FEDERAL COURT OF AUSTRALIA

Khalil v Minister for Home Affairs [2018] FCA 1712

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent's costs of the application.

3.    The costs of the application be assessed on a lump sum basis.

4.    If the parties agree on a lump sum figure in relation to costs, they are to file a joint minute of proposed orders on or before 26 November 2018.

5.    In the absence of any joint proposed order:

(a)    on or before 2 December 2018, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Courts Costs Practice Note (GPN-COSTS);

(b)    on or before 14 December, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS.

6.    In the absence of any agreement having been reached on or before 26 November 2018, the matter of an appropriate lump sum figure for costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Khalil's application for a visa was refused under s 501 of the Migration Act 1958 (Cth).

2    Under s 501G(1) the Minister was required to give Mr Khalil a written notice of the refusal that stated, amongst other things, that he had a right to have the decision reviewed by the Administrative Appeals Tribunal and 'where the application for review can be made'.

3    Mr Khalil sought review in the Tribunal under s 500(1)(b).

4    By operation of s 500(6L), if the Tribunal had not made its decision within 84 days after the notification in accordance with s 501G(1) then 'the Tribunal is taken, at the end of that period, to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to affirm the decision under review'.

5    Mr Khalil lodged his application for review on 7 December 2017. He was legally represented. The application was listed to be heard on 19 February 2018. However, an hour before the scheduled time, the lawyer advised the Tribunal and Mr Khalil that he had another matter in the District Court and he would not be representing Mr Khalil. The end of the 84 day period was thought to be imminent - if it commenced on 8 December 2017 then it would end on 26 February 2018. The Tribunal adjourned the matter for hearing the following day and made arrangements for documents to be transmitted to Mr Khalil at the detention centre on Christmas Island. Mr Khalil participated in the hearing the next day by telephone without the assistance of a lawyer.

6    On 26 February 2018, the Tribunal published its decision affirming the decision under review.

7    Mr Khalil then brought an application for review to this Court. The jurisdiction of the Court on the application is confined by s 476A(2) of the Migration Act. So, for present purposes, the applicant must demonstrate jurisdictional error.

8    For Mr Khalil it was contended that the Tribunal's decision to proceed to hear the matter the day after he ceased to be legally represented (and having regard to the character of the application and the particular circumstances of the applicant) was (a) a denial of procedural fairness; (b) a constructive failure to exercise jurisdiction (because the review undertaken was not of the kind required by the Migration Act), or (c) unreasonable in a way that amounted to jurisdictional error.

9    The application was confined in the course of submissions to three contentions.

10    The first contention advanced was to the effect that the Tribunal could not reasonably justify proceeding the day after Mr Khalil ceased to be legally represented, even though there were then only seven days until the Tribunal would be taken to have affirmed the decision to refuse to grant a visa.

11    The second contention was that s 500(6L) was not engaged because the notification to Mr Khalil of the decision refusing his application was not 'in accordance with' s 501G(1). Accordingly, there was no immediate consequence if the hearing was adjourned for a longer period and the Tribunal should have approached the matter on that basis.

12    The third contention was that the Tribunal could have dismissed the application for an ongoing failure to comply with an earlier direction requiring Mr Khalil to file a statement of facts, issues and contentions. If it had followed that course then the matter could have been reinstated subsequently without the Tribunal being taken to have made a decision to affirm the decision under review by operation of s 500(6L).

13    For the following reasons, the matters raised do not establish jurisdictional error and the application should be dismissed.

First contention: The applicant should have been afforded more time

14    The first contention proceeded on the assumed basis that if the Tribunal had not made a decision by 26 February 2018 then s 500(6L) would operate with the effect that the Tribunal would be taken to have made a decision affirming the decision under review. I will deal with it accordingly.

15    On 19 February 2018, the Tribunal was placed in an invidious situation by the actions of the lawyer for Mr Khalil. The lawyer had been representing Mr Khalil since 2015. He was the lawyer who lodged the application for review in the Tribunal. He had been otherwise authorised to receive information on behalf of Mr Khalil from the Minister. In those circumstances it was likely that part of the documentary record had been received by Mr Khalil's lawyer on his Khalil's behalf as distinct from being received by Mr Khalil personally. Mr Khalil was in immigration detention. Although he has some English ability, arrangements had been made for him to participate in the Tribunal proceedings with the assistance of an interpreter. Even assuming that Mr Khalil had some familiarity with the record and matters that might be advanced on his behalf before the Tribunal, it would be extremely difficult for a lay person to master the materials and present a case at short notice.

16    On the other hand, the Tribunal was not to have regard to any information presented orally in support of Mr Khalil's case unless the information had been set out in writing at least two business days before the allocated hearing: s 500(6J). It is a provision that imposes a serious restriction on an applicant for review and the resumption of any adjourned hearing does not reset the statutory time period: Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378 at [25]-[31]. The restriction does not extend to matters elicited by way of cross-examination irrespective of whether such matters might reasonably have been anticipated as matters that might arise that would be supportive of the applicant's case: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [43]-[51]. Nor does it extend to matters raised by an applicant in response to a matter raised by the Tribunal of its own initiative: Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482 at [101].

17    Nevertheless, having regard to the terms of s 500(6J) there was little that might have been raised in an affirmative way by Mr Khalil because no such notice (whether by way of a statement of facts, issues or contentions or otherwise) had been given before the hearing on 19 February 2018, beyond the matters stated in his statutory declaration. Further, even assuming, contrary to what was said in Goldie, that an adjournment could reset the time for providing information there was no real prospect that Mr Khalil would be able to provide written information at least two business days before any resumed hearing. Allowing for time for the Tribunal to make its decision, the latest date to which the matter might have been adjourned was 22 February 2018, leaving 23 February 2018 for the Tribunal to prepare its decision which had to be delivered by 26 February 2018 (the weekend of 24 and 25 February intervening). An adjournment to 22 February 2018 would have required the information to have been delivered on 19 February 2018 (or perhaps the morning of the following day if the calculation is to be made by reference to the appointed hour for commencement of the hearing). I note further that these calculations make no adjustment for other commitments of the Tribunal member.

18    The hearing date of 19 February 2018, had been established well in advance having been set down on 10 January 2018. The Minister had provided a statement of facts, issues and contentions on 29 January 2018. A short statutory declaration had been provided by Mr Khalil on 8 February 2018. Otherwise, the lawyer had filed no statement setting out additional information to be relied upon at the hearing. By reason of the last minute failure by the lawyer to attend, the Tribunal had limited options as to how to proceed, particularly as it required sufficient time itself to consider the material and to publish reasons.

19    Generally speaking, the Tribunal afforded Mr Khalil a reasonable opportunity to present his case by giving notice of the hearing date well in advance and by requiring the Minister to provide a statement of facts, issues and contentions: Jagroop v Minister for Immigration and Border Protection at [40].

20    Even so, there is significance in the fact that the hearing had been arranged on the basis that Mr Khalil would be legally represented. Faced with his lawyer not being available at the last minute due to no fault on the part of Mr Khalil, there was a very real prospect that he would not have a reasonable opportunity to present his case. Further, the subject matter of the application concerned not only whether Mr Khalil would be allowed to remain in Australia but also the consequences for his two young children of likely separation from their father. There was little or no prejudice to the Minister if the matter was adjourned for a sufficient period for Mr Khalil to assume the conduct of his own application in circumstances where he had been abandoned by his lawyer. In that context (and absent other countervailing considerations) to provide a fair opportunity to an applicant to present his or her case to the Tribunal would require a short adjournment.

21    There was a dispute between the parties as to Mr Khalil's abilities with the English language. Even assuming his abilities were limited (which I so assume, without making any finding in that regard), the problem was that the Tribunal either had to allow the matter to proceed on the basis of the deemed affirmation of the decision under review effected by operation of s 500(6L) or convene a hearing at very short notice in order to be able to consider the application and provide reasons before the expiry of the 84 days.

22    Ultimately there was a hearing at which Mr Khalil was given the opportunity to be heard by the Tribunal and was provided with the assistance of an interpreter in Arabic language.

23    In all those circumstances, even recognising the disadvantages to Mr Khalil when faced with having to proceed at short notice to present his own case, it has not been demonstrated that there would have been any meaningful difference had he been given a day or two more which is the most that the Tribunal could have afforded without the Tribunal being taken to have affirmed the decision under review. When these matters are added to the limitations arising from the requirement for prior written notice of any matters to be advanced, it could not be said that the decision to proceed deprived Mr Khalil of a reasonable opportunity to present his case. To the extent that he might be said to have been prejudiced, it was the conduct of his lawyer who failed to appear at the last minute in circumstances where very little could be done to ameliorate the effects of that failure to appear that had that consequence, not any failure by the Tribunal to afford an opportunity to be heard. I should make clear that counsel who appeared for Mr Khalil on the present application was not the lawyer who had been acting for Mr Khalil before the Tribunal.

24    Further, if I am wrong in that conclusion, then it could not be said that the failure to allow what was likely to be only an additional day, perhaps two, was one that deprived Mr Khalil of the possibility of a successful outcome which is a requirement which must be met in order for relief to be granted: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. In order for there to be jurisdictional error, the failure to afford procedural fairness must be material and it cannot be material unless compliance could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [31].

25    For the same reasons, the decision on the adjournment application was not in breach of the implied standard of reasonableness that attached to the exercise of the power to adjourn. The principles to be applied were stated in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30. In the circumstances that the Tribunal faced, the decision to adjourn to the next day was not outside the bonds of a reasonable decision.

Second contention: No notification in accordance with s 501G(1)

26    The notification described in s 500(6L) as the date after which the 84 day period runs is the notification required by s 501G(1)(f). Relevantly for present purposes, it requires the Minister to give 'a written notice' of the refusal to grant a visa that:

(i)    states that the decision can be reviewed by the Tribunal; and

(ii)    states the time in which the application for review may be made; and

(iii)    states who can apply to have the decision reviewed; and

(iv)    states where the application for review can be made; and

(v)    in a case where the decision relates to a person in the migration zone - sets out the effect of subsections 500(6A) to (6L) (inclusive); and

(vi)    sets out such additional information (if any) as is prescribed.

27    It is common ground that the refusal of Mr Khalil's application for a visa was communicated to Mr Khalil in writing by a form of letter provided to him at the detention centre located on Christmas Island on 4 December 2017. He signed an acknowledgment to that effect. Under the heading 'Review Rights' the letter stated that:

You are entitled to have this decision reviewed by the Administrative Appeals Tribunal (AAT). If you wish to have this decision reviewed, you must lodge an application for review with the AAT within nine (9) days after the day on which you were notified of the decision to refuse your application under subsection 501(1) of the Act.

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

I also enclose with this Notice:

•    two (2) copies of the decision record that sets out the reasons for the decision (other than non-disclosable information);

•    two (2) copies of every document relevant to the making of the decision (other than non-disclosable information);

•    a document explaining "How to apply for merits review by the AAT" and the effect of subsections 500(6A) to (6L).

28    The document explaining how to apply stated, relevantly for present purposes:

To apply to the Administrative Appeals Tribunal (AAT) for a review of the decision, you can either:

•    apply online

•    write to any of the AAT offices listed below and explain the details of the decision and why you are seeking a review, or

•    complete an application form obtainable from any of the AAT offices listed below which outlines all of the information required. The completed form can be lodged in person at or sent to any of the AAT offices listed below.

Regardless of which method you use, your application must contain a statement of reasons explaining why you are making the application for review.

29    There followed some further instructions including matters relating to the payment of fees. The document said that more information about fees could be obtained from the AAT offices listed below. There followed a hypertext link to a pdf document. Otherwise, there was no list of the AAT offices in the 'how to apply' document.

30    The hypertext link included the words 'Factsheets' and 'M10MigrationReviewProcess'. The pdf document itself was not in evidence before me. Equally, no evidence was led on behalf of the applicant to suggest that the hypertext link was inactive at the relevant time or that it did not contain the details of the AAT offices. I infer from the descriptors included in the link as well as the references in the document to 'the AAT offices listed below' that the linked document listed the AAT offices.

31    However, on the evidence, the addresses of the AAT offices were not stated in the written notice provided to Mr Khalil.

32    In SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129, consideration was given to the terms of s 66 of the Migration Act which is expressed in similar terms to s 501G(1). In particular it required the Minister to give a notice advising of a right to seek review stating 'where the application for review can be made'. It was held that a notice that advised addresses in Sydney or Melbourne where an application could be lodged did not mean that the Tribunal lacked jurisdiction in respect of an application for review which was lodged within time. In reaching that conclusion, Buchanan and Nicholas JJ stated at [69]:

On the facts of the present case the application made on 2 June 2009 would not have been ineffective to initiate a review by the RRT even if it had been lodged before the date of deemed receipt of the notification because no adverse consequence of any kind would be visited upon the applicant from early receipt of the application by the RRT. It is difficult to envisage a case where such a conclusion would ever be justified but it is not necessary to give a universal answer to that question.

33    It is submitted, in effect, that the present is such a case because, if it can be shown that time had not commenced to run then the Tribunal ought to have approached the matter on the basis that it could have adjourned the application for a greater period.

34    There is support for the view that the place where the application can be lodged must be stated in the communication (not incorporated by some form of reference) before there is compliance with a requirement of the kind in s 501G(1): Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327 at [66] and Pomare v Minister for Immigration and Citizenship [2008] FCA 458 at [19]-[21].

35    However, even assuming (without deciding) that there is merit in the claimed failure to satisfy the requirements of s 501G(1), the consequence advanced in the submissions for Mr Khalil does not follow.

36    No submission was advanced to the Tribunal at the time that it considered how to deal with the failure of Mr Khalil's lawyer to attend that the matter could be adjourned on the basis that the 84 day period had not commenced. It is difficult to see how the Tribunal could have been in error as to its approach to an adjournment by failing to consider a matter that was not known to the Tribunal and was not relied upon by the applicant. The Tribunal could not be expected to have known that there was a failure to provide Mr Khalil with the requisite notice. Mr Khalil had commenced his application in the Tribunal so there was no apparent difficulty with identifying where to commence the application.

37    It was not claimed that the failure to comply with the notice requirements meant that the application itself was invalid. It is difficult to see how compliance with the requirements of s 501G(1) might condition the validity of an application. Compliance may condition the operation of the time within which to commence the application, but it is difficult to see why compliance would condition the validity of the application such that it could not have legal effect as a valid application. The form of notice was not an essential preliminary to the exercise of the power of the Tribunal to consider an application to review. Whether an act done in breach of a condition regulating the exercise of power is invalid depends upon whether there is a purpose of invalidation evident from a consideration of language of the statute, its subject matter and objects and the consequences of holding void every act done in breach of the condition: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91], applied in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 at [61]-[62]. The language and context of the statutory provisions as well as the consequence of making applications before the Tribunal invalid even though commenced by an applicant within time would count against invalidity.

38    The issue arises because the 84 day period specified in s 500(6L)(c) is counted from the time of notification. Therefore, it appears that there could be a valid application commenced before notification as required by s 501G(1) with the 84 day period running from a later date. Even so, there was no inability on the part of the Tribunal to deal with an application once commenced, even if the 84 day period had not commenced to run.

39    The issue is whether there was jurisdictional error in the form of a failure to afford procedural fairness to Mr Khalil by failing to grant a longer adjournment on 19 February 2018. In circumstances where no submission was advanced to the effect that there could be a longer extension on the basis that the 84 day period had not commenced to run, there was no unfairness in the Tribunal approaching the adjournment question on the basis that time had commenced to run.

40    A separate argument was advanced to the effect that s 501G(1)(f) required accurate notification of the effects of s 500(6A) to (6L). Those sections applied to a decisions under each of s 501 and s 501CA(4), being different powers. It was said that the notification was deficient by reason of its failure to adequately deal with that distinction. This additional point faces the same difficulty I have identified with the point concerning the identification of the AAT addresses where applications can be lodged.

41    I note that had there been significance in any failure to meet the notification requirements then it may have been necessary to consider the application of the provisions in s 9 of the Electronic Transactions Act 1999 (Cth). It enables a notification requirement under a law of a Commonwealth to be met if the information is given be means of an electronic communication. There would also need to have been regard to the means of notification prescribed under s 501G(3): see reg 2.16 of the Migration Regulations 1994 (Cth).

Third contention: Procedural dismissal

42    By the time of the hearing on 19 February 2018, there had been a failure by Mr Khalil to provide a statement of facts, issues and contentions as ordered by the Tribunal. Therefore, the Tribunal may have entertained an application for dismissal for failure to comply. It was submitted that the Tribunal should have done so because that would have afforded the applicant an opportunity to apply to reinstate.

43    It was not for the Tribunal to dismiss the application on such a basis for the purpose of affording the applicant a means by which to circumvent the operation of s 500(6L), even assuming that was possible. There was no application by the Minister for any such order.

44    Further, I note that in Somba v Minister for Home Affairs (No 2) [2018] FCA 1537, Barker J held that if reinstatement was ordered in respect of an application to which s 500(6L) applied then the 84 day period would still be counted from when notification was given and the Tribunal would be taken to have dismissed the application.

45    The position may be different if it was held that there had been jurisdictional error in the manner in which the Tribunal purported to deal with the application within the 84 day period. I note that in Uelese, the Court considered an application for relief in respect of a decision to which s 500(6L) applied. Relief was granted which included a writ of mandamus directing the Tribunal to determine the application for review according to law. Such an order would have been futile if s 500(6L) operated to effect an affirmation of the decision under review by reason of the expiry of the 84 days. Perhaps the period of 84 days is to be calculated as a period during which the Tribunal is validly entrusted with jurisdiction according to law. That is to say, it is a period of 84 days during which the Tribunal is lawfully exercising is statutory authority to consider and make a decision. Even assuming such an approach is correct, it does not assist Mr Khalil. It has not been shown that in the circumstances as faced by the Tribunal and the submissions made at the time there was jurisdictional error.

46    For reasons I have given, the Tribunal was not in error in failing to dismiss the application on procedural grounds principally because no such application was made by the Minister and otherwise the power would not have been exercised for a proper purpose.

Conclusion

47    For the reasons I have given the application should be dismissed with costs. I propose to adopt the same course as to lump sum assessment of those costs as was taken in AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106 at [58]. Orders should be made for lump sum assessment of costs if they are not agreed.

Associate:

Dated:    12 November 2018