FEDERAL COURT OF AUSTRALIA

Mekonen v Minister for Immigration and Border Protection [2017] FCA 309

Appeal from:

Mekonen v Minister for Immigration & Anor [2016] FCCA 2715

File number:

NSD 1959 of 2016

Judge:

ROBERTSON J

Date of judgment:

24 March 2017

Catchwords:

MIGRATIONappeal from Federal Circuit Court of Australia – application in that Court for judicial review of decision of former Migration Review Tribunal (Tribunal) – whether the Tribunal denied the appellant procedural fairness – whether the Tribunal engaged in an improper exercise of power – whether the Tribunal should have confined itself to the issue considered by the delegate

Legislation:

Migration Act 1958 (Cth) s 349

Federal Court Rules 2011 (Cth) r 36.75

Migration Regulations 1994 (Cth) Sch 2 cl 600.223, Sch 3 criterion 3004

Date of hearing:

24 February and 24 March 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

63

Counsel for the Appellant:

The Appellant appeared in person on 24 February 2017

The Appellant did not appear on 24 March 2017

Solicitor for the First Respondent:

Ms C Hillary of DLA Piper Australia

Counsel for the Second Respondent:

The Second Respondent submitted save as to costs

ORDERS

NSD 1959 of 2016

BETWEEN:

YENENEW SHUMALEM MEKONEN

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

24 MARCH 2017

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the cost of the first respondent, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal is from the orders made by the Federal Circuit Court of Australia on 21 October 2016 that the application, as amended, to that Court be dismissed.

2    The appellant is a male citizen of Ethiopia. He last arrived in Australia on 23 November 2011 as the holder of a Student subclass 574 visa, which ceased on 12 January 2014.

3    On 10 February 2014, the appellant applied for a Visitor (Class FA) visa. That application was refused and it was the review by the then Migration Review Tribunal (the Tribunal) of the refusal of that application which was the subject of the application for judicial review to the Federal Circuit Court of Australia.

4    The application to that Court, as amended, was filed on 15 January 2015. As I have said, it sought judicial review of the decision of the Tribunal which, on 18 September 2014, affirmed the decision not to grant the visa applicant a Visitor (Class FA) visa.

5    On 24 February 2017, the date on which the appeal to this Court was listed for hearing, the appellant sought and was granted an adjournment on the basis of what he said was his ill health which prevented him from conducting his appeal or limited his capacity to do so. The medical evidence on which the appellant relied was less than specific. The appellant asked for an order that, rather than appear in person to make oral submissions, he be permitted to file and serve written submissions by 10 March 2017. I so ordered. That was order 2 made on 24 February 2017. I also ordered that by the same date the appellant file and serve any further medical evidence upon which he wished to rely.

6    On 13 March 2017 DLA Piper, the solicitors for the respondent Minister, sent an email to the appellant drawing his attention to the matters which I have referred to above and stating that that firm had not received anything from the appellant and could not see that anything had been filed. The email asked, as a matter of urgency, whether the appellant intended to file anything further and, if so, when.

7    On 21 March 2017 the Court Registry wrote to the parties by email, stating that there had been extended non-compliance with order 2 of the orders made on 24 February 2017 for the filing of written submissions by the appellant by 10 March 2017; that the appeal was relisted for Friday, 24 March 2017 at 9:30 AM; and that orders may be made at that time finally disposing of the appeal.

8    By email letter dated 22 March 2017 DLA Piper wrote to the appellant, noting that the matter had been listed for the time and date I have just specified and stating that if the appellant did not attend they may seek to have the matter dismissed, with costs, for non-appearance.

9    When the matter came on for hearing at 9:30 AM today, 24 March 2017, there was no appearance for the appellant. It remained the position that the appellant had not filed any submissions or any further medical evidence.

10    Ms C Hillary, who appeared for the respondent Minister, applied under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).

11    Rule 36.75 provides:

36.75    Absence of party

(1)    If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a)    if the absent party is the appellant:

(i)    the appeal be dismissed; or

12    In the circumstances I propose to make that order, but it is also appropriate to deal with the substance of the appeal.

The Tribunal’s decision

13    By s 349 of the Migration Act 1958 (Cth), for the purposes of the review the Tribunal may exercise all the powers and discretions conferred by the Migration Act on the person who made the decision.

14    Clause 600.223 of Sch 2 to the Migration Regulations 1994 (Cth) relevantly provided:

600.223 

(2)    If the applicant was in Australia at the time of application, and did not hold a substantive visa:

(a)    ; and

(b)    the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

15    The Tribunal decided that, for the purposes of criterion 3004 in Sch 3 to the Migration Regulations, the appellant was not the holder of a substantive visa because of factors beyond his control.

16    Criterion 3004 was, relevantly, as follows:

3004    If the applicant:

(a)    ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(b)    entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

the Minister is satisfied that:

(c)    the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

17    The Tribunal said that the issue was whether cl 600.223 was met. This required the Tribunal to be satisfied that the appellant satisfied the relevant Sch 3 criteria. Under the provisions of cl 600.223(2), the appellant must satisfy Sch 3 criteria 3001, 3003, 3004 and 3005.

18    The Tribunal found, at [16], that the appellant satisfied criterion 3001.

19    The Tribunal then asked the appellant what factors beyond his control caused him to not have a substantive visa.

20    The appellant referred to his enrolment for his PhD at the university being cancelled in August 2013 and his efforts to appeal or have that cancellation reviewed. The Tribunal said, at [21], it did not consider this to be a factor beyond the appellant’s control which would cause him not to be the holder of a substantive visa.

21    The appellant told the Tribunal he had received confusing and contradictory advice from immigration lawyers. The Tribunal noted that the appellant’s PhD enrolment was suspended in August 2013 and the appeal against the suspension was finalised in October 2013. The Tribunal said, at [22], it did not consider the lack of immigration advice to be a factor beyond the appellant’s control which caused him not to be the holder of a substantive visa.

22    The appellant said he had been hospitalised for two weeks in November 2013. There was no documentary evidence submitted at the hearing before the Tribunal of his hospitalisation. The appellant asked for, and was granted, time to make written submissions. The appellant, the Tribunal said at [23], subsequently submitted medical evidence concerning his psychiatric treatment. At [34], the Tribunal accepted that the appellant had been suffering from a mental illness which had had a severe impact on his education. It said the issue in the present application was whether the appellant was not the holder of a substantive visa because of factors beyond his control. The Tribunal said at [35] that the psychiatric evidence submitted did not indicate that the appellant was not able to lodge an application for a visa before his previous substantive visa expired. The Tribunal said, at [35], it was not satisfied that the medical evidence indicated the appellant was not able to lodge the claim for the visa. The Tribunal said, at [36], the appellant last had a substantive visa on 12 January 2014 which was several weeks after he was treated at the clinic. He was able to lodge the application for review on 6 March 2014. The medical evidence provided did not support a finding that the appellant’s medical condition was a factor beyond his control which caused him to not be the holder of a substantive visa at the time he applied for this visa.

23    The appellant said that the social unrest in his country of origin was such that he could not return home. The Tribunal said, at [24], it did not consider this to be a factor beyond his control which could deter him from lodging a claim for, or obtaining, the visa.

24    The Tribunal accepted, at [27], that the appellant had difficult financial circumstances. The Tribunal said that it did not consider the appellant’s financial circumstances were a factor beyond his control which caused him not to be the holder of a substantive visa.

25    Accordingly, the Tribunal concluded at [36], cl 600.223 was not met.

26    The Tribunal, at [37], affirmed the decision not to grant the visa applicant a Visitor (Class FA) visa.

Proceedings in the Federal Circuit Court

27    As I have said, the appellant then applied to the Federal Circuit Court for judicial review of the decision of the Tribunal.

28    The grounds of the amended application to the Federal Circuit Court did no more than reproduce certain grounds from the Administrative Decisions (Judicial Review) Act 1977 (Cth). The primary judge noted, at [7], that Act did not apply to matters of the present type.

29    As summarised by the primary judge, the issue before the Tribunal was whether the appellant met cl 600.223 of Sch 2 to the Migration Regulations, particularly whether the appellant satisfied the relevant criteria in Sch 3 to the Migration Regulations pursuant to cl 600.223(2)(b) of Sch 2.

30    The primary judge noted the findings of the Tribunal, as follows.

31    As the appellant ceased to hold a substantive visa on or after 1 September 1994, the Tribunal considered whether the appellant met the requirements of criterion 3004, particularly whether the appellant was not the holder of a substantive visa because of factors beyond his control. The Tribunal did not accept that the immigration advice he received caused the appellant not to be the holder of a substantive visa. The Tribunal accepted that the appellant had difficult financial circumstances, however it did not consider that this was a factor beyond his control which caused him not to be the holder of a substantive visa. The Tribunal accepted that the appellant had been suffering from a mental illness, which severely impacted on his education. However, the Tribunal was not satisfied that the medical evidence indicated that the appellant was unable to lodge an application for a visa before his previous substantive visa ceased. Consequently, the Tribunal found that the appellant did not meet cl 600.223 and accordingly affirmed the decision under review.

32    Clause 600.223(2) in Sch 2 required that if the appellant was in Australia at the time of application and did not hold a substantive visa, that the appellant satisfied Sch 3 criteria 3001, 3003, 3004 and 3005. Criterion 3004 contained as a condition that if the appellant ceased to hold a substantive visa on or after 1 September 1994, the Minister was satisfied that “the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control”.

33    The primary judge considered the appellant’s case as follows.

34    The primary judge discerned that the appellant’s complaint as to a breach of natural justice was that the Tribunal was required to, but did not, put the appellant on notice of the issue to be discussed at the hearing, prior to the hearing and was required to have done so in its letter of invitation to the hearing. The primary judge rejected this claim at [24] and following. The primary judge said there was nothing in the legislation which required the Tribunal to put an applicant on notice of the issues to be discussed prior to the hearing. In any event the issue at the “second” Tribunal hearing was criterion 3004 of Sch 3 to the Migration Regulations.

35    A further complaint under this heading was that the Tribunal, in answer to his request, gave the appellant seven days to make written submissions and the appellant did make those written submissions. The primary judge rejected the submission that this was either procedurally unfair or legally unreasonable. The primary judge noted, at [36], that there was nothing from the appellant to say why the period granted was unreasonable in the circumstances or what he was prevented from submitting to the Tribunal. He did make submissions and there was nothing from the appellant to say that he asked the Tribunal for further time. The primary judge rejected a claim that the appellant was misled by the Tribunal.

36    The primary judge rejected, at [45], a submission that once the Tribunal found the delegate to have been in error in relation to criterion 3001, the Tribunal should have remitted the case to the Department for reconsideration. The primary judge rejected an argument based on s 349(2)(c) and held that Direction 05 was not sufficient to enable the appellant successfully to make out his complaint. That Direction spoke of “general guidance” and “as a general rule”. Section 349(1) provided that the Tribunal may, for the purposes of the review, exercise all the powers and discretions conferred by the Migration Act on the person who made the decision. It was plainly within the Tribunal’s jurisdiction to consider criterion 3004. The primary judge said, at [59], that the appellant would have been on notice from the delegate’s decision record that even if he could succeed in relation to criterion 3001 he would still need to meet, amongst all the other relevant criteria, criterion 3004. The primary judge said, at [61], that the appellant was given notice of the criterion 3004 issue at the “first” hearing and the Tribunal gave him a period of six weeks to prepare for the “second” hearing where this issue was discussed. There was no obligation on the Tribunal to tell the appellant at the “first” hearing what its views were in relation to criterion 3001.

37    Before the primary judge, the appellant raised five matters in relation to factors he said were beyond his control. The Tribunal found that the factors did not lead to his not lodging an application for a substantive visa at the relevant time. The primary judge said, at [83], that these conclusions and the findings that informed them were all reasonably open to the Tribunal.

38    The ground that the Tribunal member did not have jurisdiction was found to rely on the same proposition that, because the Minister’s delegate considered only criterion 3001, the Tribunal should have confined its consideration to that issue only. The primary judge rejected that submission at [85].

39    The primary judge then considered ground 5 which he described, at [87], as allegations making broad assertions of legal error without any particularity whatsoever. The primary judge rejected the claims that the Tribunal took into account an irrelevant consideration or failed to take a relevant consideration into account.

40    The primary judge considered grounds 6 and 7 which asserted that the Tribunal’s decision involved an error of law or was made contrary to law. No particulars were provided. The primary judge referred back to his consideration of the guidance document and said there was nothing before the Court to say that the Tribunal was bound to take that document into account as a relevant consideration. The primary judge said, at [108], that it was open, if not necessary, for the Tribunal in the efficient conduct of the review to put in place the process to complete the review and make the necessary determination. Grounds 6 and 7 were not made out.

41    The primary judge then considered an apparent claim that the Tribunal was biased. At [113], the primary judge held that that allegation was not made out on the evidence.

42    At [115] and following the primary judge rejected a submission on the part of the appellant that given that the Tribunal’s decision was “different” to the Minister’s decision, the Minister should not come to Court to “defend” the Tribunal’s “different” decision. The primary judge said, at [122] that this was not capable of revealing jurisdictional error on the part of the Tribunal.

43    The primary judge also considered, at [133] and following, a submission that the Minister did not comply with certain Rules rules of the Federal Circuit Court. The primary judge held, at [138], that the Minister was not in default of the rules relied on by the appellant. The primary judge rejected this submission.

44    At [144], the primary judge dealt with the Minister’s application for costs. The primary judge said that the appellant was clearly on notice of the Minister’s costs application as he referred to it and argued against it in his supplementary written submissions. Taking into account those submissions, the primary judge said that he could not see any reason not to make the costs order in the circumstances presented.

The appeal

45    The grounds in the notice of appeal to this Court, dated 9 November 2016, were as follows:

1.    Breach of natural justice has occurred in connection with making a decision

2.    No evidence to support the finding

3.    Misconceived the meaning of “factors beyond control” under the Migration Regulation 1994, Schedule 3, Criterion 3004

4.    Not taking relevant material in to consideration which is critical to the disputed issue

5.    There was gross misdirection of fact which raises question of law

6.    Failure to make a particular finding which is a necessary step in support of the court order

7.    Not providing reasonable opportunity to argue and make submissions on the cost order

The parties’ submissions

46    No written submissions were filed in this Court by the appellant.

47    The Minister submitted that the grounds in the notice of appeal did not identify whether the appellant was seeking to complain about the decision of the Tribunal or the primary judge. The task of the Federal Circuit Court was to determine whether the Tribunal’s decision was affected by jurisdictional error. The task of this Court on appeal was to determine whether the judgment of the primary judge was affected by appellable error. None of the grounds as currently pleaded clearly asserted that the primary judge’s decision was affected by jurisdictional error.

48    The Minister submitted that ground 1 was a broad and unparticularised allegation of a breach of natural justice and submitted that the primary judge dealt with procedural fairness at length at [19]-[84] and there was no error in that reasoning.

49    The Minister submitted that ground 2 did not specify to which finding the appellant referred.

50    The Minister submitted that ground 3 alleged that the Tribunal misconstrued the term “factors beyond [the applicant’s] control” in criterion 3004. This was not an allegation that was made in the Court below. In any event, the Minister submitted that the term was properly applied by the Tribunal and that the ground went no higher than seeking to disagree with the findings of the Tribunal. The Minister submitted that ground 4 alleged that the Tribunal, presumably, failed to consider relevant material. That material had not been identified by the appellant and, further, this was not a complaint made in the Court below. The Minister contended that the Tribunal considered all of the relevant material before it.

51    As to ground 5, the Minister submitted that it was not particularised and the question of law had not been identified. The Minister submitted that the ground did not reveal any error in either the decision of the Tribunal or the primary judge.

52    As to ground 6, the Minister submitted it was entirely unclear. It appeared to be an allegation that the primary judge did not make a particular finding which was a necessary step in support of the court order. The appellant did not state what that step was. The Minister submitted that this ground could not be substantiated.

53    As to ground 7, the Minister submitted that at [144] of the primary judge’s decision, his Honour noted that the appellant was put on notice in each of the Minister’s sets of submissions that he would be seeking costs against the appellant. The Minister also noted that the appellant was in attendance when judgment was handed down and submitted that not only was the appellant given the opportunity to make submissions at that time, he also made written submissions which were taken into account by the Court.

Consideration

54    No error on the part of the primary judge has been made out. No jurisdictional error on the part of the Tribunal has been made out.

55    The Tribunal was exercising the powers and discretions of the primary decision-maker: see s 349 of the Migration Act. The appellant was clearly on notice that criterion 3004 needed to be addressed if he succeeded, as he did, on criterion 3001. He put extensive submissions to the Tribunal in support of his contention that the Tribunal should be satisfied that the appellant was not the holder of a substantive visa because of factors beyond his control.

56    There is no substance in the ground that there was a breach of procedural fairness by the Tribunal or, if put, by the primary judge.

57    The ground that there was no evidence to support the finding was not developed and is of no substance.

58    I am unable to perceive any basis for the ground that the Tribunal, or, if put, the primary judge, misconceived the meaning of “factors beyond [the applicant’s] control” under criterion 3004. The Tribunal addressed the factors claimed by the appellant and, in effect, found that those factors did not satisfy it that the appellant was not the holder of a substantive visa because of any of those factors.

59    I reject the ground that the Tribunal did not take relevant critical material into consideration.

60    I reject the claim that there was gross misdirection of fact which was said to raise a question of law.

61    There is no substance to the ground that there was a failure to make a particular finding as a necessary step in support of the court order. The appellant did not identify either the particular finding or the necessary step.

62    I reject the ground that the primary judge did not give the appellant a reasonable opportunity to argue and make submissions on the costs order. The appellant made written submissions in relation to costs which were taken into account by the primary judge.

Conclusion and orders

63    The appeal is dismissed. The appellant must pay the costs of the respondent Minister, as agreed or as assessed.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:    24 March 2017