FEDERAL COURT OF AUSTRALIA

BZAHM v Minister for Immigration and Border Protection [2015] FCA 675

THE COURT ORDERS THAT:

1.    The amended originating application filed on 23 March 2015 is dismissed.

2.    The applicant pay the respondents’ costs of and incidental to this proceeding.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The applicant has applied under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) for an order that a writ of certiorari issue to the Federal Circuit Court, the third respondent, to quash the order made by Jarrett J on 23 January 2015. That order dismissed the applicant’s application under s 477(2) of the Migration Act 1958 (Cth) (the Act) for an extension of time within which to bring an application for review of the decision of the Refugee Review Tribunal, the second respondent (the Tribunal). The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Border Protection, the first respondent (the Minister), to refuse to grant the applicant a protection visa.

2    The applicant has also applied for an order that a writ of mandamus issue to the Federal Circuit Court requiring that his application for an extension of time be determined according to law by a judge of that Court, other than Jarrett J. For the reasons set out hereunder, the applicant’s application will be dismissed.

The grounds of this application

3    The applicant’s grounds for this application are as follows:

(a)    That Jarrett J misapprehended the test to be applied under s 477(2)(b) of the Act in determining whether there was a discretion to extend the time for an application for a remedy under s 476 of the Act.

(b)    In determining whether there was a discretion to extend the time for an application for a remedy under s 476 of the Act, Jarrett J failed to consider s 476A(3) of the Act and thereby:

(i)    failed to take into account a relevant consideration; and

(ii)    denied the applicant procedural fairness.

(c)    Jarrett J erred in law by deciding that the Tribunal’s decision to conduct a hearing in the applicant’s absence was not unreasonable.

4    The applicant provided the following particulars of these grounds:

(a)    On 4 September 2014, the applicant applied to the Federal Circuit Court for judicial review of the decision of the Tribunal to affirm the decision of the Minister.

(b)    That application was made outside the statutory limit of 35 days. Therefore, the matter was heard by Jarrett J as an application for extension of time.

(c)    On 23 January 2015, Jarrett J refused to extend time to review the application.

(d)    Jarrett J decided the applicant’s claim had no merits. The applicant contends his Honour set the bar too high in arriving at his decision on the merits of the applicant’s claim. As a result, the applicant was required to prove more than a reasonably arguable case.

(e)    Under s 476A(3) of the Act, that decision cannot be appealed. As a result, the applicant was denied his right to appeal.

THE FACTUAL BACKGROUND

5    The factual background to the applicant’s claims was aptly summarised by Jarrett J in the following terms (see BZAHM & Ors v Minister for Immigration & Anor [2015] FCCA 49 (BZAHM)):

[6]    The applicant is a national of Vietnam, born on 30 March, 1981. He came to Australia on 13 August, 2007. He held a Temporary Work (Skilled) Principal applicant Offshore (UC 457) visa and worked as a butcher. This visa ceased on 23 July, 2011.

[7]    On 30 June, 2011 the first applicant lodged an application for an Employer Nomination Scheme (Full) (BW 856) visa which was refused on 25 October, 2011.

[8]    The first applicant applied for review of that decision and on 22 April, 2013 a migration review tribunal affirmed the first respondent’s delegate’s decision to refuse the first applicant the Employer Nomination Scheme (Full) (BW856) visa.

[9]    On 6 June, 2013 the first applicant lodged an application for a Protection (Class XA) visa. Claims were also made by the first applicant’s wife and their two daughters. They did not advance their own claims for protection, but relied upon their membership of the first applicant’s family unit. He also has a son, but he did not seek protection. He is in the care of the first applicant’s parents in Vietnam.

[10]    A delegate of the first respondent refused to grant that visa on 26 November, 2013. The first applicant thereafter applied to a refugee review tribunal on 19 December, 2013 for review of the delegate’s decision.

[11]    The tribunal affirmed the delegate’s decision on 18 June, 2014.

[12]    The first applicant made a further application for a protection visa on 10 July, 2014 and a delegate of the first respondent notified the first applicant that his further application would be considered as a request by the first applicant for ministerial intervention.

[13]    The first applicant did not apply for judicial review of the decision of the refugee review tribunal within the 35 days mandated for such applications. He says that he was waiting to receive the outcome of the ministerial intervention request. However, the ministerial intervention was refused on 19 August, 2014.

6    Before proceeding to consider the applicant’s application, it is first necessary to briefly describe the conduct of the proceeding before the Tribunal and then to summarise the decision of Jarrett J.

THE PROCEEDING BEFORE THE TRIBUNAL

7    The applicant’s application for a merits review of the Minister’s decision was first set down for hearing before the Tribunal on 12 May 2014. On that day, the Tribunal received a written request from the applicant’s representative for a postponement of the hearing for medical reasons. Accordingly, the hearing was rescheduled and a notice was sent to the applicant stating that the postponed hearing would commence at 9.30 am on 18 June 2014. The applicant did not appear at that time and date, and the Tribunal was not contacted beforehand to explain his failure to attend. In accordance with s 426A of the Act, the Tribunal decided to affirm the Minister’s decision not to grant the applicant a protection visa. That decision was certified at 1.37 pm on 18 June 2014.

8    At 4:09 pm on 18 June 2014, the applicant’s representative sent a facsimile to the Tribunal advising that “[their] client could not attend the hearing this morning because he was bedridden due to his illness”: see BZAHM at [42]. A medical certificate dated 18 June 2014 was enclosed.

9    On 20 June 2014, the Tribunal wrote to the applicant’s representative enclosing a letter to the applicant noting that, while the medical certificate had been received by the Tribunal, by that time it had already made its decision and it therefore had no power to take any further action on the review.

THE DECISION OF the federal circuit court

10    In determining the applicant’s application for an extension of time, Jarrett J considered the applicant’s delay of 43 days in filing his application. His Honour observed that this delay “was not particularly lengthy” (BZAHM at [23]) and appears to have accepted the applicant’s explanations for that delay (BZAHM at [89]), which he summarised in the following terms:

[23]    Here, the 35 day time limit expired on 23 July, 2014. The application for review was not filed until 4 September, 2014 - some 43 days late. The delay was not particularly lengthy.

[24]    During that period, the first applicant was not idle. He filed a second (albeit misguided) application for a protection visa. That was dealt with pursuant to s 417 of the Act and he awaited that outcome.

[25]    … There is no evidence suggestive of an oversight by the first applicant’s representative after the tribunal’s decision, nor any attempt to seek judicial review before the date the application was filed. It might be inferred that the time limit was allowed to pass intentionally.

[26]    However, once notified of the first respondent’s refusal to substitute a more favourable decision on 19 August, 2014 the application for review was filed relatively promptly.

11    Notwithstanding these conclusions, Jarrett J observed that there were other factors bearing upon the exercise of his discretion, specifically the substantive merits of the applicant’s review application and he then turned to consider that issue. Ultimately, Jarrett J formed the view that “the proposed application for review has such little prospect of success that to grant an extension of time within which to commence these proceedings would not be in the interests of the administration of justice”: BZAHM at [89]. His Honour therefore dismissed the applicant’s claim. Set out hereunder is a series of extracts which will serve to identify the salient aspects of his Honour’s reasons for reaching this conclusion.

12    The applicant’s first ground of review was that the Tribunal denied the applicant procedural fairness in proceeding to make a decision on 18 June 2014 in the absence of the applicant. Jarrett J concluded that there was no merit in this ground essentially because it was not unreasonable for the Tribunal to proceed in the absence of the applicant when there was nothing before it to indicate why he had not attended the hearing. His Honour said:

[63]    In my view, there was nothing unreasonable about the tribunal’s determination to proceed in the absence of the first applicant. The first applicant had been appropriately notified of the first hearing date and had responded to that invitation. At the first applicant’s request that date was postponed and the first applicant was appropriately advised of the rescheduled hearing date. The evidence demonstrates that the first applicant knew of the rescheduled hearing date. The second invitation letter made clear to the first applicant and his representative what was required if a further postponement on medical grounds was necessary.

[64]    The first applicant did not seek any form of adjournment prior to the rescheduled hearing date on 18 June, 2014 nor did the tribunal receive any communications from the first applicant’s representative after 12 May, 2014. The next contact from the first applicant’s representative was after the hearing and the decision had been made.

[65]    The tribunal’s reasons indicate that the tribunal gave consideration as to whether or not to exercise the discretion.

[66]    In my view there was no unreasonableness affecting the tribunal’s decision. This ground of review has no real prospect of success.

(Emphasis in original)

13    In reaching this conclusion, Jarrett J rejected the applicant’s contention that the Tribunal had an obligation to contact him when he did not appear at the hearing. His Honour expressed his reasons for rejecting this contention in the following terms:

[57]    He argues that in circumstances where neither the first applicant nor his agent turned up at the hearing and neither contacted the tribunal at, or before the time fixed for the commencement of the hearing, the tribunal had an obligation to contact either the first applicant or his migration agent to ascertain the first applicant’s position.

[58]    The tribunal elected to determine the application in the first applicant’s absence. It was entitled to do so. The tribunal had no information that would suggest that the first applicant was seeking a further adjournment. The tribunal was not obliged to infer from the fact that it had permitted the previous adjournment, or from the reasons for doing so, that the absence of the first applicant indicated either that:

(a)    he was too unwell to attend the rescheduled hearing; or

(b)    that he was seeking a further postponement or adjournment.

[59]    At the time the tribunal decided the application before it, there was nothing to suggest that the first applicant was seeking a further adjournment. There is no explanation about why the first applicant, or his agent, did not contact the tribunal before the time fixed for hearing to request the further adjournment.

14    The applicant’s second ground of review was that the Tribunal failed to take a relevant factor into consideration; namely, the applicant’s medical certificate to the effect that he was unfit to attend the hearing on 18 June 2014. His Honour rejected this ground essentially because, by reason of s 430(2) of the Act, having already made the decision on the applicant’s review application at 1.37 pm on 18 June 2014 (BZAHM at [74]):

…the tribunal could not vary or revoke its decision upon the receipt of the first applicant’s medical certificate or his application for an adjournment later that afternoon.

15    The applicant’s third ground of review was that the Tribunal failed to discharge its statutory obligations under s 36(2)(AA) of the Act. Jarrett J carefully examined the Tribunal’s reasons on this issue and concluded:

[86]    …the first applicant’s complaints under this ground amount to an impermissible request for merits review.

[87]    Having formed the view that it could not be satisfied of the first applicant’s claims on the material before it, and having invited the first applicant to a hearing that he did not attend, it was inevitable that the first applicant’s claims would be rejected…

[88]    In my view there was no unreasonableness affecting the tribunal’s decision. This ground of review has no real prospect of success.

16    In conclusion, his Honour decided to dismiss the application for an extension of time because he concluded the applicant’s substantive application for review did not have sufficient merits to justify such an extension. He summarised that conclusion in the following terms (BZAHM at [89]):

Whilst the applicants have provided an explanation for the delay in commencing these proceedings within the time limited for that purpose, I am of the view that the proposed application for review has such little prospect of success that to grant an extension of time within which to commence these proceedings would not be in the interests of the administration of justice.

THE LEGISLATIVE PROVISIONS

17    Section 476 of the Act provides the applicant with a right to seek judicial review of the Tribunal’s decision in the Federal Circuit Court. Section 477 of the Act then sets out the time limits that apply to such applications. It relevantly provides:

477 Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

(Emphasis in original)

THE CONTENTIONS

18    The applicant’s grounds of review are set out at [3] above. The applicant made written and oral submissions addressing each of those grounds and the Minister did likewise. The Tribunal filed a submitting notice, save as to costs.

Ground 1

19    The applicant contended that Jarrett J misapprehended the test to be applied under s 477(2)(b) of the Act, as follows:

…the test that His Honour Judge Jarrett was required to apply was to consider:

(a)    the extent of delay;

(b)    if there is any prejudice to the Minister;

(c)    the claims/grounds: whether there is a reasonable prospects (sic) of success / whether the applicant’s substantive case for judicial review is sufficiently arguable to justify an extension; and

(d)    the impact of s 476(3)(a) upon the Applicants.

20    As to (a) above, the applicant submitted that Jarrett J found the delay was short and that the applicant filed his application for review “relatively promptly” once notified of the Minister’s refusal to substitute a more favourable decision: see BZAHM at [23] and [26]. As to (b) above, the applicant submitted there was no argument before the Court that the Minister would suffer any prejudice by extending the time in which to file an application for review. As to (c) above, the applicant contended that, although Jarrett J considered the reasons the Tribunal gave for its decision, his Honour failed to appreciate that the Tribunal’s decision was made in the absence of the applicant, without any investigation into his claims, and in the context of the Minister having admitted that he had little information on which to decide the applicant’s application. Further, by concluding that the applicant’s application for review had “such little prospect of success”, his Honour had set the test too high. Finally, as to (d) above, the applicant submitted that Jarrett J had failed to take account of the fact that his decision would deny the applicant a right to appeal.

21    On this first ground of review, the Minister contended that Jarrett J correctly stated and applied the law with respect to s 477(2)(b) of the Act. In support of this submission, the Minister cited the decision of Foster J in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 (SZRIQ) at [46]–[48].

Ground 2

22    On Ground 2, the applicant contended that:

[Jarrett J] has failed to consider the impact of s 476A(3) on the Applicants. Under that section the Applicants are unable to appeal against that decision. Therefore, the Applicants have been barred from seeking a review of the [Minister’s] decision. [Jarrett J’s] decision therefore has become non-reviewable. This leads to a denial of procedural fairness to the Applicants.

23    The Minister responded that, while Jarrett J may not have expressly referred to s 476A(3) of the Act in his reasons, there was nothing to suggest that his Honour did not turn his mind to the impact that a decision to refuse an extension of time would have upon the applicant’s substantive rights. The Minister also pointed out that there was no evidence to indicate that the applicant had put this matter before Jarrett J in his written or oral submissions. Further, the Minister relied upon a passage in SZRIQ where Foster J observed that there was no requirement for the Federal Circuit Court to “always consider the impact of s 476A(3)(a) on the applicant” (at [69]). Finally, and in any event, the Minister submitted that any failure to take into account the impact of s 476A(3) did not amount to a jurisdictional error, citing Craig v South Australia (1995) 184 CLR 163 (Craig) at 180 and SZRIQ at [60].

Ground 3

24    In respect of his third ground, the applicant’s articulation of the contended unreasonableness was confused and difficult to understand. On the one hand, he seemed to assert some obligation on the part of the Tribunal to inquire why he had not attended at the scheduled time for the hearing but, on the other hand, he seemed to assert (in direct contradiction of the established facts) that he had applied for an adjournment before the Tribunal made its decision. The following extracts from his written submissions demonstrate these features:

The First Applicant’s claim was significantly affected by the denial of an opportunity to be heard. However, without investigating the reason for absence, the [Tribunal] rushed to make its decision on the same day, reaching its decision at 1.37pm.

However, [Jarrett J] found that there was no unreasonableness in reaching a decision in absence. At para 64 of [Jarrett J’s] decision it said that the applicants did not seek any form of adjournment prior to the rescheduled hearing; this was clearly an erroneous finding. The Applicant did not seek an adjournment as he was expecting to attend the hearing. His illness was sudden and unexpected. …

It is evident from the [Tribunal’s] Decision Record that the Applicants have been severely disadvantaged by their absence at the hearing. The [Tribunal] delayed the hearing for 30 minutes. While waiting, they made no attempt to find out the reason for the Applicants absence (sic). The Applicant had made an application for an adjournment and the [Tribunal] failed to consider this as it rushed to make a decision on the day of the hearing … The [Tribunal] received the First Applicant’s application for adjournment at 4.09 pm.

The application for an adjournment was an important document. The [Tribunal] was bound to give it consideration …

The [Tribunal] was not aware of the reasons for the First Applicant’s absence. It was not aware that the First Applicant had sent an application for adjournment. It was unaware of the Applicant’s sudden illness. However, by not considering the Applicants’ application for adjournment it denied the first applicant procedural fairness.

25    To compound the confusion mentioned above, during oral submissions, the applicant’s representative further contended that:

I would think that a certain inquiry is to be made within a half an hour, but there was no evidence to suggest that there was any inquiry at all.

26    When asked whether he could point to any authority supporting the proposition that the Tribunal had an obligation to make such an inquiry in the circumstances, the applicant’s representative stated:

It’s only a submission, your Honour. It’s not a legal principle …No [authority], your Honour, other than just – my submission is the natural justice …

The Tribunal does not have an obligation to do further search about the merit of the case or the actual claim, but, certainly – I don’t have anything to support my argument – but in my submission, it should have made some reasonable inquiries as to the failure to attend court in that instance. There are many reasons why people don’t turn up to court. Could be because of car accident or medical or – but it’s more of a natural justice argument than any legal principle argument I can advance, your Honour.

27    On the question whether this amounted to a jurisdictional error that Jarrett J should have corrected, the applicant submitted:

His Honour should have held that the reasoning of the [Tribunal] was not supported by logical grounds or probative material and that, in the absence of such, the [Tribunal’s] decision was void for jurisdictional error for the reason that the [Tribunal] failed or constructively failed to exercise or attain jurisdiction.

28    On this ground of review, the Minister observed that it addressed the same issues as were raised in the first and second grounds of review before Jarrett J. The Minister pointed out that Jarrett J rejected the first ground based on the observation in SZOZO v Minister for Immigration and Citizenship [2011] FCA 944 at [22] that “the election to proceed to a decision on the review in the absence of the applicant cannot, by itself, be treated as the expression of an unreasonable exercise of power”.

29    As to the second ground, the Minister submitted that the Tribunal was entitled to make its decision when it did, and Jarrett J was entitled to accept this as a matter of law. The Minister also reiterated the observation of Jarrett J that there was nothing in the evidence to suggest that the applicant could not have contacted the Tribunal before the hearing to provide information about his difficulties: see BZAHM at [71]. The Minister cited SZTSU v Federal Circuit Court of Australia [2015] FCA 224 (SZTSU) at [16] and contended that this proposed ground amounted to a “quarrel with the view formed by [Jarrett J] appropriately instructed as to the law and within his jurisdiction, and it does not itself disclose error”.

CONSIDERATION

The jurisdiction point is conceded

30    The Minister conceded that this Court had jurisdiction to deal with the applicant’s application. This concession was correctly made because the applicant is relying on s 39B(1) of the Judiciary Act to seek a constitutional writ to quash an order of a judge of the Federal Circuit Court. That being so, the Full Court of this Court has held that such a proceeding is not “in relation to a migration decision” and is therefore not affected by the provisions of s 476A(1) of the Act, which remove certain migration decisions from the original jurisdiction of this Court: see Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55; [2013] FCAFC 139 (Tang) at [2] to [11], followed recently in SZTSU at [2].

The first step – did Jarrett J make an identified legal error?

31    In an application of this kind, the first step is to determine whether Jarrett J made an identified legal error in determining the applicant’s application for an extension of time under s 477(2) of the Act. It is only if that question is answered in the affirmative that there will be a need to move to decide whether the legal error so identified constituted a jurisdictional error: see Tang at [31] and SZTSU at [11], citing SZRIQ at [40] and SZSXT v Minister for Immigration and Border Protection [2013] FCA 1394 at [14]–[15]. In this respect, the distinction drawn in Craig between the decisions of an administrative tribunal and those of an inferior court becomes important: see Craig at 179–180 and SZTSU at [12].

The errors of law advanced by the applicant

32    On the basis of the applicant’s submissions outlined above, the errors of law he claims that Jarrett J made, can be distilled into two primary propositions, as follows:

(a)    by concluding that the applicant’s application for review had “such little prospect of success” that his application for extension of time should be rejected, his Honour set the test too high. Instead, the correct test was whether the applicant had no prospect of success: relying on SZQGO v Minister for Immigration and Citizenship (2012) 125 ALD 449; [2012] FCA 177 (SZQGO) at [29] per Murphy J; and

(b)    in assessing whether or not it was in the interests of the administration of justice to grant the extension of time sought, his Honour failed to have regard to the “quintessential” importance of the applicant’s evidence for the success of his review application and the effect his decision would have on the applicant’s substantive review rights, and he failed to take account of the unfairness occasioned by the circumstances in which the Tribunal made its decision, including its failure to make any inquiries about his absence, and the “rush” with which it made its decision.

The correct test was used to assess the merits of the applicant’s substantive claims

33    Section 477(2) of the Act (see at [17] above) gives the Federal Circuit Court a discretion to order an extension of time in which to make an application under that section if it is satisfied that “it is necessary in the interests of the administration of justice” to make such an order. As Foster J observed in SZRIQ, while there are certain factors that have been identified as being relevant to an application of this kind, it is a matter for the primary judge to determine, in all the circumstances, which factors he or she considers are relevant to the exercise of that discretion: see at [46]–[49] and [52].

34    Jarrett J was clearly alive to the fact he had a discretion and that it had to be exercised judicially, because he observed (BZAHM at [22]) that:

The discretion must be exercised judicially. The factors that bear upon the exercise of that discretion include the length of the delay, the explanation for the delay, and the substantive merits of the review application.

35    The factors his Honour identified in the paragraph above were essentially the same as those identified in SZRIQ at [47] and SZTSU at [3], namely:

(a)    a reasonable explanation for the delay;

(b)    prejudice to the other party or parties; and

(c)    the merits of the claim.

36    The applicant does not appear to criticise his Honour’s reasoning in relation to the identification and use of these three factors. Not surprisingly, nor does he appear to quibble with the reasoning his Honour employed in finding for him on the first two factors. It is the third factor above and, in particular, his Honour’s reference in his reasons to the applicant’s substantive review application having “such little prospect of success” (BZAHM at [89]) that the applicant has seized on as manifesting an error of law.

37    On this issue, it is important to note that in the paragraph immediately preceding that above, and at two earlier points in his reasons, Jarrett J used the expression “no real prospect of success”, as follows:

[66]    In my view there was no unreasonableness affecting the tribunal’s decision. This ground of review [the first ground] has no real prospect of success.

[75]    In my view there was no unreasonableness affecting the tribunal’s decision. This ground of review [the second ground] has no real prospect of success.

[88]    In my view there was no unreasonableness affecting the tribunal’s decision. This ground of review [the third ground] has no real prospect of success.

38    Given this context, I consider that when his Honour used the compendious expression “such little prospect of success” in [89], he intended to convey the substance of his earlier assessments that each of the applicant’s grounds of review had “no real prospect of success”. That was, therefore, the test that his Honour applied. Then, when one compares that rendering of the test with the various descriptions of it in SZQGO and the decisions cited therein, as set out below, it becomes apparent that there is no substantial difference between the expressions “no real prospect of success”, “no prospect of success” and “no reasonable prospect of success”. In other words, they are all used inter-changeably. Indeed, absent this comparison, the test “no prospect of success” advanced by the applicant, as used in SZQGO (at [29]), would appear to set a stricter standard than the test I consider Jarrett J actually adopted.

39    In SZQGO, Murphy J considered an application for an extension of time in which to file an appeal from a decision of the Federal Magistrates Court, as the Federal Circuit Court was then established. His Honour identified the relevant discretionary factors in almost identical terms to those set out above (see at [35] above). After considering the first two factors, his Honour then turned to consider the third: the merits of the claim. In assessing the merits, his Honour expressed the test to be whether the appeal had “no prospect of success”, as follows (at [29]):

…it is well established that the Court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success: Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J, and the cases there cited - Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19].

(Emphasis added)

40    The statements of the test in the authorities cited by Murphy J in the paragraph above were: in Vu v Minister for Immigration and Citizenship, “good prospects” and “reasonable prospects” (at [14]); in SZOZG v Minister for Immigration and Citizenship, the appeal had “no prospects” (at [24] and [29]); in Kalanje v Minister for Immigration and Multicultural Affairs, the appeal had “no prospects of success” (at [5]); in SZIQP v Minister for Immigration and Citizenship, the substantial application did not demonstrate “any prospect of success” (at [22]); and in SZHFX v Minister for Immigration and Citizenship, the application had “no reasonable prospect of success” (at [24]).

41    It is also worth adding that the test that was used in Tang was whether there was “no reasonable prospect of success”: see at [30].

42    For these reasons, I consider Jarrett J applied substantially the same test as that applied in these various decisions when concluding that the applicant’s substantive review application had “no real prospect of success”. I do not therefore consider that the applicant has established that his Honour committed any error of law in this regard. Having reached this conclusion, there is no necessity for me to consider whether the Tribunal’s decision involved any jurisdictional error. The applicant’s first ground of review must therefore be rejected.

The Tribunal’s decision was not unfair or unreasonable

43    The applicant’s other grounds of review essentially raise different aspects of the same issue, that is, whether the Tribunal acted unfairly or unreasonably in proceeding to make its decision in the circumstances that it did. Again, the first step is to determine whether the applicant has demonstrated any error of law on the part of Jarrett J. Set out hereunder are the reasons why I consider the applicant has failed at this first step.

44    First, I agree with the Minister that there is no evidence that the applicant clearly articulated an argument before Jarrett J about the effect that s 476A(3) of the Act would have upon his substantive rights to review the Minister’s decision to refuse him a protection visa. That being so, it can hardly be said that his Honour made an error of law by not expressly referring to that subsection in his reasons. Nonetheless, I consider that, from a fair reading of his Honour’s reasons, he was aware that his decision would preclude the applicant from any further avenue for review of the Minister’s decision. An example of that appreciation is the following observation (BZAHM at [22], citing SZNZI v Minister for Immigration [2010] FMCA 57 at [11]):

Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40]- [41]).

45    Significantly, the first paragraph of the decision of Yu v Minister for Immigration to which his Honour referred above mentions s 476A(3) and contains a discussion about the effect of that provision. I do not therefore consider that Jarrett J committed any error of law in this regard.

46    Secondly, I do not consider that Jarrett J made any error of law in rejecting the applicant’s contentions that the Tribunal acted unreasonably in proceeding to make a decision in the circumstances that it did. In the first place, Jarrett J committed no error of law in concluding that there was no evidence to suggest that, when it made its decision at 1.37 pm on the day of the hearing, the Tribunal had any reason to suspect that the applicant may have failed to attend the hearing due to illness. Further, his Honour did not err in concluding there was not, in the circumstances, any reason for the Tribunal to make any inquiries as to why the applicant was absent and nor was there any obligation under the Act for it to do so: see Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 at [39]. Further still, I do not consider Jarrett J erred in concluding there was no evidence that the Tribunal acted in a “rush”, as the applicant has suggested. In this respect, it is apt to recall that the hearing was scheduled to begin at 9.30 am and the Tribunal did not make its decision until 1.37 pm. For these reasons, I do not consider the applicant has established that Jarrett J made an error of law in rejecting all these contentions.

47    Thirdly, and for similar reasons, I do not consider the applicant can rely upon the decision of the High Court in the Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 (Bhardwaj) to demonstrate that Jarrett J erred in law in not identifying that he was denied natural justice by the Tribunal. In Bhardwaj, the applicant became ill and his representative sent an urgent message to the Tribunal seeking another hearing date. Importantly, that message was sent to the Tribunal before the scheduled hearing was due to commence but, due to an administrative error, it did not come to the notice of the Tribunal member conducting the hearing. The member therefore proceeded with the hearing and later affirmed the Minister’s decision to cancel the applicant’s visa. On becoming aware of its error, the Tribunal subsequently afforded the applicant a fresh hearing, after which it revoked the Minister’s decision. The High Court held by majority (Kirby J dissenting) that, in such circumstances, the Tribunal was not functus officio and it therefore had the power to make the second decision.

48    It is unnecessary to examine how the Court reached this conclusion because, in my view, Bhardwaj is clearly distinguishable on its facts. In this case, there was no administrative error on the Tribunal’s part. Thus the applicant did not lose an opportunity to advance his case by reason of the Tribunal’s mistaken failure to consider his request for an adjournment. Rather, the Tribunal had, in the manner prescribed by the Act, afforded the applicant an opportunity to be heard and the applicant did not attend that hearing. Furthermore, he did not offer any prior explanation for his absence, nor seek an adjournment of the hearing and there was nothing to indicate to the Tribunal that there may be some satisfactory explanation for his failure to attend. In all these circumstances, Jarrett J committed no error of law in concluding that the Tribunal had not failed to afford the applicant natural justice by proceeding to make its decision on the applicant’s review application in his absence and refusing to reconsider that decision when his subsequent adjournment request was received.

CONCLUSION

49    For these reasons, I do not consider the applicant has established that Jarrett J committed any relevant error of law in his decision to reject the applicant’s application for an extension of time under s 477(2) of the Act. In the absence of such an error of law, it is unnecessary to proceed to the next step and consider whether the Tribunal made any jurisdictional error in its decision.

50    The applicant’s application for review of Jarrett J’s decision must therefore be dismissed with costs.

Associate:

Dated:    3 July 2015