FEDERAL COURT OF AUSTRALIA

AXI15 v Minister for Immigration and Border Protection [2016] FCA 1316

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Federal Circuit Court given on 20 May 2016 dismissing an application for judicial review of a decision of the Refugee Review Tribunal dated 8 May 2015. The appeal was maintained on the narrow basis that the Tribunal had erred in the exercise of its discretion under s 426A of the Migration Act 1958 (Cth) (“the Act”) by not having sought to contact the appellant by phoning two mobile phone numbers on the day the Tribunal had listed for the hearing of the appellant’s application for a review of the decision refusing the Protection visa under s 65 of the Act.

2    The appellant had applied for a visa on 2 January 2013 but his application was refused by a delegate of the Minister for Immigration on 19 December 2013. The appellant had filed a number of written submissions and statements, and had given oral evidence to the delegate, in support of his application. He attended an interview with the Minister’s delegate in connection with his application for the visa and claimed a risk of being harmed and killed by unknown men who had previously threatened to harm him. In a statutory declaration dated 12 December 2012 he had said that he believed that he was at risk of being harmed and killed by unknown men who had previously threatened to harm him if he participated in a boxing meet and that he believed these persons worked closely with the Sri Lankan government and had been armed. The claims were repeated in the interview with the delegate of the Minister but were not accepted by the delegate.

3    On 9 January 2014 Andronicos Law Pty Ltd (“the agent”) applied to the Tribunal on behalf of the appellant to review the delegate’s refusal. The agent was formally authorised in writing on 12 December 2012 by the appellant to apply for a review of the refusal decision and was appointed to communicate with and to receive correspondence from the Tribunal on the appellant’s behalf. The written application for review to the Tribunal also appointed the agent as agent for the appellant to forward written submissions and written evidence to the Tribunal, to request access to documents held by the Tribunal in relation to the appellant’s application, and to accompany the appellant to any hearing arranged by the Tribunal.

4    On 6 February 2015 the Tribunal wrote to the agent in relation to the appellant’s application for review of the decision to refuse his application for a Protection visa and invited the appellant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The agent was informed that written submissions setting out all claims made and maintained by the appellant were to be provided by 30 April 2015 and should be accompanied by a signed declaration from the appellant that the submission had been read and explained to the appellant and that it accurately and completely presented the appellant’s claims. In a separate letter from the Tribunal dated 6 February 2015 the appellant was invited via the agent to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case at 9.30am Victorian time on 7 May 2015.

5    The appellant did not appear at the time appointed by the Tribunal for the hearing of his application to review the decision by the delegate. There was then some communication between the agent and the Tribunal including emails by the agent and, on the following day, the Tribunal decided to dismiss the appellant’s application under s 426A of the Act in light of the appellant’s failure to appear before the Tribunal. On 2 June 2015 the appellant sought to have that decision reviewed by the Federal Circuit Court but that application was dismissed on 20 May 2016. The appellant appeals in this proceeding from the decision of the Federal Circuit Court submitting that the Tribunal was in error in dismissing his application under s 426A of the Act.

6    The Tribunal had a discretion under s 426A of the Act to dismiss the appellant’s application to the Tribunal. Section 426A provides:

426A    Failure of applicant to appear before Tribunal

Scope

(1)    This section applies if the applicant:

(a)    is invited under section 425 to appear before the Tribunal; but

(b)    does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

(1A)    The Tribunal may:

(a)    by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

(b)    by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1:    Under section 430A, the Tribunal must notify the applicant of a decision on the review.

Note 2:    Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

[…]

It was submitted for the appellant, however, that the lawful exercise of the discretion conferred by this section required the Tribunal to attempt to contact the appellant by phoning mobile numbers which had come to the attention of the Tribunal on the morning of 7 May 2015 through the appellant’s agent.

7    The invitation to the appellant from the Tribunal had been to appear at 9.30am on 7 May 2015 at a specified address of the Tribunal in Spencer Street, Melbourne. The Tribunal’s hearing record for the applicant was marked as “no show” at 9.55am on that day. An officer of the Tribunal contacted the appellant’s agent soon after 9.55am. The conversation between the Tribunal’s officer and the appellant’s agent was subsequently recorded at 10.53am as a case note in the appellant’s file with the following comment:

Spoke with the representative (Nicholas Andronicos) to inform him of the non attendance from the review applicant. The representative noted that they had not heard from the applicant for some time and that there was potentially a new address in NSW which had not been provided to the tribunal. The representative noted that he would resend (today via email) submissions from June and October 2014 which may have not been received by the tribunal.

As a result of the Tribunal contacting the agent, the agent sent to the Tribunal another copy of the submissions which had been prepared on behalf of the appellant dated 28 July 2014. The correspondence to the Tribunal from the agent on 28 July 2014, which was sent again on 7 May 2015, had attached the submissions dated 28 July 2014 but had stated that the agent had been unable to submit a statutory declaration because the agent had not been able to contact the appellant in relation to his application. At 11.24am the agent sent another email to the Tribunal referring to the discussions which had taken place with the registry staff in Victoria earlier that day. That email, amongst other matters, listed eight attempts by the agent to contact the appellant over a period from 13 January 2014 to 18 March 2015. The email from the agent to the Tribunal at 11.24am referred to two mobile numbers at which the agent had attempted to contact the appellant. The email stated:

[…]

On 13 January 2014 we tried to call client on (his number [first number]) but no answer.

On 20 January 2014 it appears the client informed us of his address above-however I cannot confirm if this was the date he first informed us but from notes on file it would appear so.

On 20 January 2014 we sent the client a letter to the address above dated advising we lodged his application for review to the RRT. This was the last date we actually spoke to the client by telephone (his number [first mobile number]).

On 6 May 2014 we sent a letter to the above address informing him we tried to call contact him unsuccessfully telling him we wanted to put to him the adverse decision by DIBP.

On 27 May 2014 we left client voicemail to call us regarding putting adverse decision to him and wanting his response.

On 10 September 2014 we tried to call the client on [first mobile number] but no answer.

On 6 February 2015 (the date of RRTs hearing invitation) there is a note on the invitation which appears my staff left voicemail with the client advising of the invitation.

On 18 March 2015 we sent RRT hearing invitation to the client by post to the address above.

On 18 March 2015 we phoned client on [second mobile number] and left voicemail advising of RRT hearing. We are not certain what the client informed us of this new number.

Later that day the Tribunal Member requested that the agent be contacted again to thank the agent for providing a copy of the July submissions and to obtain a copy of other submissions which were referred to in the delegate’s decision dated 18 October 2013. The case note of that conversation recorded that the agent informed the Tribunal officer of being aware of the reference to the post-interview submission of 18 October 2013 and of having attempted to find the submission but had not succeeded in finding the submission. The agent also said that there was a chance that the submission did not exist and undertook to respond to the Tribunal within the hour after undertaking further searches. Shortly after that discussion the agent sent an email to the Tribunal stating that the submissions of 28 July 2014 did not refer to any submissions dated 18 October 2013 and that they did not have a submission or a statement dated 18 October 2013 either in their electronic files or on their hard files.

8    The appellant contended in the appeal that the Tribunal had not lawfully exercised the discretion in s 426A of the Act without itself having attempted to contact the appellant by phoning the two mobile numbers which the agent had referred to on 7 May 2015. In AZAFB v Minister for Immigration and Border Protection (2015) 68 AAR 171 North ACJ held that a decision of a Tribunal was legally unreasonable in a case in which the Tribunal had failed to attempt to phone the appellant who had not appeared. His Honour said at [22]-[28]:

22    In the present case the Tribunal explained why it proceeded in the absence of the appellant. It said that the appellant was invited to appear and did not respond to the invitation. The Tribunal also said at [4]:

That letter was addressed to his last given address, provided by himself, which was the same address used by the by the [sic] department. A check was made to see if any change of address had been notified and, none has been.

23    Thus the Tribunal checked the address on the letter of invitation with the address previously used by the Department, and checked, presumably in its own records, to see whether there was any indication of any notification of a change of address. These steps were taken by the Tribunal to determine whether the applicant may not have received the invitation to the hearing. That was, of course, an obvious thing to do in the circumstances.

24    The steps were obvious in the circumstances because, as was known to the Tribunal, the appellant had appeared at the hearing before the delegate, and had filed a substantial and serious written submission in the Tribunal. These factors suggested that the appellant intended to pursue the application for a visa and to attend the hearing. Further, the nature of the application demonstrated that if the claims made were established the appellant was at risk of serious harm if returned to Sri Lanka.

25    The Tribunal had in its own records in the application for review the mobile phone number of the appellant.

26    Further, for the purpose of the hearing the Tribunal created a document entitled “Hearing Record”. The document recorded all the details relevant to the hearing such as the place and time of the hearing. The document listed the witnesses to be called and the name of the member conducting the hearing. It seems to have been prepared in advance of the hearing so that the details of what occurred on the day could be inserted. The document included the name of the appellant and his mobile phone number written opposite his name. The obvious purpose of recording the mobile phone number was to provide a method which would allow the Tribunal to contact the appellant. Elementary common sense demanded that the Tribunal at least attempt to phone the appellant on the mobile phone number which it had in its records. To fail to do so was legally unreasonable. The Tribunal fell into jurisdictional error by not seeking to contact the appellant on the phone number which he had given the Tribunal.

27    The primary judge set out in his judgment the particulars of the grounds of application for review. The particulars included an assertion that the appellant provided the Tribunal with his mobile phone number. The primary judge did not deal with this factor. It was the critical factor which rendered the exercise of discretion unreasonable. It was determinative of the case.

28    Even if this factor had not been determinative of the case, the reasoning of the primary judge should not be upheld. In the circumstances outlined it was unreasonable for the Tribunal not to utilise the other information in its own records to attempt to contact the appellant. In addition to the mobile phone number it could have used the email address provided by the appellant. Furthermore, the statutory declaration filed in support of the application which was before the Tribunal indicated that Ms Symonds had assisted the appellant in formulating the written submission. Her mobile number was on the declaration. As she had assisted the appellant in formulating the written submission, contacting her was a likely way of getting in touch with the appellant. It is now clear, by virtue of the further evidence admitted on appeal, that an enquiry of the Department on 19 May 2014 would have shown that the appellant had notified the Department of his change in address. The primary judge had no good reason to reject the evidence of the appellant that he had notified the Department of the change of address, particularly in the absence of any cross examination. As the appellant received a letter from the Department on 22 May 2014 at the Aberfoyle Park address there was an almost irresistible inference that the appellant had notified the change before the date of the hearing on 19 May 2014.

Judge Harland distinguished this decision saying at [15]-[16]:

15    The applicant’s post hearing submissions primarily sought to rely on the decision of AZAFB v Minister for Immigration and Border Protection [2015] FCA 1283 (“AZAFB”). This decision was handed down on 4 December 2015, several months before the hearing before this Court. The applicant does not give an explanation as to why this case was not raised at the hearing. The applicant's further submissions are brief and do not state how AZAFB assists but simply repeats that the Tribunal, being based in Melbourne should have made enquiries when presented with an address Doveton NSW 3177 which was incorrect as the address was in Victoria. This ignores the fact that the applicant had a migration agent on record as the authorised contact. The Tribunal did make contact and made enquiries which shows on the face of the agent’s response that the applicant had not been in touch for some time.

16    The respondent points out that the circumstances in AZAFB were different to the applicant’s circumstances. I accept the respondent’s submissions that North ACJ was not setting down a general principle but was dealing with the particular circumstances which were before him. The first respondent refers to Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 (“SZFHC”). I particularly note [39]. I accept the respondent’s submissions and the application of SZFHC and AZAFB. AZAFB is distinguishable from this case and in any evident is a single judge decision inconsistent with the Full Court’s decision in SZFHC.

It was submitted for the appellant that her Honour erred in distinguishing AZAFB and that the circumstances in that case applied also to the appellant.

9    Her Honour was correct in distinguishing the decision in AZAFB. In that case his Honour was not setting down a general principle requiring the Tribunal to attempt to phone every appellant who has failed to appear at a hearing. It was the facts of that case which led his Honour to conclude that the Tribunal had fallen into jurisdictional error by not seeking to contact the appellant on the number which the appellant had given to the Tribunal as the means by which the appellant in that case had provided to the Tribunal as a method for the Tribunal to contact the appellant in that case. The circumstances in this case are different. The Tribunal was not being given the appellant’s mobile number by the agent as the means by which the Tribunal was to contact the appellant but, rather, as part of the agent’s narrative of the agent’s attempts to contact the appellant which had failed over a period of many months. The Tribunal was informed of eight attempts by the agent to communicate with the appellant by ordinary post and by telephone calls. Documents had been sent by the agent by post to the appellant which the Tribunal could assume to have been received by the appellant: see SZUQF v Minister for Immigration and Border Protection [2015] FCA 1409, [10]-[11]. There was nothing on the agent’s file to indicate that the documents had been returned or had failed to have reached the appellant. The appellant had not responded to all but one of the telephone communications which the agent had initiated over a period of 14 months.

10    In AZAFB the Tribunal had taken no steps to contact the appellant beyond checking that the address on the letter of invitation coincided with the information held by the Tribunal. In this case, in contrast, the Tribunal took positive steps to contact the appellant’s agent several times on the day fixed for the hearing of the appellant’s claim, and actively engaged with the agent in obtaining material relevant to the appellant’s case before deciding to make its decision under s 426A of the Act. The record decision of the Tribunal summarised at [3] the facts set out above as follows:

On 6 February 2015 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 7 May 2015. The applicant 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. No response was received. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. An officer of the Tribunal contacted the applicant’s registered migration agent who advised that they had not heard from the applicant for some time. In an email to the Tribunal dated 7 May 2015, the agent set out in detail his firm’s attempts to contact the applicant and advise him of the hearing. The applicant has not contacted the Tribunal or provided any reasons or evidence for his non-appearance. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

The absence of the appellant limited the material before the Tribunal to that which had previously been supplied. The Tribunal observed at [34] that it would have explored with the appellant those claims which were vague and lacking in detail. In this regard the Tribunal said:

The applicant’s claims are vague and lacking in detail. Had he attended a hearing, I would have explored with him his claims and sought further information from him on a range of details relevant to his stated claims. His failure to attend the hearing when requested to do so however meant I have not been able explore such claims with him or have the ability to seek further information about the basis on which he sought protection.

In the next five paragraphs the Tribunal made findings against the appellant “on the very limited evidence” before the Tribunal. The Tribunal, however, was not obliged to take any further action than it had. It had invited the appellant to make submissions and to be present at a hearing. The appellant had engaged an agent and had made submissions but had failed to attend the hearing. The Tribunal took steps to make contact with, and succeeded in making contact with, the agent who had been appointed and authorised by the appellant to deal with his application. It was under no further obligation to discover if there might be some other avenue of communicating with the appellant: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439.

11    The decision of the Tribunal is not unreasonable in the sense of lacking “an evident and intelligible justification”: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76]. On 6 February 2015 the Tribunal had written to the appellant inviting him to appear before the Tribunal to give evidence and to present arguments relating to the issues in his case. That letter had specifically indicated to the appellant that the Tribunal had “considered the material before it but [that] it [was] unable to make a favourable decision on this information alone”. The invitation to the appellant indicated that the Tribunal might make a decision without further notice if he did not attend the hearing and a postponement was not granted. No response was received by the Tribunal to its invitation to the appellant to attend a hearing. The appellant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. An officer of the Tribunal contacted the appellant’s registered Migration Agent who advised that the agent had not heard from the appellant for some time. The agent set out in detail in an email to the Tribunal dated 7 May 2015 the attempts which had been made to contact the appellant and to advise him of the hearing. The contact with the agent was initiated by the Tribunal. The Tribunal took further steps to secure from the agent submissions which the Tribunal had not received and sought to obtain other material which had been referred to but which was not before the Tribunal on the day of the hearing. The facts are not like those in AZAFB in which the appellant had not been represented and had specifically given to the Tribunal a telephone number as the means by which the Tribunal would contact him.

12    Accordingly, there was no error in the decision of the Tribunal or of the Federal Circuit Court and the appeal will be dismissed.

Associate:

Dated:    8 November 2016