FEDERAL COURT OF AUSTRALIA

EII17 v Minister for Immigration and Border Protection [2018] FCA 1863

ORDERS

THE COURT ORDERS THAT:

1.    The oral application made by the First Respondent pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) and s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) is dismissed.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent, either as assessed or as agreed.

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

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding, identified by the pseudonym EII17, is a national of China.

2    On 31 March 2014, he was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa. The period of stay permitted was until 15 March 2018. In July 2016, he was issued with two Notices of Intention to Consider Cancellation of his visa. A delegate believed that he did not comply with a condition of the visa. The delegate believed that he had ceased to be enrolled in a “registered course of study”, a requirement imposed by condition 8202. In response to the first of those Notices, the Appellant explained that he had begun to feel “more and more pressure ... due to huge language barriers and cultural differences” and had been “suffering anxiety and depression”.

3    On 26 July 2016, a delegate cancelled the visa under s 116(1)(b) of the Migration Act 1958 (Cth), which provides that the Minister may cancel a visa if satisfied that “its holder has not complied with a condition of the visa”.

4    The Appellant sought review of that decision by the Administrative Appeals Tribunal (the “Tribunal”). On 4 September 2017 the Tribunal affirmed the delegate’s decision.

5    An Application was filed in the Federal Circuit Court of Australia on 27 September 2017 seeking review of the Tribunal’s decision. That Court dismissed the application on 18 May 2018: EII17 v Minister for Immigration and Border Protection [2018] FCCA 1276.

6    A Notice of Appeal was filed in this Court on 4 June 2018.

7    The proceeding came on for hearing on 19 November 2018. The Applicant failed to appear at the time scheduled for the hearing to commence and the matter was stood down. He had still not appeared when the matter was called on for hearing some 15 minutes later than scheduled and again was not present when the matter was called at the conclusion of the hearing. He had been reminded by the solicitors for the Respondent Minister of the date and time of the forthcoming hearing on 2 November 2018. The Respondent Minister appeared by his solicitor.

8    An application made on behalf of the Respondent Minister to have the matter dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) and s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) was rejected. The matter proceeded to hearing, albeit in the absence of the Appellant.

9    The appeal is to be dismissed with costs.

THE GROUNDS OF APPEAL – RECURRING PROBLEMS

10    The Grounds of Appeal as set forth in the Notice of Appeal state (without alteration) as follows:

1.    The Tribunal was not professional, which caused that I could not provide more evidence.

 2.    AAT denied all the evidences I provided without any consideration.

3.    The staff’s attitude was so terrible, which caused me so nervous and state not to the point.

11    As with many appeals arising from decisions made under the Migration Act, the Notice of Appeal in the present case suffers from a failure on the part of the appellant to identify any appellable error said to have been committed by the primary Judge whose decision is the subject of the appeal. As with many like appeals, the recurring error is to set forth grounds upon which a Tribunal decision may potentially be set aside by the primary Judge rather than error on the part of the primary Judge in resolving those grounds.

12    And, once again, the present proceeding exposes a yet further recurring problem. One course that this Court on appeal frequently pursues is to place the stated Grounds of Appeal to one side or to seek to construe the stated Grounds as but an attempt on the part of an unrepresented Appellant to contend that the primary Judge erred in the way in which much the same arguments were previously resolved when the matter was before the Federal Circuit Court. The associated problem in pursuing such a course is that the stated Grounds of Appeal quite frequently do not match up with the arguments previously advanced for resolution. There is a self-evident difficulty in any contention that a primary Judge erred in not resolving an argument not advanced. And, irrespective of such constraints as may be imposed by s 476A of the Migration Act – which confers a limited jurisdiction on the Federal Court in relation to migration decisions – there is difficulty in too readily permitting an appellant to raise on appeal arguments which were not previously relied upon.

13    Presented with such recurring problems, this Court is repeatedly called upon – not to act as an appellate court – but rather to review for itself the course of proceedings before the Tribunal and the Federal Circuit Court to discern for itself whether the Court can perceive the germ of an argument that may lead to some form of judicial relief being granted to the unrepresented appellant.

14    But for this Court to do so raises both matters of general principle and, in the present statutory context, questions as to the ability of this Court to act as a de facto first instance court.

15    In AAM15 v Minister for Immigration and Border Protection [2015] FCA 804, (2015) 231 FCR 452 at 455, Perram J adverted to these problems as follows:

The role of this Court

[14]    One is confronted, then, with the situation that this Court is being called upon in the exercise of its appellate jurisdiction to decide the entirety of the matters which were for trial, including two new grounds, in circumstances where none of the issues to be decided in this Court were ever decided in the Court below. Section 476A of the [Migration Act] explicitly removes this Court’s original jurisdiction in cases of this kind. Of course, the ability of this Court to hear fresh grounds of appeal or to entertain a notice of contention is not circumscribed by s 476A as they are both aspects of the Court’s appellate jurisdiction. But s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and a notice of contention when to do so will mean that this Court performs the trial court’s entire function. As a matter of substance, that is what s 476A appears aimed at preventing. There is this further matter, too: Pt 8 of the [Migration Act], which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

16    The preferable course, it is respectfully considered, is for the Federal Circuit Court to pursue a more active role in the review it undertakes of Tribunal decisions arising under the Migration Act and to do so in a manner not necessarily confined to the arguments or concerns raised for resolution by an unrepresented claimant. In doing so, it is to be expected that those representing the Respondent Minister will provide such assistance as is appropriate to the matter under consideration. It is, with respect, regrettable that the system of both merits review and judicial review of decisions arising under the Migration Act compels the courts (and the Minister’s representatives) to go beyond the primary function of resolving arguments advanced by an unrepresented party. But the very fact of there being recurring problems only exposes the reality that the adversarial system of litigation may be productive of a perception of unfairness to the unrepresented litigant. If any court is to more actively engage with resolving the legal correctness of an administrative decision, and to undertake a more active role in the identification of potential legal arguments going possibly beyond those identified by an unrepresented party, the forum in which that is to take place is the Federal Circuit Court. That would then leave to this Court its proper function in this area of the law, being the discharge of its appellate role. This Court would then have the not inconsiderable benefit of the reasons for decision of a primary Judge directed at those broader issues. The parties before this Court would also be afforded greater certainty as to the issues to be resolved on appeal.

17    To unrepresented litigants, especially litigants who may not be able to speak English and to whom the intricacies of the Australian judicial system may be a mystery, legitimate concern may be expressed on their part as to “what is happening?” A primary concern of this Court should be, to the extent that it is permissible to do so, to ensure that such litigants both receive and be seen to receive a proper judicial resolution of their claims.

18    Such general expressions of dissatisfaction with the manner in which cases come before this Court can, however, be presently placed – once again – to one side. The more immediate task to hand is to consider whether the present Appellant is entitled to some form of relief.

THE DIFFERENT ARGUMENTS NOW PRESENTED

19    The Grounds of Review relied upon by the present Appellant when he was before the Federal Circuit Court were arguments (in summary form) directed to:

    the Tribunal’s lack of satisfaction as to the significance of his claimed depression and anxiety and a failure to consider the claimant’s “practical situation”;

    the failure on the part of the Tribunal to accept the “diagnosis of the psychologist” and a finding that the claimant “did not act on the advice of the psychologist”; and

    the failure on the part of the Tribunal to “forgive the breach of condition 8516” and the reasons why the claimant was taking steps to improve his English skills.

The primary Judge rejected each of these arguments, essentially on the basis that each involved a challenge to the facts as found by the Tribunal. No error is exposed in respect to that part of the primary Judge’s reasons.

20    In resolving the first argument, the primary Judge concluded:

Ground 1

[15]    Ground 1 refers to the applicant’s condition and the steps he took to see a psychologist. Nothing in that ground identifies any relevant legal error by the Tribunal. The Tribunal found the applicant’s depression and anxiety was not as severe as the applicant had contended and found that the breaches in the present case were significant over a significant period of time.

[16]    On the face of the material before the Court, the applicant had a real and meaningful hearing. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. As explained to the applicant at the outset, the Court has also considered whether the Tribunal’s decision is unfair. In that regard, there is nothing on the material before the Court to satisfy the Court that the review was conducted contrary to the requirements of procedural fairness. Nothing in ground 1 of the grounds of the application identifies any jurisdictional error.

21    It is the conclusion of the primary Judge that there was “nothing on the material before the Court to satisfy the Court that the review was conducted contrary to the requirements of procedural fairness” which warrants further attention.

22    The Respondent Minister accepted that the now-Appellant was entitled to a reasonable opportunity to present his case to the Tribunal.

23    A reasonable opportunity to be heard and to present meaningful argument and submissions, it is respectfully considered, necessarily has to take into account a person’s ability to meaningfully participate. A party may be deprived of a meaningful opportunity to participate in a hearing just as much by an inability to communicate in the language in which the hearing is conducted as by a disability occasioned by mental incapacity: Lowden v Elliott Harvey Securities Ltd (No 3) [2016] FCA 869. Edelman J, when his Honour was a Judge of this Court, there observed:

[10]    … The Court, particularly in the case of an unrepresented respondent who is medically incapacitated and absent, has a responsibility to ensure that the proceedings are conducted justly. 

24    On the facts of the present case, it is apparent from the first and third Grounds of Appeal filed in this Court that the Appellant was raising an argument as to his ability to participate in the hearing before the Tribunal. That may not have been included within the Grounds of Review as advanced before the primary Judge, although the primary Judge did observe that “the applicant had a real and meaningful hearing” (at [16]). But there was certainly no express reference in the Grounds of Review to any inability to meaningfully participate in the Tribunal hearing by reason of the Tribunal not being “professional” and not being able to adduce evidence. However expressed, the argument as now formulated is without substance. To the extent that the first Ground of Appeal seeks to trespass beyond the Grounds of Review as advanced before the primary Judge and seeks to contend that procedural fairness entitled him to further time in which to “provide more evidence”, the argument is rejected. On the facts, the Tribunal permitted the now-Appellant repeated opportunities to provide further evidence and extended the time within which he could do so on two occasions. On no occasion did the now-Appellant avail himself of that opportunity. In all, the now-Appellant was permitted about five weeks from the date of hearing in which to “provide more evidence”.

25    More open to argument is whether the third Ground of Appeal fell within Ground 1 as resolved by the primary Judge, albeit an argument now differently expressed. As expressed, the third Ground of Appeal refers to the “staff’s attitude”. This is either a reference to the Tribunal’s administrative staff or to the Tribunal Member. It has been construed as a reference to the Tribunal Member. Although events that occur prior to or after a Tribunal hearing may potentially have some impact upon the hearing process itself, there is nothing before the Court to indicate that anything done prior to or subsequent to the oral hearing conducted by the Tribunal in this case assumed any relevance. So construed, the third Ground of Appeal and the allegation as to the “attitude” being “terrible” is another way of expressing the contention that the “Tribunal was not professional”, as alleged in Ground 1 of the Notice of Appeal. It falls well short of an allegation that there was a reasonable apprehension of bias on the part of the Tribunal Member, an allegation which must be “distinctly made and clearly proved”: cf. Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [69], (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [22] per Flick J. An allegation of bias is an allegation which must be “firmly established”: cf. R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553 to 554 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ. Even had such an allegation been made, it would have been rejected.

26    Neither the first nor the third Ground of Appeal have any merit.

27    The claims advanced by the Appellant in his response to the Notice of Intention to Consider Cancellation – which was considered by the Tribunal – directed to his “anxiety and depression” were advanced in the context of providing an explanation as to why he was not enrolled in a course of study. Those claims were expressly resolved by the Tribunal, albeit in a factual manner contrary to the Appellant’s interests. The Tribunal set forth the claims made and concluded that it was “not satisfied that the depression and anxiety has been as significant as claimed by the applicant”. The Tribunal then set forth its reasons for reaching that conclusion.

28    A like conclusion is reached in this case to that reached in Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41, (2010) 183 FCR 575. A Federal Magistrate had concluded that the Tribunal had fallen into jurisdictional error by failing to comply with s 425 of the Migration Act, which relevantly provided that “[t]he Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments”. In allowing an appeal from the decision of the Federal Magistrate that the claimant had been denied a proper opportunity to give evidence and present arguments due to his mental state, Keane CJ (when his Honour was Chief Justice of this Court) there concluded (at 586):

[36]    There was, in my respectful opinion, no foundation for the magistrate’s ultimate conclusion that “the applicant was denied a fair opportunity of having the Tribunal assess whether those defects [in addition to demeanour, memory, and consistency] were attributable to a mental impairment, or to concerns about veracity.” The Tribunal was not obliged to conduct an inquiry to discover whether the respondent’s case might be better put or supported by other evidence. The applicant had the opportunity to adduce such evidence as to his psychological state and its impact on his “demeanour, memory and consistency”, as he wished. There is no suggestion that his capacity to make decisions in his own interests in that regard was impaired by his condition.

[37]    The present case falls well outside the authority of this Court’s decision in [Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, (2003) 128 FCR 553]. The further evidence subsequently adduced before the magistrate was not apt to, and was not found to, demonstrate an unfitness to “give evidence and present arguments” at the hearing. Nor was this a case where the integrity of the hearing under s 425 was subverted by a want of an appreciation on the part of the Tribunal that the respondent’s presentation of his case might have been adversely affected by an impaired mental state of which the Tribunal was oblivious.

[38]    In my respectful opinion, the magistrate’s decision cannot be sustained; the learned magistrate erred in concluding that the Tribunal failed to comply with s 425 of the [Migration Act].

Justice Emmett agreed: [2010] FCAFC 41 at [49], (2010) 183 FCR at 588. See also: SZQBN v Minister for Immigration and Border Protection [2014] FCA 686 at [45], (2014) 226 FCR 68 at 81 to 82 per Flick J.

29    Missing from the Tribunal’s reasons for decision in this case is any reference or submission made that the anxiety and depression were such as to inhibit the now-Appellant’s ability to participate in the hearing. Nor was there any reference or submission made by the now-Appellant to his being “nervous” and unable to “state … the point”. Equally of importance, however, is the lack of any indication that any anxiety or depression – or nervousness – suffered by the now-Appellant, be it greater or less than that the subject of assessment by the Tribunal, inhibited the Appellant’s ability to participate in the hearing before the Tribunal. There is no evidence of any inability to meaningfully collect and collate for the consideration of the Tribunal all such evidence as was considered to be of potential relevance. Repeated opportunities after the hearing to present further materials were not availed of. Nor is there any indication of any inability occasioned by anxiety or depression to articulate the arguments and reasons sought to be advanced as to why the visa should not be cancelled.

30    Whether the Appellant’s argument is directed to the hearing process as undertaken by the Tribunal or directed to the failure to afford further time after the Tribunal hearing to adduce “more evidence”, the argument is rejected. Given the acceptance on the part of the now-Appellant before the Tribunal that he did not satisfy condition 8202, any further evidence could presumably only have gone to the manner of exercise of the discretion conferred by s 116 of the Migration Act.

31    The second Ground of Appeal is denied by the consideration given by the Tribunal to the claims made. The Tribunal considered the reasons advanced as to why condition 8202 had not been complied with and separately addressed the discretion conferred by s 116.

CONCLUSIONS

32    No appellable error has been exposed. Nor has any separate error been exposed in either the reasons of the Tribunal or the manner in which it proceeded.

33    There is no reason why costs should not follow the events.

THE ORDERS OF THE COURT ARE:

1.    The oral application made by the First Respondent pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) and s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) is dismissed.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent, either as assessed or as agreed.

Associate:

Dated:    29 November 2018