Minister for Home Affairs [2019] FCA 1831 (Davies J) at [2] (in relation to r 36.75); Singh v Minister for Immigration and Border Protection (No 2) [2016] FCA 1121 (Markovic J) at [5] (in the context of rr 35.33 and 39.05); Sandhu v Minister for Immigration and Border Protection (No 2) [2015] FCA 1429 (Kenny J) at [13] (in relation to rr 35.33 and 39.05); SZVEB v Minister for Immigration and Border Protection (No 2) [2015] FCA 1106 (Farrell J) at [3] (in relation to r 35.33); Singh v Minister for Immigration and Border Protection [2015] FCA 223 (Perry J) at [7] (in relation to r 35.33). 47 In my view, the considerations that have been found to be relevant to the exercise of the discretion in s 42(9) of the AAT Act and the FC Rules referred to above are equally relevant to the exercise of the discretion under s 362B(1C) of the Act; namely, whether the applicant has a reasonable or acceptable excuse for their absence at the hearing of their substantive application and whether the application for review has sufficient merit to warrant the reinstatement. That is not to suggest that those two factors are exhaustive of potentially relevant considerations. Other considerations may include: the applicant's conduct generally in progressing their review application and the prejudice to either party or to the wider public (if any) arising from reinstatement. 48 Further, having regard to the subject matter, scope and purpose of the power to reinstate in s 362B(1C), I consider that it is implicit that the question whether the applicant has a reasonable excuse for their absence at the hearing of their substantive application is a mandatory consideration for the Tribunal. That implication arises from the statutory context as referred to earlier. First, by s 360, the Tribunal is required to afford the applicant a hearing at which the applicant can give evidence and present arguments. Second, the power of dismissal under s 362B(1A)(b) is exercisable if the applicant does not appear at the hearing. It necessarily follows from that context that the reason for the failure to appear is a mandatory relevant consideration.

Appellant's submissions 49 As noted earlier, Mr Kumar was not legally represented. He did not file written submissions prior to the hearing of the appeal, and his oral submissions were advanced in a generalised manner and without reference to legal principle. I make no criticism of Mr Kumar in this regard: the manner in which he made his case before this Court is to be expected in circumstances where he is self-represented and is not legally trained. When asked, Mr Kumar confirmed that he could not expand further on the relevance or application of the authorities cited in his notice of appeal. In substance, Mr Kumar's essential complaint was that he had been prevented from attending the Tribunal hearing by reason of a physical injury; he had provided evidence of the injury and his inability to attend to the Tribunal; and despite that, the Tribunal refused to reinstate his application and afford him a hearing.

First respondent's submissions 50 Understandably, the Minister's written submissions sought to address Mr Kumar's grounds of appeal, and particularly the authorities referred to in those grounds. In short, the Minister submitted that: (a) no error was discernible in the primary judge's conclusion that each of the Tribunal's findings underpinning its confirmation decision were open on the evidence and therefore the Tribunal's reasons for that decision did not meet the high standard of illogicality or irrationality described in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS); (b) the primary judge neither applied nor misapplied MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 (it was simply a relevant authority cited in support of the primary judge's observations regarding the court's duty to Mr Kumar, as an unrepresented litigant, to remain astute to error in the decisions under review regardless of whether that error was raised in the grounds of judicial review); and (c) there was no error in the primary judge's conclusion that the Tribunal properly considered all matters raised by Mr Kumar which were: the impact of his claimed medical condition on his capacity to attend the hearing, and his claimed attempts to contact the Tribunal on the day of the hearing. 51 During the hearing of the appeal, the Court asked counsel for the Minister to identify the criteria, if any, that the Tribunal ought to apply acting lawfully and within the discretion afforded to it under s 362B(1C). In response, the Minister submitted that s 362B(1C) requires the Tribunal to consider whether reinstatement is appropriate. The Tribunal cannot take into account a matter that is inconsistent with the statutory scheme within which s 362B(1C) is located, and it must take into account what is put before it by the party seeking reinstatement. In respect of the present case, the Minister submitted that the Tribunal's Reasons demonstrate that the Tribunal gave proper consideration to the representations made by Mr Kumar to the Tribunal in support of reinstatement.

Consideration 52 For the following reasons, I am satisfied that the confirmation decision of the Tribunal was affected by jurisdictional error and that the primary judge erred in dismissing Mr Kumar's application for judicial review. 53 Although the Tribunal did not state the criteria by which it intended to, or was required to, exercise its power of reinstatement under s 362B(1C), it is apparent from the Reasons that the Tribunal correctly appreciated that a central consideration was whether Mr Kumar had a reasonable excuse for failing to attend the hearing. The Tribunal also appeared to give considerable weight to the question whether Mr Kumar notified the Tribunal prior to the hearing of his inability to attend the hearing. The relevance of that second factor to the exercise of the statutory power is less apparent. It is no doubt courteous for an applicant to inform the Tribunal if he or she is unable to attend a hearing. Prior notification would also, no doubt, assist the Tribunal in the efficient management of its case load. However, having regard to the subject matter, scope and purpose of the power of reinstatement, it is not apparent that the failure to give prior notice of non-attendance bears significantly on the question whether reinstatement is appropriate. Certainly, the Minister did not contend to the contrary. The Tribunal did not expressly give consideration to any other factor, such as the merits of Mr Kumar's application for review, Mr Kumar's conduct generally in progressing his review application or any potential prejudice to the Minister or to the wider public (if any) arising from reinstatement. 54 Although the Tribunal appreciated that, in determining whether reinstatement was appropriate, a central consideration was whether Mr Kumar had a reasonable excuse for failing to attend the hearing, in my view the Tribunal failed to consider that issue, and the material submitted by Mr Kumar, in a legally reasonable or rational manner (as per Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [72] per Hayne, Kiefel and Bell JJ; SZMDS at [23] and [40] per Gummow ACJ and Kiefel J, and at [119]-[125] per Crennan and Bell JJ). As is made clear by decisions such as R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 per Latham CJ, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J and Buck v Bavone (1976) 135 CLR 110 at 118 per Gibbs CJ, the basis for a lawful exercise of power is absent if a conclusion about the existence of relevant facts or circumstances is not based on probative material or is formed arbitrarily or capriciously. 55 In my view, the Tribunal's conclusion about Mr Kumar's reason for failing to attend the hearing was illogical in that sense. The Reasons record (at [5]) that Mr Kumar wrote to the Tribunal outlining his reasons for not attending the hearing; that Mr Kumar claimed that he had been unfit to attend as he had fallen down on the evening of 3 December and had hurt his back and head; that he took pain relieving medication that night but as he was still in pain the next day he went for a medical examination; that on 4 December he was given a medical certificate stating that he was suffering from a "Medical Condition" and "unfit for work/school/child care" from 4 to 7 December inclusive; and that a copy of the signed, stamped medical certificate was sent to the Tribunal with the letter. As noted earlier, the Tribunal made no finding that the medical certificate was not authentic. Rather, the Tribunal was critical of the certificate because it did not explain Mr Kumar's medical condition, with the Tribunal finding that "the medical certificate provided is insufficient to satisfy the Tribunal of Mr Kumar's inability to attend the hearing" (at [6]). The Tribunal further stated that it would not have accepted a request for postponement of the hearing based on the medical certificate provided by Mr Kumar. 56 Although not stated expressly by the Tribunal, it can be inferred that, on that basis, the Tribunal concluded that Mr Kumar had not satisfied the Tribunal that he had a reasonable excuse for failing to attend the hearing. In reaching that conclusion, it is apparent that the Tribunal ignored Mr Kumar's submission to the Tribunal which explained the accident that had occurred and the injury he had suffered. The Tribunal gave no reason for ignoring Mr Kumar's submission. On the materials before the Tribunal, there was no apparent basis for disbelieving the statements made by Mr Kumar, and the Tribunal made no finding that it disbelieved Mr Kumar. The Tribunal simply ignored Mr Kumar's submission and proceeded as if it did not exist. 57 In my view, the Tribunal's decision lacked a reasonable or rational foundation. It is not a reasonable or rational consideration of an applicant's case to take into account one element of the material put forward by the applicant, ignore another element without explanation or justification, and to conclude that the element taken into account was insufficient to support the application. Such an approach can be characterised as capricious or arbitrary. It cannot be regarded as within the range of possible lawful outcomes resulting from the exercise of power under s 362B(1C). 58 It follows that I do not agree with the primary judge's conclusion that the Tribunal did not fall into jurisdictional error. The Tribunal's findings were legally unreasonable or irrational and resulted in a failure by the Tribunal to perform its proper statutory task, which was to consider whether it was appropriate to reinstate Mr Kumar's application

Conclusion 59 For the reasons stated, the Tribunal's confirmation decision is affected by jurisdictional error. I therefore allow the appeal and make the following orders: (a) orders 1 and 2 of the primary judge made on 20 May 2022 be set aside and in lieu thereof, that: (i) there be an order in the nature of certiorari setting aside the decision of the Tribunal made on 3 January 2017; (ii) there be an order in the nature of mandamus remitting the matter to the Tribunal for determination according to law; and (iii) the Minister pay the applicant's costs of the application for judicial review before the primary judge (if any); and (b) the Minister pay the appellant's costs of the appeal (if any). I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.

Federal Court Rules 1979(Cth)

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