FEDERAL COURT OF AUSTRALIA

Daw v Minister for Immigration and Citizenship [2012] FCAFC 123

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

THE COURT

1    This is an appeal from the judgment of the primary judge, given on 5 July 2012, dismissing an appeal from a decision of the Administrative Appeals Tribunal (Tribunal), given on 9 February 2012, affirming the decision under review. The decision under review was a decision by the Minister for Immigration and Citizenship (the Minister) to cancel the appellant’s residency visa on the ground that he did not pass the character test as set out in s 501 of the Migration Act 1958 (Cth) (the Migration Act).

2    The originating application with which the primary judge was dealing was filed on 27 March 2012. The single ground of that application pressed before the primary judge was as follows:

The Tribunal failed to act according to the requirements of procedural fairness.

Particulars

The Tribunal refused to grant an adjournment of the hearing held on 24 January 2012 to give the applicant’s solicitor sufficient time to obtain and file evidence to support the applicant’s case, and to present submissions and argument in support of the Applicant’s case.

This was put also as an alleged breach of s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). That section requires the Tribunal to “ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case”. The particulars were, or included:

The Tribunal refused to grant an adjournment of the hearing held on 24 January 2012 to give the solicitor who was otherwise willing to act for the applicant sufficient time to obtain, serve and file evidence to support the applicant’s case.

3    The notice of appeal filed on 10 July 2012 contained, in substance, the following grounds:

1.    His Honour erred in law for not finding and ruling that the Tribunal’s refusal to grant the appellant an adjournment of the hearing in order that his then lawyer could be able to better represent him, prevented the appellant from properly presenting his case, was a denial of procedural fairness and denial of natural justice.

2.     The Tribunal decision is vitiated by jurisdictional error.

3.     The Tribunal made erroneous findings and came to a mistaken conclusion given that it had failed to properly consider that Australia owed the appellant an obligation as a holder of a Class XB, subclass 202 (Global Special Humanitarian visa), under Australia's international obligation not to cancel the appellant’s visa.

4.    The Tribunal failed to conclude that Australia owed my four children all under age 10 years of age under Australia’s international obligation under and the best interests of my children not to cancel my visa.

5.     His Honour erred in law given that the appellant does not know English nor can write English having not spoken or grown up in an English speaking country and further this made for compelling reasons that his Honour should have found that the Tribunal denied the appellant procedural fairness for not adjourning the hearing as the appellant’s then lawyer left him as he was unable to properly represent him given that failure. The hearing miscarried.

4    In determining this appeal we limit our consideration of the grounds to those numbered 1 and 5, treating the ground numbered 5 as a particular of ground 1.

5    We take this course because grounds 2, 3 and 4 were not only not argued before the primary judge but were abandoned in the sense that they were contained in an original handwritten originating process but were not contained in an amended originating application, signed by a solicitor then acting for the appellant, filed in the Court on 27 March 2012. Given that history and given their terms and the absence of an explanation or other reason why the Court should now entertain those previously abandoned grounds we conclude that it would not be expedient in the interests of justice to permit the appellant to rely on grounds 2, 3 and 4: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ.

6    We turn to consider the remaining ground, which in our view, at least in the circumstances of this case, has the same content whether put as a denial of procedural fairness or as a breach of s 39 of the AAT Act. We refer to Sullivan v Secretary, Department of Transport (1978) 20 ALR 323 at 343. Whether this ground be approached as a denial of procedural fairness or by reference to s 39, it has to be considered in the context of the chronology as it unfolded and the statutory context.

7    The primary judge held that having regard to the statutory scheme within which the decision of the Tribunal was to be made and to the relevant facts and circumstances which he outlined, the Tribunal’s refusal to grant an adjournment to a “date as late as humanly possible” was not unreasonable, nor did it prevent the appellant from having a reasonable opportunity to present his case.

8    The reference to the statutory scheme was primarily to s 500(6L) of the Migration Act which provides that if an application is made to the Tribunal for a review of a decision under s 501 of the Migration Act, the Tribunal is taken to have made a decision affirming the decision under review if the Tribunal has not made a decision within 84 days after the person was notified of the decision under review. As his Honour said at [17], with reference to the facts of this case:

(1)    The Tribunal was required to make a decision within 84 days after the applicant had been notified of the Minister’s decision cancelling his visa, or the Tribunal would be taken to have made a decision to affirm the decision under review: s 500(6L). In the case of the applicant, the 84 days expired on 14 February 2012, which was 14 business days after the scheduled hearing date of 24 January 2012;

(2)    the Tribunal was not permitted to have regard to any information presented orally in support of the applicant’s case unless the information was set out in a written statement given to the Minister at least two business days before the Tribunal hearing: s 500(6H);

(3)    the Tribunal was not permitted to have regard to any document submitted in support of the applicant’s case unless a copy of the document was given to the Minister at least two business days before the Tribunal hearing: s 500(6J).

9    The primary judge carefully considered the facts in relation to an adjournment application at [7]-[14]. The period of time available to the appellant whilst he had the assistance of the solicitor was from at least mid-December to 22 December 2011 and from 6 January to 20 January 2012. The conclusion of the primary judge that the appellant was extended a “reasonable opportunity” to present his case was a conclusion open to him on the evidence and a conclusion with which we agree. We see no error in his Honour’s consideration of those matters and none was suggested in the appellant’s oral submissions before the Full Court.

10    We also note that the hearing proceeded as scheduled on 24 January 2012. The appellant provided the Tribunal with a written submission and supporting material. The appellant had an opportunity to be heard orally at the hearing and was assisted by an interpreter. The appellant before the primary judge did not suggest that there was any flaw in the conduct of the hearing or that he was denied the opportunity to say whatever he wished to say to the Tribunal in support of this application.

11    In our view the following paragraphs of the reasons for judgment of the primary judge are both compelling and unanswered by the appellant’s oral submissions before the Full Court:

[22]     The Tribunal’s refusal to grant an adjournment in the present case cannot on any fair view be criticised as “unreasonable”. The applicant, through his solicitor, delayed without explanation in making an application for an adjournment, notwithstanding clear signs from the Tribunal that the granting of an adjournment was far from a formality and the Tribunal would need to be persuaded of the reasons for the adjournment. No explanation was offered for the delay; neither did the application furnish any persuasive reasons why the applicant was unable to proceed on the scheduled hearing date. No explanation was given as to why the applicant and his solicitor did not proceed with urgent preparations for the hearing on 24 January 2012, having been told on 12 January 2012 that the Senior Member was not disposed to grant the adjournment. The Tribunal was subject to a strict time requirement that meant that, even if the hearing proceeded as scheduled, the Tribunal was required to produce a reasoned decision within 14 business days. The Tribunal dealt with the application in a way which was consistent with the Tribunal practice direction … , which itself describes entirely orthodox and reasonable propositions about the handling of adjournment applications.

[23]     It was a matter for the Tribunal in its discretion to decide whether or not to grant the adjournment sought by the applicant: Weti v Minister for Immigration and Citizenship [2007] FCA 1531 at [29]. The applicant did not request reasons for the refusal of the adjournment and there is no suggestion in this Court that the Tribunal’s discretion in deciding the adjournment application miscarried to the point that jurisdictional error is apparent.

[24]     The applicant’s case depends upon the proposition that by virtue of the refusal to grant an adjournment, he was denied a reasonable opportunity to present his case. There is no substance to such a proposition. It was a matter for the applicant whether he wished to be legally represented at the hearing and, if so, to facilitate that representation. The matter was set down for hearing and no suggestion is made that inadequate notice of the hearing was given. The Tribunal hearing proceeded as scheduled. The Tribunal did not in any sense prevent the applicant from being represented at the hearing or deny him the opportunity to seek representation: compare Weti at [28]. The Tribunal was not advised, at the time of the adjournment application, that if the adjournment was not granted the applicant’s solicitor would withdraw. The applicant lost the benefit of his legal representation when his solicitor decided that he could not adequately prepare for the hearing in the time available. The applicant, having commenced proceedings without representation, was demonstrably capable of understanding the issues in the proceedings and advancing arguments in support of his application for review.

12    We find no appellable error in the judgment of the primary judge.

13    The order of the Court is that the appeal be dismissed, with the appellant to pay the first respondent’s costs.

Associate:

Dated:    31 August 2012