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[2018] FCA 1230
Federal Court of Australia
2018-08-21
Griffiths J
Original judgment source is linked above.
GRIFFITHS J: 1 This appeal is from a decision dated 7 February 2018 by the Federal Circuit Court of Australia (FCCA). The decision is reported as Thanthrige v Minister for Immigration and Border Protection [2018] FCCA 640. The FCCA dismissed the appellant's application for judicial review of a decision dated 24 January 2017 of the Administrative Appeals Tribunal (AAT). 2 In that decision, the AAT confirmed its earlier decision which dismissed the appellant's application to review a decision of the Minister's delegate not to grant him a partner visa.
Summary of background matters 3 The appellant is a citizen of Sri Lanka. He arrived in Australia on 18 February 2013 holding a student visa which ceased on 15 March 2016. Later that month, about two weeks after his student visa expired, the appellant applied for a partner visa, having married an Australian citizen earlier that month. His application was refused by the delegate in July 2016 on the basis that the appellant did not satisfy criterion 3004 and the delegate was not satisfied that there were compelling reasons to waive that requirement. The appellant then lodged an application for a review of the delegate's decision by the AAT. 4 The appellant was invited to attend a hearing in the AAT on 5 January 2017. The appellant responded on 22 December 2016, stating that he would attend. On the morning of 5 January 2017 and shortly before the scheduled hearing, the appellant telephoned the AAT and said that he was ill and sought an adjournment. He said he would provide a medical certificate to the AAT once he had seen a doctor. Shortly thereafter the appellant called the AAT again, confirming that he could not attend the hearing because he was sick. There were several telephone discussions between the appellant on 5 January concerning his illness and adjournment request. It is recorded in one AAT file note dated 5 January 2017 at 9:04 am that the appellant was told that if wished to have the hearing postponed he should submit on that day a medical certificate which clearly stated that he was too sick to attend the hearing in person or by phone and not simply provide a document saying that he was ill. He was also told that, unless the AAT member agreed to a postponement, the hearing would proceed as scheduled later that day on 5 January 2017. The appellant did not attend the hearing. At 6:43 pm on 6 January 2017, he emailed the AAT a pro forma medical certificate from a doctor which simply stated that he was unable to work on 5 and 6 January 2017. 5 On 6 January 2017 at 5:23 pm (and prior to receipt of the medical certificate), the AAT dismissed the review application under s 362B(1E) of the Migration Act 1958 (Cth) (the Act) because of the appellant's non-appearance. The AAT's reasons for decision, which are dated 6 January 2017 at 5:23 pm refer to the appellant having given an undertaking to an AAT officer on 5 January 2017 to submit a medical report and that he had failed to do so. The reasons also record the discussions which took place between the appellant and AAT officers on the morning of 5 January 2017 and the fact that the appellant was told that unless he was notified that the Tribunal had agreed to a postponement, the hearing would proceed that day as scheduled. The AAT's reasons further record that no satisfactory response had been given for the non-appearance and the Tribunal decided to dismiss the application without further consideration of that application or the information before the Tribunal. 6 It is well to set out the full terms of the AAT's statement of reasons: The applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 5 January 2017 at 10 am, but did not appear at the scheduled time and place. On 5 January 2017 at 8.43 am the applicant called the Tribunal and requested a hearing postponement on the basis that he was unwell. When asked by a Tribunal officer to do so, the applicant undertook to submit a medical certificate that day. At 8.46 am the Tribunal received an email message from the applicant confirming that he could not attend the hearing because he was sick. At 9.04 am a Tribunal officer spoke to the applicant by telephone about his hearing postponement request, and offered a phone hearing by way of an alternative hearing option. The applicant claimed that he was too sick to participate in a phone hearing. When asked the general nature of his illness, the applicant claimed that he had a cold. The Tribunal officer reiterated that in order for the Tribunal to further consider his hearing postponement request, he should provide a medical certificate as soon as possible. The applicant was further advised that unless he was notified that the Tribunal had agreed to a postponement, the hearing would proceed that day as scheduled. The review applicant did not provide a medical certificate on 5 January 2017, as he undertook to do, or subsequently. As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal. 7 The appellant was notified of the dismissal decision by a letter dated 9 January 2017, which was sent by email. The letter stated as follows: NOTIFICATION OF DECISION TO DISMISS THE APPLICATION - MR THARAKA SUPUN FERNANDO WATTORU THANTHRIGE I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Partner (Temporary) (Class UK) visa. On 14 December 2016 we sent a letter inviting you to attend a hearing on 5 January 2017 to give evidence and present arguments relating to the issues arising in your case. As you failed to attend the scheduled hearing, we have decided to dismiss your application for review. A copy of our statement of decision to dismiss the application is attached along with an information sheet about dismissal of applications. You may apply to us, in writing, for reinstatement of the application by 23 January 2017. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted. If you have any questions, please email mrdivision@aat.gov.au, or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450. 8 The AAT's email dated 9 January 2017 was accompanied by a separate pro forma document which advised him that he could, within 14 days of receiving notice of the dismissal decision, apply in writing for his application for review to be reinstated. He was told that he needed to explain why he failed to appear at the scheduled hearing and that he could provide any other information he wished the AAT to take into account in deciding whether or not to reinstate his application. He was advised that if the decision to dismiss the application was confirmed, he could consider seeking judicial review in the FCCA within 35 days of the date of the decision. 9 The AAT sent a second letter to the appellant on 9 January 2017. It appears that the letter was in response to receipt of the medical certificate submitted late on 6 January 2017. The letter informed the appellant that the AAT member had decided not to reopen his case and that a decision had been made on 6 January 2017 at 5:23 pm. Further, he was told that once a decision had been made, the AAT had "no power to take any further action on the review". 10 The appellant did not make a formal application to the AAT to have his application for review reinstated (although, as will shortly emerge, he contends that the email he sent on 6 January 2017 should be viewed as such an application). On 25 January 2017, he was advised that the AAT confirmed its decision to dismiss his application for review. He was provided with a further statement of decision dated 24 January 2017 and reasons for the AAT's decision to confirm the earlier dismissal of his application for review under s 362B(1A)(b) of the Act. 11 The AAT's reasons for decision dated 24 January 2017 included the following information (emphasis added): 2. On 6 January 2017 the Tribunal dismissed the application under s.362B(1A)(b) of the Act as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing. 3. The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.362C(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision. 4. As the applicant did not apply for reinstatement of the application within the 14 day period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed. DECISION 5. The Tribunal confirms the decision to dismiss the application.
The FCCA proceeding 12 The appellant sought judicial review in the FCCA of the AAT's decision dated 24 January 2017. The following two grounds of review were raised in the judicial review application dated 20 February 2017 (without alteration): 1. Administrative Appeals Tribunal erred in law when in exercising its discretion not to grant an extension of time to the applicant to give evidence and present his argument on his medical condition and dismissed the application for review. 2. Administrative Appeal Tribunal erred in law in not granting an extension of time for the hearing and in that it did not have regard to all the relevant circumstances including but not limited to matters identified in the department's policy guidelines and as such the decision of the Administrative Appeals Tribunal was a denial of procedural fairness and breach of natural justice, relevantly including but not limited to the following; a. That the medical condition of the applicant at the date of hearing. b. that the Applicant had satisfied all the requirements lo be granted Partner (Temporary) (Class UK) visa to stay in Australia c. The degree of hardship that may be caused to the Applicant and his family members. 13 The primary judge summarised the events leading up to the making of the AAT's decision dated 24 January 2017, including the various telephone conversations on 5 January 2017 between the AAT staff member and the appellant. In [7] of the primary judge's reasons for judgment, his Honour found that the AAT member "did specifically consider whether or not the adjournment request should be granted". His Honour then set out in full the three paragraphs of the AAT's statement of decision dated 6 January 2017 which are set out in [6] above. 14 The primary judge found at [8] that the AAT member had had the appellant's medical certificate drawn to her attention but that she had declined to "reopen" the appellant's case because, in the primary judge's words, "the medical certificate did not address the evidence required to justify the applicant's non-appearance. 15 The primary judge noted at [9] that the appellant had 14 days from 9 January 2017 when he was notified of the AAT's decision under s 362B to apply to have the decision set aside. The primary judge then concluded at [10]: It does not appear that the applicant did applied (sic) to have the decision set aside in accordance with those provisions and the decision was later affirmed. In these circumstances, I am not persuaded that the Tribunal made a judicially reviewable error in concluding that they were not satisfied on the material that an adjournment should be granted.
The appeal 16 The appellant was represented by a solicitor in the FCCA and, ultimately, by counsel on the appeal. His notice of appeal dated 22 February 2018 was said to have been prepared by himself. It contained two grounds of appeal. First, that the FCCA failed to consider that the AAT erred in law in not granting an extension of time and, secondly, that the FCCA erred in law in failing to consider that the AAT's decision not to grant an extension was a denial of procedural fairness. 17 It is evident that the appellant retained counsel after the notice of appeal was filed in February 2018. It emerged from the appellant's written submissions dated 9 August 2018, that the appellant proposed to seek leave to rely upon an amended notice of appeal. At the outset of the hearing, his counsel sought that leave. The proposed amended notice of appeal raised two grounds, namely that the AAT acted unreasonably in failing to grant an adjournment and that the appellant's email dated 6 January 2017 and medical certificate constituted a constructive application for reinstatement in the AAT under s 362B(1B) of the Act. 18 The Minister opposed the grant of leave, not only on the basis of the delay in raising the proposed amendments but also because the proposed grounds had not been run below. The Minister pointed out that no explanation had been provided as to why those grounds were not run below, particularly in circumstances where the appellant was represented by a solicitor in the FCCA. 19 The relevant guiding principles in determining whether or not to permit a ground to be raised on appeal for the first time are set out in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48]. In brief, however, the issue turns on whether it is expedient and in the interests of justice to grant such leave. 20 Mr White, who appeared for the appellant, said that he had no instructions as to why the proposed grounds were not run below. He contended that the proposed ground 1 overlapped with ground 1 of the original notice of appeal. Mr White further submitted that he had no instructions as to whether or not the appellant's solicitor in the proceeding below had conceded that the appellant had not made an application for reinstatement. 21 In my view, this is a borderline case on the issue of leave to run the two proposed grounds of appeal. I am prepared to accept that it is arguable that proposed ground 1 overlaps to some extent with ground 1 of the original notice of appeal. As to proposed ground 2, I am troubled by the Minister's contention that this ground is inconsistent with a concession made below. However, no copy of the FCA transcript was put into evidence to make good this contention and, as noted above, Mr White informed the Court that he had no instructions as to whether or not such a concession was made. On balance, however, I consider that the prudent course is to allow the appellant to rely upon his amended notice of appeal and to determine the substance of the two grounds it raises. This is not a case where the two proposed grounds lack merit on the face of matters.
The appellant's submissions summarised 22 In support of his contention that the AAT unreasonably refused his request for an adjournment, the appellant submitted that what is legally unreasonable depends upon the circumstances of the particular case and the reasons given by a decision-maker, citing Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (SZVFW) at [84]. He also emphasised that the power in question was a procedural and not a substantive power, citing Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [71] per Griffiths J. 23 The appellant submitted that, while the AAT did not in terms refuse his request for an adjournment, this was implicit in its dismissal of the review. He contended that this was unreasonable in a legal sense where the appellant had given a reason for his non-appearance, namely his illness. Secondly, the appellant emphasised that the AAT knew or ought to have known that the appellant had an intention and a desire to appear before it to give evidence and present arguments on issues arising in relation to the review. He also contended that he had suffered a substantial injustice because of the AAT's "haste" in dismissing his review, as is reflected in the fact that he provided the supporting medical certificate a little over an hour after the AAT decided to dismiss the review. 24 As to the second ground of appeal, namely the contention that the AAT's purported confirmation of its dismissal of the review was beyond power, the appellant submitted that the AAT was empowered to take the course of action which it did only if the appellant failed to make an application to reinstate the review under s 362B(1B) of the Act. He submitted that his email and medical certificate forwarded to the AAT on 6 January 2017 should be viewed as a "constructive application" under that section. This contention turned on the Court accepting the appellant's submission that his email of 6 January 2017 should be viewed as an application for reinstatement under s 362B(1B).
The Minister's submissions summarised 25 As noted above, the Minister opposed the grant of leave for the appellant to rely upon the proposed amended notice of appeal. 26 The Minister defended the AAT's decision on the basis that the appellant did not apply for reinstatement within the 14 day period specified in ss 362B(1B) and (1E) and then cited Burley J's decision in Singh v Minister for Immigration and Border Protection [2017] FCA 530 at [14]-[15]. 27 As to the amended notice of appeal, the Minister submitted that neither ground had any merit. As to the first ground, the Minister submitted that it was not unreasonable for the AAT to proceed as it did in circumstances where the appellant failed to honour his statement that he would provide a copy of a medical certificate to the AAT on 5 January 2017, and failed to do so until late the following day. The Minister emphasised that the appellant could have contacted the AAT later on 5 January 2017 or during the morning of the next day if there was a delay in obtaining a medical certificate, but he did not do so. 28 As to the second ground, the Minister emphasised that the appellant's solicitor conceded before the FCCA that no application for reinstatement was made to the AAT and that the primary judge proceeded on the basis of that concession. Moreover, the appellant was on notice by the terms of the AAT's letter dated 9 January 2017 that, in a reinstatement application, he had to set out why he failed to appear at the hearing and provide any other information that he wanted the AAT to take into consideration, but the appellant's email dated 6 January 2017 did not do this and simply attached the medical certificate.
Consideration and determination 29 It is desirable to set out ss 362B and 362C of the Act: 362B Failure of applicant to appear before Tribunal 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. 362C Failure to appear - Tribunal's decisions, written statements and notifying the applicant Decisions to which this section applies (1) This section applies in relation to the following decisions (each of which is a non appearance decision): (a) a decision to dismiss an application under paragraph 362B(1A)(b); (b) a decision to reinstate an application under paragraph 362B(1C)(a) and to give directions (if any) under that paragraph. Note: For similar provisions applying to a decision to confirm the dismissal of an application under section 362B, see sections 368 and 368A. Written statement of decision (2) If the Tribunal makes a non appearance decision, the Tribunal must make a written statement that: (a) sets out the decision; and (b) sets out the reasons for the decision; and (c) in the case of a decision to reinstate an application: (i) sets out the findings on any material questions of fact; and (ii) refers to the evidence or any other material on which the findings of fact were based; and (d) records the day and time the statement is made. (3) A non appearance decision is taken to have been made: (a) by the making of the written statement; and (b) on the day, and at the time, the written statement is made. (4) The Tribunal has no power to vary or revoke a non appearance decision after the day and time the written statement is made. Note: However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 362B(1D)). Notice to applicant (5) The Tribunal must notify the applicant of a non appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant: (a) within 14 days after the day on which the decision is taken to have been made; and (b) by one of the methods specified in section 379A. (6) In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 362B(1B) to (1F). Notice to Secretary (7) A copy of the written statement made under subsection (2) must also be given to the Secretary: (a) within 14 days after the day on which the decision is taken to have been made; and (b) by one of the methods specified in section 379B. Validity etc. not affected by procedural irregularities (8) The validity of a non appearance decision, and the operation of subsection (4), are not affected by: (a) a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or (b) a failure to comply with subsection (5), (6) or (7). 30 In his judicial review application below the appellant sought an order from the FCCA that the AAT's decision dated 24 January 2017 be set aside. His two grounds of judicial review were primarily directed to the lawfulness of the AAT's refusal to adjourn the hearing scheduled for 5 January 2017. As noted above, the judicial review application claimed that the AAT had erred in law in exercising its discretion not to grant an extension of time, that the AAT failed to have regard to all relevant circumstances and also denied him procedural fairness by reference to the three matters particularised in ground 2 of the application (see [12] above). 31 In dismissing the judicial review application, the primary judge proceeded on the basis that, although the AAT had the discretion to dismiss a proceeding under s 362B where an applicant for review failed to appear at a hearing at which a review applicant was scheduled to appear, it was also open to the AAT in its discretion to adjourn or reschedule a review applicant's appearance before it. The AAT's power to take this alternative course, as opposed to dismissing an application for review for non-appearance, is made plain in the terms of s 362B(2) (see [29] above). 32 The appellant's amended grounds of appeal shift the focus of his case from a complaint of procedural unfairness to one of unreasonableness in the legal sense and whether his email dated 6 January 2017 was a constructive application for reinstatement. 33 Amended ground 1 should be rejected for the following reasons. The relevant principles appertaining to the ground of unreasonableness in a legal sense are set out inter alia in the High Court's decisions in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) and SZVFW. As both those cases emphasise, the ground is particularly fact dependent, but appropriate consideration must also of course be given to the relevant statutory context. 34 The following surrounding facts and circumstances are particularly relevant. First, according to the AAT's first file note dated 5 January 2017, which was not challenged, the appellant told the AAT on the morning of the hearing that he was unwell and that he would provide a supporting medical certificate that day. He failed to do so. Secondly, the appellant was told by an AAT staff member on the morning of 5 January 2017 that the AAT would consider his adjournment request but he needed to provide an appropriate medical certificate which stated that he was too sick to attend the hearing in person or by telephone and it was emphasised to him that unless the AAT member agreed to an adjournment, his hearing would proceed on 5 January 2017 at 10:00 am as scheduled. Thirdly, I accept the Minister's submission that it was not incumbent upon the AAT to wait longer than it did for the appellant to provide the promised medical certificate before it made a decision late the following day to dismiss the proceeding for non-appearance. That submission should be accepted based upon both of the matters set out earlier in this paragraph. Finally, in view of the unchallenged fact that the appellant had told the AAT officer that he would provide the medical certificate the previous day, he should have contacted the AAT during the course of that day when he was unable to fulfil his statement. 35 Mr White correctly acknowledged in the course of oral address that, in determining whether or not the AAT had acted unreasonably in a legal sense in dismissing the application for non-appearance, it was not relevant to take into account the contents of the medical certificate itself which was received after the decision was made (see Li at [83] per Hayne, Kiefel and Bell JJ). 36 The AAT had a discretion under s 362B(1A) to dismiss the appellant's review application for non-appearance. It is also clear that it was open to the AAT to reschedule the proposed hearing (see s 362B(2)). It was reasonably open to the AAT to proceed as it did taking into account the matters which it set out in its reasons for the decision dated 6 January 2017. Those reasons provide a rational and intelligible justification for that decision. 37 In oral address, Mr White raised a second aspect of the appellant's unreasonableness case. He said that it was unreasonable for the AAT to dismiss the review application for non-appearance without giving the appellant notice and an opportunity to respond. This submission is rejected. The appellant was informed by an AAT letter dated 14 December 2016, as well as in an information sheet attached to that letter, that if he did not attend the scheduled hearing the AAT might make a decision on the review or dismiss the application for review without any further consideration of the application or the information before it. This advice was substantially reaffirmed in the second of the telephone conversations which the appellant had with the AAT on the morning of the scheduled hearing, as is reflected in the second file note which is referred to above. It was not unreasonable for the AAT to proceed as it did without giving the appellant further notice. 38 For these reasons, I reject the appellant's claim that the AAT's decision was unreasonable in the legal sense. 39 As to amended ground 2, I reject the appellant's claim that his email dated 6 January and the attached medical certificate were a constructive application for reinstatement. First, as the Minister pointed out, that contention is inconsistent with the way in which the matter was run below (see [28] above). 40 Secondly, although it appears that there is no prescribed form for making a reinstatement application, there is nothing on the face of either the appellant's email or the attached medical certificate to suggest that he was making such an application. At the time that material was emailed to the AAT the appellant was unaware that, shortly beforehand, a formal decision had been made to dismiss his review application for non-appearance. Unsurprisingly therefore, the material the appellant then provided to the AAT late on 6 January 2017 did not implicitly or explicitly seek a reinstatement of his review application. Rather, that material was a belated fulfilment of his statement the previous day that he would provide a medical certificate in support of his request for an adjournment. 41 Thirdly, it might be noted that s 362B(1B) provides that if an application has been dismissed by the AAT (for non-appearance), the applicant may within 14 days after receiving notice of the decision under s 362C, apply to the AAT for reinstatement. The appellant's email dated 6 January 2017 was sent before the appellant had received notice of the AAT's decision under s 362C. I do not rule out the possibility that an application for reinstatement might be made prior to receipt of a notice under s 362C (where, for example, the appellant is told orally that his review application has been dismissed and formal notice of that decision is provided later), but there is nothing in the evidence to support the appellant's contention that the material he provided on 6 January 2017 was a constructive application for reinstatement.
Conclusion 42 For these reasons, the appellant has leave to rely upon his amended notice of appeal but the appeal will be dismissed, with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.
Thanthrige
Minister for Immigration and Border Protection