FEDERAL COURT OF AUSTRALIA

Alam v Minister for Home Affairs [2019] FCA 389

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 30 July 2018 be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1    This is an application for leave to appeal from orders made on 17 July 2018 by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application in a case filed by the applicant in which he sought to have his application for judicial review, filed previously in that court, reinstated: see Alam v Minister for Home Affairs [2018] FCCA 2013.

2    The orders made by the Federal Circuit Court were interlocutory. Accordingly, the applicant requires leave from this Court to bring an appeal from them: see Federal Court of Australia Act 1976 (Cth) s 24(1A). The applicant has filed a notice of appeal in this Court, which the parties have agreed, and the Court has ordered, is to be treated as an application for leave to appeal.

background

3    The background to the application is not in dispute. The summary that follows is substantially taken from the submissions of the first respondent (Minister).

4    The applicant arrived in Australia on 15 March 2015 as the holder of a maritime crew (subclass ZM/988) visa, which ceased on 18 March 2015.

5    In 2015 the applicant applied for a protection visa, which was refused on 30 October 2015. This decision was affirmed by the second respondent (Tribunal) on 16 May 2016. The applicant then unsuccessfully sought judicial review in the Federal Circuit Court, and was unsuccessful in his appeal to this Court. On 11 October 2017 the High Court of Australia refused special leave to appeal.

6    On 31 October 2017 the applicant applied for a Medical Treatment (subclass 602) visa (Visa). On 24 November 2017 the delegate refused to grant the Visa. The delegate was not satisfied that the applicant met the genuine visitor requirement for the Visa, and instead found that he was seeking the Visa as a pathway to remain in Australia permanently.

7    The applicant was notified of the delegate’s decision by email dated and sent on 24 November 2017 to the email address provided by the applicant for the purpose of communicating electronically with the Minister’s department. The applicant was taken to have received notification of the decision at the end of the day on which it was transmitted, that is on 24 November 2017: see Migration Act 1958 (Cth) (Act) s 494B(5) and s 494C(5). The applicant had 21 days to lodge an application for review of the delegate’s decision with the Tribunal: see Act s 347 and s 338; Migration Regulations 1994 (Cth) (Regulations) reg 4.10. Thus the applicant had until 15 December 2017 to lodge an application with the Tribunal.

8    The Tribunal did not receive the applicant’s application for review until 18 December 2017, on which day, according to the applicant, he attended the Tribunal for that purpose.

9    By email dated 9 January 2018 the Tribunal invited the applicant to comment on the validity of his application, which he did.

10    On 31 January 2018, the Tribunal found that it had no jurisdiction in the matter.

The tribunal decision

11    After referring to the relevant provisions of the Act and the Regulations, the Tribunal noted that the material before it indicated that the applicant was notified of the decision by letter dated 24 November 2017 dispatched by email and that it was satisfied that the applicant was notified of the decision in accordance with the requirements of the Act.

12    The Tribunal then turned to consider the applicant’s response to the Tribunal’s invitation to comment, noting his submission that he was given verbal advice by a staff member that he had 28 calendar days in which to lodge his application, which he calculated to be 18 December 2017. The Tribunal noted that it had considered the applicant’s submission but that it was bound by the legislative provisions and did not have a discretion to vary those provisions. In those circumstances, the Tribunal found that the applicant was taken to have been notified of the decision on 24 November 2017, that the prescribed period to apply for review ended on 15 December 2017 and that, as the applicant’s application was not received by the Tribunal until 18 December 2017, the Tribunal had no jurisdiction.

federal circuit court proceeding

13    On 19 February 2018, the applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court.

14    The application was listed for hearing before the primary judge on 18 June 2018. It seems that on that morning the applicant emailed the court seeking an adjournment because he was ill and attached a medical certificate which indicated that he was suffering from a “medical condition”.

15    The Court informed the parties that the matter remained fixed for hearing but that if the applicant provided a mobile number it would permit him to appear by telephone.

16    The applicant did not appear at the hearing and did not answer his telephone at the time. Accordingly, the primary judge dismissed his application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2011 (Cth), which permits that Court to dismiss an application where an applicant is absent from a hearing.

17    The applicant subsequently filed an application in a case and supporting affidavit seeking to have the orders of the primary judge made on 18 June 2018 set aside. That application was listed for hearing on 17 July 2018. The application that was before the court is not before me but the Minister submitted that the grounds of the application for reinstatement were that the primary judge denied the applicant “natural justice” and “procedural fairness” in dismissing the application because he “did not take a look at the medical certificate and reason why the applicant was unable even to attend by phone” and “did not Google or find out symptom of vertigo”.

18    The primary judge explained to the applicant that the court would consider the applicant’s explanation for his failure to appear at the hearing and the merits of his application. His Honour also explained that the court needed to consider whether the applicant had a reasonably arguable case that the Tribunal’s decision was affected by legal error.

19    The primary judge considered the applicant’s medical certificate which he had relied on for the purposes of seeking an adjournment of the substantive hearing. His Honour found that the medical certificate was “patently inadequate and [did] not explain why the applicant was not able to attend”. His Honour also found that the medical certificate did not identify that the applicant was unfit to attend court, or explain why the applicant was unable to participate in a telephone communication with the court. The primary judge also rejected the applicant’s explanation, namely that he was “on the bed and could not speak”, as unsatisfactory.

20    The primary judge then turned to consider what he identified as the more material issue, namely the merits of the application and whether there was any utility in setting aside the court’s orders. The primary judge referred to the submission made by the applicant that he was informed that he had 28 days within which to lodge his application with the Tribunal and that he lodged his application within that time. The primary judge noted that, notwithstanding any oral communication the applicant had, the Tribunal was not empowered to depart from the statutory regime in circumstances where it found that the applicant was notified in accordance with the requirements of that regime. His Honour found that the applicant’s assertion that he had 28 days did not identify any arguable case of relevant error by the Tribunal in its finding that it had no jurisdiction.

21    The primary judge also considered procedural fairness and noted that the applicant was given an opportunity to respond to the Tribunal’s concern in relation to the review application but that that response, which was taken into account by the Tribunal, did not meaningfully engage with the statutory regime and the requirements in respect of notification. His Honour held that the applicant had not identified any arguable case of jurisdictional error and, in the circumstances, there would be no utility in reinstating the proceeding. Accordingly, the primary judge dismissed the application.

the application for leave to appeal

22    The applicant raises two grounds in his application for leave to appeal from the decision of the primary judge. They are:

(1)    The Hon Federal Circuit Court (FCC) in its decision ignored some legal issues, which were not clearly explained in the judgment delivered on 17 July 2018. The Hon FM Street has denied the applicant’s natural justice. There is no reason to make decision in favour of the respondent.

(2)    The Administrative Appeals Tribunal (the tribunal) did not follow the procedural fairness in reviewing the refusal of the applicant’s medical visa application. It is apparent that Tribunal has not acted in accordance with the prescribed law and Act.

23    In his application, under the heading “Ground of Application”, the applicant also sets out those grounds which the Minister’s solicitor informed the Court were included in the applicant’s application in a case that was before the primary judge. They are:

Ground of Application

1.    The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.

2.    The second respondent has denied the applicant’s natural justice and procedural fairness pursuant to s353(b) of the Migration Act 1958.

3.    The applicant claims that the Tribunal was preoccupied and that was why he was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before its decision. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate’s decision.

4.    The applicant was not given an opportunity to forward the document’s in support of his claim to the Tribunal as per s.358(1)(a) and (b). As such the tribunal has failed to maintain their procedural fairness.

5.    The Hon. Court has also denied the applicant’s natural rights and despite being notified on time about the reason of absence (non appearance) the court decided the matter on the defendant’s favour.

24    The applicant provided written submissions in support of his application and made oral submissions today. After setting out the history of his application, both for a protection visa and the Visa, the applicant submitted that he had telephoned the Tribunal and asked whether a fee was payable for his application for review. He said that in the course of that conversation he was informed by an officer of the Tribunal that he had 28 days from the date of the decision within which to lodge his application.

25    The applicant also submitted that he had made a second call to the Tribunal during which he was again informed that he had 28 days from the date of the primary decision within which to lodge his application. The applicant contended that he lodged his application on 18 December 2017 which was within the 28 day period he believed he had and that his application was accepted by the Tribunal, together with the applicable fee that he paid. The applicant submitted that he was misled by the two officers who worked for the Tribunal and, in that way, his “appeal rights were jeopardized”.

consideration

26    In order for the Court to grant leave to appeal it must consider:

(1)    whether in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by a full court; and

(2)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398.

27    I turn then to consider the applicant’s proposed grounds of appeal.

28    The first ground alleges that the primary judge ignored legal issues and/or denied the applicant natural justice. However, it is clear from the primary judge’s decision that he was aware of, and stated, the basis upon which the court could set aside the orders that it had earlier made dismissing the applicant’s application for judicial review of the Tribunal’s decision. In addition, there is no arguable basis upon which it could be said that the primary judge denied the applicant natural justice in hearing and determining the application in a case for reinstatement. His Honour considered the submissions made by the applicant and, having done so, rejected them. Ground one does not identify an arguable basis for relief.

29    Ground two concerns the decision of the Tribunal. The applicant alleges in that ground that the Tribunal did not provide him with procedural fairness in conducting its review, and did not act in accordance with the prescribed law. It is apparent from the primary judge’s reasons that this issue was also raised before his Honour. His Honour correctly found that the ground provided no arguable basis on which he could set aside his earlier orders. I similarly find that the ground does not have sufficient merit to warrant a grant of leave. It is well settled that, in the circumstances of this case, where the Tribunal did not have jurisdiction, the requirements in Pt 5 of the Act, including those in Div 5, do not apply: see SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35] (SZEYK).

30    Insofar as the Tribunal was required to provide the applicant common law procedural fairness in respect of its consideration of whether it had jurisdiction, it did so. As observed by Bennett J in SZEYK at [37]:

Common law natural justice and procedural fairness require that the applicant be given a reasonable opportunity to deal with matters adverse to his interest that the decisionmaker proposes to take into account in exercising its power.

31    As the Minister submitted, and as is evident from the Tribunal’s decision, the Tribunal discharged its obligation to afford the applicant natural justice by inviting him to comment on the central issue that was before it, namely, the question of its jurisdiction, and considered his response to that invitation. Further, the primary judge was correct to hold that, notwithstanding any oral communication the applicant had with any person, the Tribunal was not empowered to depart from the statutory regime. As the Minister submitted, once it was found that the applicant was properly notified of the delegate’s decision and failed to make an application for review within the prescribed period of 21 days, the Tribunal had no power to extend time: see Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [60]-[83].

conclusion

32    The grounds raised in the application for leave to appeal do not raise any doubt in the primary judge’s decision such as to warrant its reconsideration by a Full Court of this Court. In those circumstances, the application should be dismissed. Given the applicant has been unsuccessful in his application, it follows that he should pay the Minister’s costs.

33    I will make orders accordingly.

Associate:

Dated:    21 March 2019