FEDERAL COURT OF AUSTRALIA

SZUWM v Minister for Immigration and Border Protection [2016] FCA 92

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment and orders of a Judge of the Federal Circuit Court of Australia delivered on 11 September 2015. The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 9 July 2014: SZUWM & Ors v Minister for Immigration & Anor [2015] FCCA 2153 ("SZUWM"). The Tribunal affirmed a decision of a delegate of the Minister made on 27 August 2013 to refuse the grant of Protection (Class XA) visas to the appellants.

Background

2    The appellants are citizens of Bangladesh. They are a husband and wife and their daughter and I will refer to them that way when it is necessary to distinguish between them. The appellants arrived in Australia on 29 January 2013 on Tourist subclass (TU 676) visas. The visas expired on 28 February 2013.

3    On 27 February 2013, the husband lodged an application for a protection visa with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection). The wife and daughter lodged applications as members of his family unit and did not advance any claims for protection of their own.

4    The husband claims that, as a result of his political activities with the Bangladesh National Party (“BNP”), he has been targeted, threatened and attacked by Awami League cadres. He further claims that after he arrived in Australia, members of the Awami League filed a number of false claims against him.

5    The husband attended an interview with a delegate of the Minister on 19 August 2013. On 27 August 2013, the delegate refused to grant the husband a protection visa because he was not satisfied that he was a person to whom Australia has protection obligations under the Migration Act 1958 (Cth). The delegate therefore also refused to grant the wife and daughter protection visas because their applications relied on the success of the husband’s application.

6    The husband applied to the Tribunal for a review of the delegate's decision on 23 September 2013. In the application to the Tribunal, the husband appointed a registered migration agent as the appellants’ representative to act on their behalf in relation to the application and to be the authorised recipient of communications from the Tribunal. For convenience, I will refer to the authorised recipient as the appellants’ migration agent.

7    By letter dated 12 March 2014, the Tribunal invited the appellants to attend a hearing on 8 July 2014 in order to give evidence and present arguments. By letter dated 20 May 2014, the migration agent indicated that the appellants and the migration agent would attend the hearing and that the appellants would require an interpreter in the Bengali language.

8    At about 2.13 pm on 7 July 2014, the Tribunal received a letter by fax from the appellants’ migration agent. The letter requested that the hearing be postponed because the husband and wife were “sick” and that the Tribunal provide another hearing date. The letter concluded: “Should you have any queries regarding this matter, please feel free to contact the writer at the above address.”

9    Accompanying the letter were two documents which were described in the letter as “medical certificates”:

(1)    The first document purported to be on the letterhead of a medical specialist; it was undated and unsigned. It indicated only that the wife had a medical appointment scheduled for 8 July 2014 at 2.45 pm at Brookvale.

(2)    The second document pertained to the husband. It was dated 7 July 2014 and appeared to be on the letterhead of, and signed by, a medical practitioner who had “today examined” the husband. It stated that the husband was suffering from “a medical condition” and that he would be unfit for “his normal work from 7 July 2014 to 9 July 2014 inclusive.”

10    By letters dated 7 July 2014 and faxed to the appellants’ migration agent at 4.23 pm, the Tribunal stated that “[t]he Presiding Member has considered the request carefully but has decided not to postpone the hearing” and that “[t]he hearing will proceed as scheduled pending receipt of further information: the nature of the illness.”

11    The matters set out in paragraphs [7]-[10] are not disputed.

Tribunal Decision

12    On 9 July 2014, the Tribunal affirmed the delegate's decision to refuse to grant protection visas to the appellants. The Tribunal set out its reasons in a Statement of Decision and Reasons ("Decision Record").

13    The Decision Record indicates that the appellants did not appear at the hearing on 8 July 2014 and in the absence of any further communication or medical evidence from the appellants or their migration agent, the Tribunal found that the reasons advanced for the failure to attend the hearing were “not satisfactory”. The Tribunal proceeded to make its decision on the review pursuant to s 426A of the Migration Act without taking any further action to allow or enable the appellants to appear before it: Decision Record ad [38]-[39] and [47].

14    The Tribunal determined that the written claims contained in the husband's protection visa application and the oral evidence which he gave at his interview with the delegate were not “sufficiently detailed” to enable the Tribunal to be satisfied that the husband was owed a protection obligation, either as a refugee under s 36(2)(a) or as a beneficiary of complementary protection under s 36(2)(aa) of the Migration Act. The Tribunal noted the fact that the husband had been almost exclusively absent from Bangladesh for approximately ten years. Although he had visited Bangladesh “frequently” over that period, they had been “brief sojourns”. In light of this evidence, the Tribunal found that there was insufficient information before it in respect of the husband’s claim to be affiliated with the BNP. It was also difficult to know, in the absence of further detail, what significance could be attached to the husband’s assertions: Decision Record at [46], [48]-[49] and [50]-[54].

Federal Circuit Court

15    The proceedings in the Federal Circuit Court were commenced with a show cause application filed on 4 August 2014. An amended application was filed on 30 April 2015. The application was heard by the primary judge on 10 August 2015. The judgment records that at the hearing, counsel for the Minister expressed concern that the appellants’ submissions were “not entirely consistent with the grounds in the amended application”. The primary judge sought to resolve this by granting the appellants leave to file a further amended application. The further amended application was filed on 14 August 2014 and the grounds are set out in SZUWM at [13] (as written):

1.    The Second Respondent exercised its discretion "unreasonably" in failing to order an adjournment of the hearing of the Applicant's case, pursuant to section 427(1)(b) of the Migration Act. It acted "unreasonably" because it failed to order an adjournment to allow the Applicant to give evidence at a later time than 9 July 2014 after the Second Respondent received a medical certificate from the Applicant the day before he was due to give evidence on 8 July 2014 indicating that the Applicant would be unwell until at least 9 July 2014: Minister for immigration and Citizenship v Li (2013) 249 CLR 332

2.    The Second Respondent failed to take account of a relevant consideration, the Applicant's medical certificate, in exercising its discretion, pursuant to section 427(1)(b) of the Migration Act, not to adjourn the hearing of the Applicant's case to allow the Applicant to give evidence at a time later than 9 July 2014.

3.    The Second Respondent failed to extend the Applicant a "Real and meaningful" invitation pursuant to section 425(1) of the Migration Act because it failed to properly take account of the Applicant's medical certificate and the fact that the Applicant was unwell in failing to order an adjournment of the hearing of the Applicant's case to allow the Applicant to give evidence at a time later than 9 July 2014.

16    In considering the first ground, that is, whether the Tribunal exercised the discretion conferred on it by s 427(1)(b) of the Migration Act unreasonably, the primary judge considered statements of principle distilled from the decision of the High Court in Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 13 (“Li”) at [105], [108] and [113]. Relying on Li and Kaur v Minister for Immigration [2014] FCA 915 at [82], the primary judge accepted that such a power must be exercised reasonably. After considering the facts in SZJQP v Minister for Immigration [2007] FCA 1613 (a judgment of Gilmore J), the primary judge noted that the decision did not establish that the Tribunal is bound to reschedule a hearing in the face of a medical certificate that simply states that an applicant is unfit for work and distinguished SZJQP on the basis that the application under consideration in SZJQP was for an extension of time and was not a final determination of the merits of the decision under review: SZUWM at [17]-[22] and [34].

17    The primary judge in SZUWM found that the evidence clearly established that the Tribunal had “actively considered” the appellants' request to postpone the hearing and that the Tribunal’s letter of 7 July 2014, in which it asked the appellants for further information about their illnesses, demonstrated that the Tribunal was prepared to entertain the postponement request. The Tribunal’s finding that the appellants did not provide further evidence and chose not to attend was not a finding made without “evident and intelligible justification” on the evidence before it: see SZUWM at [32]-[36] and Li at [76].

18    The primary judge found that as the Tribunal’s 7 July 2014 letter was sent to the last facsimile address that the appellants had notified to the Tribunal, it was sent by a method specified in s 441A(5) of the Migration Act such that the appellants were deemed under s 441C(5) to have received it at the end of that day. The primary judge accepted the husband’s evidence that his migration agent had not informed him that the Tribunal required further information about his medical condition and found that it was reasonable to conclude that the migration agent was at fault in not raising the Tribunal’s request for clarification with the husband. However, the primary judge found that it was “both reasonable and proper” for the Tribunal to seek the clarification it did because the simple statement that the husband was “unfit for work” did not answer the question of whether he was unfit to attend the Tribunal hearing. The primary judge further found that the Tribunal was “required” to communicate with the husband through his nominated representative and it was not the fault of the Tribunal that it received no response to its inquiry. It was therefore open to the Tribunal to reject the adjournment request. It was also not unreasonable for the Tribunal to proceed to make its decision when it did not receive a response to its request for clarification and the husband did not attend the scheduled hearing: SZUWM at [7], [24] and [29].

19    The primary judge found that ground two “failed on the facts” as there was “no warrant” for a finding that the Tribunal had failed to consider the appellants' claimed illnesses. The primary judge found that the Tribunal had “clearly considered (and rejected)” the issue raised by the appellants. The Tribunal had referred to the medical evidence provided by the appellants and it had also made a finding that the reasons advanced by the appellants’ in their request to postpone the hearing were “not satisfactory”: SZUWM at [44].

20    In relation to the husband’s third ground, that the Tribunal failed to extend to the husband a “real and meaningful” invitation pursuant to s 425(1) of the Migration Act, the primary judge framed the question as one of whether there had been compliance with relevant statutory provisions rather than a generalised question of whether there had been a failure to afford them procedural fairness: SZUWM at [26]. After referring to the decision in NALQ v Minister for Immigration [2004] FCAFC 121 at [35]-[36], the primary judge determined that the assessment of this ground of appeal required him to answer two questions. First, whether, on the material before the Tribunal, it was open to the Tribunal to reject the appellants' request for an adjournment. Second, as a matter of fact, whether the appellants' were so ill on the day of the hearing that the invitation to the hearing was rendered meaningless: SZUWM at [28].

21    In dismissing this ground, the primary judge found that it was open to the Tribunal to reject the adjournment request given the paucity of information about the husband’s medical condition. There was no information as to the husband’s symptoms or why they would render him unfit to attend a hearing. In relation to the wife, there was no indication why a 15 minute medical appointment in the afternoon of the same day as the scheduled hearing would be relevant when the hearing was scheduled for the morning: SZUWM at [29]. The primary judge noted that it was not sufficient for the husband to show that he was ill or discomforted on the day of the hearing, but rather that the symptoms of the illness must be found to have been so significant that the husband was unfit to attend and give evidence or present arguments. After hearing the husband’s arguments and observing his cross-examination, the primary judge found that the husband was not so disabled by his illness that he was incapable of attending the scheduled hearing to give evidence and present arguments to the Tribunal. The primary judge also noted that the review decision was not made by the Tribunal until 9 July 2015 and that the husband could have provided additional information concerning his illness to enable a new date for the hearing to be set but he did not. The primary judge found that it was not the husband’s illness which deprived him of the opportunity to attend a hearing, but his agent’s failure to provide the Tribunal with the information that it requested: SZUWM at [29]-[31].

22    The primary judge considered a fourth ground. Although the ground was formally abandoned by the appellants, the primary judge dealt with the appellants' submission that the Tribunal should have made an inquiry as to the health of the husband and wife before it proceeded to determine the application: SZUWM at [39]. In rejecting this submission, the primary judge found that the Tribunal, via its facsimile request to the appellants' migration agent on 7 July 2014, did in fact make an inquiry. Further, the primary judge commented that it was not clear what inquiry should have been made by the Tribunal. Privacy and patient confidentiality considerations would probably have prevented a doctor from responding to a query from the Tribunal. It would also not have been appropriate for the Tribunal to contact the husband directly as he had specifically appointed a migration agent as his representative to receive communications on his behalf and given the proximity of the postponement request to the scheduled hearing time, the Tribunal would have had to telephone the husband which would likely have required the assistance of an interpreter as the review application had indicated that an interpreter in Bengali would be required for the hearing. The primary judge found that the only proper alternate inquiry would have been for the Tribunal to telephone the appellants’ migration agent as opposed to sending a facsimile, however, there could be no criticism of the Tribunal for failing to make a telephone call when it was equally open for the appellants or their agent to telephone the Tribunal: SZUWM at [40]-[42].

23    As the appellants had failed to establish that the Tribunal’s decision was affected by jurisdictional error, the primary judge dismissed the appellants’ application: SZUWM at [46]

Appeal to this Court

24    The appellants filed a notice of appeal from the Federal Circuit Court's decision on 28 September 2015. The appellants list three grounds of appeal (as written):

1.    The Second Respondent exercised its jurisdiction unreasonably and denied the appellant procedural fairness and omitted the principles in MIC v Lie [2013] HCA 18, regarding this issue the Court below erred in dealing this issue.

2.    The Second Respondent denied the appellant hearing where the main Appellant was too sick to attend the hearing and the Tribunal did not take any initiative to know the condition about the appellant from the doctor and did not take any queries by the Second Respondent. The trial Judge erred in deciding this issue.

3.    The Second Respondent made an error not providing an opportunity to the Second and third appellant to be appeared at the hearing. The trial judge erred to dealing this issue.

Husband’s submissions

25    The husband appeared at the hearing with the assistance of an interpreter. He also filed written submissions on Friday 12 February 2016 at 4.58 pm. The Minister did not object to the written submissions being filed out of time and did not seek time to be in a position to respond to them.

26    The husband’s written submissions suggest that the grounds under consideration in the Federal Circuit Court were those filed on 29 April 2015, rather than those recorded in SZUWM at [13], however, I do not think anything turns on this difference. The husband’s submissions conceded that the “main issue” was whether the Tribunal “took its decision” unreasonably. The husband’s central contention in his written submissions is that, as the medical certificate concerning the husband and the letter concerning the wife’s medical appointment contained addresses and telephone numbers, the Tribunal could have contacted the authors of these documents in order to verify their contents. By failing to do so, the Tribunal overlooked or ignored a step it could have taken before refusing to grant an adjournment and proceeding to make its decision on the review application. The husband confirmed at the hearing today that this was his concern. It is the essence of the matters considered by the primary judge.

27    In relation to the first ground of appeal, the husband’s submissions state (as written):

The Second Respondent [Tribunal] exercised its discretionary power not in good faith and it concerns was not placed into the relevant authority particularly with the doctors. The Tribunal had a misconception that the Tribunal had been continuing its scheduled hearing despite the medical condition was written by the doctor. The Tribunal did asked more information regarding illness and the tribunal did not imagine who would be the relevant person in providing relevant opinion. Thus the Tribunal made error regarding to exercise its discretionary power.

28    In relation to the second ground of appeal, the husband’s submissions state (as written):

The appellant is contending that the Second Respondent did not take any reasonable steps particularly the relevant doctor was not asked or explain about the details of the medical conditions of the appellant. Besides the Tribunal set its mind not to postpone the hearing and it was written in the letter of the Tribunal dated 7 July 2014 (AB124). The Second Respondent made error in this regard.

29    In relation to the third ground of appeal, the husband’s submissions state (as written):

The appellant (Main Appellant) was failed to attend the hearing due to unreasonable consideration and the tribunal overlooked the Second Appellant’s medical certificate [AB120]. The Second Appellant made this appointment with a specialist (Doctor) and was waiting for three months to show her ongoing illness but the Tribunal failed or ignored this certificate and its relevancy in taking consideration and the Tribunal became failure to deal with a matter of relevance sufficiently or adequately in the particular circumstances of this case in not granting postpone which has ruined the appellant’s entitlement’

The Minister

30    The Minister filed written submissions dated 8 February 2016 and he was represented by counsel at the hearing. The Minister submitted that the first and second grounds of appeal should be dismissed with costs.

31    Relevant to the first ground of appeal, the Minister properly conceded that s 426A of the Migration Act, which permits the Tribunal to proceed to determine an application if the applicant does not appear at a scheduled hearing, and s 427(1)(b), which gives the Tribunal the power to adjourn a scheduled hearing, each vest a discretion in the Tribunal which must be exercised reasonably, having regard to the principles enunciated by the High Court in Li.

32    Although a ground of review akin to the second ground of appeal was seemingly abandoned in the proceedings before the Federal Circuit Court, the Minister did not oppose the issue being raised in this appeal as it had been addressed by the primary judge in his reasons: see [22] above.

33    The Minister did oppose leave being granted to the appellants to advance the third ground on the basis that it had not been relied on before the primary judge and if the point had been raised, the husband could have been cross-examined on it. The Minister also submitted that this ground had no reasonable prospect of success because there was no evidence that the wife and daughter were denied a hearing. At its highest, the evidence disclosed that the wife had a 15 minute appointment scheduled with a gynaecologist at 2.45 pm on 8 July 2014; that does not disclose a basis for why the wife could not attend and participate in a hearing scheduled for 10.00 am that same day. In any event the success of the wife and daughter’s applications (as members of the husband’s family unit) depended on the success of the husband’s application: see V120/00A v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 116 FCR 576; [2002] FCA 264 at [53]-[61]. I accept these submissions and refuse the appellants leave to advance the third ground of appeal.

Consideration

34    The allegation that the Tribunal “exercised its discretionary power not in good faith” was raised for the first time in the husband’s written submissions. At various points in the written submissions, the husband suggests that the Tribunal “set its mind” against an adjournment because of the terms of the Tribunal’s letter of 7 July 2014. I do not accept that such an allegation can be made out. The primary judge did not err in finding that it was reasonable for the Tribunal to seek clarification as to the nature of the husband and wife’s illnesses in order to determine whether an adjournment should be granted. The request for further information is not evidence of bad faith or a closed mind but rather, as found by the primary judge, indicates that the Tribunal gave active consideration to the request and that its mind remained open to persuasion as to whether a postponement should be granted.

35    It is unnecessary for me to decide whether the Tribunal was under an obligation to seek clarification of the nature of the claimed illness having regard to the decision of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 at [25] because, as found by the primary judge, the Tribunal did in fact make an inquiry. The primary judge did not err in finding that it was appropriate that the inquiry was made with the appellants’ migration agent and that it would not have been appropriate for the Tribunal to contact either the doctors or the husband directly, for the reasons given in SZUWM at [41]-[42]; see [22] above. The request for clarification which the Tribunal did undertake was appropriately made through the appellants’ migration agent who had been appointed by the appellants as their authorised recipient for the purposes of communication with the Tribunal. Not only had the migration agent authored the letter requesting the postponement of the scheduled hearing but he expressly invited the Tribunal to contact him in the event that the Tribunal had any queries in relation to the request: see [8] above.

36    The Minister concedes that situations may occur where the Tribunal fails to comply with s 425 of the Migration Act because a visa applicant is so affected by illness that he or she is unfit to attend the hearing to “give evidence and present arguments”: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 at [37]. However, the primary judge, having accepted the husband’s evidence at its highest, made a finding that he had not been too sick to attend the hearing to “give evidence and present argument”: see [21] above. This was a disputed question on which the primary judge had the benefit of the husband’s evidence given under cross examination. The primary judge did not accept as evidence of the husband’s fitness to give evidence at a hearing on 8 July 2014 a document dated 28 April 2015 which was annexed to his affidavit affirmed on 29 April 2015. In that document, the doctor who examined the husband on 7 July 2014 expressed the opinion that he had been unfit to give evidence due to the fact that he was suffering from a respiratory tract and sinus infection. The primary judge only received the document as evidence of the opinion the doctor might have provided for the purposes of the Tribunal hearing had she been asked to do so. Having regard to the decision of the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29], I accept the Minister’s submission that this is not a situation where it would be appropriate for an appellate court to intervene in the primary judge’s finding that the husband was not too sick to attend and participate in the Tribunal hearing.

37    Further, as required by s 425A(4), the letter which invited the appellants to attend the hearing on 8 July 2014 advised the appellants that if they did not appear at the scheduled hearing that the Tribunal may proceed to determine the application. This advice was reiterated in the Tribunal’s letter of 7 July 2014 in which it asked for further information concerning the illnesses, saying (emphasis added):

If you are not able to attend the hearing you should advise the Tribunal as soon as possible. Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment. If the Tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.

38    In view of the content of both the 12 March and 7 July 2014 letters, the appellants were not entitled to assume that the hearing had been adjourned in accordance with their request in the absence of notification from the Tribunal to that effect.

39    Insofar as the appellants complain of a lack of procedural fairness, the legislative scheme laid out in Div 4 of Pt 7 (ss 422B to 429A) for the conduct of reviews is of central importance. By reason of s 422B, Div 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. I perceive no error in the primary judge’s finding that it was not the husband’s illness, but rather, his agent’s failure to provide the Tribunal with the requested information which deprived him of the opportunity to attend a hearing as contemplated by s 425 of the Migration Act: SZUWM at [31]. Such a failure is not sufficient to stultify the legislative scheme set out in Div 4 of Pt 7 of the Migration Act as it existed in July 2014. In the absence of fraud (which was not alleged here), a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made: see SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [47]–[49] and [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.

Conclusion

40    For the foregoing reasons I do not perceive that the grounds or arguments raised by the appellants reveal jurisdictional error by the Tribunal or appellable error by the primary judge. I will dismiss the appeal and order that the husband and wife pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    15 February 2016