FEDERAL COURT OF AUSTRALIA

ANK15 v Minister for Immigration and Border Protection [2017] FCA 1493

ORDERS

THE COURT ORDERS THAT:

1.    the appeal be dismissed; and

2.    the appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

DOWSETT J:

THE VISa application

1    This is an appeal from a decision of the Federal Circuit Court, declining to review a decision of the second respondent (the “Tribunal”). The Tribunal has indicated that it will abide the order of the Court, save for any order as to costs.

2    The appellant was born in Lahore on 1 January 1963. He is a Sunni Muslim, married with three children. He arrived in Australia on 13 March 2013 on a business (short stay) (subclass 456) visa. That visa expired on 14 April 2013. On 29 May 2013 he applied for a protection (class XA) visa. The first respondent (the “Minister”) by his delegate (the “delegate”), refused the application, and so the appellant sought review of that decision in the Tribunal. On 1 April 2015 the Tribunal affirmed the delegate’s decision.

3    The appellant’s case in support of his application for a protection visa appears at para 18 of the Tribunal’s decision as follows:

a.    [The appellant’s] father ran a clinic in veterinary sciences in Lahore where the [appellant] worked. His brothers thought their father would transfer the clinic in the [appellant’s] name. They started forcing the [appellant] to leave the clinic and threatened to harm the [appellant] and his family if he did not.

b.    [The appellant] was a strong supporter of the Pakistan People's Party (PPP) and was involved in a number of political activities including campaigning for Shahid Abbas, the elected MPA for the PPP. This was another point of difference with his brothers who were PML-N supporters. It is unusual for a Sunni like him to support the PPP whose support base is mostly Shia.

c.    Though a Sunni Muslim, the [appellant] had many friends in the Shia community and several Shia customers who asked him to maintain their horses. The [appellant] sometimes had to stay with the Shias and attend a gathering called a 'majlis' in which horses were presented as part of their belief and during which he looked after the horses. Sunnis did not like this. Sunni religious leaders warned that he would be convicted of a religious crime. His brothers used this opportunity to start spreading rumours that he was a 'non-believer/Muslim '.

d.    He was assaulted by a group of Sunnis under the order of Molvi Arif who threatened to harm his family, said he was a non-believer and would be punished until death.

e.    He registered a complaint to the police about this incident. The police came to his home the next day in order to attend a 'confrontation' with Molvi Arif. The [appellant] was not at home but his brothers told police that the [appellant] abused Sunnis, was still attending the Shia majlis and threatened to kill them.

f.    He was threatened and abused by his brothers and religious leaders associated with extremists. His brothers and Molvi Arif lodged false First Information Reports (FIRs) against the [appellant] that he has gone against his religion.

g.    The [appellant] fled to his in-laws in Gujrat to avoid arrest on false charges. Molvi Arif released a fatwa against the [appellant] labelling him a non-believer and non-Muslim and declaring he should be killed at sight.

h.    He had to cease his campaigning on behalf of Shahid Abbas because of the problems the [appellant] experienced due to the fatwa. Since then, elections on 11 May 2013 saw the PPP lose and the PML-N elected under Nawaz Sharif.

i.    He cannot return to Pakistan on grounds of religion and political opinion because he is seen as a Sunni who has renounced his religion, a supporter of Shias and will be treated as a Shia convert. Because of his political support of the PPP he will be subjected to persecution from anti-Shia parties. Extremists including the Taliban are the greatest source of threats to PPP supporters.

4    At paras 19 and 20 the Tribunal said:

19.    Other supporting evidence provided includes submissions regarding country information and medical documents. Among the medical documents was a psychological report dated 28 January 2014. The medical report does not make any professional diagnoses but refers to the [appellant] reporting feeling anxious, experiencing chest pains, sleeping problems and short term memory problems.

20.    The [appellant] was interviewed by a delegate of the department and afterwards sent a response to issues raised in the interview which also included an allegation of bias against the delegate. The delegate addressed and dismissed these allegations in the decision and found the [appellant’s] protection claims to be lacking in credibility. Specifically the delegate did not accept that the [appellant] was involved in a Shia 'horse worship' festival or Muharram processions and had concerns about the applicant's previous immigration history. The delegate accepted that the [appellant] had some association with the PPP but did not accept he had a genuine fear of harm as a result given his brief involvement and lack of political activity in Australia.

THE REVIEW IN THE TRIBUNAL

5    The application for review was apparently forwarded to the Tribunal on 26 March 2014. On 18 December 2014 the Tribunal invited the appellant to give evidence and present arguments at a hearing to be held on 4 February 2015. On 5 January 2015 the Tribunal received a completed “response to hearing invitation”, confirming that he would attend the scheduled hearing, but indicating that his representative would not be attending. On 29 January 2015 the Tribunal received a letter from the appellant’s solicitors, seeking an adjournment of the hearing. In that letter the solicitors wrote:

We act on behalf of the abovenamed [appellant] in this matter.

The above matter has been listed for hearing on 4 February 2015 at 1 pm.

We are instructed by [the appellant] to seek an adjournment of the above hearing on the basis of his medical condition.

We enclose a letter from Dr A. Mian dated 29 January 2015 for your attention.

Should you have enquiries please do not hesitate to contact our office.

6    The enclosed letter stated:

This letter is to verify that above named is a regular patient of this practice.

He is suffering from:

2 – Depression/Anxiety/Panic disorders

2 – Asthma

3 – Lower Backache

4 - Diabetes – Diet Controlled

He gets anxiety and panic Disorders and seeing a psychologist.

Under the circumstances due to his mental Health problems, he is unable to attend Refugee Review Tribunal hearing for the next 4 Months

7    On 30 January 2015 the Tribunal wrote to the appellant at his solicitors’ address, attaching a document headed “Request for Information”. Materially, it read as follows:

On 18 December 2014, the [T]ribunal sent you a letter inviting you to appear before the [T]ribunal to give evidence and present arguments relating to the issues arising in your case on 4 February 2015.

On 5 January 2015, the [T]ribunal received a completed Response to Hearing Invitation confirming that you would attend the scheduled hearing and that your [solicitors] would not be attending.

On 29 January 2015 the [T]ribunal received a letter from your [solicitors] seeking an adjournment of the hearing scheduled for 4 February 2015 on the basis of your medical condition. Attached to that letter was a letter dated 29 January 2015 from your general practitioner, Dr Afshan Mian, setting out your medical conditions as depression/anxiety/panic disorders, asthma, lower backache and diabetes. The letter further states that you are seeing a psychologist and that due to your mental health problems, you are unable to attend a [T]ribunal hearing for the next four months.

The [T]ribunal notes that the Federal Court of Australia has held that it is up to the [appellant] to establish the reason for non-attendance at a hearing (SZLBE v MIAC [2008] FCA 1789 at [18]).

The Tribunal does not accept the medical certificate you have provided establishes that you would be unable to attend and participate in your hearing on 4 February 2015 and on the evidence currently before it is not prepared to grant an adjournment of your hearing. While the medical certificate lists the mental and physical health conditions you are currently suffering from, it does not indicate how any of these conditions would prevent or impact on your ability to give evidence and present arguments at a hearing before the [T]ribunal.

Accordingly, in order for the [T]ribunal to decide under s426A of the Act whether to reschedule the hearing, you are invited to provide further information about the reasons for why you would be unable to attend the hearing on 4 February 2015.

In particular, the Tribunal requests that you provide information about:

•    The symptoms of your medical conditions and the impact of your medical conditions, including your mental health conditions, on your ability to participate in a hearing where you will be expected to give evidence and present arguments on your claims to fear harm in Pakistan;

•    the duration of your medical conditions; and

•    any other reason why you would be unable to attend the hearing on 4 February 2015.

The [T]ribunal will carefully consider any additional information provided by your treating doctor(s) and/or psychologist.

...

If no further information is received at the Tribunal by 2 February 2015, the hearing will otherwise proceed at l pm on 4 February 2015.

...

8    On 30 January 2015 the appellant’s solicitors provided to the Tribunal four reports or letters from Ms Khorshed Khisty, a counselling psychologist, including two letters dated 28 January 2014, one dated 28 November 2014 and one dated 27 January 2015. In one letter dated 28 January 2014 certain stressors and presenting symptoms were identified as follows:

At the first session, [the appellant] admitted to feeling very anxious and this manifesting as pain in the chest.

*He also explained he was having problems sleeping, soundly and each night [woke] up numerous times. On an average he claimed he slept approximately 1 or 2 hours each night.

*He does not have any substance abuse issues. He smokes 5 to 7 cigarettes daily and does not drink alcohol at all.

*He had lost about 25 kilograms in weight in the past 4 months.

*He described feeling hopeless, uncertain of his future and avoided contacting his wife and children as he felt it too painful, to speak or Skype with them.

*[The appellant] complained of feeling breathless and showed me his Ventolin Inhaler, as something new he had been prescribed.

*He had been prescribed Endone by Royal Melbourne Hospital on the 27th of September 2013, whilst in Emergency, due to chest pains. But he did not want to become addicted to any medications, so only took them for a few days.

*[The appellant] added that he had become concerned about experiencing short term memory problems as well.

[The appellant’s] attitude is respectful, polite and eager to accept help being offered and expressed gratitude for help received from Red Cross and Asylum Seeker Resource Centre.

He needed reassurance that he will be guided through this process of applying for refugee Visa, by organizations such as Red Cross and the Refugee Legal Aid Services.

9    On the same day, Ms Khisty wrote to Dr Mian, reporting that she had seen the appellant for 6 sessions following his (Dr Mian’s) referral. The purpose of the letter seems to have been to obtain a further referral to ensure the availability of funding for additional sessions. The letter reveals that Ms Khisty was aware that there was to be an interview on 14 February 2014, presumably with the delegate.

10    The letter of 28 November 2014 was also directed to Dr Mian. Ms Khisty noted a weight loss and high blood pressure, and, “a few incidents of acute pressure experienced in his chest.” These symptoms were said to be stress-related. The letter seems to have been written, having regard to “Medicare compliance” and the appellant’s visa application.

11    The letter of 27 January 2015 was addressed to the Department of Immigration and Border Protection. Ms Khisty said that she had been seeing the appellant on a monthly basis, apparently in accordance with Medicare rebating allowances. Ms Khisty referred to various problems that the appellant was experiencing, observing that:

These unresolved and life-threatening situations continue to haunt him, still giving him sleep disturbance and nightmares.

His medical symptoms are consistent with those symptoms that manifest due to cumulative stress. For example, heart irregularities, chest pains with psychosomatic origins, head aches, High Blood Pressure. This occurs, where a person is living with life threatening situations, which remain out their control and have an indefinable time line for resolution.

In October 2014, he reported being treated for pain in his legs by Dr Afshan Mian prescribed Nexium 40 mg, and Voltaren 50EC 1 daily. For his Depression and psychological issues, he has been prescribed, Seretide for Depression 250 mg daily. Ventolin Inhaler 100mg CFC.

Another stressor has been having to move locations due to uncertain and financial hardships. [The appellant] painfully, misses his family.

As was stated in the letter of support dated 28th January 2014, [the appellant] continues to experience persistent sleeping difficulties, Depression, Anxiety, on going sadness and feelings of hopelessness.

12    At the time of writing this letter, Ms Khisty was aware of the proposed interview on 4 February 2015.

13    The solicitor also provided a copy of a letter to Dr Mian from “Anne Brigge (RN)” dated 11 November 2014, written on the letterhead of “Asylum Seeker Resource Centre”, in which Ms Brigge said:

Dear Dr Mian,

[The appellant] came into the ASRC requesting to have his blood pressure checked as he felt light headed. B/P 125/83. H.R. 81. Blood Sugar level: 8.4. [The appellant] said he only had a boiled egg for breakfast – half an hour ago ≈ 10 30 am. He has an appointment with you today.

14    I assume that the letters “RN” stand for “registered nurse”.

15    On 3 February 2015 the Tribunal informed the appellant’s solicitors that it had refused the request for postponement of the hearing. In particular the letter said:

The Presiding Member has received further documentation provided by you in relation to you request for a postponement of four months of your hearing for 4 February 2015. The Member has carefully considered the documentation provided but is not satisfied that evidence provided indicates that any medical conditions, including any mental health conditions, you are experiencing mean that you are unable to attend and participate in a hearing on 4 February 2015.

The hearing will therefore proceed at 1:00pm on 4 February 2015.

16    At [18] in the Circuit Judge’s reasons it is recorded that:

According to paragraph 26 of the Tribunal’s reasons for decision, on 4 February 2015, [the appellant] did not attend at the time and place of his scheduled hearing. A Tribunal officer contacted the [appellant]. The Tribunal’s reasons revealed that the [appellant] told the Tribunal officer that he (the [appellant]) was unwell, that he would not be attending and that he had sent a medical certificate to his [solicitors].

17    On 10 February 2015 the Tribunal wrote to the appellant. After setting out the history of correspondence, the letter continued:

You did not attend your hearing on 4 February 2015 at the scheduled time of 1:00pm. When an officer of the [T]ribunal contacted you by telephone, you stated that you would not be attending your hearing because you were unwell. You indicated that you had sent a medical certificate to your [solicitors]. Aside from the medical documents received on 30 January 2015, which the [T]ribunal considered in its denial of your request of a hearing postponement, no further medical documentation has been received.

The [T]ribunal reminds you that the Federal Court of Australia has held that it is up to the [appellant] to establish the reason for non-attendance at a hearing ... . Section 426A of the Migration Act states that, in the event where an [appellant] is invited to appear before the [T]ribunal and does not do so, the [T]ribunal may make a decision on the review without taking any further action to allow the [appellant] to appear before it.

Given that the [T]ribunal has already advised you that the medical evidence you have previously provided did not satisfy it that you would be unable to attend and participate in your scheduled hearing, in order for it to decide under s426A of the Act whether to reschedule the hearing, the [T]ribunal now invites you to provide any new information about why you were unable to attend your hearing on 4 February 2015.

This information should include:

•    the nature and symptoms of the illness you claim you were suffering on or about 4 February 2015;

•    its duration;

•    its impact on your ability to attend and participate in the hearing on 4 February 2015; and

•    any other reason why you were unable to attend the hearing on 4 February 2015.

...

If no further information is received at the [T]ribunal by 13 February 2015, the [T]ribunal will decide what steps it should take under s426A of the Act based on the information currently before it.

18    On 11 February 2015 there was a conversation between an officer of the Tribunal and one Celeste Abell. The officer’s note concerning the conversation is as follows:

Celeste Abell from Asylum Seekers Co. called she had the [appellant] with her (confirmed [appellant’s] ID they authorized me to speak to her) she has just been given the e-mail that Bianca sent requesting further information and a deadline of 13 Feb. She wanted an extension to provide the information. I advised her that the request needed to be in writing and that it was up to the Member to grant that request. I advised her of our e-mail address registry@mrt-rrt.gov.au she thanked me and the call ended.

19    Some time shortly thereafter, an email was received from Ms Abell as follows:

Please see a letter by [the appellant] attached, requesting an extension of time to provide you with information as to why he could not attend the RRT hearing on 4th February.

If granted by you, he will be able to provide you with the requested information by 20th February 2015.

Please consider [the appellant’s] request for extension with understanding as he was only provided 3 days' notice to submit this further information.

[The appellant] has given me permission to correspond with you on this matter, so please send your response to this request to me. Also, please feel free to contact me should I be able to assist.

20    The attached letter from the appellant was as follows:

On the 10th February 2015 I, [the appellant], received a letter requesting further information as to why I could not attend the RRT hearing on 4th February 2015. This information has been requested to be provided in writing by 13 February 2015.

I have spoken with my psychologist who is willing and supportive of providing this information to you, however due to her other work commitments and the short notice given, she will need further time to prepare this letter.

Today I write to you requesting an extension of time to provide you with the information as to why I could not attend the RRT hearing. It would be extremely helpful if you could please grant me a further week to compile this information and I will have it sent to you by Friday 20th February 2015.

A caseworker at Lentara Asylum Seeker Project is assisting me in corresponding with you, so please could you send your reply to me via the email address of, Celeste Abell on cabell@lentarauc.org.au.

21    On 12 February 2015 the Tribunal wrote to the appellant as follows:

The [T]ribunal refers to your letter of 11 February 2015 requesting additional time to provide evidence as to why you did not attend your scheduled hearing on 4 February 2015. The [T]ribunal has granted your request and has given you until 20 February 2015 to provide the requested information.

22    On 18 February 2015 Ms Khisty provided a “letter of support for [the appellant]” explaining his inability to attend the interview scheduled for 4 February 2015 “which he failed to attend, due to health reasons”. Ms Khisty indicated that he had developed “[a]nticipatory anxiety disorder, in the past two years, which has become a dominant feature of his psychological presentation now. This psychological diagnosis is consistent with the events and circumstances [the appellant] has been facing in the past 2 years.”

23    Ms Khisty offered the following explanation of the condition:

Anticipatory anxiety can be chronic if you find yourself worried about something for months at a time, such as losing your job in a poor economy. Besides feeling anxious and fearful, you may also experience anger, confusion, hopelessness, loss of control, numbness, sadness, moodiness, irritability, guilt, and preoccupation with the threat, to the point where you can't concentrate or make decisions.

24    Ms Khisty said that the appellant’s fear was, “a reality based fear”, that his application for review by the Tribunal, “could potentially result in him being asked to return back to Pakistan, where he fears for his life.” The letter then continued:

On the 4th of February 2015, his anxiety had manifested in the following physical symptoms, preventing him from attending the interview at RRT.

[The appellant] had acute discomfort on the day with a molar tooth, which caused congestion in his ears, making him feel, he will not be appropriately prepared to present himself, as his hearing was significantly effected [sic]. He sought help from a dentist, who prescribed the following, (1) WaxSol Ear Drops and (2) Ozcet-cefaclor modified release tablets.

25    Ms Khisty then appears to have provided information concerning previous difficulties, including a visit to hospital on 28 July 2013 with, “symptoms manifesting as if he were having a heart attack”. She then continued:

His medical symptoms are consistent with those symptoms that manifest due to cumulative stress. For example, heart irregularities, chest pains with psychosomatic origins, head aches, High Blood Pressure. This occurs, where a person is·living with life threatening situations, which remain out their control and have an indefinable time line for resolution. During the 28th July 2013 attendance at the Royal Melbourne Hospital; Emergency Department assessment described [the appellant] as also having Anorexic features. I would attribute to this to, Cumulative Stress with unknown resolution adding to the Anticipatory Anxiety becoming, more entrenched.

26    There is then evidence relating to treatment in October 2014 for leg pain and depression. It was said that, “[a]nother stressor has been having to move locations due to uncertain and financial hardships. [The appellant] painfully, misses his family.” Ms Khisty noted that in 2014 he had successfully received documents from Pakistan which supported his claim to have been persecuted, and that there had been a fatwa against him. However she had not sighted these documents. She said that he, “continues to experience persistent sleeping difficulties, depression, anxiety, ongoing sadness and feelings of hopelessness”.

27    On 19 February 2015 Ms Abell sent to the Tribunal a letter from Dr Mian, said to be, “in support of why [the appellant] could not attend his RRT hearing on 4th February 2015”. The letter reads as follows:

This letter is to verify that above named is a regular patient of this practice.

He is suffering from:

1 – He presented with hearing loss in both ears

2 – Depression/Anxiety/Panic disorders

3 – Asthma

4 – Lower Backache

5 - Diabetes – Diet Controlled

6 – Hypertension

7 – Depression/Anxiety

The plan is to arrange hearing assessment.

Therefore it is very likely he was unable to attend Tribunal hearing on 04/02/2015.

Under the circumstances due to his mental health problems and other medical he is unable to attend Refugee review Tribunal hearing for the next 4 Months.

28    On 20 February 2015 the Tribunal wrote to the appellant as follows:

The [T]ribunal has received and considered your reasons as to why you were unable to attend your hearing scheduled for 4 February 2015. The [T]ribunal finds the evidence you have provided to be weak and unconvincing. In her letter to the [T]ribunal, your psychologist states that on the day of your hearing, you were suffering from tooth pain that affected your hearing and that you sought help from a dentist. You have not provided any evidence from a dentist confirming that you were suffering from tooth pain on the day of your hearing. Furthermore, while the further letter from your general practitioner dated 18 February 2015 refers to you as presenting on that date with hearing loss, it does not refer to you suffering from tooth pain and/or hearing loss on the date of your scheduled hearing.

Nevertheless given your psychologist's diagnosis that you are suffering from anxiety, the [T]ribunal is willing to give you a further opportunity to give evidence and present arguments in relation to the issues arriving [sic] in your case at a hearing at the time and place set out in this letter.

29    The hearing was fixed for 1.00 pm on 24 March 2015. At 2.05 pm on 23 March 2015, the appellant’s case worker from Uniting Care, Ms Sara Lane, telephoned the Tribunal, advising that the appellant had been admitted to the emergency department “on Friday”. The preceding Friday was 20 March 2015. The Tribunal employee who received the call made the following note of it:

Case worker Sara Lane (from Uniting Care) called to inform the Tribunal that the [appellant] was admitted to the emergency department on Friday.

He is currently too unwell to appear before the [T]ribunal at his hearing tomorrow. Sara, alongside the appointed representative, will be sending in a postponement request with supporting docs that evidence his illness/inability to attend.

I have advised that once received, the request will be forwarded to the [Tribunal] for their consideration.

30    Ms Lane then forwarded the following email:

As discussed on the phone, [the appellant] was taken by ambulance to the Royal Melbourne Hospital Emergency Department on Friday 20th March 2015 after collapsing at home with chest pain. He is still unwell and not able to attend the hearing scheduled for tomorrow at 1pm. He tried to see his GP today but Dr Mian is not working. [The appellant] will attempt to see him again tomorrow to follow up about his ongoing cardiac and other health issues.

If the [Tribunal] requires any further information about [the appellant's] inability to attend tomorrow's hearing please let me know, as I am [the appellant’s] caseworker here at the Asylum Seeker Project and am in a position to coordinate this.

31    There is no suggestion that Ms Lane has any medical or similar qualifications. Also in evidence is a letter dated 20 March 2015 from The Royal Melbourne Hospital City Campus as follows:

The Emergency Department has referred you to one of the Royal Melbourne Hospital's Outpatient Clinics.

The Outpatient Department will contact you by phone or mail to advise you we have received the referral and to offer you an appointment. This can take up to 2-3 weeks unless the referral is very urgent. If you have not heard from us within 2-3 weeks please ring the Outpatients Department ph. 9342 7393.

Waiting times for appointments vary, but some clinics have lengthy waits for non-urgent conditions. If you are concerned that you are unable to wait till the scheduled appointment for outpatient care, please contact your local doctor.

If you develop further or worsening symptoms or are concerned that you may have a complication of your illness, please:

•    See your local doctor or

•    See your community specialist or

•    If necessary, attend an emergency department.

32    A report addressed to “Dear Doctor’ identified the appellant’s “presenting problem” as:

52M NESB at rest chest pain with diaphoresis: SOB, light headed pre syncope, sweaty++.

Has had on and off for past few days. Has had 1 year ago as well.

33    Other observations and test results were provided. The final sentence of the report is:

S/B cardiology with thanks; for OP stress testing next week then outpatient f/u cardiology in 5/52.

34    I understand that “f/u” means “follow up” and “6/52” means “in six weeks”.

35    On 23 March 2015, the Tribunal wrote to the appellant as follows:

I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection (Class XA) visa.

The Tribunal has received correspondence from your case worker at the Asylum Seeker Project, Ms Sara Lane, indicating that you presented to the Royal Melbourne Hospital Emergency room on Friday, 20 March 2015 with chest pain and that you are too unwell to attend your hearing scheduled for Tuesday, 24 March 2015 at 1pm.

The Tribunal has carefully considered the documentation that has been provided but is not satisfied that it indicates that you would be unable to attend and participate in your scheduled hearing tomorrow.

The Tribunal has clearly set out the type of information required to demonstrate that you are unable to attend a hearing in its letters to you of 30 January 2015 and 10 February 2015. The documents that you have provided do not contain information of that sort.

The hearing will proceed as scheduled at l pm on 24 March 2015.

...

36    The appellant did not attend upon the Tribunal on 24 March 2015. As a result, the appellant was not heard further in support of his visa application. It was considered and rejected. The Tribunal dealt with his non-attendance at para 35 as follows:

The most recent documentation provided by the [appellant] indicates that he presented at Royal Melbourne Hospital Emergency room on the morning of 20 March 2015 complaining of chest pain. The documentation indicates that the [appellant] was released on the same day and referred for outpatient stress testing and a cardiology follow up. While the [T]ribunal accepts that the [appellant] may have suffered from chest pains on 20 March 2015 leading him to attend the emergency room, it is not satisfied that the documentation provided indicates that this incident meant that he was unable to attend and participate in a hearing four days later on 24 March 2015. This is because the information provided did not include any information about the nature and symptoms he was suffering on or around the date of his scheduled hearing, the duration of any illness that would indicate that the problems for which the [appellant] attended hospital on 20 March 2015 were continuing as at the date of his scheduled hearing or information on how his medical issues as at 20 March 2015 impacted on his ability to attend and participate in a hearing on 24 March 2015.

37    At paras 36-42 the Tribunal rehearsed the history of its attempts to facilitate the appellant’s attendance at a hearing, concluding at para 43 as follows:

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 [appellant] to appear before it.

38    I should say that the Tribunal correctly concluded that the material supplied by, or on behalf of the appellant was quite inadequate as an explanation for his non-attendance. Ms Lane’s explanation was not that of a qualified health worker. The hospital report suggests no immediate concerns or urgent further investigation. There was no suggestion that the appellant had been advised to take any steps which may have led to his being unable to attend at the hearing.

APPLICATION TO THE FEDERAL CIRCUIT COURT

39    The grounds of the application for review and particulars were as follows:

1.    The decision of the Tribunal to proceed under s. 426A of the Migration Act, without giving the [appellant] an opportunity to appear before it, was affected by jurisdictional error in that the decision was unreasonable.

Particulars

(a)    The Tribunal erred in failing to find that the medical and psychological material provided by the [appellant] met the description it had set for the [appellant] in its letters to him dated 30 January 2015 and 10 February 2015;

(b)    The Tribunal knew that the [appellant] had collapsed at home on Friday 20 March 2015 and had been taken to hospital by ambulance, that he was unable to contact his general practitioner on the Monday, but hoped to be able to do on the Tuesday, the day of the hearing, and that he was due to return to hospital in the week of the hearing for further tests;

(c)    The Tribunal erred in failing to conclude that this most recent medical information from the Royal Melbourne Hospital and/or the [appellant’s] case officer was sufficient to warrant the grant of an adjournment;

(d)    The Tribunal failed to respond to the [appellant’s] case worker’s offer to coordinate the obtaining of further evidence to meet the requirements set by the Tribunal;

(e)    Coupled with the material previously submitted, and this offer, the decision to proceed without a hearing was unreasonable in all the circumstances.

2.    The decision of the Tribunal to proceed under s. 426A of the Migration Act, without giving the [appellant] an opportunity to appear before it, was affected by jurisdictional error in that the Tribunal failed to take into account the nature and extent of the opportunity which the [appellant] would lose by not attending the hearing.

Particulars

(a)    The Tribunal failed to consider that it was or was about to make a decision on a different basis to that of the delegate, namely that it did not accept that he was employed at his father's veterinary clinic;

(b)    Acceptance of the applicant's place and type of employment was critical to the balance of his claim;

(c)    Had the applicant appeared before the Tribunal it would have been incumbent upon it to bring to his attention the prospect that it may make a decision on a different basis to the delegate, in accordance with its obligations under s. 425 of the Migration Act;

(d)    The Tribunal erred in exercising the discretion to proceed under s. 426A(l) and/or by not considering the exercise of the power under s. 426A(2) to relist the matter for hearing, when an important basis of the decision became known to it.

3.    The decision of the Tribunal was affected by jurisdictional error in that the Tribunal erred in using the failure of the [appellant] to attend the hearing as a matter adverse to his credit.

Particulars

(a)    The Tribunal exercised its discretion to proceed under s. 426A because it did not accept that the medical and psychological evidence provided by the [appellant] met the description which the Tribunal set out in its letter to him;

(b)    The Tribunal was not satisfied that the material explained why the [appellant] was unable to attend the hearing;

(c)    The Tribunal gave no other reason for rejecting the [appellant’s] application for an adjournment, other than the apparent deficiency in the material provided;

(d)    The Tribunal impermissibly and without foundation drew an adverse inference from the [appellant’s] non-attendance, namely that he had chosen not to attend the hearing and answer the Tribunal's questions about his claim;

(e)    The adverse inference infected the Tribunal's reasoning process.

40    As to ground 1, the Circuit Judge concluded that the Tribunal had not acted unreasonably in refusing the postponement and proceeding to decide the matter pursuant to s 426A(1A)(a).

41    As to ground 2, the Circuit Judge understood the appellant’s submission to be that the Tribunal ought to have taken into account the fact that his non-appearance meant that he could not participate in the process in the way that he could have done had he attended. His Honour rejected that submission.

42    As to ground 3, the Circuit Judge did not accept that the Tribunal had treated the appellant’s failure to appear as going to his credit. Rather, the Tribunal decided all questions on their merits, having regard to the available evidence. It also, on occasions, observed that it had not had the benefit of evidence from the appellant.

43    His Honour concluded that the Tribunal had correctly undertaken merits review.

the appeal

44    The grounds of appeal are as follows:

1.    The [primary Judge] erred in failing to find that it was unreasonable for the Tribunal to decide to proceed with the 24 March 2015 hearing having regards to the medical evidence before it.

2.    The [primary Judge] erred in failing to find that the Tribunal's decision was affected by error because the Tribunal failed to take into account the nature and extent of the opportunity that the [appellant] would lose by not attending the hearing.

3.    The [primary Judge] erred in failing to find that the Tribunal's decision was affected by error as it used the [appellant’s] failure to attend the hearing as a matter relevant to his credit, in circumstances where the Tribunal exercised its discretion unreasonably to dismiss the hearing.

4.    The [primary Judge] erred in substituting its own unreasonable finding that "a fair construction of events was that immediately prior to every scheduled hearing, the [appellant] applied to postpone the hearing, citing medical reasons" in circumstances where there was evidence that [the appellant] was in fact suffering from medical conditions, which may have been outside of his control.

45    Only grounds 1 and 2 are pressed.

Ground 1

46    The Tribunal appears to have proceeded on the basis that the information provided by the appellant did not include:

    any information about the nature and symptoms he was suffering on or around the date of the scheduled hearing;

    the duration of any illness that would indicate that the problems for which he attended hospital on 20 March 2015 were continuing on the scheduled hearing date; and

    information as to how his medical issues as at 20 March 2015 impacted on his ability to attend and participate at the hearing.

47    In his outline of submissions, the appellant puts the required information in a slightly different form. I have adopted the information identified in the Tribunal’s reasons at para 34.

48    The appellant submits that the requirement for such information, “does not find [its] source in the discretion conferred on the Tribunal by s 426A(2) of the [Migration Act]”. Further, the appellant asserts that the Tribunal had previously rescheduled the hearing despite the absence of such information, demonstrating that, “the nature of the discretion is broader than the existence of information of the kind required by the [Tribunal]”.

49    These propositions lead nowhere. The appellant does not submit, with respect to ground 1, that the Tribunal took into account irrelevant considerations, or failed to take into account relevant considerations. Rather, the appellant implies that the Tribunal took a narrower view of its discretion than it had on the previous occasion on which it had allowed postponement. The discretion is undoubtedly wide. For that reason the fact that the Tribunal had allowed an extension after the appellant had failed to appear on 4 February 2015, despite his failure to respond to reasonable requests for information, says nothing about the Tribunal’s decision to proceed on 24 March 2015 in the appellant’s absence. There is no merit in the submission that the Tribunal’s reasons demonstrate no “intelligible justification” for its decision.

Ground 2

50    The appellant submits that on the proper construction of s 426A, in deciding whether to proceed under s 426A(1A) or s 426A(2), the Tribunal should have, but did not take into account the fact that if it proceeded under s 426A(1A), the appellant would be deprived of the opportunity to be heard by the Tribunal. This submission seems to depend upon the assertion that the Tribunal did not refer to the appellant’s lost opportunity in its reasons. In my view, it completely overlooks the history of the matter from 29 January 2015 until 24 March 2015, and the detailed account of that history which appears in the Tribunal’s reasons at paras 22-43. There can be no doubt that the Tribunal was motivated by a desire to ensure that the appellant had an opportunity to be heard. As late as 23 March 2015, the Tribunal was trying to elicit any information which may have been a basis for a further postponement. In its findings and reasons, it frequently demonstrated its acute awareness of the opportunity lost by the appellant and by the Tribunal, itself.

51    There is simply no basis for inferring that notwithstanding its consideration of these matters, the primary Judge should have inferred that the Tribunal was unaware, of, or did not consider the likely consequences for the appellant of the course which it adopted. Ground 2 must also fail.

52    The appeal will be dismissed with costs.

Associate:

Dated:    8 December 2017