FEDERAL COURT OF AUSTRALIA

CER15 v Minister for Immigration and Border Protection [2016] FCA 1057

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

MARKOVIC J:

introduction

1    The appellant is a citizen of Bangladesh who arrived in Australia on 28 March 2013 as an irregular maritime arrival. On 1 July 2013 he applied for a Protection (Class XA) visa (the Visa).

2    On 11 September 2014 a delegate of the first respondent (the Minister) refused the appellant’s application for the Visa. On 19 September 2014 the appellant applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.

3    On 22 September 2014 the Tribunal acknowledged receipt of the appellant’s application for review and on 14 July 2015 the Tribunal invited the appellant to appear before it on 17 September 2015 to give evidence and present arguments relating to the issues in his case.

4    The appellant did not appear before the Tribunal at the scheduled hearing. The Tribunal proceeded to determine the review in his absence and on 18 September 2015 the Tribunal handed down its decision affirming the decision under review.

5    On 23 October 2015 the appellant filed an application for review in the Federal Circuit Court of Australia (Federal Circuit Court). On 18 February 2016 the Federal Circuit Court made orders and gave judgment dismissing the appellant’s amended application and requiring him to pay the Minister’s costs in a fixed amount: CER15 v Minister for Immigration & Anor [2016] FCCA 329 (CER15). The appellant now appeals from those orders and that judgment.

background

6    On 11 April 2013 the appellant attended an irregular maritime arrival entry interview where he was questioned about why he left Bangladesh. After providing the detail of why he did so he summarised his reasons for departing as first, because he was being threatened by the Awami League, secondly, because his father did not have his shop anymore to support his family and thirdly, to support his family and to have a better future.

7    In his statutory declaration annexed to the Visa application the appellant made the following claims:

(1)    if he was forced to return to Bangladesh he would be seriously harmed;

(2)    he was born and grew up in Moshod Gaon, Louhajang, Munshiganj district in Bangladesh. His father ran a grocery store and his mother looked after the family. The appellant has never been married and has no children;

(3)    the family’s problems started when the Awami League came to power after the December 2008 election. He had attended a number of BNP demonstrations in the lead up to the election and voted for the BNP;

(4)    his family ran the grocery shop that was next to a “BNP club” which was set up some months before the election as a campaign office. The local BNP leaders would come and buy goods from their shop and would often sit on benches outside the shop chatting;

(5)    late one morning, two or three weeks after the election, a group of Awami League supporters attacked the BNP club. At the time the appellant was in his family’s shop. Over more than an hour he watched them destroy the building, using hockey sticks and other weapons. When they had destroyed the BNP club they started attacking the appellant’s family’s shop. The appellant and his father were beaten by the attackers, the shop was ransacked and the attackers left with all the money from the cash box;

(6)    after that attack the same Awami League people came to the shop on a regular basis to demand money. One day the appellant refused to give them money, his father was pushed to the ground and he was punched and beaten;

(7)    after that incident the appellant went to the local police station to report what had happened. One or two days later the Awami League people came back. They had heard that the appellant had reported them to the police and they were extremely angry. One of them had a knife and tried to stab the appellant but he hit them to protect himself and ran away. They assaulted the appellant’s father again;

(8)    later that night the appellant’s father told him that he should not come to the shop anymore and the appellant decided to flee the village and stay with relatives in Mawa. He then went to Dhaka where he could not be found as easily, travelling back to the village to see his family secretly;

(9)    after the appellant left, the Awami League supporters continued to visit the family shop and demanded that the appellant’s father bring the appellant there or tell them where he was hiding. It became clear that they wanted revenge against the appellant for injuring one of them. The appellant’s father decided to sell the shop and asked the appellant to leave the country with the money he received;

(10)    the appellant left and stayed in Malaysia for around eighteen months before coming to Australia;

(11)    since leaving Bangladesh the Awami League people have continued to threaten the appellant’s father whenever they see him and they tell him that they will kill the appellant when they find him; and

(12)    if he was forced to return to Bangladesh the Awami League people from his village would find him and try to kill him. He claimed that he could not hide forever, he feared that they would find him if he ever attempted to go to his village to see his family and that he would need to visit them in order to support them.

8    On 27 August 2014 the appellant attended an interview with the delegate and on 3 September 2014 the appellant’s representative provided a submission to the delegate including a number of supporting documents.

9    As noted above, on 11 September 2014 the delegate refused the appellant’s application for the Visa. The delegate formed an adverse view of the appellant’s credibility as a result of a number of inconsistencies in his claims, their lack of detail and his vagueness and the evasiveness of his responses. The delegate was of the view that the appellant had fabricated and embellished claims with the intention of creating a profile of a refugee. In summary, the delegate accepted the appellant had limited knowledge and limited involvement with the BNP, that there was an incident at the family grocery store, that the appellant was affected and that the appellant had basic knowledge of the current political environment in Bangladesh. However, the delegate did not accept that the appellant engaged in any protests or demonstrations in Bangladesh, that the BNP club was located next to the family grocery store, that the appellant was part of the youth wing of the BNP, that the appellant’s father was hospitalised due to politically motivated violence, that the Awami League is still looking for the appellant, that the appellant would engage in any political practice that would attract the adverse attention of Awami League members or supporters if he was returned to Bangladesh or that the appellant would be of any adverse ongoing interest to Awami League members or supporters due to his alleged political support for the BNP.

10    On 19 September 2014 the appellant applied to the Tribunal for review of the delegate’s decision. In the Tribunal’s online lodgement and payment details form the appellant provided the following details:

(1)    under the heading “Details of person applying for review 1” a street address, an email address and a mobile telephone number; and

(2)    under the heading “Correspondence details” a street address and an email address and for “correspondence type” he specified “to me”.

11    On 22 September 2014 the Tribunal acknowledged receipt of the appellant’s application for review by letter sent to the appellant’s street address notified to the Tribunal.

12    On 15 July 2015 the Tribunal sent an email to the appellant at the address provided by him to the Tribunal. The email attached a letter addressed to the appellant inviting him to attend a hearing to give evidence and present arguments relating to the issues arising in the appellant’s case scheduled at 10.00 am on 17 September 2015. In the letter the Tribunal requested that the appellant read and complete the enclosed “Response to hearing invitation – MR Division” form to confirm his attendance at the hearing and requested that the completed form be returned within 7 days after receipt of the letter. The letter also notified the appellant that:

If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

13    According to the Tribunal’s decision record, on 10 September 2015 and again on 16 September 2015 an SMS hearing reminder was sent to the appellant’s mobile number provided to the Tribunal.

14    On 17 September 2015 the appellant did not appear at the hearing. In its decision record the Tribunal noted that it had written to the appellant on 14 July 2015 advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone and inviting the appellant to give oral evidence and present arguments at a hearing on 17 September 2015 at 10.00 am. The Tribunal noted that the appellant was advised that if he did not attend the hearing and a postponement was not granted the Tribunal may make a decision without further notice. The Tribunal also noted that no response was received and that it sent two SMS reminders of the hearing to the appellant. The appellant did not appear on the day and at the time and place of the scheduled hearing. In the circumstances, the Tribunal decided, pursuant to s 426A of the Migration Act 1958 (Cth) (the Act), to make its decision on the review without taking any further action to enable the appellant to appear before it.

the tribunal decision

15    The Tribunal noted that the issue in the case was the credibility of the appellant and whether on any of his accepted claims he meets the criteria for a Protection visa set out in s 36 of the Act. The Tribunal summarised the appellant’s history and his claims and referred to the documents that had been provided to the Department of Immigration and Border Protection in support of his claims and the delegate’s findings. The Tribunal noted that the appellant had not provided any further information or evidence to it.

16    The Tribunal formed the view that the decision under review should be affirmed. It noted that the delegate’s decision raised significant credibility concerns and that the appellant was on notice of those matters and provided nothing further to address them. The Tribunal noted that if he had attended the hearing all of those issues would have been discussed with him, particularly what he had said in the entry interview, his knowledge of and claims relating to BNP involvement and how this reconciles with his admission that the attack was random, why the Awami League would be seeking him, his economic reasons for leaving Bangladesh and working in Malaysia, the documents and the country information raising fraud concerns and how aspects of claims in the documents can be reconciled with his claims. The Tribunal noted that those matters were serious concerns and it was not satisfied on the available evidence that any of the appellant’s claims were true. The Tribunal said that it seemed that the appellant’s application was opportunistic and made with an economic outcome in mind.

17    The Tribunal concluded that it was not satisfied on the evidence before it that the appellant had a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Nor was the Tribunal satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country, there was a real risk that the appellant would suffer significant harm. The Tribunal found that the appellant did not satisfy the criterion set out in s 36(2)(a) or the alternative complementary protection criterion in s 36(2)(aa) of the Act.

proceedingS in the Federal Circuit Court

18    On 23 October 2015 the appellant applied to the Federal Circuit Court for review of the Tribunal’s decision. By an amended application filed on 15 January 2016 the appellant advanced four grounds of review. By the first ground the appellant claimed that he was denied natural justice and procedural fairness because he did not receive the hearing invitation letter as it was sent by email rather than post. By the second ground the appellant alleged that the Tribunal made a jurisdictional error when “without hearing and verification” it “discarded all of the evidence of his claim” and “made decision with closed mind”. By the third and fourth grounds the appellant alleged that the Tribunal failed to apply the correct tests under ss 36(2)(a) and 36(2)(aa) of the Act.

19    The appellant filed two affidavits in support of his application. In his affidavit sworn on 21 October 2015, among other things, the appellant gave evidence that:

(1)    he had not received notice from the Tribunal that his application was listed for hearing on 17 September 2015;

(2)    in a letter dated 22 September 2014 addressed to his street address he was advised that his application had been received by the Tribunal. That letter was sent to his “advised address for service of notices”; and

(3)    he never received notification from the Tribunal of a hearing date on 17 September 2015. Previous communication to him by the Tribunal was sent by post.

20    In his affidavit sworn on 15 January 2016, among other things, the appellant gave evidence that:

2.    The Administrative Appeal claims that they sent Invitation letter at my email address to attend hearing on 17 September 2015. “Response to Hearing Invitation” was also attached with this letter.

3.    The time frame to return Response to Hearing was 7 Days after receiving this letter.

4.    That time, I had no net facilities and I did not make any inquiry.

…..

6.    25 September 2015 was last date for return of Response to Hearing Invitation.

7.    In between 25 September 2015 and 17 September 2016 I did not receive any letter by Post or Telephone from the Tribunal.

…

10.    I have a legitimate expectation from the esteemed Judicial Institution (AAT) that they would inform about hearing by Post or telephone.

21    In relation to the first ground the primary judge:

(1)    noted that the appellant acknowledged that he had received the email attaching the hearing invitation but that he had not opened it and that the appellant had identified that he had received the letter acknowledging receipt of his application from the Tribunal which was sent by post. The primary judge also noted that the appellant had tendered a letter dated 6 July 2015 from the Tribunal concerning his Medicare confirmation which was sent by post to his residential address: CER15 at [8];

(2)    noted that the appellant had alleged that around 6 July 2015 he had lost his telephone and that his telephone number had changed. However, the primary judge observed that the appellant had not raised this in any of the affidavits he had filed in support of his application nor had he raised that he did not receive the SMS reminders from the Tribunal. The primary judge did not accept the assertion from the bar table that the appellant’s telephone number had changed at the time of the sending of the SMS messages by the Tribunal: CER15 at [8] and [19];

(3)    found that, on the evidence before the court, the Tribunal complied with its obligation under s 425 of the Act and sent a notice of invitation to the appellant to appear, which the appellant was taken to have received on the day on which the email was transmitted. The primary judge held that in the circumstances it was open to the Tribunal to decide to proceed to determine the application and the decision to do so could not be said to be unreasonable: CER15 at [12];

(4)    found that there was no denial of procedural fairness in the Tribunal proceeding with the application and that there was no procedural unfairness in the Tribunal communicating with the appellant by two of the three means identified on the application filed with the Tribunal. The primary judge held that there was no conduct that could be said to give rise to procedural unfairness to the appellant in sending the invitation to the email address notified by him on the application for review: CER15 at [13] and [17];

(5)    distinguished the facts in the present case from those in AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 (AZAFB) in particular because here the Tribunal had sent SMS messages to the phone number that had been identified by the appellant and the appellant had confirmed that he had received, although not opened, the Tribunal’s email attaching the hearing invitation: CER15 at [20].

22    In relation to the second ground the primary judge held that the Tribunal took into account the appellant’s claim and that, in circumstances where the appellant had failed to appear, the adverse findings that the Tribunal made were open to it. The primary judge also found that the Tribunal’s adverse findings were not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits and held that no case of bias on the part of the Tribunal was made out: CER15 at [14]-[15].

23    In relation to the third and fourth grounds the primary judge held that the Tribunal’s reasons revealed correct identification of the legal principles and their correct application and that there was no substance to the proposition that the Tribunal failed to apply the correct test in relation to complementary protection under s 36(2)(aa): CER15 at [16].

the appeal

24    The appellant’s notice of appeal filed on 3 March 2016 raises two grounds (as written):

1.    Hon. Judge STREET of the Federal Circuit Court failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36(2)(aa) of the Migration Act. The AAT did not follow Rules of Real Risk Test of Persecution and harm. The AAT decision is unreasonable with regards to Complementary Protection Provision. The Appellant did not get chance to present Oral evidence. Hon. Judge failed to hold that the Tribunal ignored the principles of assessing the risk of persecution related with the provision of Complementary protection. The AAT made decision based on assumption.

2.    The Appellant claims that he was denied procedural fairness when he was denied to appear before the Tribunal because of communication error. The AAT claims that they sent invitation letter for hearing at his email address on 17 September 2015. The appellant claims that the appellant did not receive any letter between 25 September 2016 and 17 September 2016. He did not receive any SMS on his Mobile Phone on 10 and 16 September as the AAT claimed. The Appellant claims he never gave his consent to AAT to communicate with him through email. The appellant claims that the benefit of doubt should be given to the appellant. The AAT used S 426 of the Migration Act without considering the consequences of result of Protection Visa Application. The appellant has good prospect of success in his application for Review. He was denied natural justice and procedural fairness.

25    The appellant has not provided any written submissions in support of his application. At the hearing, when invited to make oral submissions, the appellant submitted that:

(1)    he was not present at the Tribunal hearing because the Tribunal sent the hearing invitation by email, he did not see it and they never told him that they would be sending the invitation by email;

(2)    because everyone who came on the boat with him, received their hearing invitations by post, he expected that he would too;

(3)    he did not know much about the “net” and did not use it that much, if he knew then he would have checked the email;

(4)    when he was waiting for the Tribunal his Medicare expired and he telephoned the Tribunal and informed them of that fact and the Tribunal sent him a letter via post in relation to that matter. The appellant tendered a copy of a letter dated 22 January 2015 from the Tribunal to the appellant sent by post to his address notified to the Tribunal;

(5)    he told the same officer he spoke with about the Medicare expiry that he had changed his telephone number;

(6)    when the Tribunal dismissed his case it sent him a letter and invoice for $1,600; and

(7)    contrary to the Minister’s written submission he did not receive a letter by post from the Tribunal acknowledging receipt of his application for review.

Ground one

26    By this ground the appellant contends that the primary judge erred in failing to hold that the Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to complementary protection as set out in s 36(2)(aa) of the Act. None of the appellant’s oral submissions addressed this ground.

27    At [4] and [7] of its decision record the Tribunal set out the law relating to s 36(2)(aa) of the Act. In particular, it noted at [4] that the criteria for a Protection visa is set out in s 36 of the Act and Sch 2 to the Migration Regulations 1994 and that an applicant for a visa must meet one of the alternative criterion in ss 36(2)(a), 36(2)(aa), 36(2)(b) or 36(2)(c). Relevantly, the Tribunal noted that the appellant had to either be a person in respect of whom Australia has protection obligations under the refugee criterion or on other “complementary protection” grounds, or as a member of the same family unit as such a person and that person holds a Protection visa of the same class. At [7] the Tribunal noted that if a person is found not to meet the refugee criterion in s 36(2)(a) he or she may nevertheless meet the criteria for the grant of a Protection visa if he or she is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm and referred to s 36(2)(aa).

28    The Tribunal then set out its conclusions applying the law to the facts as it found them on the basis of the materials before it. Relevantly, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country, there was a real risk that he will suffer significant harm. The Tribunal noted that, having concluded that the appellant did not meet the refugee criterion in s 36(2)(a), it had considered the alternative criterion in s 36(2)(aa) but for the same reasons it was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under s 36(2)(aa).

29    There is no error in the approach of the Tribunal either in its identification of the test or its application of the test to the facts before it. The primary judge was correct to reject this ground of review. The first ground of appeal is not made out.

Ground two

30    By this ground the appellant contends that the primary judge erred in not finding that he was denied procedural fairness because he was denied the ability to appear before the Tribunal due to what he describes as a communication error. This ground is substantially the same as ground one of the appellant’s amended application that was before the primary judge. The appellant’s oral submissions in relation to this ground are set out at [25] above.

31    The Minister submitted that the appellant does not challenge the factual findings made by the primary judge that the Tribunal had complied with its statutory obligations to invite the appellant to appear before it, that the appellant had received the email attaching the Tribunal’s hearing invitation but did not open it and that the appellant’s phone number had not changed at the time the Tribunal sent the SMS messages. In those circumstances, the Minister submitted that the primary judge correctly found that there was no denial of procedural fairness.

32    The Minister also submitted that the Tribunal properly exercised its discretion under s 426A of the Act. The Minster contended that having complied with its obligation to invite the appellant to a hearing it was not under any obligation to take any further steps to contact the appellant or to provide a further opportunity to him to appear. To the extent it held otherwise, the Minister submitted that the judgment in AZAFB should not be followed but that, in any event, an assessment of the reasonableness of the exercise of a discretionary power is fact dependent and the facts here could be distinguished from those in AZAFB.

33    The appellant provided the Tribunal with his mobile phone number, a street address and his email address. Section 425 of the Act requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review except in certain specified circumstances which did not apply to the appellant. Section 425A requires that if an applicant is invited to appear before the Tribunal, it must give the applicant notice of the day on which and the time and place at which the applicant is scheduled to appear and that the notice must be given to the applicant, for the purposes of this matter, by one of the methods specified in s 441A of the Act.

34    Section 441A(5) of the Act includes, as one of the methods by which the Tribunal may give a document to a person, transmission by fax, email or other electronic means to, relevantly, the last email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review. Section 441C(5) provides that if the Tribunal gives a document to a person by email, the person is taken to have received the document at the end of the day on which the document is transmitted.

35    The appellant had provided his email address to the Tribunal, it transmitted the hearing invitation to that address, as it was entitled to do pursuant to s 441A of the Act. The appellant was taken to have received the hearing invitation at the end of the day on which it was sent, 15 July 2015. As the primary judge found, the Tribunal had complied with its statutory obligations under ss 425 and 425A to invite the appellant to appear before it. I note that the primary judge incorrectly referred to s 494C of the Act at [12] of his judgment rather than s 441C. But nothing turns on that error. Section 494C sets out when a person is taken to have received a document from the Minster, as opposed to the Tribunal, and is in substantially the same terms as s 441C.

36    The primary judge found that the appellant had received the email with the hearing invitation attached but did not open it and, so far as the SMS reminders were concerned, the primary judge did not accept that there had been any change in telephone number. As the Minister submitted there is no challenge to these findings and in submissions made in this Court the appellant did not deny receipt of the email but said that he did not see the email and, had he known that the letter would be sent by email, he would have checked. In those circumstances, there is no error in the approach of the primary judge and his finding that there was no denial of procedural fairness by reason of the way in which the hearing invitation was despatched and the Tribunal’s adoption of only one means of despatch, namely, email. The fact that the Tribunal sent the letter dated 22 January 2015 to the appellant at his postal address concerning his Medicare status does not change this conclusion.

37    This ground of appeal also seeks to impugn the Tribunal’s decision to proceed pursuant to s 426A of the Act and determine the matter in the appellant’s absence. Section 426A of the Act applies if an applicant is invited to appear before the Tribunal pursuant to s 425 but does not appear on the day on which or at the time and place at which the applicant is scheduled to appear. In those circumstances, the Tribunal may, by written statement under s 430, make a decision on the review without taking any further action to allow or enable the appellant to appear before it. In this case that is what the Tribunal did.

38    In AZAFB North ACJ considered whether the exercise of the power by the Tribunal under s 426A of the Act was legally unreasonable. In that matter, the appellant provided the Tribunal with his street and email address for the purpose of sending correspondence to him. The appellant also provided his street and email address and telephone number to the Tribunal in answer to question 3 on the relevant form asking for contact details for the appellant in Australia. The appellant provided a five page submission with a four page attachment to the Tribunal. The Tribunal sent a hearing invitation to the appellant by post to the street address provided by the appellant. The appellant did not appear at the scheduled hearing.

39    North ACJ held that the exercise of the discretion pursuant to s 426A to proceed to determine the review was legally unreasonable in circumstances where the appellant had appeared at the hearing before the delegate and had filed a substantial submission in the Tribunal. His Honour held that these factors suggested that the appellant intended to pursue the application for a visa and to attend the hearing. His Honour observed that the Tribunal had in its records the appellant’s mobile phone number and that the obvious purpose of recording that number was to provide a method to the Tribunal to contact the appellant and held that “[e]lementary common sense demanded that the Tribunal at least attempt to phone the appellant on the mobile phone number it had in its records” and that failure to do so was legally unreasonable: at [26].

40    In Kaur v Minister for Immigration and Border Protection [2016] FCA 132 Perry J considered the exercise of the discretion under s 362B of the Act which is in substantially the same terms as s 426A. Her Honour observed that there was no dispute that the preconditions to the exercise of the power had been met but went on to say that the power should be exercised reasonably. Her Honour held that the Tribunal’s explanation for proceeding in the appellant’s absence could not be said to be unreasonable and that, in contrast with the judgment in AZAFB, multiple attempts had been made to contact the appellants: at [25]. Those attempts were reminders of the hearing date sent by SMS message to the appellant’s mobile telephone.

41    In SZOPV v Minister for Immigration and Border Protection [2016] FCA 514 Pagone J distinguished AZAFB on the facts of the case before him. His Honour found that the Tribunal had made two attempts to contact the appellant through the mobile number available to it. Both attempts failed but were bound to fail as the mobile number was not active at the time.

42    The facts of this case are also distinguishable from those before North ACJ in AZAFB. Contrary to the appellant’s submission, the evidence before the primary judge and his Honour’s finding was that he received the Tribunal’s letter acknowledging receipt of his application for review. Despite the invitation in that letter to provide material or written arguments to the Tribunal in support of his case he did not do so. Further, the Tribunal sent the hearing invitation letter to the appellant to the email address notified by the appellant as it was permitted to do. As the primary judge found, the appellant received that email but he did not open it. The Tribunal also sent two SMS reminder messages to the appellant’s mobile number notified to it. The primary judge rejected the appellant’s assertion that he had changed his mobile phone number. The assertion made before me by the appellant that he had notified the Tribunal orally of his change in mobile phone number must also be rejected in the absence of evidence. It is clear that the Tribunal had made attempts to contact the appellant. In the circumstances it was not legally unreasonable in the sense described by the plurality (Hayne Kiefel and Bell JJ) in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 for the Tribunal to proceed as it did under s 426A and determine the review. It cannot be said that the decision to proceed to determine the review lacked an evident and intelligible justification.

43    Given that the case before me is clearly distinguishable from AZAFB, I do not need to consider the Minister’s submission that the judgment in AZAFB should not be followed.

conclusion

44    In light of the matters set out above the appeal should be dismissed and the appellant ordered to pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    1 September 2016