SZJQP v Minister for Immigration & Citizenship

THE DECISION OF THE TRIBUNAL 4 On 20 June 2006 the Tribunal sent the appellant a letter by post, acknowledging receipt of his application on 19 June 2006 and providing information as to the future disposition of his application. 5 On 28 June 2006, the Tribunal sent the appellant a letter by post, stating that the Tribunal had considered the material before it in relation to the appellant's application, but was unable to make a decision in favour of the appellant on this information alone. The appellant, pursuant to s 425 of the Act, was invited to attend a Tribunal hearing on 23 August 2006, to give evidence and to present arguments in support of his claims. He was also invited to send any new documents or written arguments which he wanted the Tribunal to consider and to complete the "Witnesses" part of the 'Response to Hearing Invitation' form if he wanted the Tribunal to get oral evidence from another person. He was requested to return the completed form, with any new documents or written arguments, by 14 July 2006. 6 The appellant did not reply to the letter of 28 June 2006 and did not attend the hearing on 23 August 2006. 7 After the close of business on 24 August 2006, the appellant faxed a letter to the Tribunal indicating that he had been unable to attend the scheduled Tribunal hearing because of illness and that he had been sick for over a week. The appellant indicated that he wished to have another hearing. A medical certificate which was dated 23 August 2006 from Pacific Medical Centre Blacktown was provided, indicating that the appellant was 'unable to attend work/school' from 23 August 2006 to 24 August 2006 inclusive. There was no list of doctors on the letterhead and the signature was illegible. 8 On 25 August 2006 the Tribunal wrote to the Pacific Medical Centre in Blacktown, from where the medical certificate was issued, asking for details regarding the issue of the medical certificate and for details about the patient. Its contents reveal that the Tribunal was concerned to satisfy itself that the medical certificate was genuine. The Tribunal outlined as follows : 'Please find attached a fax which was received late yesterday afternoon at the Refugee Review Tribunal. The Tribunal receives a number of medical certificates and, unfortunately, not all prove to be genuine. The attached certificate does not indicate which doctor attended to the patient: the signature is incomprehensible. Court you please provide further details in response to the Member's concerns listed below, or at least the name of the doctor and a time when it may be convenient for the Member to speak to him or her directly by telephone? The person who sent this medical certificate noted in a covering letter that he has been ill for one week. The medical certificate has indicated two days. The person listed as the patient is known to us as living in Ashfield, yet the medical practice is at Blacktown. Is this the patient's usual medical practitioner? If the patient was able to travel to Blacktown to see the doctor, is there any reason why he could not have travelled a much shorter distance to the city in order to keep an appointment with the Tribunal? Can the doctor indicate at what time of day the appointment was?' 9 A file note dated 29 August 2006 indicated that in response to the Tribunal's requests, the receptionist of the Pacific Medical Centre rang immediately (on 25 August 2006) and stated that the Medical Centre was not entitled to provide information about patients. The Tribunal requested that the receptionist provide the name of the doctor who issued the medical certificate, a suitable time to contact and that the receptionist fax written comments to the Tribunal. The receptionist indicated that she would send written information but did not do so. 10 On 29 August 2006 the Tribunal wrote to the appellant informing him that it had decided not to offer him a further hearing and advising him that it had also decided to exercise its powers under s 426A of the Act namely to make a decision on his case without taking further action to allow or enable him to appear before it. The letter contained the following: 'The Tribunal member has considered your request for another hearing and has, on reflection, decided against offering one. The Tribunal notes that you were originally offered a hearing by letter dated 28 June 2006. The letter noted in a highlighted box: "If you do not attend the hearing, and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice." The hearing was scheduled for 23 August 2006. The letter about the hearing requested that you reply, stating your intention of attending or not attending, by 14 July 2006. The letter also invited you to send any new arguments or any new documents you wanted the Tribunal to consider. You did not reply by the given date; nor make any contact with the Tribunal whatever in the subsequent five weeks to the time of the hearing. Your first contact with the Tribunal was a fax sent after office hours on 24 August 2006, the day after your scheduled hearing. In this fax, you note that you have been ill for over a week and "hope to another hearing". The Member refers again to the instructions in the letter containing the offer of hearing: "If you think you may not be able to attend the hearing, you must contact the Tribunal immediately." If you were ill for over a week prior to 24 August 2006, you had ample opportunity to contact the Tribunal and postpone the hearing. However, the Member notes that you did not go to the doctor until the actual day of the hearing: 23 August 2004. The Member notes that the doctor stated that you were ill only for two days - the day of the hearing and the following one. The diagnosis - "viral illness" - could cover a range of disorders including a common cold. The Member also notes that despite the fact that you live in Ashfield, you travelled all the way to Blacktown in order to attend a medical practice there. The Member notes that it would have been a much shorter and less arduous trip to go from Ashfield to the city and attend the hearing. In considering all the circumstances, the Member has decided to exercise her power under s 426A of the Act and make a decision on your case without taking further action to allow or enable you to appear before it.' 11 As it said, in the letter, that it would, the Tribunal then proceeded to make a decision without granting the appellant a further opportunity to appear before it. The Tribunal's reasons relevantly, were as follows: 'The applicant was put on notice by the Tribunal that it was unable to make a favourable decision on the material available to it. He did not send further material. The applicant was put on notice in writing that the Tribunal could make a decision on his case with no further notice if it did not reply. He did not do so. He did not contact the Tribunal to say that he would attend a hearing and provide oral evidence. He was notified in late June 2006 about a hearing that would take place in over seven weeks time. He had ample opportunity to contact the Tribunal if he intended to come to a hearing. However, he did not do so. Sometime on the day or the evening of the hearing (23 August 2006), the applicant apparently travelled from Ashfield (the address he gave the Tribunal) all the way to Blacktown - a significant journey - in order to go to a medical practice. It would have been less arduous for the applicant, if he were not feeling well, to travel from Ashfield to the city and attend the hearing. If the applicant had been demonstrably not well at the hearing, the Tribunal would have adjourned to another day. However, the applicant travelled to Blacktown where a doctor noted that he was unwell on that particular day and the next. The applicant, on the other hand, said in his fax to the Tribunal that he had been ill for over a week as of 24 August 2006 - that is, since before 17 August. This would have given him ample time to let the Tribunal know he was unable to attend a hearing, as he was requested to do in the original offer hearing letter. The Tribunal has an obligation to provide a mechanism of review which is "fair, just, economical, informal and quick". Recent legislation has obliged the Tribunal to complete a case within 90 days of receiving it, unless there is a cogent reason why this cannot be achieved. If the Tribunal were to offer the applicant another hearing, it would not be possible to schedule this until well into October - some two months after it was originally set down. This would extend the decision-making process well beyond the prescribed 90 days. Given the way he has failed to respond to invitations in the past, there is no reason to believe that he would come to a later-scheduled hearing. He has not indicated that he has any new document or arguments he wants the Tribunal to consider. In the Tribunal's experience, people who believe that they have genuine claims for a protection visa are anxious to come to a hearing. If they are taken ill, they contact the Tribunal immediately, and are able to supply satisfactory medical certificates setting out exactly why they are [sic] could not attend at the scheduled time. If they have other problems, they ring the contact person listed on the Tribunal correspondence. In the case of this applicant, the Tribunal is not satisfied that the applicant has ever had a genuine intention of coming to a hearing. He has had ample opportunity to make known his intentions to come to a hearing and has failed to do so. In this case, the Tribunal stands by its advice to the applicant in its letter of 28 June 2006: that it is unable to make a decision in his favour on the basis of the material before it. The Tribunal at the time of writing has only the same material before it. This material lacks detail. There is no evidence before the Tribunal to indicate that the applicant has any knowledge of the practice of Falun Gong, nor its history or philosophy. He notes that it is deemed to be a "cult" and seems to indicate that the Government viewed it unfavourably after 1999, but this is common knowledge and does not indicate any specialized knowledge available to a practitioner. There is no evidence before the Tribunal that the applicant has undertaken any Falun Gong practice or associated activities in Australia, which one would expect from a practitioner who was genuinely seeking a non-repressive place in which to practice.' 12 The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason and affirmed the decision not to grant the appellant a protection visa. However, it is to be remembered that the decision was made without the benefit of further material and submissions, which may have been presented by the appellant at a hearing.

PROCEEDINGS BEFORE THE FEDERAL MAGISTRATE 13 The application before the Federal Magistrate was to extend time, pursuant to s 477(2) of the Migration Act 1958 (Cth) ("the Act"), for the filing of an application pursuant to s 39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Act for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 4 September 2006 and handed down on 26 September 2006. 14 The applicant was notified of the decision of the Tribunal on 5 October 2006 but did not file his application for judicial review of that decision as well as for an extension of time pursuant to s 477 of the Act until 8 November 2006 which was several days outside the 28 day period provided for in s 477(1) of the Act. However s 477(2) of the Act allows the Court to extend that 28 day period by up to 56 days if: (a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and (b) the Federal Magistrate is satisfied that it is in the interests of the administration of justice to do so. 15 The application for an order to extend time was made within 84 days of 5 October 2006 and accordingly, the Court below was empowered to extend time subject only to it being satisfied that it was in the interests of the administration of justice to do so. 16 In an amended application the appellant raised two proposed grounds of review as follows: 1. The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT erred in law in finding that it could not reschedule a hearing of the RRT beyond the period set out in s 414A unless it had "cogent reasons". Particulars: Decision Record CB 69.2 S 414A Migration Act 2. The RRT failed to attain, or failed to exercise, jurisdiction, by reasons that the RRT erred in law in taking into account irrelevant considerations in finding that the RRT would not reschedule a hearing of the RRT. Particulars: Decision Record (CB 69.2) "given the way he has failed to respond to invitations in the past, there is no reason to believe that he would come to a later-scheduled hearing" Decision Record (CB 69.3) "he has not indicated that he has any new documents or argument he wants the Tribunal to consider" Decision Record (CB 69.4) "in the Tribunal's experience, people who believe that they have genuine claims for a protection visa are anxious to come to hearing. If they are taken ill, they contact the Tribunal immediately...... Tribunal correspondence."

THE DECISION OF THE FEDERAL MAGISTRATE 17 The Federal Magistrate considered the merits of the proposed grounds. In respect to the first proposed ground, her Honour concluded that fairly read, the Tribunal, when it stated that it could not reschedule a hearing beyond the 90 day period, set out under s 414A(1) of the Act, unless there were "cogent reasons" was not really seeking to introduce a discretionary criterion to this statutory provision where none is expressly stated. Rather, as her Honour implicitly found, this discretion arose pursuant to s 426A of the Act which confers upon the Tribunal a discretion, where the applicant does not appear before the Tribunal at the scheduled hearing, whether or not to enable the applicant to appear before it at a rescheduled hearing. It was not suggested by the appellant before her Honour that such a discretion was not thereby open. 18 Her Honour found that it was perfectly proper for the Tribunal to take into account that its own timetable would not allow it to reschedule the hearing until a date beyond the 90 day period, as well as taking into account the failure of the appellant to respond to the Tribunal's letters of 28 June or 29 August 2006. 19 As to the second proposed ground, the Federal Magistrate concluded that the matters taken into account by the Tribunal were, in effect, relevant and open and that no error was disclosed. 20 Whilst the medical certificate was mentioned in the Federal Magistrate's reasons at [15], [18]-[20], her Honour did not, it seems, consider the effect of the certificate and its relevance to the appellant's request for a rescheduled hearing. 21 The Federal Magistrate concluded that the Tribunal had complied with its statutory obligations, both in the conduct of its review and in the making of its decision, which was not affected by jurisdictional error. 22 Having found that the proposed grounds had no reasonable prospect of success her Honour determined that it was not in the interest of justice that time be extended to the appellant to file his application. The Federal Magistrate accordingly dismissed the application for an extension of time.

NOTICE OF APPEAL 23 The Notice of Appeal filed by the appellant on 12 April 2007 contains two grounds of review:

1. Her Honour erred in holding ([39]) that: "…it is a matter for the Tribunal the considerations to which it has regard in the exercise of its discretion"
2. Her Honour erred in holding ([39]) that: "Each were matters open to the Tribunal to consider in the exercise of its discretion and there is no error going to the Tribunal's jurisdiction established by the Tribunal's regard to those matters." 24 The appeal in substance is a broad challenge to the manner of exercise of its discretion by the Tribunal and the failure by the Court below in turn, to find relevant error going to that question. 25 The first respondent contends that the appellant has failed to establish that the discretionary decision below is plainly wrong and, in turn, that the test for leave enunciated in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 has not been met. 26 The first respondent accepts, in effect, that where the relevant delay is short and there is no prejudice to the first respondent, an extension would normally be granted but, because it would be futile to do so, there being no merit in the proposed appeal, leave ought be refused. This is to reiterate the opinion of the Federal Magistrate that the application lacked utility because substantively there were no reasonable prospects of success. 27 It is said by the first respondent that the grounds in the notice of appeal reproduce what was ground two before her Honour, and that no plain error is manifest in her Honour's reasoning or conclusions. 28 The first respondent also submits that, having regard to the construction placed upon s 426A by Greenwood J in NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045, where the matters set out under s 426A(1)(a) and (b) are satisfied, the Tribunal's discretion whether to make a decision without a further hearing is constrained only by the requirement that it not act capriciously and that in this case the Tribunal did not so act.

REASONS 29 In my opinion, s 426A of the Act confers a discretion upon the Tribunal to exercise its statutory power in one of two ways assuming the conditions in s 426A(1)(a) and (b) are first met. Firstly, the Tribunal may make a decision on the review without taking any further action to allow or enable an applicant to appear before it [s 426(1)]. Secondly it may reschedule an applicant's appearance before it, or delay its decision on the review in order to enable the applicant's appearance before it as rescheduled [s 426(2)]. 30 In this case the Tribunal exercised its discretion under s 426(1) and made its decision without taking any further action to allow or enable the appellant to appear before it. In SZHSQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1295 at [57] Rares J said: 'The seriousness of the possibility that a consequence of a decision to proceed to affirm a decision under s 426A(1) that the persecution feared could be suffered is in my opinion part of the subject matter, scope and purpose of the legislation and conditions the way in which the discretion in s 426A(1) falls to be exercised.' I respectfully agree. 31 There are related questions as to whether the discretion miscarried because the Tribunal misdirected itself: NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [52]-[56] per Allsop J, or failed to consider relevant material: NBBL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1045 at [21] and [24], the result of which was that the appellant was denied procedural fairness. 32 The Tribunal is not required, where there is compliance with ss 425 and 425A of the Act, to make further enquiries, if the applicant fails to attend the review hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 [38]-[39]. Nor is it required to give reasons for its exercise of discretion under s 426A: SZHSQ at [60]. Further, this is not one of those cases where there was requisite compliance by the Tribunal with ss 425 and 425A but the appellant did not, in fact, receive the letter of invitation to attend the Tribunal hearing. See VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16]; NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16]; NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162 at [16]. Nor is it a case where the appellant's non-appearance was the result of the negligence of a migration agent: Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [127] per French J, cited with approval by the High Court in SZFDE at [53]. 33 In SZIGQ v Minister for Immigration & Citizenship [2007] FCA 328, Downes J at [5] reiterated that the authorities are clear that the reason for non-attendance at a hearing does not matter. If there is compliance with ss 425 and 425A, the Tribunal may proceed under s 426A to consider and decide the matter without conducting any further enquiries. I do not take his Honour to be saying that where the Tribunal is in fact appraised of the reason for non-attendance at a scheduled hearing by an applicant for review that due consideration should not be given to this. 34 Nonetheless, where, as in this case, the discretion is unconfined, the Tribunal may have regard to a range of factors in the exercise of its discretion. That range too is unconfined except in so far as the subject matter, scope and purpose of the statute by implication limit those factors to which the decision-maker may legitimately have regard: SZHSQ at [49]. See also Minister for Aboriginal Affairs v Peko-Wallsend (1996) 162 CLR 24 at 40. 35 I do not accept the submission of the first respondent that the only constraint upon the exercise of the discretion is that it not be exercised capriciously. NBBL as I mentioned was said to be authority for this proposition. A proper reading of Greenwood J's reasons however shows that his Honour referred to a capricious decision as but one example of a circumstance which might give rise to procedural unfairness [24]. At [21] of his Honour's reasons, a wider foundation is apparent. 36 In this case the Tribunal elected to make enquiries and to give reasons for the exercise of its discretion. It did not make its decision on the day scheduled for the hearing but delayed its decision, it seems in effect, to consider whether, under s 426A(2) of the Act, it would reschedule the hearing in order to enable the appellant's appearance before it. In my opinion it is relevant then to consider whether, arguably, it took irrelevant matters into account and/or failed to take relevant matters into account in exercising its discretion. 37 The matters which, according to its reasons, the Tribunal took into account, in exercising its discretion, probably, it seems, on 29 August 2006 (in any event after receipt of the appellant's fax of 24 August 2006), under s 426A(1), not to enable the applicant to appear before it, were as follows:

• The applicant was put on notice by the Tribunal (pursuant to s 425 of the Act) that it was unable to make a favourable decision on the material available to it but he did not send further material. He was also put on notice that the Tribunal could make a decision on his case with no further notice if he did not reply and he did not do so. He did not contact the Tribunal to say that he would attend a hearing and provide oral evidence. He did not indicate that he had any new documents or arguments he wanted the Tribunal to consider. He was notified in late June 2006 about a hearing that would take place in over seven weeks time. He had ample opportunity to contact the Tribunal if he intended to come to the hearing. However he did not do so.
• Further, sometime on the day or the evening of the hearing (23 October 2006) the applicant apparently travelled from Ashfield, the address which he had given to the Tribunal, all the way to Blacktown - a significant journey - in order to go to a medical practice. It would have been less arduous for the applicant, if he were not feeling well, to travel from Ashfield to the city and attend the hearing. If the applicant had been demonstrably not well at the hearing, the Tribunal would have adjourned to another day. A doctor noted that he was unwell on the day of the hearing and the next. The applicant on the other hand had said in his fax to the Tribunal that he had been ill for over a week as of 24 August 2006 - that is, since before 17 August. This would have given him ample time to let the Tribunal know he was unable to attend a hearing, as he was requested to do in the original offer of hearing letter.
• If the Tribunal were to have offered the applicant another hearing it would not have been possible to have scheduled this until well into October - some 2 months after it was originally set down which would have extended the decision-making process well beyond the 90 days prescribed under s 414A of the Act.
• In the Tribunal's experience people who believe that they have genuine claims for a protection visa are anxious to come to a hearing. If they are taken ill, they contact the Tribunal immediately, and are able to supply satisfactory medical certificates setting out exactly why they could not attend at the scheduled time. If they have other problems they ring the contact person listed on the Tribunal correspondence.
• The Tribunal was not satisfied that the applicant had ever had a genuine intention of coming to a hearing. He had had ample opportunity to make known his intentions to come to a hearing and had failed to do so. I will deal with these matters in turn.

Appellant's Failure to notify Tribunal prior to hearing that he was unable to attend 38 The invitation to appear letter of 28 June 2006 was sent by the Tribunal pursuant to its obligations under s 425 of the Act which is in terms that: '425(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.' 39 None of the exceptions to this statutory obligation which are set out under s 425A(2) apply in this case. 40 There is no obligation whatsoever upon an applicant for review to respond to such a letter of invitation. It is no more than an invitation to appear to give evidence and present arguments. The letter also asked the applicant to read and complete the "Response to Hearing Invitation" form carefully and to:

• tell us if you are coming to the hearing or not;
• complete the "Witnesses" part of the form if you want the Tribunal to get oral evidence from another person; please note the Tribunal does not have to get evidence from any person you name;
• send us any new documents or written arguments you want the Tribunal to consider;
• please note any documents or arguments you send should be in English or translated by a qualified translator;
• answer all the other questions on the form and return the completed form and any new documents or written arguments by 14 July 2006. 41 Whilst there are plainly very practical reasons for making such requests of the applicant, he was under no legal obligation to comply with those requests. Section 425(1) is clear in its terms. The invitation to the applicant is "to give evidence and present arguments relating to the issues arising in relation to the decision under review". It contemplates that such evidence, oral or documentary or both, which of course might well go beyond the content of the written application for the protection visa, will be given, and any arguments will be presented, at the hearing. I consider it irrelevant to the exercise of discretion that the applicant did not reply to this letter prior to the scheduled date of the hearing. Furthermore, the Tribunal's reasons state that the applicant was put on notice that the Tribunal could make a decision on his case with no further notice if he did not reply. This was erroneous both as to the content of the notice and indeed the terms of the statutory discretion under s 426A. The notice of 28 June 2006 in fact informed the applicant that if he did "not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice". This broadly reflects the language of s 426A. 42 Accordingly, in my opinion, it was arguable that it was an irrelevant consideration to the exercise of discretion that the applicant did not either respond to the Tribunal's correspondence or to advise it that he intended coming to the hearing.

Attendance at Doctor in Blacktown 43 The Tribunal also placed some weight on the proposition that it would have been, in its opinion, less arduous for the applicant, if he were not feeling well, to have travelled from Ashfield to the city and to have attended the hearing rather than to travel a greater distance to Blacktown in order to see a doctor. There might however be several explanations for such conduct. The applicant may not have had his own local doctor and attended the doctor in Blacktown on the recommendation of a friend or relative. He may even have been taken by a vehicle driven by someone else such as that friend or relative to see that particular doctor. That is but one possible explanation. Reliance was also placed, it seems, by the Tribunal upon the apparent conflict between what the applicant said to the Tribunal as to the length of time he had been ill namely, "for over a week" as contained in his fax and the dates 23 and 24 August 2006 noted on the medical certificate from the Pacific Medical Centre, Blacktown. However there is at least one possible explanation which on its face is capable of reconciling this apparent conflict. In his fax the applicant said that he had been "sick" for over a week. The medical certificate on the other hand contains a pre-typed opinion "is unable to attend work/school". The box which is alongside this has been ticked. It is prefatory to the dates "from 23/8/06 to 24/8/06 inclusive". It may well be that whilst the applicant was sick for several days prior to 23 August 2006 that it did not incapacitate him from attending work, assuming he were employed. Another explanation is that the doctor may not have been prepared to grant him a certificate for any prior dates because he did not see him before 23 August 2006. 44 The fact is, however, that on its face, this is a medical certificate by a doctor, to the effect that the appellant was unable to attend the Tribunal (although it refers to "work/school") due to a viral illness. The certificate is dated 23 August 2006 and is signed although the signature is not legible. It is plain that the Tribunal considered that the medical certificate might not be genuine. In its letter of 25 August 2006 to the Pacific Medical Centre a Tribunal officer stated that the Tribunal "receives a number of medical certificates and unfortunately not all prove to be genuine". It sought clarification from the medical centre but ultimately the medical centre staff declined to provide any information. That is understandable enough given the relationship of confidentiality existing between a doctor and patient. In any event this refusal to provide the information requested can hardly be sheeted home to the applicant. 45 It should be noted that the Tribunal did not actually make a finding that the medical certificate was not genuine. However, it is not, in my opinion, arguably, relevant to the exercise of discretion for the Tribunal to have concluded that, had the applicant attended at the Tribunal hearing on 23 August 2006 instead of going to the medical practice, then if it were persuaded that he was demonstrably not well at the hearing then it would have adjourned to another day. Whilst that may be so, the fact remains that the medical certificate was provided to the Tribunal albeit on the day after the date scheduled for the hearing to the effect that the applicant was unable to attend the previous day. Moreover, in my opinion, arguably, the Tribunal afforded undue weight to the fact that the appellant had been ill since before 17 August 2006 and which led it to conclude that he would have had ample time to let the Tribunal know that he was unable to attend the hearing. It may be that whilst he was ill prior to 23 August 2006 that he was not so unwell such as to cause him to conclude that he would not be able to attend the hearing on 23 August 2006. However on 23 August the position may well have altered significantly. It is to be remembered also that the applicant does not speak English and may not have been in a position to communicate by telephone to the Tribunal or registry staff on 23 August 2006 that he was too unwell to attend.

Impossibility of Providing Further Hearing Within Prescribed 90 Day Period 46 Section 414A of the Act is in the following terms: '(1) If an application for review of an RRT‑reviewable decision: (a) was validly made under section 412; or (b) was remitted by any court to the Refugee Review Tribunal for reconsideration; then the Refugee Review Tribunal must review the decision under section 414 and record its decision under section 430 within 90 days starting on the day on which the Secretary gave the Registrar the documents that subsection 418(2) requires the Secretary to give to the Registrar. (2) Failure to comply with this section does not affect the validity of a decision made under section 415 on an application for review of an RRT‑reviewable decision.' 47 This matter which was taken into account by the Tribunal is not to be considered in isolation. The Tribunal's reasons, after referring to the prescribed 90 days, state: 'Given the way he has failed to respond to invitations in the past, there is no reason to believe that he would come to a later-scheduled hearing. He has not indicated that he has any new document or arguments he wants the Tribunal to consider.' 48 It seems to me that it was these matters which together with the other matters referred to, caused the Tribunal to consider that rescheduling the hearing would in effect be a waste of time, should no new documents or arguments be proffered to the Tribunal. I have already indicated that the appellant was under no obligation to do either of those things, even though he was requested to do so in the letter of 28 June 2006. Section 425 contemplates that these matters would be produced to the Tribunal, if at all, at the scheduled hearing. 49 Accepting the Tribunal's obligation to review the decision under s 414 and record its decision under s 430 within 90 days from the day on which the Secretary gave the Registrar the documents required by subsection 418(2) to be given by the Secretary to the Registrar, I would be most surprised, if the Tribunal had been persuaded to exercise its discretion to enable the applicant to appear before it, if a suitable date was in the 90 day period could not have been found. Indeed, a Tribunal officer wrote to the appellant by letter dated 29 August 2006 advising him that his request for another hearing had on reflection not been granted. In the penultimate paragraph, the letter advised the appellant that if he had any questions he should call the Tribunal officer on the number set out in the letter. It did not suggest that if he did so and provided new information, that the Tribunal could and might recall its decision and consider that new information. However in its reasons the Tribunal said that if the appellant had done so, then the decision would have been recalled and the new information considered as was normal Tribunal practice. I infer from that that it considered itself in a position to consider new information before the expiry of the 90 day period. 50 In my opinion, this matter in those circumstances was arguably irrelevant to the exercise of the Tribunal's discretion.

The Tribunal's Experience with other Applicants 51 I am prepared to assume that the Tribunal's experience with other applicants may be relevant to its consideration as to the exercise of its discretion. However, for my part, I would afford, in this case, such considerations little if any weight. According to the Tribunal's reasons, people who believe that they have genuine claims for a protection visa are anxious to come to a hearing and if they are taken ill, contact the Tribunal immediately and are able to supply satisfactory medical certificates setting out exactly why they could not attend at the schedule time or if they have other problems, they ring the contact person listed on the Tribunal correspondence. Putting it another way, the Tribunal seems to have concluded that because, in its opinion, the medical certificate was unsatisfactory, the appellant could not have believed that he had a genuine claim for a protection visa and was not anxious to come to a hearing. In any event, on its face, the medical certificate is, in my opinion, satisfactory. It states exactly why the applicant could not attend, in effect, the Tribunal hearing on 23 August 2006 because he had a viral illness. It was not for the Tribunal to speculate as to the seriousness or otherwise of that diagnosis which it clearly did when, for example, in the letter to which I have already referred from the Tribunal to the appellant dated 29 August 2006 the Tribunal officer said that the "diagnosis - 'viral illness' - could cover a range of disorders including a common cold". 52 In my opinion, arguably, this matter was not relevant to the exercise of the Tribunal's discretion, or, arguably, if relevant, should have been accorded little or no weight.

No Genuine Intention by Appellant to Attend Hearing 53 This consideration turns on the Tribunal's view that the appellant had ample opportunity to make known his intentions as to coming to the hearing but did not do so. I have already dealt with that matter. It follows that in my opinion, arguably, this was an irrelevant consideration to the exercise of the discretion.

The Effect of the Medical Certificate 54 Most importantly, in my opinion, arguably, the Tribunal in a material sense disregarded the medical certificate dated 23 August 2006 to the effect that the appellant was unable to attend the schedule hearing on that day. It seems to have accepted that the appellant did travel to Blacktown and that a doctor did note on the certificate that he was unwell on that particular day and the next. In fact that is not what the doctor certified. He certified that due to viral illness he would be unable to attend, in effect, the Tribunal hearing, on the 23 or 24 August 2006. However the use made by the Tribunal of the certificate was to highlight what it clearly considered to be a discrepancy as to the length of the period of illness. The Tribunal should have, in my opinion, accepted that the evidence before it, namely the medical certificate, was to the effect that he was not able to attend the scheduled hearing by reason that he was unfit to do so. In so doing, in my opinion, it acted unreasonably. The Tribunal, in its reasons, stated that, had the appellant appeared before it, and had it concluded that the appellant was demonstrably not well, then it would have adjourned the hearing. That of course, had it occurred, would have been reasonable. However, the medical certificate was to the same effect. 55 The appellant, relying upon the medical certificate, had sought an adjournment in order that he might at a later date take up the critically important invitation to appear before the Tribunal. A refusal of an application for an adjournment for this reason may amount to procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ; Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 at [31]-[39]; Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166 at [5]. Such, arguably, was the case here. 56 In this case, the Tribunal had before it a medical certificate which was on its face genuine and sufficient to establish a good reason for the appellant's non-attendance before it on the day scheduled for the hearing. 57 The Federal Magistrate, as I indicated above, did not in her reasons consider the effect of the medical certificate. In my respectful opinion, this was arguably a relevant consideration and it was an error to ignore it. Likewise, again arguably, the Federal Magistrate erred in concluding that the Tribunal had not fallen into error when directing itself otherwise, as to the exercise of its discretion. 58 It follows, in my opinion, that the decision of the Federal Magistrate is attended with sufficient doubt such as to warrant its consideration by this Court. I am also satisfied, assuming the decision below to be wrong, that a substantial injustice would result if leave were refused: Décor Corporation Pty Ltd. 59 In so concluding, I am satisfied that the decision of the Federal Magistrate to not extend time did not amount to a proper exercise of discretion: House v King (1936) 55 CLR 499 at 504-505. In arriving at her conclusion, her Honour was of the view that the proposed appeal had no reasonable prospects of success and that for that reason it was not in the interests of justice that time be extended [46]. I have indicated that in my opinion the appellant's grounds are arguable. By that I mean, for present purposes, that they have reasonable prospects of success. For that reason it would be in the interests of the administration of justice that time be extended pursuant to s 477(2) of the Act. 60 I would accordingly grant leave to appeal and would allow the appeal. There should be an order extending time for making the application for review to 8 November 2006 being the date when the appellant filed his application for review. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 24 October 2007 Counsel for the Appellant: Mr R Killalea