FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
THE COURT ORDERS THAT:
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from transcript)
1 The appellant appeals from a decision of the Federal Circuit Court (the FCC) dismissing his application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). By that decision the Tribunal refused to reinstate the appellant’s application for review of a decision of the first respondent, the Minister for Home Affairs (the Minister), refusing to grant the appellant a Student (Temporary) (class TU) (subclass 572) visa (the visa) under the Migration Act 1958 (Cth) (the Act). As a consequence, the Tribunal’s earlier decision dismissing the application for review of the Minister’s decision for non-appearance was confirmed and the Minister’s decision was taken to be affirmed.
2 By directions made by the Registrar on 20 June 2018, the appellant was required to file and serve written submissions 10 business days before the hearing. However, while I imply no criticism of the appellant, no submissions were filed by him. The Minister filed submissions on 16 November 2018. The appellant attended the hearing of the appeal and made oral submissions with the assistance of an interpreter in Punjabi and English.
2.1 The decision by the delegate
3 The appellant applied for the visa on 17 July 2015. On 22 July 2015, the Department wrote to the appellant by email requesting that he provide within 28 days further information in support of his visa application including information which addressed the genuine temporary entrant criterion and evidence that he met the financial requirements set out in subclause 408(1). That subclause appears in Schedule 5A to the Migration Regulations 1994 (Cth) (the Regulations). The annexed request set out in detail particular issues which the appellant was asked to address and of which evidence was required, including as to his financial capacity to support himself and meet his course expenses. No response was received from the appellant to that request.
4 On 3 September 2015, the delegate refused to grant the appellant the visa. The delegate found that the appellant had failed to provide documents to satisfy the financial requirements of the criteria specified in Schedule 5A to the Regulations and was therefore not satisfied that the appellant met subclause 572.223, specifically in accordance with the financial capacity proscribed by Schedule 5A, clause 5A408. Subclause 5A408 required, among other things, that an applicant give evidence of funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the first 12 months, and a declaration that she or he has access to funds from acceptable source to meet those costs thereafter.
3. The decision by the tribunal to dismiss the application for review by reason of the appellant’s failure to attend the hearing
5 On 11 September 2015 the appellant applied for review of the delegate’s decision to the Tribunal. The tribunal wrote to the appellant on 21 January 2016 by email to the email address provided to the Tribunal by the appellant in connection with the review, and by which he had requested to be contacted. The letter attached to the email invited him to attend a hearing on 22 February 2016 and requested that he provide specified information and documents within seven days of receipt of the letter. The information and documents requested included documents demonstrating that he had sufficient funds or access to funds to pay course fees, living costs, and travel costs over the relevant period, including evidence of funds from an acceptable source. No information or documents were provided by the appellant in response to that request. The invitation also stated that:
If you are not able to attend the hearing, you need to advise me as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
We may make a decision at the end of your hearing.
6 Finally, I note that the letter of invitation said that if the appellant had any questions, he could email the Migration and Refugee Division of the Tribunal via the email address provided, contact the Registrar on the number listed in the author’s signature panel, or telephone the Tribunal’s national enquiry line on a telephone number also provided in the letter. Telephone interpreting assistance was also identified as being available, should the appellant require it.
7 On 15 and 19 February 2015, the appellant was sent reminders of the hearing date via SMS to the mobile telephone number nominated by him in his application for review.
8 The appellant did not respond to the hearing invitation or appear at the Tribunal hearing. The Migration Hearing Record records that the hearing was given a slot from 13:30-16:30 and suggests that the Tribunal member waited for half an hour before recording the appellant was a “no show”.
9 On 23 February 2016, the Tribunal wrote to the appellant enclosing a copy of its decision to dismiss the application under subs 362B(1A)(b) of the Act by reason of the appellant’s failure to attend the scheduled hearing and inviting him to apply for reinstatement of his application by 8 March 2016. Subsection 362B(1A)(b) provides that if an applicant fails to appear before the Tribunal at a scheduled hearing, the Tribunal may by written statement under section 362C dismiss the application without any further consideration of it or information before the Tribunal.
3.1 The appellant’s application for reinstatement of his application
10 On 29 February 2016, the appellant sent an email to the Tribunal requesting reinstatement of his application on the basis that he had failed to attend because he was very sick and was “not able to do anything and not able to travel”. He also said that he had to see a doctor for this illness and attached a medical certificate. The medical certificate was as follows:
11 The medical practitioner who apparently completed the form failed to identify which of the Asterisked options were applicable; nor did the medical practitioner give an end date on the certificate as to when the appellant would be able to return to work or school.
3.2 The Tribunal’s decision to confirm dismissal of the appellant’s application for review
12 The Tribunal wrote to the appellant on 8 March 2016 advising that he had considered his application for reinstatement and confirmed the decision to dismiss his application for review.
13 In the attached statement of decision and reasons, the Tribunal found as follows.
(1) The appellant did not respond to the Tribunal’s hearing invitation and there is no record of any kind that he attempted to contact the Tribunal on the day scheduled for hearing either in writing or by telephone to advise that he would be unable to attend the hearing.
(2) Both the hearing invitation sent on 21 January 2016 and the correspondence notifying of the decision to dismiss the application sent on 23 February 2016 were sent to the same email address provided by the applicant for the purposes of the review.
(3) The medical certificate provided by the appellant certified that on 22 February 2016, the day of the appellant’s scheduled hearing, he was examined by a doctor at a particular clinic. The Tribunal found that that evidence was insufficient to persuade it that reinstatement of the appellant’s review was warranted. In particular, the Tribunal found that:
8. … It is not clear to the Tribunal that the certificate was actually issued on 22 February 2016, the day of the scheduled hearing, or issued subsequently in order to certify as to the applicant’s condition on 22 February 2016. The certificate was issued on a standard format, providing alternatives either that the medical practitioner formed an opinion, or instead that the applicant merely stated that he was “suffering from a personal illness or a medical condition” and will be/was “unfit for work/school from 22 February 2016. No additional information is provided in the certificate under the heading “other comments (if necessary) [”].
9. The Tribunal is concerned that the certificate does not specify whether the applicant’s medical condition is something concerning which a doctor formed an opinion or was simply a reflection by the medical practitioner as to the applicant’s own statement as to his medical condition.
10. Furthermore, even if the applicant’s medical condition was something concerning which the medical practitioner formed an opinion, at the highest that opinion is simply in relation to the applicant incapacity for work/school. The certificate says nothing in relation to the applicant’s capacity to attend a hearing, whether that hearing be one involving a personal attendance by the applicant at the Tribunal premises or a hearing conducted via telephone. Such an option would have been provided to the applicant had the applicant telephoned the Tribunal prior to the time scheduled for his hearing on 22 February 2016. The Tribunal does not accept that the applicant was incapable of telephoning the Tribunal to advise of his non-attendance on 22 February 2016, as it is apparent that the applicant was at least able to attend a medical practice in a different suburb from his residential address on the same day.
3.3 The decision of the Federal Circuit Court
14 The appellant filed an application for judicial review of the reinstatement decision on 30 March 2016. The grounds of the application sought in effect to reargue his case for reinstatement of the application for the Tribunal to review his visa application. He also stated in the grounds that he was a regular client of the doctor mentioned in the medical certificate.
15 The primary judge summarised at  the grounds of review which his Honour discerned as arising from the grounds of the application as follows:
(1) the Tribunal failed to provide any information or reasons to support its decision;
(2) the reasons for the Tribunal’s decision to dismiss the application for reinstatement were not satisfactory or [were] unreasonable; and
(3) the Tribunal failed to provide the Applicant with more time to comment on his case.
16 No issue is taken with the identification of those grounds.
17 The FCC found that there was no merit to any of those grounds. First, the FCC held that the Tribunal gave reasons for its decision based on the material provided by the appellant and it was open to it to dismiss the application pursuant to subs 362B(1C)(b) of the Act (FCC decision at ). Secondly, with respect to ground two, the primary judge considered that it was open to the Tribunal to find, as it did, that the appellant had failed to provide a sufficient explanation for his failure to appear at the Tribunal hearing or otherwise contact the Tribunal (FCC reasons at ). Thirdly, with respect to ground three, the primary judge held that the Tribunal was not under an obligation to provide the appellant with more time to comment on his case or otherwise provide information to the Tribunal (FCC reasons at ). The primary judge further found that there was no evidence before the Court to indicate that the appellant in fact requested any additional time from the Tribunal (FCC reasons at ). Finally, the primary judge found that:
17. In appearing before the Court today, I raised with the Applicant why he had not provided the information requested in the letter of invitation of 21 January 2016. He stated that at that time he had become nervous and could not provide the information. He also stated that he wished to appear before the Tribunal to provide information. In my view, the invitation to appeal [sic] was clear and it clearly requested that the information be provided prior to the hearing date.
18 Accordingly, the FCC dismissed the application on the ground that there is no jurisdictional error on the part of the Tribunal apparent to the court.
4.1 The grounds of appeal
19 It is important to emphasise at the start the limited powers that this Court and the FCC has to quash a decision of the Tribunal and to require the Tribunal to reconsider the application for review. The jurisdiction of the FCC is confined to deciding whether the Tribunal’s decision was made lawfully under the Act, that is, whether the Tribunal’s decision is invalid by reason of a jurisdictional error. Further, as the Minister submitted, while an appeal to the Federal Court is an appeal by way of rehearing, it remains necessary to demonstrate a relevant error in the judgment appealed from. As such, this Court must decide whether the FCC wrongly held that there was no jurisdictional error. The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant’s reinstatement application must be assessed under the Act or the Regulations, or if it failed to hear and determine his application in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf  HCA 30; (2001) 206 CLR 323 at  (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). However, neither this Court nor the FCC has jurisdiction to grant the appellant a visa or to reconsider the appellant’s application for reinstatement of the review of his visa application: Minister for Immigration and Multicultural Affairs v Rajalingam  FCA 719; (1999) 93 FCR 220 at  (Sackville J),  (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002  HCA 30; (2003) 77 ALJR 1165 at  (Kirby J).
20 The appellant filed a notice of appeal on 11 May 2018 which identified the following grounds of appeal:
(1) The tribunal made a decision without considering all facts and information and disregarding the evidence it had on file
(2) The Tribunal failed to accord us, the applicant’s, procedural fairness and natural justice.
(3) The Tribunal erred in not having considered the fact that I was unable to attend the hearing due to medical condition
(4) The Tribunal could not have reviewed the application on the available information.
(5) The Tribunal failed to consider me, the applicant circumstances and proceeded to decide in absence of me
21 The Minister submitted that the grounds of appeal were not strictly pleaded before the FCC but ultimately took no issue with them on the basis that they were broadly similar to the ground of the application below and as understood by the primary judge. While the grounds of appeal focus on the Tribunal’s reasons, I have read them as alleging that the FCC erred in failing to find jurisdictional error on the part of the Tribunal.
4.2 Grounds one, three and five
22 Grounds one, three and five do not identify any appealable error in the FCC’s decision; nor has any error been identified in oral submissions. In this regard, it is apparent from the reasons of the Tribunal that it properly considered the appellant’s explanation for his failure to attend the scheduled hearing, including the medical evidence on which the appellant relied. However the Tribunal did not accept that explanation is sufficient. In reaching that conclusion, the Tribunal identified a number of deficiencies with the medical certificate which were apparent on its face. Furthermore, in taking into account that the appellant could have, but did not, make any attempt to contact the Tribunal, I note that the letter of invitation had included both email and telephone contact details for the Tribunal. No other information has been provided which the Tribunal could be said to have overlooked. It follows, as the Minister submits, that the Tribunal’s decision to affirm the decision to dismiss the appellant’s application for review for non-attendance “clearly fell within a range of possible, acceptable outcomes which were defensible in respect of the facts and law”.
4.3 Ground two
23 With respect to ground two, no specific breach of the procedural fairness obligations contained in Part 5, Division 5 of the Act is identified in the notice of appeal. As I have earlier detailed, in its letter of 21 January 2016 the Tribunal gave the appellant an opportunity to provide information before the hearing and invited him to attend the hearing on 22 February 2016 to give evidence and present arguments. Furthermore, as I have earlier explained, that letter set out in detail information and documents which should be provided by the appellant, including evidence demonstrating that he had sufficient funds. In this regard, I note that the failure to provide any evidence of financial capacity had been determinative of the delegate’s decision refusing his visa application. The appellant chose, however, not to take advantage of those opportunities to provide further information and documents and to attend the hearing.
24 It follows therefore that the appellant was made aware of the information and documents he had to provide, he was made aware of the hearing date, he was given two SMS reminders in advance of the hearing date, and he was advised as to the consequences of non-appearance
25 In his oral submissions, the appellant agreed with the flaws in the medical certificate and stated that he had not been aware of the sort of medical certificate that he should have provided to the Tribunal. He also submitted that he had never obtained a medical certificate before and if he had known what the Tribunal wanted, he would have provided a more specific medical certificate.
26 I do not suggest that the apparent deficiencies in the medical certificate were the appellant’s fault; nor did the Tribunal. The failure to provide a properly completed medical certificate represents a failure by the medical practitioner who signed the medical certificate and whose stamp appears on it to comply with the standards reasonably expected of a medical practitioner. Nonetheless, ultimately the onus lay upon the appellant to satisfy the Tribunal that there was a sufficient explanation for his failure to attend the hearing and to provide evidence in support of that explanation. As the Minister submits, it was for the appellant to make out his own case before the Tribunal and, if he wished to rely upon further information, to bring it to the Tribunal’s attention.
27 In all of the circumstances therefore, the FCC did not fall into error in failing to find a breach of procedural fairness.
4.4 Ground four
28 No jurisdictional error is discernible from ground four which simply asserts that the Tribunal could not have reviewed the application on the available information. However, the ground appears to take issue with the Tribunal’s capacity to dismiss an application where a person has failed to attend the hearing. The difficulty with the ground so understood is that subs 362B(1A)(b) of the Act expressly empowers the Tribunal to dismiss a visa application on this ground and there is no suggestion that the criteria for the exercise of the discretion under that section were not met. For completeness, I also note that the Tribunal Member, being the same member who made both decisions, clearly understood that he had a discretion to reschedule the hearing or to defer his decision when the appellant failed to appear, and that he had a discretion as to whether or not to reinstate the proceedings. As to the first decision, the Tribunal did not automatically dismiss the application for non-appearance but took into account that no satisfactory reason for the non-appearance had been given. As to the second decision not to reinstate the application for review, the Tribunal properly understood the discretionary nature of its statutory power to reinstate, finding that it was not “appropriate to reinstate the application” for the reasons given and that it was “not persuaded” that reinstatement was warranted for those reasons.
29 For these reasons, the appeal must be dismissed. I will hear the parties as to costs but will defer the making of any order as to costs until the publication of written reasons.