FEDERAL COURT OF AUSTRALIA

SZROZ v Minister for Home Affairs [2019] FCA 1692

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This appeal is from orders of the Federal Circuit Court of Australia (FCCA) in SZROZ v Minister for Immigration and Border Protection (No 3) [2018] FCCA 1054 dismissing an application for judicial review. The central issue is whether the primary judge erred in not finding that the Administrative Appeals Tribunal (AAT) had acted unreasonably in the legal sense in denying the appellant the adjournment he sought.

2    For the following reasons, the appeal will be dismissed, with costs.

Summary of background matters

3    The AAT conducted a review of the delegate’s decision to refuse to grant the appellant a protection visa. He is a citizen of India and is a Christian. He claimed to fear harm on the basis of being an active member of the Communist Party of India. He claimed that he had witnessed a murder committed by an activist in the Dalit Human Rights Movement. The AAT found him not to be a witness of truth and his application for review in the AAT was dismissed on 25 February 2016. There is no need to describe his lengthy migration history, which is outlined by the primary judge at [6] to [10] of his reasons for judgment.

4    It is necessary to explain in more detail the circumstances surrounding the appellant’s application for the AAT hearing to be adjourned.

5    On 25 August 2015, the AAT wrote to the applicant advising that it had considered all the material before it and was unable to make a favourable decision on that material alone. It invited the appellant to attend a hearing on 2 November 2015 to give oral evidence and present arguments in support of the protection visa application. On the scheduled hearing day, the appellant sent by facsimile to the AAT a medical certificate, a request for an MRI and a pathology request. The medical certificate stated that the appellant “was seen on 2/11/2015 and find (sic) that he is suffering from vertigo and will be unfit for normal duties on 2/11/2015” (emphasis in original). The certificate was signed by a Dr Brian Nguy. Dr Nguy filled out a form requesting a head MRI and he gave the reason as “vertigo and headaches”. Dr Nguy also completed a pathology request for the appellant. The tests requested were “Fasting lipids incl HDL; Fasting Glucose; EUC; LFT; FBC, TSH”.

6    An AAT file note dated 2 November 2015 records that the appellant telephoned the AAT on the morning of 2 November 2015 and asked whether the medical certificate had been received. He was told by an AAT officer that it had. The appellant told the officer that he “was feeling dizzy and had been vomiting” and that the doctor had asked him to get some blood tests done that week and return for a further medical appointment on Monday, 9 November 2019. He said that the doctor would then consider requesting an MRI scan. The officer consulted the presiding member and telephoned the appellant to tell him that the hearing had been rescheduled to 12:30 pm on Friday, 6 November 2015. According to the AAT officer’s file note, the appellant was told “that if he still felt too unwell on or near that date he should seek another medical certificate which gave more detail, preferably stating he was unable to attend the hearing, which involves sitting and answering questions, rather than just refer to ‘normal duties’, and, if possible giving some indication of how long it would be before he was well enough to attend a hearing”. The note records the appellant saying that his “problem would come and go, a few days at a time” and that he would “prefer the hearing to be scheduled after his next doctor’s appointment”. The note records the AAT officer explaining to the appellant that the presiding member had been made aware of the upcoming appointment “and he wished to proceed with the hearing on Friday [6 November] in the hope that [the appellant] would be well enough to attend”.

7    A letter dated 2 November 2015 was then sent to the appellant confirming the new hearing date.

8    The appellant attended the rescheduled AAT hearing on 6 November 2015. He was unrepresented. The only record before this Court as to what happened at the hearing is the AAT’s decision record (see further [11] below). At the end of the hearing, the appellant was granted the opportunity to provide, within 18 days, any further evidence in support of his claim, including any medical evidence relating to his memory and medical conditions and their effects on his memory and ability to recall details.

9    On 25 November 2015, the appellant sent a facsimile to the AAT and forwarded several documents, which included some evidentiary material and also a medical certificate dated 25 November 2015 and signed by Dr Nguy. It stated that the appellant was “seen on 25/11/2015”, that he was suffering from depression and had “poor memory, motivation, low mood and concentration”. The certificate stated that the appellant was on “cipramil 20mg daily”.

10    In response to an inquiry from the appellant on 25 November 2015 as to whether his latest facsimile documents had been received, the AAT confirmed that they had.

11    It is well to set out [26] to [28] of the AAT’s decision record, which relate to the matters about which the appellant now complains:

26.    On 2 November 2015 the applicant contacted the Tribunal by telephone and advised that he was unwell and could not attend the hearing. The Tribunal also received a copy of a Medical Certificate from Dr Brian Nguy dated 2 November 2015 indicating the applicant was seen on 2 November 2015 and was suffering from vertigo and was unfit for normal duties on 2 November 2015. The applicant also provided a copy of a Medical Imaging Request Form and a Pathology Request from Dr Nguy in relation to the applicant.

27.    While the Tribunal considered the applicant's request to reschedule the hearing after his next doctor's appointment on 9 November 2015, the Tribunal noted the Medical Certificate provided by the applicant indicated the applicant was unfit for one day, 2 November 2015. The Tribunal reschedule (sic) the hearing to 6 November 2015 and informed the applicant by telephone. The Tribunal asked if the applicant was unwell on that day, to provide a medical certificate giving information about why the applicant could not attend a hearing and answer questions. The Tribunal also wrote to the applicant on 2 November 2015 confirming the hearing had been rescheduled to 6 November 2015.

28.    The applicant appeared before the Tribunal in Sydney on 6 November 2015 to give evidence and present arguments. Initially the applicant told the Tribunal he was well enough to proceed. He told the Tribunal that he had experienced dizziness in the past and was on medication for vertigo, and suffered depression, and was stressed awaiting the results of medical tests and was concerned that a brain tumour may be causing his vertigo. The applicant told the Tribunal he was under stress and suffered from depression and expected his doctor to prescribe antidepressants in the near future, and that he had a problem with his memory, and couldn't recall everything, and forgot names and dates, and this problem had only recently occurred in the last year. The Tribunal explained the reason why ii had rescheduled the hearing to 6 November 2015 with reference to the medical certificate the applicant had provided which indicated the applicant was unfit for one day, 2 November 2015. During the hearing the applicant told the Tribunal on a number of occasions that he was well enough to proceed with the hearing. After the Tribunal had raised a number of concerns about the differences between the applicant's oral evidence and his written statement, and raised its concerns about the applicant's credibility, the applicant told the Tribunal he was going through depression and was stressed and that when he had confirmed he was well enough to proceed, he had been referring to being physically well enough, and had not said he was mentally well enough. The Tribunal then discussed the applicant's health conditions with him and his ability to participate in the hearing, and the applicant again confirmed he was well enough to proceed. The Tribunal concluded the applicant was well enough to participate in the hearing and was given the opportunity to participate effectively in the hearing. The Tribunal took a break during the hearing in order to reduce any stress the applicant was experiencing. At the conclusion of the hearing the Tribunal granted the applicant 18 days' time in order to allow the applicant to provide any further evidence in support of his claim, including any medical evidence in relation to the applicant's memory and medical conditions and their effects on the applicant's memory and ability to recall details.

The FCCA proceeding

12    By an amended application filed on 18 October 2017, the appellant contended below that the AAT’s decision to refuse to adjourn the hearing for the period requested by the appellant was legally unreasonable. In particular, he said that although the original hearing date of 2 November 2015 was adjourned at his request for medical reasons, he had sought a new hearing date after his next doctor’s appointment on 9 November 2015. He contended that it was legally unreasonable for the AAT to reschedule the hearing for 6 November 2015, only four days later and before his next doctor’s appointment, on the basis that the medical certificate provided on 2 November 2015 was issued only for the day of the originally listed hearing.

13    The primary judge’s reasons for rejecting the appellant’s contentions concerning the adjournment are set out at [22] to [46] of his Honour’s reasons for judgment. They may be summarised as follows:

(a)    the appellant, who was legally represented by the same counsel who appears for him on the appeal, submitted that the appellant’s case was “on all fours” with the circumstances in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332;

(b)    the AAT proceeded with the hearing notwithstanding that:

•    the appellant “thought” that he was stressed at the rescheduled hearing on 6 November 2015;

•    he suffered from “dizziness, vertigo and depression and was stressed awaiting the results of his medical tests”; and

•    he suffered from memory loss and was awaiting his prescription.

(c)    the FCCA was bound not only by Li, but also by the Full Court’s decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, which had not been referred to by the appellant;

(d)    in Li the AAT knew that the applicant there was awaiting the outcome of a review of an unsuccessful skills assessment and that this was critical to the grant of a visa;

(e)    Li was distinguishable because:

•    here, the AAT did adjourn the hearing, in the appellant’s favour, from 2 November to 6 November 2015;

•    it did so notwithstanding that the medical evidence did not give any detail about the appellant’s capacity to participate meaningfully at the hearing; and

•    the medical certificate provided on 2 November 2015 referred only to “normal duties”.

(f)    the primary judge identified the relevant question for the AAT as being whether the appellant could participate meaningfully at the hearing to which he had been invited and that it was reasonably open for the AAT to note as it did that the medical certificate did not address that question and the AAT would have been entitled to refuse to adjourn the 2 November 2015 hearing on that basis, but it did not do so;

(g)    the appellant’s challenge turned on a misrepresentation of the AAT’s decision, which was that the rescheduled hearing date was contingent upon the appellant being fit on that day to participate by answering questions. This was made clear to the appellant by the AAT over the telephone, when he was told that the hearing was rescheduled for 6 November 2015 and that, if he was unwell on that day, he could provide medical evidence “about why [he] could not attend the hearing and answer questions”;

(h)    no such material was ever provided by the appellant, who attended the hearing on 6 November 2015. When the AAT asked him if he was well enough to proceed, although the appellant outlined his medical problems, the AAT’s decision record records the appellant having said several times that he was well enough to proceed;

(i)    the subsequent medical certificate dated 25 November 2015 made no reference to the appellant’s capacity to participate at the rescheduled hearing; and

(j)    when the AAT hearing concluded on 6 November 2015, the appellant was given 18 days to provide any further evidence, including medical evidence. The appellant availed himself of this opportunity and did make submissions and provide a medical certificate which, as noted above, made no reference to his participation at the rescheduled hearing, nor did his submissions make any complaint on that score.

The notice of appeal

14    The only ground of appeal which is pressed is as follows:

The Primary Judge erred in law by failing to find that the decision of the Second Respondent to deny an adjournment of the sort requested by the Appellant, lacked an evident and intelligible basis, and was a decision disproportionate to that which was required by the Act, thus causing the Second Respondent to act in a manner that was legally unreasonable and so fall into jurisdictional error.

Consideration and determination

15    It is unnecessary to summarise the parties’ submissions because they are sufficiently addressed in my reasons below for dismissing the appeal.

16    It is necessary, however, to restate the now reasonably well settled principles concerning legal unreasonableness because the appellant’s case, as presented, is inconsistent with several of them.

17    The relevant principles are identified in cases such as Li; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1; Singh; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408; Ellis v Central Land Council [2019] FCAFC 1; 364 ALR 446; Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; 365 ALR 202; Singh v Minister for Home Affairs [2019] FCAFC 3; DPI17 v Minister for Home Affairs [2019] FCAFC 43; 366 ALR 665 and Khalil v Minister for Home Affairs [2019] FCAFC 151. This list of authorities is by no means exhaustive.

18    In brief, the relevant principles may be summarised as follows:

(a)    whether or not an administrative decision is legally unreasonable requires close attention to be given to the scope, purpose and objects of the statutory source of the power under which the decision was made (SZVFW at [54], [79] and [135]);

(b)    legal unreasonableness is “invariably fact dependent”, requires a “careful evaluation of the evidence” and involves an application of the relevant general legal principles to the particular factual circumstances of the case and not an analysis of factual similarities or differences between individual cases (Singh at [42]);

(c)    where reasons are provided, they are “the focal point for the assessment” (SZVFW at [84]; Singh at [47]-[48]);

(d)    where the reasons disclose a justification for the exercise of a statutory power, only rarely would a court find that the exercise of a discretionary power was legally unreasonable (SZVFW at [84]; Singh at [47]-[48]);

(e)    a court exercising judicial review jurisdiction is not entitled to replace a primary decision-maker’s reasons which do not disclose an intelligible justification for the exercise of the power with reasons which were not relied upon by the decision-maker (Haq at [35]);

(f)    the reasons of an administrative decision-maker are meant to inform and should not be scrutinised upon over-zealous judicial review seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272);

(g)    in assessing whether the standard of legal unreasonableness has been established, it is not relevant to take into account events which occurred after the challenged decision was made (see Li at [83] and Ellis at [174]-[177]);

(h)    a statutory discretionary power contains an area of decisional freedom and the Courts will not lightly interfere with the exercise of a statutory power involving an area of discretion (Li at [28] and [66] and Haq at [37]); and

(i)    in applying the standard of legal reasonableness, the Court should not substitute its view as to how a statutory discretion should be exercised for that of the decision-maker and, depending upon the terms of relevant discretionary power, the decision-maker will generally have “a degree of latitude in determining what is fair and just in a given case” (SZVFW at [13]). In other words, the standard of legal unreasonableness which is implied as a condition of the exercise of a statutory power is “a demanding standard” (Haq at [37]).

19    The starting point must be the key statutory provisions which provide the framework for the AAT's decision to grant an adjournment for a period less than that sought by the appellant. The AAT was conducting a review under Pt 7 of the Migration Act 1958 (Cth). Where an application for review is properly made under s 412, the AAT had a statutory obligation under s 414 to review the decision the subject of the review application (subject to an exception in s 414(2) which is not relevant here). The purpose of the review was to determine whether the AAT should exercise any of the powers in s 415. In conducting the review, the AAT was bound to apply s 420, which described the way the AAT should operate in reviewing a Part 7-reviewable decision. Section 425 obliged the AAT to invite a review applicant to appear before it in the circumstances described therein. Under s 427(1)(b), the AAT had a discretion to adjourn the review from time to time.

20    It is unhelpful for the appellant's case of legal unreasonableness to be put on the basis that it is “on all fours” with Li. This effectively invites a “tick the box” approach which has been rejected in numerous cases, including Singh. That is not to say, however, that there is no need to pay close attention to the particular factual circumstances of a case as, plainly, that is required.

21    Where there are reasons for the challenged decision, as is the case here, they are the focal point of the analysis. The AAT’s reasons are set out at [11] above. They are self-explanatory and, contrary to the appellant’s submission, they provide a logical and intelligible justification for granting a shorter adjournment than that sought by the appellant. There is no reason to repeat those reasons as they speak for themselves.

22    It is particularly significant to note that the door was left open for the appellant to request a further adjournment if he was unwell on 6 November 2015 and guidance was provided to him as to the type of medical evidence he should obtain if he wished to make a further adjournment request. No such request was made.

23    Moreover, contrary to the appellant's submissions, it is evident that the AAT carefully monitored the appellant's capacity to participate in the hearing and, in response to its several requests, the appellant stated that he was well enough to proceed. To assist the appellant, the AAT took a brief adjournment during the course of the hearing on 6 November 2019 to reduce any stress being experienced by the appellant. It should be noted that the appellant did not contend, either below or on the appeal, that he was denied procedural fairness because he lacked capacity to present his case (see, for example, Karan v Minister for Home Affairs [2019] FCAFC 139). His case was conducted on the sole basis of legal unreasonableness.

24    It was not illogical or legally unreasonable for the AAT to adjourn the matter for a period less than that sought by the appellant in circumstances where it was made clear to the appellant that he could make a further request for an adjournment based on medical evidence. It is to be recalled that the appellant himself is recorded as having told the AAT officer on 2 November 2015 that his medical problems “would come and go, a few days at a time”.

25    It is also significant that at the end of the hearing on 6 November 2015, the appellant was given 18 days to provide any further evidence in support of his claim, including any medical evidence in relation to his memory and medical conditions. The material which the appellant then provided does not advance his claim of legal unreasonableness (assuming, without deciding, that such material is relevant to the issue of legal unreasonableness).

26    The primary judge was correct to conclude that the AAT’s reasons provide a logical and intelligible justification for the actions it took which the appellant challenges. Having regard to SZVFW, I should state that I am not persuaded that the AAT’s refusal to grant the appellant a longer adjournment than it did was legally unreasonable.

Conclusion

27    For these reasons, the appeal will be dismissed, with costs.

Associate:

Dated:    15 October 2019