Federal Court of Australia

EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted pursuant to rule 36.05 of the Federal Court Rules 2011 (Cth) extending time for a notice of appeal to be filed and for the draft notice of appeal filed on 11 August 2020 to stand as the notice of appeal in the proceeding.

2.    The appeal be dismissed with costs.

3.    Orders 1 and 2 not be entered until publication of the revised reasons for judgment.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

LEE J:

A    INTRODUCTION AND BACKGROUND

1    The applicant seeks an extension of time pursuant to rule 36.05 of the Federal Court Rules 2001 (Cth) (FCR) to appeal from a decision of the Federal Circuit Court: EBS17 v Minister for Immigration & Anor [2020] FCCA 1258 (J). In that decision, the primary judge dismissed the applicant’s application for judicial review of two decisions of the second respondent (Tribunal) made on 27 July 2017 and 15 August 2017.

2    The background to this proceeding can be stated shortly. The applicant is a citizen of Malaysia, who applied for a protection visa in early 2017, claiming to fear harm from a creditor in Malaysia because he had not repaid a loan. Importantly, for reasons that will become apparent, in the application for the protection visa the applicant provided a residential and email address for correspondence and a mobile telephone contact number. These details were later recorded on a “Visa Application Summary” form held by the Department of Immigration and Border Protection (Department). On 21 March 2017, a delegate of the Minister (delegate) refused to grant the applicant a protection visa, and on 27 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision. In that online application (Application), the applicant again provided his residential and email address but no telephone contact number.

3    By letter sent on 3 July 2017, addressed to applicant’s nominated email address, the Tribunal invited the applicant to attend a hearing scheduled for 9.30am (New South Wales time) on 27 July 2017 (Tribunal hearing). Two SMS reminders were also apparently sent to the applicant prior to the hearing informing him of the hearing (and, although no finding was made to this effect, presumably using the mobile telephone contact number). Despite this, there was no response to the hearing invitation, nor did the applicant attend the hearing. Accordingly, the Tribunal member recorded the applicant on the relevant papers as a “no show”.

4    Further, at the hearing before the primary judge, the Minister submitted that given the existence of notations that appear on the “Refugee Hearing Record”, it should be inferred that three efforts were made by the Tribunal case manager to contact the applicant by telephone on the morning of 27 July 2017 at 9am, 9.15am and 10.48am. I am told by counsel for the Minister who appeared below, notwithstanding this material, that the primary judge was not prepared to draw an inference that telephone calls had been made at that time in the absence of direct evidence from the relevant Tribunal case manager: see also T[35]. There has been no notice of contention filed in relation to his Honour’s rejection of the submission that his Honour make a finding that there were attempts to contact the applicant by telephone, and accordingly this issue must be put to one side. I must therefore proceed on the basis that the evidence does not disclose that there was any attempt to contact the applicant by the Tribunal by telephone on 27 July 2017.

5    In any event, by reason of the failure of the applicant to attend the Tribunal hearing, the Tribunal member took the course of dismissing the application without any further consideration of the application or information before the Tribunal, as was apparently authorised by s 426A(1A)(b) of the Migration Act 1958 (Cth) (Act) (by reason of legislative changes made to s 426A, which commenced in April 2015 and which, it is common ground, are applicable to the circumstances of this case (see s 26 of the Migration Amendment (Protection and Other Measures Act) 2015 (Cth))).

6    Immediately thereafter the Tribunal notified the applicant of the dismissal decision by notification sent on 27 July 2017 addressed to the applicant’s designated email address. Relevantly, this communication stated that the applicant “may apply to [the Tribunal], in writing, for reinstatement of the application by 10 August 2017” and explained what information needed to be provided in applying for reinstatement. The letter was accompanied by an information sheet containing information about the dismissal of applications and the reinstatement process: see s 426A(1A)(b) of the Act.

7    Again there was silence from the applicant. There was no suggestion that this email communication, like the earlier email notifying the applicant of the hearing details, was not sent to the correct email address. The applicant did not apply for reinstatement and on 15 August 2017, the Tribunal confirmed the decision to dismiss the application because the applicant did not apply for reinstatement within the relevant period.

B    THE DECISION OF THE PRIMARY JUDGE

8    Before the primary judge, the sole ground of review advanced was that:

The Tribunal’s failure to consider exercising its discretion, under paragraph [sic] 427(1)(b) (read with subsection 426A(2)) of the Act, to adjourn the review, or exercise of discretion not to adjourn the review, was legally unreasonable.

9    As noted above, the application for review was dismissed. The essential reasoning was that:

(1)    in circumstances where the applicant did not provide a telephone number in the Application, the Tribunal could not be found to have acted unreasonably in not attempting to contact the applicant by telephone, and the Tribunal’s reasons for proceeding as it did disclosed an evident and intelligible justification (J[29], [30] and [33]);

(2)    on the material, it was not legally unreasonable for the Tribunal not to adjourn the review, given the lack of engagement by the applicant with the review process and his claims for protection which had been considered and determined by the delegate (J[34]); and

(3)    as the applicant did not apply for reinstatement pursuant to s 426A(1E) of the Act, the Tribunal was correct to find that it was obliged to confirm the dismissal decision (J[31]).

C    APPLICATION FOR AN EXTENSION OF TIME

10    The notice of appeal was not filed within 28 days of the Federal Circuit Court’s decision, as required by FCR 36.03. Accordingly, the applicant requires an extension of time pursuant to FCR 36.05. In broad summary, and notwithstanding some deficiencies in the evidence filed in support of the application for extension, the reason for the delay is said to be due to a difficulty in filing the necessary documents with the Court registry.

11    The legal principles relevant to determining whether to grant an extension of time to file a notice of appeal are not in dispute. They were considered in Dunlop v Fishburn (No 3) [2012] FCA 315 (at [9]–[10] per Katzmann J) and essentially turn on consideration of, inter alia: (a) the length of the delay; (b) whether there is an acceptable explanation for the delay; (c) the merits of the appeal; and (d) any prejudice to the respondent: see also BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 (at [2] per Derrington J).

12    Although the Minister opposes the grant of an extension of time and correctly points to the somewhat substandard nature of the evidence relied upon in support of the extension, there is no suggestion that there is any particular prejudice to the Minister in the Court granting an extension of time. While I consider the application for an extension to be a very marginal one (given what appears to me to be a less than compelling explanation for the delay), I am conscious that the extent of the delay is 41 days. Further, the determinative factor in relation to the extension of time seems to me to be the substantive merits of the underlying appeal. Hence, I think the most sensible course to adopt is to grant the extension of time and move immediately to the merits of the appeal.

D    CONSIDERATION OF THE NOTICE OF APPEAL

13    The notice of appeal filed on 11 August 2020, which I will give leave to file, is commendably to the point and raises only one ground, namely that:

1.    His Honour erred in not finding, and ought to have found, that the Second Respondent acted unreasonably in failing to adjourn the review or to consider doing so.

14    Counsel for the applicant, Mr Chia, during the course of comprehensive and helpful submissions, placed focus on the proposition said to be drawn from the decision of the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (at 572–3 [80]–[81] per Nettle and Gordon JJ):

[80]    Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review.

[81]    How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. The abuse of statutory power is not limited to a decision affected by specific errors which bring about an improper exercise of power because, for example, the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration; or exercised the power in bad faith, or for a purpose other than a purpose for which it was conferred; or exercised the power in such a way that the result of the exercise of power is uncertain.

(Citations omitted, emphasis in original).

15    It is trite to observe, as Mr Chia emphasised, that consideration of legal unreasonableness is a context-dependent inquiry which requires evaluation of the particular facts and evidence of a given case. However, the starting point is the statute and the nature of the discretion which was said to not have been licitly exercised.

16    The current version of s 426A(1A) of the Act (which was not in the same form as that considered in SZVFW) expressly provides that in circumstances where the section is engaged, that is, if there was an invitation for an applicant to appear and there was a failure to appear at the scheduled time, then it is open for the Tribunal to proceed in one of two ways:

(1A)  The Tribunal may:

(a)      by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

(b)      by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

17    As will already be obvious, the Tribunal adopted the latter of the two courses available. However, s 426A(1A) is not to be assessed in a vacuum. Relevantly, subsections (1B) and (2) are in the following terms:

(1B)    If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.

…

(2)     This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

18    It must always be remembered that the question of whether or not a decision made or action taken in purported exercise of a statutory power is legally unreasonable is a question directed to whether or not the decision or action is within the scope of the statutory authority conferred on the person making the decision. The requirement that a statutory power be exercised within the bounds of reasonableness means that “a decision made or action taken in purported exercise of a statutory power in breach of the standard of legal reasonableness is a decision or action which lies beyond the scope of the authority conferred by the power”: see SZVFW (at 565 [53]–[54] per Gageler J).

19    Mr Chia sought to draw comfort from two decisions of this Court by way of analogy. The first was the decision of North ACJ in AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383; (2015) 244 FCR 144, and the second was the decision of Mortimer J in Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393. Before turning to consider these decisions, it is necessary to note that there is always some danger in relying on analogies in such a context-dependent inquiry as to whether or not a statutory power has been exercised unreasonably, particularly in the absence of close consideration of how the scope of the authority conferred by the statutory power may differ between different cases. What was absent from the submissions of both parties was a recognition that an important distinguishing feature of both AZAFB and Kaur is that the impugned decisions in those cases were made under predecessor sections of the Act, which did not include the specific power of dismissal subject to a reinstatement application and confirmation of dismissal: see AZAFB (at 147 [13]) and Kaur (at 398–9 [8]).

20    As one would expect, both AZAFB and Kaur turn on their particular facts. In AZAFB, the circumstances led to the conclusion that it was unreasonable for the Tribunal not to utilise the information in its own records to attempt to contact the appellant when he failed to appear at the review hearing before proceeding to make a finding against him pursuant to the Act. It was held that the primary judge in that case had no good reason to reject the evidence of the appellant that he had notified the department of a change of address. Similarly, it was found that given the appellant had disclosed that he had been assisted by an identified person in formulating his written submission to the Tribunal (and had provided that person’s mobile number), contacting this person would have been a likely way of getting in touch with the appellant. It was also said that the non-attendance of the appellant was difficult to reconcile with the fact that he had appeared at the hearing before the delegate and had filed a substantial and “serious” written submission in the Tribunal; factors found to suggest that the appellant intended to pursue the application for a visa and to attend the hearing: AZAFB (at 150–1 [24], [26] and [28]).

21    Similarly, in Kaur, Mortimer J found that an objective consideration of the course of conduct between the Tribunal and the appellant and the nature of the appellant’s communications with the Tribunal (and her evident determination to provide sufficient information to the Tribunal), led to the conclusion that the Tribunal ought to have realised that the failure to file a response to the hearing invitation and her non-appearance at the relevant hearing “were out of character” and departed from a “pattern of conduct” with respect to the appellant’s attitude to the review. Indeed, the history of contact between the Tribunal and the appellant was clearly an important consideration in the conclusion reached by Mortimer J: Kaur (at 419 [95]–[96]).

22    Here, it appears that there were mobile phone records within the Department’s file and the Tribunal was aware of these records by reason of the fact that the Tribunal case manager thought it was appropriate to send SMS messages to the applicant for the purposes of notifying him of the hearing. Having said that, given the circumstances referred to in s 426A(1) of the Act were enlivened, it was open for the Tribunal to take the course that it took. Indeed, it seems to me that the action of dismissing the application, subject to allowing the reinstatement application to be made, rather than proceeding (in the absence of any application for an adjournment) to adjourn the proceedings unilaterally, was a course plainly within the range of possible acceptable outcomes that are defensible in respect of the circumstances of this case.

23    In this regard, the primary judge noted that the applicant had not provided a telephone number in connexion with the review and the following four important matters:

(1)    the Tribunal validly invited the applicant to the hearing and it necessarily follows that it should be inferred that the applicant was on notice of the hearing and the consequences of non-attendance (J[27](a)–(b));

(2)    the statutory exercise of discretion did allow for an opportunity to seek reinstatement of the dismissal application, but the applicant did not avail himself of this opportunity (J[27](c)–(d));

(3)    the applicant had not himself communicated with the Tribunal or provided any documentation during the course of the review, and accordingly, focusing on the review itself, it cannot be said that it was “out of character” or a departure from a “pattern of conduct” established that the decision of the Tribunal not to attempt to contact the applicant following the scheduled appearance was, in some way, “inexplicable” and thus unreasonable (cf Kaur (at 419 [95]–[96]) and AZAFB (at 150 [24])) (J[28]); and

(4)    the applicant did not himself request an adjournment, nor was the Tribunal on notice that an adjournment might reasonably be required (J[28] and [34]).

24    There is no error evident in this reasoning. In circumstances where the Tribunal took one of the two courses expressly provided for by s 426A(1A) of the Act, I can discern no error in the primary judge concluding that the Tribunal did not act unreasonably in failing to adjourn the review or to consider doing so, as asserted in the ground of appeal.

E    CONCLUSION

25    It follows that the appeal must be dismissed with costs.

Associate:

Dated:    8 March 2021