(3) CONSIDERATION
12 I would emphasise at the outset that neither this Court nor the Court below has jurisdiction to undertake its own assessment of the factual merits of the Tribunal's decision to refuse to grant a visa to the applicant. The jurisdiction of the Federal Circuit Court is limited to considering only the legality of the Tribunal's decision to refuse to grant the applicant a visa, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, in the event that leave to appeal were granted, this Court is required on an appeal from the Federal Circuit Court under s 24 of the FCA Act to consider whether there is error in the decision of the Court below. As such, I am equally constrained from embarking upon a consideration of the merits of the applicant's claims.
13 In determining whether or not to grant leave to appeal in the exercise of discretion, the primary considerations are whether, in all of the circumstances, the decision of the Court below is attended with sufficient doubt to warrant it being reconsidered on appeal and whether substantial injustice would result if leave were refused, assuming the decision to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court). These considerations are not separate but bear upon each other.
14 The sole ground of appeal in the draft notice of appeal is as follows:
Federal Circuit court dismissed my case because I was sick and not able to attend hearing. I have faxed Court my Medical Certificate. MRT refused my review application stating that I don't satisfy cl.485.213. Member asked himself question that at the time of application cl 485.213 states that applicant should have finished 2 years full time study in last 6 months before visa application. Further it claimed that Tribunal has not received any proof that study. I was sick and have medical certificate. Tribunal failed to contact me over the phone or arrange any other date for hearing. As tribunal failed to give me fair chance to appear its decision has "Jurisdictional Error"
15 It is not in dispute that the Tribunal hearing proceeded in the absence of the applicant. However I do not see any grounds for contending that in so doing the Tribunal could have acted in breach of its statutory obligations of procedural fairness or the requirements of the natural justice hearing rule at common law, even if that rule had not been effectively displaced by s 357A of the Act: SAEED v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [40]-[42] by analogy; Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173; [2011] FCAFC 21 at [40] (Buchanan J). The Tribunal has power to make a decision on the review under s 362B of the Act without taking any further action to allow or enable the applicant to appear before it where, as here, the applicant has been invited to a hearing before the Tribunal under s 360 of the Act and fails to do so. In so providing, s 362B reflects the position at common law, the obligation of procedural fairness being discharged by the provision only to the person affected by the decision of an opportunity to be heard. There is no requirement that the person concerned in fact take advantage of that opportunity: see, eg, Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J).
16 In addition, the applicant was advised by the Tribunal of the need to ensure that his contact details were up to date, that if he was unable to participate in the hearing he should seek an adjournment as soon as possible for which very good reasons would be required, and that if he did not participate in the scheduled hearing, the Tribunal may make a decision without taking any further action to enable him or allow him to appear before it (Tribunal reasons at [8]-[11]). In addition, the Tribunal made five attempts at the time for which the hearing was set down to contact the applicant on the telephone number he had provided for the purposes of the review application (Tribunal reasons at [12]). In those circumstances, no breach of any statutory requirement of procedural fairness is apparent from the decision of the Tribunal.
17 Nor in any event do I see any error in the decision of the Court below in refusing what the primary judge correctly treated as an application for an adjournment, being a one page document headed "Henley Beach Physiotherapy" dated the day before the hearing. In order to establish error, it would be necessary for the applicant to establish that the exercise of discretion by the primary judge had miscarried in the sense identified in House v R (1936) 55 CLR 499 at 504-505, namely:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
18 However no such error is identified or apparent from the reasons of the Federal Circuit Court. First, the Court below had regard to the fact that the document from Henley Beach Physiotherapy was not a medical certificate from a medical practitioner, does not state that the applicant would be unable to come to Court to sit down and speak in Court, and does not explain what is meant by the opinion expressed that the applicant would be unable to work for the next three days. In so holding, his Honour considered the case to be closely analogous to that in MZZGY v Minister for Immigration and Border Protection [2014] FCA 488. In that case, a late adjournment application was accompanied by similarly deficient documents. In the passage particularly relied upon by the Court below, Davies J held at [13]:
These documents were wholly inadequate to support an adjournment application. The certificate did not state the nature of the appellant's condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing. Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice. I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.
19 Secondly, the Court below also had regard to the failure by the applicant to turn up at the appointed time before the Tribunal.
20 The Court's reasons for refusing the adjournment are unexceptional in my view and provide an ample basis for refusing the adjournment.
21 Finally, the primary judge stated at the end of his reasons at [10] that:
Unfortunately instances are on the increase of applicants in Migration matters failing to attend Court on the day listed but to instead at the last minute sending [sic] a note saying that, for health reasons, they are unable to attend court. This is most [sic] unfortunate trend and a complete waste of the Court's time and resources.
22 In this regard, I do not read these observations as indicating that his Honour did not properly turn his mind to the individual circumstances of the case before him in deciding to refuse the adjournment application, but rather as properly identifying the difficulties which late applications of this kind may cause.
23 For these reasons the application for leave to appeal should be dismissed with costs. Costs should be set in the amount of $2,000 so as to include costs thrown away by reason of the late adjournment application.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.