FEDERAL COURT OF AUSTRALIA

Daw v Minister for Immigration & Citizenship [2012] FCA 705

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1    This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of the first respondent (“the Minister”) to cancel the applicant’s Class XB, Subclass 202 (Global Special Humanitarian) visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

2    The applicant challenges the decision of the Tribunal on the sole ground that he was denied procedural fairness by the Tribunal’s refusal to grant him an adjournment of his hearing. The Minister accepts that the Tribunal was obliged to act in accordance with the requirements of procedural fairness, such that the applicant was entitled to be given a reasonable opportunity to present his case. The Minister submitted that the applicant was given such an opportunity; that procedural fairness did not require, in the circumstances of this case, that the Tribunal grant an adjournment to suit the convenience of a legal representative who was available to appear on behalf of the applicant, but who wanted more time to prepare the case.

3    In a proposed amended application for review attached to the applicant’s outline of submissions, the applicant sought to add a contention that the Tribunal failed to act in accordance with s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). Section 39 of the AAT Act relevantly requires that the Tribunal shall “ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case”. The statutory requirement reflects the common law requirement of procedural fairness: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J; Weti v Minister for Immigration and Citizenship [2007] FCA 1531 at [24]. The proposed amendment, in my view, does not materially change the issues in the case.

4    Nothing in the Tribunal’s reasons for decision touches on the question of an adjournment. The evidence that an application for an adjournment was made and rejected is contained in the affidavit of David John Prince, solicitor, sworn 27 March 2012, and the annexures thereto (Ex 1).

Relevant Facts

Background

5    The applicant was born in Sudan, in the part of the country that now forms the independent state of South Sudan. He entered Australia together with his wife and two children on a Class XB, Subclass 202 (Global Special Humanitarian) visa on 23 June 2006. From 25 September 2008 to 27 May 2011 the applicant was convicted of several criminal offences involving violence against a person for which he was sentenced to various terms of imprisonment of up to eighteen months. There has never been any issue that the applicant failed the character test in s 501(6) of the Act.

6    By notice of visa cancellation served on the applicant on 22 November 2011, the Minister cancelled the applicant’s visa.

The Adjournment Application

7    The applicant placed heavy reliance on the attempts made by his solicitor, Mr Prince, to assist the applicant and appear on his behalf at the Tribunal hearing.

8    Mr Prince deposed that he had a standing arrangement with the Sydney Registry of the Tribunal that he was prepared to provide pro bono advice to unrepresented applicants before the Tribunal involving character cases under s 501 of the Act. Mr Prince was first notified of the applicant’s application for review and provided with documents relating to the application, by email, on 5 December 2011 (Ex 1, p 7). The email noted that:

(a)    the application was scheduled for a telephone directions hearing before Senior Member Allen on 12 December 2011 at 9:30 am;

(b)    the applicant could be contacted at Villawood Immigration Detention Centre on a phone number provided and would require the assistance of an Arabic (Sudanese) interpreter, notwithstanding that he “does have some limited English”.

9    On 15 December 2011 Mr Prince was informed by Deputy District Registrar Allan Teves that the matter had been listed for hearing on 24 and 25 January 2011 and that the date by which the Tribunal was required to make its decision in relation to the application or otherwise be deemed to affirm the Minister’s decision pursuant to s 500(6L) (commonly termed “the 84-day period”) was 14 February 2012 (Ex 1, [4]). By email, Mr Prince was provided with additional documents relating to the application described as “the documents provided by Mr Daw that had been served on him by the decision maker” (Ex 1, p 11).

10    On 6 January 2012 Mr Prince, absent an interpreter, attended the Villawood Immigration Detention Centre for the purposes of a “legal visit” with the applicant (Ex 1, [7] and p 13).

11    By 12 January 2012 Mr Prince had accepted instructions to act for the applicant. On that day Mr Prince sought to have the matter listed for a telephone directions hearing and formally notified Deputy District Registrar Teves of his intention to seek an adjournment of the hearing date (Ex 1, p 16). Deputy District Registrar Teves advised by email to Mr Prince on the same date that Senior Member Allen had indicated that at that stage he was “not prepared to accede to [Mr Prince’s] request to have the hearing dates in this matter rescheduled”. Deputy District Registrar Teves requested that, to “allow SM Allen to fully consider” the request for an adjournment, Mr Prince provide submissions in support of the request (Ex 1, p 21).

12    The response of Senior Member Allen to the informal request for an adjournment is unsurprising, particularly in light of the “Listing and Adjournment Practice Direction” issued by President Downes of the Tribunal on 19 April 2005 (Ex C). The practice direction relevantly provides:

“3.    Matters are fixed for hearing on the basis that the hearing will proceed on the day fixed.

4.    An application for an adjournment will not be granted unless there are good reasons to justify the adjournment.     

5.    Unavailability of counsel is not generally a sufficient reason for an adjournment to be granted.

6.    The consent of the other party to an adjournment is not of itself a sufficient reason for an adjournment to be granted.

7.    An application for an adjournment must be made at the earliest possible opportunity. Application is to be made in writing addressed to the District Registrar. The application must set out the reasons why an adjournment is necessary and be signed by the person or representative seeking the adjournment. The application must be accompanied by any documents that support the reasons for seeking an adjournment.

8.    …

9.    An application for an adjournment made less than ten working days prior to the hearing date will not be granted unless there are particular and compelling reasons for the matter to be adjourned.”

(Emphasis added.)

13    At 3:01 pm on Friday, 20 January 2012 (Ex 1, pp 27–31), the applicant, by his solicitor Mr Prince, faxed a written application for an adjournment of the hearing which was scheduled to commence on Tuesday, 24 January 2012. The submissions made in support of the application for an adjournment did not offer any explanation as to why the application was being made at such a late stage, notwithstanding the express request from the Deputy District Registrar on 12 January 2012 for the applicant to submit written submissions in support of the application for an adjournment. The submissions indicated that if an adjournment were granted, Mr Prince would seek to contact the applicant’s former wife (Ex 1, p 30). It was also argued that “pushing back the hearing date as late as humanly possible” would give Mr Prince “the longest period of time in which to assist Mr Daw present his strongest possible case” (Ex 1, p 31). Otherwise no argument was advanced as to why an adjournment was necessary or would assist the applicant.

14    On the morning of the next business day, the Tribunal advised Mr Prince that the request for an adjournment had been denied (Ex 1, p 33). Reasons for the decision were neither provided nor requested. Mr Prince then ceased to act on behalf of the applicant. There had been no indication in the adjournment application that if the adjournment were not granted Mr Prince would cease to act and not appear at the hearing.

15    The hearing proceeded as scheduled on 24 January 2012. The applicant provided the Tribunal with a written submission and supporting material. There is no doubt that the Tribunal considered that material: [2012] AATA 70 at [37]. The applicant had an opportunity to be heard orally at the hearing and was assisted by an interpreter. The applicant in this Court does not suggest that there was any flaw in the conduct of the hearing or that the applicant was denied the opportunity to say whatever he wished to say to the Tribunal in support of his application.

The Statutory Scheme

16    The requirements of natural justice depend upon the circumstances of the case, the nature of the inquiry, the rules under which the relevant tribunal or decision-maker is acting and the subject matter that is being dealt with: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118; Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 at 94, 98. The applicant’s essential proposition is that procedural fairness required that he be granted an adjournment of the scheduled hearing to enable his solicitor more time to prepare his case. This argument must be understood in the context of the factual circumstances and the statutory scheme within which the decision was made: Kioa v West (1985) 159 CLR 550 at 584–585 per Mason J and 609–610 per Brennan J.

17    The Tribunal was required to determine the application for review of the Minister’s decision to cancel the applicant’s visa under s 501 of the Act in accordance with the strict requirements under the Act governing such a review. The following procedural requirements applied in the circumstances of the present 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).

18    In Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at [25]–[26], Gray J (with whom RD Nicholson and Stone JJ agreed) per curiam considered these strict provisions. His Honour identified the underlying purpose of the scheme as being to prevent circumstances arising in which hearings would need to be adjourned in order to enable the Minister to meet a new case sought to be advanced at hearing. The two-day rules were also recognised as being an important part of the statutory scheme in enabling the 84-day time limit to be adhered to.

19    These restrictions provide important context for the applicant’s request to the Tribunal on 20 January 2012 to adjourn the scheduled hearing. Any adjournment would have had serious practical implications for the Tribunal in completing its review within the scheduled time, particularly in light of the prospect of the applicant seeking to rely on new material (which would need to be subject to each of the two-day rules) and the need for the Tribunal to produce a reasoned decision on or before 14 February 2012. The Tribunal was required to provide reasons for its decision, either orally or in writing: s 43(2) of the AAT Act.

COnsideration of The Applicant’s Case

20    The applicant invoked the proposition, referred to by Hunt J in White v Hall (1983) ASC 55-247 at 56,250, that “[w]here the unreasonable refusal to grant an adjournment prevents a party from properly presenting his case, there is a denial of natural justice”. The proposition should not be taken out of context. In White v Hall, Hunt J concluded that a breach of procedural fairness had occurred because a referee declined a party an opportunity to bring forward crucial evidence in an admissible form. Hunt J noted that no reason was given for the refusal to grant an adjournment to allow for that evidence to be prepared and the refusal was “plainly unreasonable” (at 56,251).

21    As the second limb of this makes clear, the proposition is founded in the requirement of procedural fairness that a party must be given a reasonable opportunity to be heard, which may be translated in a judicial or quasi judicial setting as a reasonable opportunity to present one’s case. A hearing will miscarry in a procedural fairness sense by reason of a refusal of an adjournment only if the refusal is unreasonable and has the consequence that a party is prevented from having a reasonable opportunity to present its case.

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 (Ex C), 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 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.

25    Procedural fairness does not require that a person be provided with legal representation in an administrative review concerning the person’s deportation: see Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 at 29 per curiam. Nor does procedural fairness require that the Tribunal must adjust its procedures and scheduled hearings to accommodate the convenience of a legal practitioner who is willing to appear, but only on certain conditions. Procedural fairness requires that the applicant be afforded a reasonable opportunity to present his case, not the best possible opportunity that the Tribunal may be capable of accommodating.

26    The affidavit of Mr Prince (Ex 1) describes, in para 12, the steps that he would have taken had he obtained the desired extension of time for the hearing. Most of the matters referred to in para 12 were addressed in material that was before the Tribunal, including in the applicant’s own submissions. It is a matter of speculation as to whether the same matters and additional matters could have been put more effectively by the applicant with the assistance of a solicitor. The relevant point for the purposes of procedural fairness is the applicant was afforded the opportunity to address these matters and advance whatever submissions or material he thought would assist his case. The issues in question were well canvassed in the reasoning of the Tribunal: see Weti at [34]. The relevant question is whether the applicant was denied an opportunity of adequately presenting his case, not whether the applicant’s case would have been better presented with legal representation: Weti at [32].

27    In Sullivan at 343 Deane J observed that a refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of presenting his case. His Honour’s analysis of this issue in the context of the facts of the case is instructive. The appellant, Major Sullivan, had appeared without representation in the Tribunal proceedings that were at issue. In the Tribunal hearing in question, Major Sullivan had wished to question a witness of particular importance, Dr Evans, but the witness was not in attendance and had not been summonsed to attend. Major Sullivan did not request an adjournment. Deane J noted at 343 that there may be circumstances in which, even in the absence of an express request, a Tribunal may be obliged to grant or consider an adjournment. However, his Honour concluded that no breach of procedural fairness had arisen on the facts of the case. His Honour observed, at 343:

“[I]t is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.”

28    Warrell v Fair Work Australia [2012] FCA 267 was an extreme case involving “unusual circumstances” (see [10]–[11]) which distinguish it from the present case. Mr Warrell, according to the Court’s findings, was brain damaged and illiterate. The application for an adjournment in that case was made immediately seven days before the hearing and included a detailed explanation of the basis for the application, including the inability of Mr Warrell to conduct the appeal without representation. Unlike in the present case, the Full Bench of Fair Work Australia was notified at the time of the adjournment application that if the hearing was not adjourned Mr Warrell’s counsel would be unable to appear. Unlike the Tribunal in the present case, the Full Bench was not subject to any time limits which required the matter to be decided urgently or which would affect the rescheduling of the matter.

29    This is not a case where an adjournment was required in order for the applicant to deal with an issue that he was not aware of until the hearing. The applicant gains no assistance from Hutley v Meigan [1996] NSWSC 636 in which Rolfe J concluded that the refusal by the Consumer Claims Tribunal to grant an adjournment to enable parties to deal with critical evidence, the importance of which only became apparent at the hearing, was enough to constitute a breach of procedural fairness. To similar effect in Hodgkinson v Companies Auditors and Liquidators Disciplinary Board (1994) 50 FCR 504 Drummond J reasoned that a breach of procedural fairness would occur if a Tribunal declined to grant an adjournment in circumstances where a party was labouring under a bona fide misapprehension as to the issues in the case, such that in the absence of an adjournment there would not be a reasonable opportunity to respond to those issues.

Conclusion

30    Having regard to the statutory scheme within which the decision of the Tribunal was to be made and the relevant facts and circumstances outlined above, I am of the view that the Tribunal’s refusal to grant an adjournment to a “date as late as humanly possible” was not unreasonable, nor did it prevent the applicant from having a reasonable opportunity to present his case.

31    The appeal must be dismissed with costs.

Associate:

Dated:    5 July 2012