APPEAL TO THIS COURT
38 The appellant now appeals from the decision of the Federal Circuit Court. Rather than state particular grounds of appeal, as indeed was done on the judicial review application in the Court below, the appellant has chosen to provide a narrative that includes a number of grievances. The last two paragraphs of this narrative appear under what appears to be a paragraph numbered "2". It may be assumed therefore that the preceding four paragraphs of the narrative are meant to fall under a paragraph "1".
39 The appellant, among other things, complains that he "provided enough explanation" which was not considered by the Tribunal and that he "wasn't given [a] chance" to make his case.
40 The appellant also claims that the Department and the Tribunal have refused his application, and applications for review, without providing an adequate time frame to provide further documents, evidence and submissions. Further, the appellant claims he was not afforded an adequate opportunity to make his case before the Federal Circuit Court. The appellant did not file written submissions. He also appears to suggest that there are new materials or new argument, which he should be able to ventilate "as explanation has been submitted by Migration Agent but not by applicant". By implication, he requires the Court to "re-open the original appeal pursuant to either a common law power or pursuant to statute".
41 All of that appears under "ground 1". Ground 2 would appear to repeat the reopening proposition.
42 The Minister submits that, while accepting that it is appropriate to read documents filed by appellants in circumstances such as the present widely and benevolently, it is difficult to discern the error or argument on which the appellant seeks to base his appeal. The Minister submits that, at its highest, the appellant's notice of appeal and supporting affidavit contain "no more than a narration of the appellant's difficulties, and tendentious statements as to his entitlement to various orders". Therefore, in the Minister's submission, the Court must impute in those documents the contention that the Federal Circuit Court was wrong to conclude as it did on the arguments before that Court.
43 The Minister submits, in any case, the position is without substantive merit. In the Minister's submission, the Tribunal's exercise of its power under s 362B of the Act was legally reasonable. The Minister submits legal principles as to the unreasonableness of the Tribunal's decision are not engaged and the Federal Circuit Court was correct to so conclude.
44 The Minister submits the Tribunal's decision to proceed in the appellant's absence had an intelligible justification, as the Tribunal had taken all steps available to it to offer the appellant an opportunity to appear and provide evidence. The Minister notes the Tribunal sent a letter of invitation, re-sent the letter to a verified email address and kept the hearing arrangements open for half an hour after the scheduled time when the appellant failed to appear.
45 In the Minister's submissions this case may be distinguished from the decisions of Li, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 139 ALD 50 and Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 141 ALD 619, in which an adjournment or similar accommodation was sought. The appellant, the Minister submits, simply failed to appear and did not contact the Tribunal at all. The Minister notes the primary judge recorded that the appellant accepted before him that he had not applied for an adjournment, and that no explanation of his absence on the hearing day has been advanced.
46 The Minister submits this was not a case in which some outstanding fact needed to be finalised, or in which the appellant actively engaged with the Tribunal so his failure to appear needed to be followed up any further than it was. The Minister notes the appellant had been informed by letter of the matters on which he needed to make submissions or submit evidence to the Tribunal and was in touch with the Tribunal as recently as five days before the hearing, yet did not avail himself of the opportunity to be heard.
47 In those circumstances, the Minister submits, it was both reasonable and proportionate for the Tribunal to proceed as it did under s 362B. The Minister submits the Tribunal's course reflected fairness and justice in the particular circumstances, and was consistent with the substantive merits of the appellant's case.
48 Generally, for the reasons advanced on behalf of the Minister, the grounds of appeal that might be drawn from the narrative complaint of the appellant should be dismissed.
49 The decision of the High Court in Li emphasised that, depending on the factual situation in any case, a failure to reschedule or grant an adjournment may fail to meet the statutory hearing requirements under the Act or may be considered unreasonable. In Li, at [76], the plurality said that unreasonableness is a conclusion which may be applied to a decision "which lacks an evident and intelligible justification". There is nothing about the steps taken by the Tribunal concerning the hearing of the review application in the absence of the appellant, or in the decision made in his absence, that lacks an evident or intelligible justification.
50 The facts have been set out above. After the Tribunal received advice that the Tribunal's letter of 10 September 2013 to the appellant was returned and marked "not at address", it took steps to communicate with the appellant by email, by sending a scanned copy of the letter to him in that form on 20 September 2013. On that same day, the appellant telephoned the Tribunal and advised that he had changed his address. It may properly be inferred that he did so as a result of receiving the email. Then some time later, on 11 October 2013, the appellant informed the Tribunal in writing of his new address. But the hearing date, 16 October 2013, was plainly notified at all times and obviously the appellant was both informed and aware of it. Under the Act, the address used for the notification of the hearing date was effective (see s 379A of the Act). The Tribunal was entitled in all of the circumstances to accept that the appellant had not only been formally advised of the hearing details, but also, as a result of the email exchange and telephone exchange with the Tribunal and the appellant's communications with the Tribunal thereafter, that he was, in a practical sense, aware of the hearing date and time. Finally, as the primary judge in the Court below notes, at the hearing before the Federal Circuit Court, the appellant accepted that he did not request an adjournment. At no time was it suggested he did not know about the hearing date.
51 In those circumstances no jurisdictional error is identified and it cannot be said that the primary judge erred in finding as he did in relation to the various natural justice and hearing grounds of appeal.
52 In this regard, the factual circumstances in which the Tribunal proceeded to make a decision in the absence of the appellant were different from the factual circumstances that were present in Kaur where the appellant attended a first hearing before the Tribunal, but failed to attend a second hearing, having been invited to do so, in order to give further evidence about essential documentary evidence that she had submitted went to the satisfaction of the relevant visa criterion. The second invitation letter was returned to the Tribunal marked "returned to sender". Over a course of about eight months, including at about the time when the invitation to attend the second hearing was sent, there had been proactive contact by both the appellant and the Tribunal in contacting each other in response to various telephone, letter and email communications. When the appellant failed to attend the second hearing, the Tribunal did not contact the appellant to ascertain why she did not attend the hearing.
53 It was in those circumstances that the Court considered, in Kaur, that on an objective consideration of the course of conduct between the Tribunal and the appellant, including the nature of her communications with the Tribunal and her evident determination to provide sufficient information, the Tribunal ought to have realised the failure to respond to the hearing invitation and her non-appearance were out of character and a departure from her pattern of conduct. Had she been contacted by the Tribunal, the appellant would have properly responded to the second hearing invitation. In those circumstances, the decision of the Tribunal to proceed to make a decision in the absence of the appellant was unreasonable and lacked legal efficacy.
54 The circumstances in this case are quite different from those in Kaur. The Tribunal initially, on the return of the hearing invitation letter, contacted the appellant. It made sure he knew the hearing was to be held. There were no other communications, the nature of which suggested that the Tribunal should have attempted to contact the appellant once again, before proceeding to decide the review application in his absence. The appellant, on the evidence before the Court, simply did nothing.
55 Put shortly, the Tribunal was entitled to consider, in the circumstances, that the appellant would attend and then, when he did not, to proceed to make a decision in his absence.
56 What this decision by this Court and the Court below emphasise, is that applicants before the Tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant's expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.
57 Finally, the decision actually made, in light of the information before the Tribunal, was reasonably made. Nothing in the reasons for decision of the Court below in that respect discloses error. The "integers" of the decision under review were fully considered by the Tribunal. The principle question was whether there was evidence that met the enrolment requirements of the Regulations. There was none. The appellant had been put on full notice about the need to provide such information. His failure to do so, combined with his failure to attend the hearing, doomed his review application.
58 In these circumstances, the appeal must be dismissed.