FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2018] FCAFC 184

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to rely on ground 2 of the Amended Notice of Appeal.

2.    The appeal be allowed.

3.    Orders (2) and (3) made by the Federal Circuit Court on 15 December 2017 be set aside and in lieu thereof, order:

(a)    there be an order in the nature of certiorari, that the decision of the second respondent made on 19 April 2016 be set aside;

(b)    there be an order in the nature of mandamus, that the matter be remitted to the second respondent for determination according to law; and

(c)    the first respondent pay the applicant's costs of the application for judicial review.

4.    There be no order as to the costs of the appeal

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

REASONS FOR JUDGMENT

KENNY J:

1    I have had the advantage of reading in draft the reasons for judgment prepared by Colvin J. Substantially for the reasons his  Honour has stated, I agree with the orders proposed.

Associate:

Dated:    1 November 2018

REASONS FOR JUDGMENT

BROMBERG J:

2    For the reasons given by Colvin J, I agree with the orders proposed by his Honour.

Associate:

Dated:    1 November 2018

REASONS FOR JUDGMENT

COLVIN J:

3    On 18 September 2014 Mr Singh applied for a student visa. The application was refused on 5 January 2015. He applied to the Administrative Appeals Tribunal for a review of the refusal. A hearing was scheduled for 3 March 2016 and Mr Singh was given proper notice of the hearing through his authorised agent and invited to appear. He did not attend and his application was dismissed in the exercise of an express statutory power to dismiss the application in such circumstances.

4    As required by s 362C(5) Migration Act 1958 (Cth), Mr Singh was notified of the dismissal. He was told that he could apply to reinstate his application within 14 days. A new migration agent acting on his behalf lodged an application for reinstatement within that time. A statement from Mr Singh was provided in support of the application. It provided an explanation in his own words for his failure to attend.

5    Under s 362B(1C), the Tribunal was then required to make one of two decisions: (a) if it considered it appropriate to do so - reinstate the application; or (b) confirm the decision to dismiss the application.

6    Expressed in that binary way, reinstatement was only to occur if the Tribunal formed the view that reinstatement was appropriate. Otherwise, the decision to dismiss the application was to be confirmed.

7    The Tribunal confirmed the dismissal of the application and provided reasons.

8    Mr Singh sought judicial review in the Federal Circuit Court. Review was only available for jurisdictional error. The application was heard on 15 December 2017 and dismissed. Mr Singh now brings an appeal to this Court. He seeks leave to raise three grounds (see below at [30]). The grounds as formulated were not presented before the Federal Circuit Court where Mr Singh was not legally represented. However, in dismissing Mr Singh's judicial review application, the primary judge did find that the Tribunal's decision was reasonably open to it and the Tribunal applied the correct legal framework in reaching its determination: Singh v Minister for Immigration and Border Protection [2017] FCCA 3276 at [27]. It is those matters that are the focus of the appeal.

9    For the following reasons, the grounds raised should be entertained even though they were not raised before the primary judge and the appeal should be upheld.

Legal principles concerning the reasons of the Tribunal

10    On an application for reinstatement under s 362B(1C), the Tribunal is required to consider whether it is 'appropriate' to reinstate the application. If the Tribunal is not of that view then the binary nature of s 362B(1C) means that it is required to decide to dismiss the application. It has no further discretion to reinstate. If it decides to dismiss then it is required to do so by written statement under s 368: s 362(1C)(b).

11    A written statement under s 368 must, amongst other things, set out the reasons for the decision, set out the findings on any material questions of fact, and refer to the evidence or any other material on which the findings of fact were based. These aspects of the Tribunal's statutory task upon an application for reinstatement are important to bear in mind when it comes to a consideration of the reasons that were given by the Tribunal for deciding to confirm the decision to dismiss the application. The Tribunal has a statutory obligation to provide reasons of a kind that meet the requirements in s 368. This will often require the Tribunal to state in its reasons whether it has rejected or failed to accept evidence going to a material issue: see Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [65] (McHugh J).

12    It is to be noted that the reasons of an administrative decision-maker have an important status. The authenticated reasons are evidence of the findings actually made, referred to and relied upon by the Tribunal in coming to its decision and that no finding, evidence or reason which was of any significance to the decision has been omitted: Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 at 179 (French J) and to similar effect at 168 (Davies J).

13    The precise terms in which a statutory obligation to give reasons is expressed provides a critical framework in considering the legal significance to attach to findings made: Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 at [42] (Griffiths J) and Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [30]-[31] (Flick J).

14    In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5], Gleeson CJ said in relation to the requirement to give reasons under s 430 of the Migration Act (which is expressed in similar terms to s 368):

When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material.

15    Yusuf concerned reasons for affirming or setting aside a decision under review. In that context, a failure to refer to a factual matter in the context of a statutory obligation to set out all findings may provide a basis to infer that other matters were rejected. However, the approach is different when it comes to a case like the present where the reasons concern whether the Tribunal has reached the required state of satisfaction to make a particular decision; namely that the Tribunal considers it appropriate to reinstate the application. In that context, the inference to be drawn from a failure to refer to a matter is that it was not activating the Tribunal when it formed the requisite state of satisfaction as to whether it was appropriate to reinstate the application: see the consideration of this issue in the context of the exercise of a procedural discretion in AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103 at [61] (Tracey and Mortimer JJ) and the views in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34] (Katzmann, Griffiths and Wigney JJ).

Reasons of the Tribunal in the present case

16    The statement of reasons provided by the Tribunal, after describing the nature of the visa that was the subject of the application to the Tribunal, the dismissal of that application when the applicant did not appear at the scheduled hearing and the bringing of the reinstatement application, then said:

The review applicant applied for reinstatement of the application within 14 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

On 16 March 2016 the Tribunal received a submission including a statement from the applicant in which he stated:

"I have held hearing date at AAT on 3 March 2016, my agent has lodged the review in relation to a decision to refuse my 572 visa grant on shore, and application was made online on 9 January 2015. I don't know till I have got the decision that tribunal has made a decision on my review. I am not known the hearing date and also am not aware of I have to come to hearing.

I have thought tribunal itself takes the decision without my attendance. When I call my previous agent he says 'I have intimated you twice but you did not come in to sign and this is your wrong', I didn't notice agent mentioning.

Anyhow agent has sent me the refusal letter from Tribunal the tribunal has affirmed the decision not to grant my 572 visa. I have read the MRT decision and came to know that I can reinstate the application if there is any eligible reason to do so. I have got right reason and there was miscommunication happened in between my previous agent and me in regarding hearing invitation. So please kindly accept my request to reinstate the hearing if it is possible…".

The tribunal notes the applicant provided an 'Appointment of Representative and Authorised Recipient' form signed and dated on 18 January 2016. The hearing invitation was correctly sent to his authorised recipient, Mr Jensen Ma at Lawyers and Migration Agents Tan and Tan.

The tribunal further notes that following standard procedure, on 25 February and 2 March 2016, SMS reminders of the upcoming hearing were sent to the applicant's mobile.

The tribunal is therefore satisfied that the applicant was correctly notified of the hearing and does not consider it appropriate to reinstate the matter.

The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

17    In the course of oral argument, counsel for the Minister accepted, quite properly, that the Tribunal was required to consider the matters advanced by Mr Singh in the statement provided in support of his application to reinstate. However, issues arose as to the extent to which the reasons engaged in a consideration of the matters raised in the statement. Four things should be noticed about the matters in the statement and the form of the reasons.

18    First, the statement needs to be evaluated having regard to its evident character, namely a statement made by Mr Singh personally. It is not expressed in the language of a lawyer. It requires attention to the substance of what is being said without being unduly distracted by the manner in which it is expressed.

19    Second, the statement raises two matters: (a) a claim that Mr Singh did not know of the hearing; and (b) a claim that Mr Singh was not aware that he was required to come to the hearing. The second matter is reinforced by the statement 'I have thought tribunal itself takes the decision without my attendance'.

20    Third, the statement frankly discloses that Mr Singh's migration agent at the time said it was Mr Singh's fault because he had 'intimated you twice'. Mr Singh then said that he did not notice it being mentioned. He is not saying that he did not know. He is saying he did not notice. Mr Singh described this as 'miscommunication … regarding hearing invitation'. Overall, the language used in the statement is more apt to refer to a misunderstanding about the need to attend than about the scheduled date for hearing. In any event, it is clear enough that the statement advances Mr Singh's belief that he was not required to attend as a reason why there should be reinstatement.

21    Fourth, the Tribunal's reasons only deal with the question whether there had been notification of the scheduled date of the hearing. This is evident from the reasons that follow the quotation of Mr Singh's statement. The Tribunal begins by noting that the hearing invitation 'was correctly sent to his authorised recipient'. Next the Tribunal further notes that SMS reminders of the upcoming hearing date were sent 'following standard procedure'. Then, the Tribunal concludes that it is therefore satisfied that Mr Singh was correctly notified of the hearing. The language used reflects an understanding that the application turns solely upon whether Mr Singh was notified in accordance with the requirements of the Migration Act and standard procedure was followed by the Tribunal. There is no reference to the explanation that there was miscommunication which meant that Mr Singh was not aware that he had to attend at the scheduled hearing in order for his application for review to be dealt with on the merits.

22    A number of submissions were advanced for the Minister to support the decision of the Tribunal as a proper performance of its statutory function. It was said that the recitation of the statement showed that the matters in the statement had been considered and rejected. Particular reliance was placed upon the fact that the Tribunal introduced the quotation of the statement by stating that the Tribunal did not consider it appropriate to reinstate '[f]or the following reasons'. It was said that this form of words and the quotation of all of the main parts of the statement showed that the Tribunal had brought all of the contents of the statement to account in not reinstating the application. However, the difficulty with that submission is that the Tribunal had a statutory obligation to provide reasons. It performed that obligation by referring only to the issue of whether Mr Singh was notified and without any reference to Mr Singh's statement that there was a miscommunication about the requirement for him to attend the hearing.

23    It was contended that it was difficult to make sense of what was being said by Mr Singh and that explains why the statement was set out verbatim. However, this is not a case where the matters being advanced are so vague or lacking in detail that it is difficult to discern what was being said. Further, there is no textual indication in the reasons of that view being taken by the Tribunal.

24    It was further contended that the statement offered such a feeble explanation that it was sufficient for the Tribunal to deal with it by simply quoting the statement and then stating that it did not consider it appropriate to reinstate the matter. However, for the reasons I have given, the form of the Tribunal's reasons is inconsistent with such an approach. Rather, the singular focus upon whether Mr Singh was 'correctly notified' indicates that the Tribunal treated the statement as raising a claim that he was not notified by the Tribunal of the scheduled hearing. However, that was not the substance of what the statement said. While it did refer to not knowing the hearing date, the main thrust of the statement was that there was a miscommunication with the migration agent which meant that Mr Singh did not know of the hearing date and thought that the Tribunal would make its decision without his attendance being required. A misunderstanding of the second matter may very well result in a failure to pay proper attention to when the hearing may be scheduled.

25    By focussing only upon whether it was satisfied that the correct notification procedure had been followed, the Tribunal failed to address the matters advanced by Mr Singh in two respects. First, it failed to address his claim that when his appointed agent had communicated with him about the hearing there had been a miscommunication. Second, as a consequence of that miscommunication, Mr Singh did not know the hearing date and did not know that he was required to come to the hearing. Accordingly, it was insufficient for the Tribunal to simply deal with whether Mr Singh had been notified.

The statutory context applying to a reinstatement application

26    In deciding whether there was jurisdictional error by the Tribunal, it is also necessary to consider the statutory context in which a reinstatement application may be brought. When there is an application for review under Div 5 of Pt 5 of the Migration Act, the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the decision under review (save in circumstances that are not applicable for present purposes): s 360(1). If an applicant is invited to appear, but does not do so, then the Tribunal can make a decision on the review without taking further action to allow the applicant to appear or it can dismiss the application without any further consideration: s 362B. If the latter course is followed then the applicant may apply to reinstate the proceedings within 14 days and the applicant must be notified of that statutory right within 14 days after the dismissal: s 362B(1B) and s 362C(5).

27    The evident purpose of the right to apply for reinstatement is to provide an avenue by which the application may be dealt with on the merits rather than dismissed procedurally. It is a protection that is only afforded if there is due consideration of the reasons advanced on a reinstatement application. If consideration on a reinstatement is confined to whether a person has been 'correctly notified' then little purpose would be served by the statutory provision allowing for an application to reinstate. It would confine reinstatement to those instances where the Tribunal itself had not followed the notification procedure in the Migration Act. However, there would be no need for such a right because a dismissal that occurred without proper notification would be no dismissal at all. As I have noted there is a statutory obligation to notify an applicant of a scheduled hearing. Further, the Migration Act is quite specific about how the notification is to be given: s 360A. Satisfaction of such requirements is necessary in order for the power to make a decision on the review to be enlivened: SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63; (2007) 159 FCR 199 at [29]-[30] (Besanko J, with whom Moore J agreed at [1]) and [53] (Buchanan J).

28    Even so, it is for the applicant to advance the application for reinstatement and any material relied upon. After all, such an application is only made in circumstances where the applicant has failed to appear at a scheduled hearing.

29    When s 362B(1C) says that on an application for reinstatement the Tribunal must, if it considers it appropriate to do so reinstate the application, it imposes a statutory responsibility on the Tribunal to form an opinion or make an assessment as to whether reinstatement is 'appropriate' having regard to all of the circumstances advanced to support reinstatement. In such a context, the word 'appropriate' connotes two aspects: fitness and propriety. That is, in order to be 'appropriate', something must be both suited to the particular circumstances as well as sensible, right and proper. In Mitchell v The Queen (1996) 184 CLR 333 at 346, it was said by Dawson, Toohey, Gaurdron, McHugh and Gummow JJ that:

The phrase 'considers … appropriate' indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper.

30    Relevantly for present purposes, the use of the word 'appropriate' requires the Tribunal to make an assessment of all of the matters that are advanced to support reinstatement. If more is raised on an application to reinstate than the single issue as to whether the applicant was notified of the scheduled hearing, then the Tribunal could not properly form a view as to whether reinstatement was appropriate by confining consideration to the facts concerning notification.

Alleged jurisdictional error

31    In the above context, the grounds raised on appeal are:

(1)    The Tribunal had a statutory obligation to form a reasonable view about whether reinstatement was appropriate and the primary judge erred in concluding that the Tribunal's decision was reasonable;

(2)    The primary judge erred in concluding that the Tribunal applied the correct legal framework when his Honour should have concluded that the Tribunal applied a view as to the meaning of 'appropriate' that was too narrow; and

(3)    The primary judge erred in failing to conclude that Mr Singh was denied procedural fairness by reason that the Tribunal failed to put to him for comment the SMS reminders that had been sent by way of notification of the Tribunal hearing scheduled for 3 March 2016.

32    There is some overlap between Grounds 1 and 2. Ground 1 claims that the Tribunal acted outside the bounds of the statutory authority reposed in the Tribunal which required any decision that the Tribunal was not satisfied that it was appropriate to reinstate the matter to be within the bounds of decisions that might be reached by a reasonable repository of the power. It was said that the decision made was not reasonable in that sense because it was based solely upon the view that Mr Singh had been correctly notified of the hearing date rather than upon a consideration of the matters raised in his statement. Likewise, at the heart of Ground 2 was a complaint that the Tribunal had approached the statutory task by considering only whether Mr Singh had been correctly notified of the hearing. This was said to be looking at the matter too narrowly and solely from the point of view of the Tribunal. The contention was that the use of the word 'appropriate' required the Tribunal to look at all of the circumstances advanced in support of reinstatement, not just at whether Mr Singh had been correctly notified.

33    Ground 3 is said to arise because of the Tribunal's reliance upon the SMS notifications to which it referred in its reasons. The notifications were sent to a mobile telephone number that Mr Singh had provided as part of his visa application. Mr Singh's statement in support of reinstatement provided a different mobile number. However, there was no suggestion in the material provided to Mr Singh when he was advised of the dismissal that the dismissal had occurred because he had failed to attend even though he was notified of the scheduled hearing by SMS to the mobile number on his visa application. The reasons for dismissal under s 362B(1A)(b) simply stated:

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.

34    It is convenient to deal firstly with Ground 2.

Ground 2: Failure to perform the Tribunal's statutory task

35    For the reasons I have given, the statement in support of the application for reinstatement was not confined to whether Mr Singh had been notified. However, the reasons given by the Tribunal were so confined. Given the obligation to provide reasons, the form in which the Tribunal's reasons were expressed leads to the conclusion that the Tribunal made its decision solely on the basis that the applicant was correctly notified.

36    This was to adopt an approach that was too narrow. In a case where the only matter advanced by an applicant was that there was no notification in accordance with the requirements of the Migration Act such an approach would be justified. However, where, as here, there are other matters advanced then in considering whether it was appropriate to reinstate the application the Tribunal was required to engage with the particular matters advanced and address them by reasons. Further, if the factual matters relied upon in support of the application were not to be accepted by the Tribunal, then the Tribunal was required to make express findings to that effect in its reasons together with an explanation of the basis for those findings. While this can be done briefly, in this case it was not done at all.

37    In those circumstances, there was a failure to perform the statutory task. It is a failure of a kind that can be characterised in the terms advanced by Ground 2, namely that the incorrect legal framework was applied by the Tribunal.

38    In fairness to the primary judge, it should be noted that the argument was not advanced in the same way in the Federal Circuit Court. Nevertheless, the finding was made at [27] that the Tribunal applied the correct legal test. For the reasons I have given, that finding was not correct. Ground 2 should be upheld.

Ground 1: Unreasonableness

39    It may be possible to contend that the error identified in Ground 2 also amounts to unreasonableness. This was the manner in which Ground 1 was presented in this Court. However, in view of the conclusion I have reached as to Ground 2 it is not necessary to decide whether this is the case in this instance.

Ground 3: Procedural fairness

40    In reaching its conclusion that Mr Singh had been correctly notified, the Tribunal took into account that two SMS reminders of the upcoming hearing 'were sent to the applicant's mobile'. There was no mention in Mr Singh's statement of the SMS notifications. It was argued that the Tribunal was obliged to put to him the fact of the SMS reminders before relying on them as a basis for concluding that he was notified.

41    There was evidence before the primary judge to the effect that the mobile number to which the SMS reminders were sent was the number on Mr Singh's visa application made in September 2014. However, a different mobile number had been provided with Mr Singh's application for reinstatement. There was no evidence about whether he had, in fact, received the notifications.

42    Section 357A of the Migration Act provides that Div 5 of Pt 5 is to be an exhaustive statement of the requirements of natural justice. Most of the provisions are concerned with the conduct of a review. However, in the case of an application to reinstate, it takes place necessarily at a time when the review application has been dismissed. In those circumstances, questions arise concerning the nature and extent of procedural fairness that must be afforded. These are matters best left for a case that requires the adjudication of such matters.

Leave to raise grounds on appeal and final orders

43    For the reasons I have given, there is merit in Ground 2 of the appeal. Ground 2 is directed at the correctness of a finding made by the primary judge. Although the case was not presented in the same way below, the judgment of the Federal Circuit Court did depend upon its finding that the correct legal framework had been followed. The ground raises no new factual issues and no prejudice was advanced by the Minister that would flow if leave was given. If leave was not given then the refusal of the visa application would stand. As a result, there may be potentially severe consequences for Mr Singh if he were not granted leave to appeal on Ground 2 because he may not be able to remain in Australia. In those circumstances, I would grant leave to raise Ground 2 and allow the appeal.

44    The Court was informed by counsel for Mr Singh that in the event that the appeal was successful, no order for costs was sought on the appeal but that an order was sought setting aside the orders in favour of the Minister in the Federal Circuit Court. Orders should be made in those terms.

Associate:

Dated:    1 November 2018