Federal Court of Australia

AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 815

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal be dismissed.

3.    The appellant pay the first respondent’s costs fixed in the amount of $4,000.

4.    Orders 1 to 3 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 the Transcript)

LEE J:

A    Introduction

1    This is an appeal from orders and reasons of the Federal Circuit Court made on 31 October 2019, which dismissed the appellant’s application for judicial review in respect of a decision of the second respondent (Tribunal): AAL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3124. The Tribunal had affirmed a decision of the delegate of the first respondent (Minister) not to grant the appellant a Protection (Class XA) visa.

2    The appeal was filed on 14 November 2019. As will become relevant, the notice of appeal provided an email address for service and also a mobile telephone number.

3    The matter came before a Registrar of the Court on 26 November 2019, on which occasion directions were made on the papers for the preparation of the appeal for hearing. The directions provided, among other things, that the appellant file and serve a written outline of submissions ten days before the hearing date. No such submissions were filed.

4    Following the appeal being allocated to me for determination, on 12 May 2021, my Associate wrote to the parties in the following terms:

Dear Parties

I refer to the above proceeding which has been allocated to the docket of Justice Lee. His Honour has determined to list the proceeding for a final hearing at 10.15am on 1 July 2021.

I note that the requirements for the filing of documents, including submissions, are contained in the directions made by the Registrar (attached for your convenience).

Please confirm receipt of this email.

(Emphasis in original).

Yours faithfully

5    Receipt of the above email was confirmed by the applicant on 13 May 2021.

6    A further email was sent by my Associate to the parties on 29 June 2021, which again referred to the hearing date and noted that, given the arrangements currently in place because of COVID-19 restrictions, the hearing would proceed via Microsoft Teams. The relevant Microsoft Teams link was also provided.

B    The adjournment APPLICATION

7    Yesterday afternoon at 4.01pm an email was received by my Associate from the appellant, at the email address to which communications had previously been directed, which was in the following terms:

Hi, I suffer from severe throat pains and can’t speak. Can you please arrange the hearing for another day ?thank you [sic]

8    This was the entirety of the email, save that it attached a photocopy of two documents.

9    Notwithstanding the notice of appeal suggests that the address for service of the appellant is the suburb of Eastwood in north-western Sydney, what was said to be a medical certificate was obtained from Dr Hoa Ke Nguyen from Darra, Queensland.

10    The medical certificate relevantly provided:

30.6.2021

I hereby certify that on 30.6.2021

I examined [name of appellant] who in my opinion is suffering from medical conditions and will be unfit up to and including 2.7.21

She states that the incapacity commenced on 30.6.21

[Signature]

[Doctors stamp]

(Emphasis used to indicate handwritten annotation by the doctor).

11    A receipt was also provided with the medical certificate, which suggests that the doctor had, yesterday, received the sum of $60 as a consultation fee.

12    Following a perusal of this material, I directed my Associate to send an email to the parties in the following terms (sent 12 minutes after the receipt of the email from the appellant):

Dear Parties

I refer to the below correspondence.

His Honour has reviewed the materials and is not disposed to adjourn the hearing on the material provided.

If there is an application for an adjournment, it should be made at the commencement of the hearing tomorrow. I confirm the same Microsoft Teams Link sent in the earlier email is to be used (attached again for your convenience):

[Meeting link]

Yours faithfully

(Emphasis in original).

13    A few minutes later a request was made for both parties to confirm receipt of the above email, which the appellant did at 4.33pm, saying “Thank you”.

14    As the transcript records, I deferred coming on the bench for a few minutes in order to ascertain whether the appellant proposed to appear. When it became apparent that the appellant did not propose to appear, I adjourned the matter and my Associate and the interpreter attempted to contact the appellant by ringing the mobile telephone number she had provided in the notice of appeal. Three attempts were made, all of which were unsuccessful.

15    An effort was also made to contact the appellant again by way of email. Apparently in response to these efforts, at 10.27am, an email was received by my Associate from the appellant in the following terms:

You’re invited to a Teams meeting!

Meeting with [appellant]

[URL link to Microsoft Teams]

Tap on the link or paste it in a browser to join.

16    In response my Associate, after unsuccessfully trying to navigate the link provided by the appellant, indicated, by reply email at 10.30am, that the appellant was directed to join the Microsoft Teams meeting at the link that had been previously provided to her on at least two occasions and which was again provided to her. Efforts were also made to apprise the appellant of every possible way to join the hearing, including by way of phone conference, calling in, video conference and the like.

17    I again adjourned the matter for a short period to ascertain whether the appellant would appear.

18    Despite all the above steps, the appellant still has not joined the hearing. The Minister’s representative has indicated that they oppose any adjournment of the hearing and, given that there has been a non-appearance, seek an order under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) that the appeal be dismissed, along with consequential orders.

19    I have set out above the adjournment request. In my view the medical certificate provided was wholly deficient in apprising the Court of the circumstances which would lead the Court to conclude that the appellant has an acceptable explanation for not appearing this morning. As I explained in a similar context in SZWBK v Minister for Immigration and Border Protection [2017] FCA 1020 (at [15]), a case where the appellant sought an adjournment due to back pains:

The medical certificates do not purport to address the critical question of whether, and if so why, the relevant “medical condition” would prevent the first appellant from travelling to Court and participating effectively in the hearing. Like the position in NAKX and Singh, I do not accept, on the basis of the material provided, that the Delphically described “medical condition” would have prevented the first appellant from travelling to Court and participating effectively in the hearing. Even if I was wrong about this, there is no explanation as to why the first appellant could not have made the necessary arrangements to attend the hearing by telephone … I agree, with respect, with what Pagone J said in Singh (at [2]), namely that:

… what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing.

20    I accept that unlike SZWBK, there is no inexplicable delay between the obtaining of the certificate and the making of the adjournment application, and the communication received was accompanied by an unverifiable representation that the appellant is suffering from “severe throat pains and can’t speak”. However, I am not reasonably satisfied on the material that the appellant is unable to appear, at least for the purposes of seeking an adjournment or providing further corroborative material indicating that, in truth, she has a particular medical condition which prevents her from participating substantively in the hearing. This is particularly the case where the appellant need only log onto an electronic device, such as a phone or computer, to join the hearing; a course I infer she is familiar with given that she sent a Microsoft Teams meeting link to my Associate this morning.

21    In the circumstances, I do not consider the material provided to me to be satisfactory and I refuse the adjournment.

C    The Minister’s Application

22    As I set out above, the Minister seeks an order under FCR 36.75(1)(a)(i) that the appeal be dismissed for non-appearance. In SZWBK (at [18]–[19]), I made the following remarks in respect of an application under FCR 36.75(1)(a)(i):

In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, Ryan J considered the principles governing an application for reinstatement of a matter dismissed in the absence of a party. At [7], his Honour recognised that where reinstatement is sought, a discretion falls to be exercised by the Court which requires consideration of three factors: first, whether there is a reasonable excuse for the party’s absence; secondly, the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and thirdly, whether the applicant for reinstatement has a reasonable prospect of success on the appeal.

Against the possibility that an application may, at some future time, be made to me pursuant to FCR 36.75(2), as I said in ALG15 v Minister for Immigration and Border Protection [2017] FCA 560 at [13], I do not believe it is either necessary or appropriate that, on the hearing of the Minister’s application, I should descend to forming a concluded and final view as to the underlying merits of the appeal. However, I do think it is relevant for the purposes of considering the question of the dismissal of the appeal that I give some consideration as to whether or not it is evident that the appeal has, on at least a preliminary view, reasonable prospects of success.

23    I propose to follow the same course in this case. The notice of appeal contains four grounds:

1.    AAT made up his [sic] mind before the hearing.

2.    AAT was very impatient and unkind to me.

3.    AAT disregard the experienced [sic] I suffered and was judging me.

4.    I suffered depression and said why I didn’t provide evidence in the hearing but in the end. It’s [sic] unfair to accuse me of something I didn’t know.

24    The orders sought are twofold:

1.    My case to be remitted to AAT.

2.    The respondents pay the costs.

25    These four grounds of appeal are relevantly identical to those raised before the primary judge and do not evince any recognisable error. To the extent that they could be characterised as an invitation for the Court to form its own view of the decision of the Tribunal, they are misconceived: see SZVBT v Minister for Immigration and Border Protection [2017] FCA 355; (2007) AAR 1 (at 4 [9]–[10] per Flick J).

26    In any event, as the Minister submits, in relation to grounds one and two, it is well established that an allegation of bias must be firmly and distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (at 531 [69] per Gleeson CJ and Gummow J). The evidence before the primary judge did not, as his Honour held, provide any basis for a claim that the Tribunal did not approach the matter with an open mind, reasonably capable of persuasion: J [19]. Further, there was no material before his Honour to support the contention that a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question they were required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (at 344 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ)), applied in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 375 ALR 47 (at 52–3 [17]–[18] per Kiefel CJ and Gageler J, at 59–60[50] per Nettle and Gordon JJ, and at 76 [132] per Edelman J).

27    Similarly, I can discern no error in the primary judge’s approach to the third ground of review below. The ground was wholly unparticularised so as to explain what the appellant contended was “disregarded” by the Tribunal and in those circumstances, can be viewed as merely expressing disagreement with the Tribunal’s findings: J [21]. In any event, I can discern no error in the primary judge’s conclusion that the Tribunal’s adverse findings, including its adverse credibility findings, did not lack an evident and intelligible justification: J [22].

28    Finally, in respect of ground four, the material before the primary judge did not reveal that the appellant had raised any psychological condition prior to or during the hearing. Nor was there any material before the Tribunal suggesting that the appellant suffered from any psychological injury that would have prevented her from giving an account of her experiences, presenting her arguments, or responding to questions at the hearing: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 (at 582 [20] per Keane CJ). To the extent this ground could be viewed as a further allegation of bias, I repeat the remarks expressed in relation to grounds one and two.

29    In my view, although it is unnecessary to form a concluded view as to the appeal for the purposes of the dismissal application, at least on a preliminary view, it does not appear to have reasonable prospects of success.

30    In all the circumstances, this seems to me to be an appropriate case for an order to be made pursuant to FCR 36.75(1)(a)(i) dismissing the appeal.

D    CONCLUSION AND Orders

31    The Minister submits that in the event the appeal is dismissed, it would be appropriate for this Court to fix the costs payable by the appellant in the amount of $4,000. This amount is significantly less than the amount that can be claimed in a short form bill for an appeal involving a migration decision that is dismissed after hearing, namely $7,241: see FCR sch 3, item 15.2. In any event, I am satisfied this figure is reasonably proportionate to the nature of the case, including its complexity: see Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288 (at 292 [18] per Kenny J). There is no reason why I should not make such an order in the exercise of my discretion.

32    Accordingly, I propose to make the following orders:

(1)    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

(2)    Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal be dismissed.

(3)    The appellant pay the first respondent’s costs fixed in the amount of $4,000.

(4)    Orders 1 to 3 not be entered until publication of the revised reasons for judgment.

Associate:    

Dated:    19 July 2021