Federal Court of Australia

Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

NICHOLAS J:

1    Before me is an appeal by the appellant (“Mr Kumar”) against the judgment of the Federal Circuit Court (Judge Humphreys) dismissing Mr Kumar’s application for judicial review of the decision of the second respondent (“the Tribunal”) confirming the dismissal of Mr Kumar’s application pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) (“the Act”).

Background

2    Mr Kumar is a citizen of India. On 13 April 2018 he was granted a Student (Temporary) (Class TU) Student (Subclass 500) visa (“the Visa”) to enable him to undertake accounting studies with Group Colleges Australia Pty Ltd.

3    On 20 September 2019 Mr Kumar was sent a notice of intention to consider cancellation (“NOICC”) of his visa. The NOICC noted that Mr Kumar had discontinued his study in his accounting course and had instead enrolled in cookery and hospitality management courses. The NOICC noted that this constituted a breach of Condition 8202(2)(b) of the Visa. That condition required, in part, that Mr Kumar maintain enrolment in a course that provided a qualification at the same or a higher level than the course for which the Visa was granted.

4    A delegate of the first respondent subsequently cancelled Mr Kumar’s visa. Mr Kumar then applied to have that decision reviewed by the Tribunal.

5    Mr Kumar was invited to attend the hearing of his application on 15 January 2020. He did not attend the hearing or request any postponement. The Tribunal dismissed his application pursuant to s 362B(1A)(b) of the Act.

6    Mr Kumar sought reinstatement of his application. In support of his reinstatement application Mr Kumar provided the Tribunal with a statutory declaration made by himself and medical certificate.

7    On 5 February 2020 the Tribunal confirmed the decision to dismiss Mr Kumar’s application for review. Mr Kumar then applied to the Federal Circuit Court for orders quashing the decision of the Tribunal dismissing his reinstatement application. It is against the primary judge’s dismissal of that application that Mr Kumar now appeals.

The invitation to attend the hearing

8    On 18 December 2019 Mr Kumar was sent a written invitation to attend a hearing before the Tribunal. The Tribunal’s letter of that date advised Mr Kumar that the hearing would take place at 9.30am on 15 January 2020 and also requested that he “provide all documents that he intended to rely upon in support of his case”. It also included a request that he read and complete in enclosed documents which included a memorandum entitled “The Information about Hearings – MR Division”. That document includes the following paragraphs:

Can I ask the AAT to obtain evidence?

You may, within 7 days after being notified that you are invited to attend a hearing, give us written notice that you want us to take oral or written evidence from a person or persons named in the notice or to obtain other written material. If you make such a request within that time limit, we will consider your notice but may decide not to obtain such evidence or written material. For example, we may be satisfied on a particular point, or may not consider the evidence to be relevant to your case.

…

What if I cannot attend the scheduled hearing?

If you are not able to attend the scheduled hearing, you need to advise us 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 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.

If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.

What happens if an application is dismissed?

If we dismiss your application, a written statement of the dismissal decision will be given to you. Within 14 days after receiving notice of the dismissal decision you may apply for reinstatement of the application.

On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so. If we reinstate the application, the application is taken never to have been dismissed and we will conduct (or continue to conduct) the review accordingly.

If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application. If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department’s decision remains in force.

A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.

(emphasis in italics added)

9    It is not suggested that Mr Kumar did not receive, read or understand the letter of invitation or the other documents enclosed with it.

10    On 23 December 2019 Mr Kumar, through his representative, responded to the hearing invitation confirming that he intended to participate. On 10 January 2020 his representative forwarded a submission and supporting documents to the Tribunal.

11    Mr Kumar was sent reminders via SMS of the hearing date on 8 January 2020 and 14 January 2020. He failed to appear at the 15 January 2020 hearing. The evidence indicates that the Tribunal dismissed Mr Kumar’s application at around 10.30am that morning.

12    In reasons for its decisions of 15 January 2020 the Tribunal stated:

1.    The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 15 January 2020 at 9:30am. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

2.    The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.

3.    In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.

13    There is no evidence that Mr Kumar, or his representative, took any steps to inform the Tribunal prior to the scheduled hearing that he would not be able to attend. However, there is evidence to indicate that Mr Kumar contacted the Tribunal shortly after 11.00am on the day of the hearing and that he advised staff he had missed the hearing and wanted to know what to do. He was advised that he had been sent “an initial dismissal email” to which he could respond.

14    The Tribunal’s email informed Mr Kumar of his right to apply for reinstatement of his application by 29 January 2020. It also stated that his reinstatement application should set out why he failed to appear at the hearing and provide any other information he wanted the Tribunal to take into consideration when deciding whether his reinstatement application should be granted.

15    On 22 January 2020 Mr Kumar’s representative sent an email to the Tribunal advising that Mr Kumar was unable to attend the hearing on 15 January 2020. Attached to that email was what was described as a “medical report” and a statutory declaration made by Mr Kumar dated 21 January 2020.

16    What is described as a medical report is in fact a medical certificate signed by Dr June Tun dated 15 January 2020. Dr Tun’s certificate states that “Mr Sunil Kumar has a medical condition and will be unfit for work from 15/01/2020 to 15/01/2020 inclusive.”

17    Mr Kumar’s statutory declaration states:

I declare that I missed my hearing date for AAT, 15 Jan 2020 due to medical condition. I visited a doctor, who after my examination recommended bed rest. On the day of hearing I was physically weak and barely able to walk and I followed the advice of doctor and took a rest at home. I wasn’t well enough to appear on the hearing and present my case. Now after taking rest and medication as per the doctor suggestion I am feeling well and would like to request the responsible authority to allow me another hearing date so I can present my response in regards to my application.

The relevant statutory provision

18    Section 362B of the Act provides:

362B    Failure of applicant to appear before Tribunal

    Scope

(1)    This section applies if the applicant:

(a)    is invited under section 360 to appear before the Tribunal; but

(b)    does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

    Tribunal may make a decision on the review or dismiss proceedings

(1A)    The Tribunal may:

(a)    by written statement under section 368, 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 362C, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1:    Under section 368A, the Tribunal must notify the applicant of a decision on the review.

Note 2:    Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.

    Reinstatement of application or confirmation of dismissal

(1B)    If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.

Note:    Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

(1C)    On application for reinstatement in accordance with subsection (1B), the Tribunal must:

(a)    if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or

(b)    confirm the decision to dismiss the application, by written statement under section 368.

Note 1:    Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2:    Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1D)    If the Tribunal reinstates the application:

(a)    the application is taken never to have been dismissed; and

(b)    the Tribunal must conduct (or continue to conduct) the review accordingly.

(1E)    If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.

Note:    Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1F)    If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

(1G)    To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

(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.

The Tribunal’s Decision

19    On 10 February 2020, Mr Kumar was advised by the Tribunal that his reinstatement application had been dismissed. He was provided with a copy of the Tribunal’s reasons for that decision dated 5 February 2020. Having referred to Dr Tun’s medical certificate and Mr Kumar’s statutory declaration, the Tribunal said:

10.    The medical certificate does not elaborate as to the applicant’s medical condition, but it appears that it is not severe as the applicant is given a medical certificate that he is unfit for work for one day only. The applicant in his stator [sic] declaration states that his occupation is a driver and baker. The Tribunal finds that considering the occupational health and safety issues in those occupations, if the applicant’s condition was severe, the doctor would have provided a medical certificate that the applicant has a longer period off work than one day.

11.    The medical certificate makes no mention of his inability to attend and participate in a hearing at the Tribunal and does not excuse him from attending the hearing on that day.

12.    Further statutory declaration provided by the applicant does not precisely set out his condition and it severity. He claims in his statutory declaration that he was physically weak and barely able to walk, but no mention of that is made in the medical certificate. Notwithstanding the ailments claimed in the statutory declaration, the review applicant was still able to attend the doctor’s office to obtain a medical certificate to have one day off work. If his condition was so severe that he could barely walk it is not clear how he could have attended the doctor’s surgery and why he was not hospitalised.

13.    The applicant in the statutory declaration also stated that he was not well enough to attend the Tribunal and present his case. He claimed that after taking rest and medication as suggested by the doctor, he is now fit enough to present his case. The medical certificate does not support that evidence and there is no suggestion of what if any medication has been prescribed or suggested by the doctor to be taken by the applicant.

14.    The medical certificate does not corroborate the applicant’s claims in his statutory declaration.

15.    The Tribunal is not satisfied, especially on the basis of the medical certificate presented to it that the applicant was medically unfit to attend the hearing and participate in the hearing.

16.    There is also no explanation given as to why the applicant did not seek to adjourn the hearing either the day prior to the hearing or on the morning of the hearing.

17.    The Tribunal is not satisfied on the review applicant’s application and supporting medical evidence that the applicant had a compelling or compassionate reason for failing to attend the hearing on 15 January 2020 and that it is not satisfied on the reinstatement application and supporting evidence that it is appropriate to re-instate the review application.

18.    The decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

20    Having referred to the 10 grounds of review relied upon by Mr Kumar in his amended application filed on 17 June 2020, the primary judge then referred to the submissions made in support of these grounds. His Honour commented on the unsatisfactory form of the grounds of review, the particulars and the written submissions, which he rightly observed contained a plethora of allegations of jurisdictional error that were largely misconceived, legally unsustainable and repetitive. His Honour rightly observed that the applicant had adopted a “scattergun” approach and that neither the grounds of review nor the submissions were of a standard the Court was entitled to expect from a legal practitioner, not only in their approach and content, but also in the manner of their expression.

21    Notwithstanding these criticisms, Mr Kumar filed a notice of appeal containing grounds and particulars which largely replicate those relied on before the primary judge. His written submissions are prolix, confused and largely misconceived, and reflect the same “scattergun” approach that was taken before the primary judge.

The Appellant’s Submissions

22    Mr Bhatta, who appeared for Mr Kumar before the primary judge and at the hearing of the appeal, made oral submissions in support of a number of matters which were said to justify a finding of jurisdictional error on the part of the Tribunal. Mr Bhatta sought to do so by reference to relevant provisions of the Act and the decision of the Tribunal but without many references to the primary judge’s reasons.

23    I indicated to Mr Bhatta that I would rely on his oral submissions rather than those contained in the “scattergun” written submissions and he developed five arguments in support of his contention that, in dismissing the reinstatement application, the Tribunal fell into jurisdictional error. I will deal with each of these arguments in turn.

Unreasonableness

24    The first argument relied on Mr Bhatta was that the Tribunal acted unreasonably in dismissing the reinstatement application. Before the primary judge Mr Bhatta had submitted that a “reasonable Tribunal would prefer to do what is best for the applicant … rather than just what is legally correct”. His Honour rejected that submission, holding that the Tribunal was not bound to grant the reinstatement application in this case and that there was nothing legally unreasonable in the Tribunal’s decision.

25    Mr Bhatta made clear in his oral submissions that he was not suggesting that the decision made by the Tribunal was a decision that no reasonable Tribunal could make. Rather, he submitted that the decision was not “reasonable and just” because it was open to the Tribunal to take a number of other courses of action apart from dismissing the reinstatement application which it should have taken. In support this submission he referred to the decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63], [65] and [68].

26    The Tribunal in its reasons drew attention to what it regarded as the inadequacy of the medical certificate relied on in support of the reinstatement application. The medical certificate merely asserted that Mr Kumar was “unfit for work” for the day and said nothing about his ability to participate in a hearing before the Tribunal. The medical certificate does not indicate what the nature of Mr Kumar’s condition was or how it might have interfered with his presentation of arguments and evidence to the Tribunal.

27    Mr Kumar’s statutory declaration suggests he was “physically weak and barely able to walk” and that he was told by the doctor to rest and take medication. However, as the Tribunal noted, Mr Kumar’s condition did not prevent him from attending the doctor’s surgery on the day of the hearing (it is not apparent from the evidence at what time of day he did so) or contacting the Tribunal at or prior to the appointed time for the purpose of making an application to have the review adjourned to some future date. Neither the statutory declaration nor the medical certificate indicate what medication Mr Kumar was advised by the doctor to take (indeed the medical certificate makes no reference to any medication prescribed by the doctor).

28    Mr Bhatta submitted that the Tribunal’s decision to refuse the reinstatement application was unreasonable because it constituted an exercise of power in a manner that was inconsistent with the purpose for which the power to dismiss for non-attendance was conferred. He referred to the Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Bill 2014 (Cth) which was said to show that the purpose of s 362B is to deter unmeritorious applicants who were not actively pursuing their applications and thereby delaying their removal from Australia. He submitted that it was Parliament’s intention that the power to dismiss for failure to appear be exercised only in such cases.

29    The relevant statements that appear in the Explanatory Memorandum upon which Mr Bhatta relied are preceded by other statements that reflect a broader purpose. According to the Explanatory Memorandum, s 362B:

… is intended to increase Tribunal efficiency by providing for a quick resolution of a case where, despite the accordance of procedural fairness, the applicant for review has not attended the hearing …

…

The MRT is required to afford procedural fairness in accordance with the Migration Act. The measure does not limit the right set out in the Migration Act to a hearing by the MRT, rather it provides for a new consequence if the person does not exercise that right.

30    Moreover, the language of s 362B does not confine the circumstances in which the power to dismiss may be exercised to those cases where the application for review may be described as unmeritorious or where the application for review is not being actively pursued.

31    The Full Court in Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459 considered s 362B of the Act in the context of a challenge to the decision of the Tribunal not to reinstate an application for review on various grounds including that the Tribunal had failed to consider matters relevant to its decision that were relied upon by the applicant and which were not addressed in the Tribunal’s reasons. In that case Colvin J (with whom Kenny and Bromberg JJ agreed) said at [29]-[30]:

[29]    When s 362B(1C) says that on an application for reinstatement the Tribunal must, if it considers it appropriate to do so reinstate the application, it imposes a statutory responsibility on the Tribunal to form an opinion or make an assessment as to whether reinstatement is “appropriate” having regard to all of the circumstances advanced to support reinstatement. In such a context, the word “appropriate” connotes two aspects: fitness and propriety. That is, in order to be “appropriate”, something must be both suited to the particular circumstances as well as sensible, right and proper. In Mitchell v The Queen (1996) 184 CLR 333 at 346, it was said by Dawson, Toohey, Gaudron, McHugh and Gummow JJ that:

    The phrase “considers … appropriate” indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper.

[30]    Relevantly for present purposes, the use of the word “appropriate” requires the Tribunal to make an assessment of all of the matters that are advanced to support reinstatement. If more is raised on an application to reinstate than the single issue as to whether the applicant was notified of the scheduled hearing, then the Tribunal could not properly form a view as to whether reinstatement was appropriate by confining consideration to the facts concerning notification.

32    I do not accept the appellant’s submission that the operation of s 362B should be understood to be limited to circumstances in which the application may be described as unmeritorious or where the applicant is no longer actively pursuing his or her application. Under s 362B(1C), the Tribunal may only reinstate the application if it considers it appropriate to do so. If the Tribunal does not consider it appropriate to reinstate the application, then it is required to confirm the decision to dismiss the application.

33    In the present case the Tribunal considered the applicant’s statutory declaration and medical certificate. Its reasons for decision show that it engaged in an active intellectual process in deciding whether, in light of that material, it was appropriate to reinstate the application for review. The Tribunal placed some weight on the deficiencies in the medical certificate which indicated that the applicant was unfit to attend work but not that he was unfit to attend his hearing before the Tribunal. Reasonable minds might differ as to whether those deficiencies warranted a dismissal of the reinstatement application. But that does not make the Tribunal’s decision unreasonable in the relevant sense.

34    In my opinion the Tribunal’s decision to confirm the dismissal of the application cannot be characterised as arbitrary, capricious, plainly unjust, or as lacking in any evident or intelligible justification. Nor can the Tribunal’s decision be said to involve an exercise of the relevant power for reasons that are inconsistent with the purpose for which the power was conferred.

35    In my opinion the primary judge was correct to reject Mr Kumar’s contention that the Tribunal’s decision was legally unreasonable.

Non-compliance with s 359

36    Section 359(1) of the Act provides that, in conducting the review, the Tribunal may get any information that it considers relevant and that, if the Tribunal gets such information, it must have regard to that information in making the decision on the review.

37    Mr Bhatta submitted that the Tribunal had obtained information from Mr Kumar which s 359(1) required it to have regard to in making the decision on the review. This information (“the relevant information”) was said to be that which Mr Kumar provided to the Tribunal on 10 January 2020 in support of his application for review.

38    The relevant information was not information that the Tribunal obtained pursuant to s 359(1). Rather, it was information which Mr Kumar chose to submit to the Tribunal for its consideration. The Tribunal did not purport to exercise its power under s 359 and, as the primary judge correctly held, the provision of the relevant information to the Tribunal by Mr Kumar in support of his case did not involve any exercise of power under s 359 of the Act.

MZAHI v Minister for Immigration and Border Protection

39    The primary judge referred to MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 (“MZAHI”). His Honour said the medical certificate in the present case was “similarly bereft of any meaningful detail either in the nature of the alleged illness, or the basis upon which the doctor had expressed the opinion that the applicant was unable to participate in the hearing”. As his Honour correctly noted, Dr Tun in the present case expressed no view about Mr Kumar’s fitness to participate in the hearing. In MZAHI Davies J said at [7]:

… The medical certificate was plainly inadequate to justify any further adjournment of the Tribunal hearing. The medical certificate merely stated that the appellant was unfit for work and provided no meaningful detail about the nature of the appellant’s illness, or any meaningful content which would enable the Tribunal to conclude that the appellant could not participate at the Tribunal hearing. Given the absence of any meaningful content in the medical certificate it was open to the Tribunal to reject that certificate as sufficient proof that the appellant was unable to participate in a Tribunal hearing on that day …

40    It is difficult to follow the argument made on Mr Kumar’s behalf in relation MZAHI. MZAHI was a decision on its facts, but as the primary judge noted, the medical certificate relied upon by Mr Kumar contained even less detail than the certificate with which Davies J was concerned in MZAHI. In that case Davies J regarded the medical certificate as inadequate in so far as it was relied upon as providing an explanation as to why the applicant was unable to participate in his hearing. The primary judge’s reference to MZAHI did not reflect any error on his part.

Section 360

41    Mr Bhatta submitted that s 360(1) of the Act required that the Tribunal extend to him an invitation to appear before it in person rather than by video conference. There are two things to say about this submission.

42    First, the Tribunal did not stipulate that the hearing occurr by video conference. As the invitation letter made clear, it was open to Mr Kumar to appear by video link but that if he had a preference to appear before the Tribunal in person, he could apply to the Tribunal for leave to appear in person. The invitation to attend the hearing was accepted by Mr Kumar and there is no suggestion in the evidence that he expressed any desire to appear before the Tribunal in person.

43    Second, s 360(1) of the Act does not require that the hearing of the application take place in the physical presence of an applicant. Section 366(1) of the Act provides:

366    Oral evidence by telephone etc.

(1)    For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:

(a)    telephone; or

(b)    closed-circuit television; or

(c)    any other means of communication.

44    Mr Bhatta submitted that the language of s 366(1) should be understood as conferring upon Mr Kumar the option to appear by video conference and that there was nothing in the Act that entitled the Tribunal to require that he appear by that means absent a request from him to appear remotely. As I have already mentioned, the Tribunal did not require Mr Kumar to appear by video conference and Mr Kumar appears to have agreed to appear by that means. In any event, the submission made by Mr Bhatta is contrary to Full Court authority: see Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 at [26]-[28].

Disposition

45    There is no substance to any of the arguments relied upon by Mr Bhatta and each must rejected. The appeal must be dismissed with costs.

Associate:

Dated:    29 June 2021