Federal Court of Australia

CAM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 923

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 of the primary judge made on 23 August 2019 be set aside and in lieu thereof it be ordered that:

(a)    the decision of the second respondent (Tribunal) dated 19 April 2017 be quashed; and

(b)    the matter be remitted to the Tribunal, constituted by a different member, for determination according to law (as set out in the reasons of this Court).

3.    The first respondent pay the appellant’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

HALLEY J:

Introduction

1    This is an appeal from a judgment of the then Federal Circuit Court of Australia (FCCA) delivered ex tempore on 23 August 2019. The primary judge dismissed an application by the appellant for judicial review of a decision of the second respondent (Tribunal) made on 19 April 2017 (Confirmation Decision) in which it confirmed its earlier decision made on 30 March 2017 to dismiss an application by the appellant for a review of a decision of a delegate of the first respondent (Minister) not to grant a Protection (Class XA) visa (review application). The review application was dismissed because of the appellant’s failure to appear at the hearing of that application (Dismissal Decision).

2    The Tribunal made the Confirmation Decision because of a failure by the appellant to apply to reinstate the review application.

3    For the reasons that follow the appeal must be allowed.

Background

4    The appellant is a citizen of Malaysia.

5    On 22 March 2016, the appellant arrived in Australia on an Electronic Travel Authority (Subclass 601).

6    On 2 June 2016, the appellant lodged an application for a Protection (Class XA) visa. He claimed that he had been bullied at high school and since leaving high school he had been beaten, his arm had been broken and he had been sexually harassed. He stated that if he was returned to Malaysia he would be beaten until he was killed and he would not be able to recover from his depression and suicidal thoughts. The appellant provided both his current residential address and email address in his application. He also confirmed that he agreed to the Department communicating with him by fax, email or other electronic means and nominated his email address that he had provided as the email address to be used for communications with the Department.

7    On 11 July 2016, the delegate refused to grant a protection visa to the appellant. The delegate advised the appellant of the decision by emailing a copy of the decision to the email address that the appellant had nominated on his application for a protection visa (appellant’s original email address).

8    On 31 July 2016, the appellant made the review application. The appellant provided a new email address (appellant’s nominated email address) and a new residential address in the review application.

9    On 2 August 2016, the Tribunal sent an email to the appellant’s nominated email address acknowledging receipt of the review application.

10    On 6 March 2017, the Tribunal sent an email to the appellant’s nominated email address inviting him to attend a hearing of the review application scheduled for 9.30 am on 27 March 2017.

11    The appellant failed to attend the scheduled hearing. Each of the two pages of the review application hearing record (Hearing Record) is marked with handwritten annotations “NO SHOW” next to a handwritten date and time “27/03/17”, “11:10” and a signature.

12    At or about 11.15 am on 27 March 2017, the appellant contacted an officer of the Tribunal by telephone. The case note prepared by the officer who spoke to the appellant, which is time stamped “11:15:00 AM”, (Case Note) records:

The applicant rang to say that he had missed his hearing date today because he had not got the notice, because he had changed his e-mail address recently and had also only just got a new telephone. I advised that he should make a request in writing for a new hearing explaining why he had not attended the hearing which he should do so as soon as possible. The Tribunal member would then consider his request and decide if he was entitled to another hearing date. I advised he could send in this request by e-mail, post, fax or by bringing it in personally but it would be preferable he used the quickest method, because a decision may be made in his case soon if he did not contact the Tribunal, although I would make a note of his call and bring it to the Tribunal member’s attention. He should also notify the Tribunal in writing of his new contact address. [The applicant] asked about forms and I advised him of the Tribunal’s website, but explained that any written notice that was signed would be sufficient. [The applicant] asked about his bridging visa and I advised that if he currently had a bridging visa, which he was probably entitled to, it would not expire until some time after the Tribunal made its decision on his review application. [The applicant] advised he would send in his request soon.

13    On 30 March 2017, the Tribunal made the Dismissal Decision in which it dismissed the review application under s 426A(1A)(b) of the Migration Act 1958 (Cth) (Act). The record of the Dismissal Decision stated:

The applicant was invited under s.425 of the Migration Act 1958 (the Act) to appear before the Tribunal on 30 March 2017, but did not appear at the scheduled time and place. The applicant telephoned the Tribunal on the morning of the hearing (27 March 2017) and advised that he had missed his hearing date because he had only just received the notice. The applicant said that he had changed his mobile and e-mail address. The applicant was advised to explain in writing why he had not attended the hearing and advised that the Tribunal would then consider the request. At the Tribunal’s request, an officer of the Tribunal attempted to contact the applicant on 28 March and 29 March to explain that he should provide a written request which would then be considered by the Tribunal. The officer was unable to contact the applicant. The Tribunal is not satisfied that the applicant has satisfactorily explained his failure to attend the hearing. As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.

Legal Principles

14    Section 425 of the Act relevantly provides:

425 Tribunal must invite applicant to appear

(1)     The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. …

15    In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 (SCAR), the Full Court (Gray, Cooper and Selway JJ) explained:

36     It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671;

37    On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. …

16    A failure to comply with s 425 of the Act is a precondition to the valid exercise of the Tribunal’s jurisdiction and thereby such a failure involves jurisdictional error: SCAR at [38]; CZD18 v Minister for Home Affairs & Anor [2019] FCA 1442 at [27].

17    Section 426A of the Act sets out the mechanisms by which the Tribunal may deal with the non-appearance of an applicant at a hearing. The section relevantly provides:

Scope

(1)    This section applies if the applicant:

(a)     is invited under section 425 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:

…

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

…

Note 2:     Under section 430B, the Tribunal must notify the applicant of a decision to dismiss the application.

(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.

Note:     Section 441C 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 426B; or

(b)     confirm the decision to dismiss the application, by written statement under section 430.

Note 1:     Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2:     Under section 430A, 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 430.

Note:     Under section 430A, 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.

18    Pursuant to s 426B of the Act, if the Tribunal dismisses an application under s 426A(1A)(b), it is required to notify an applicant of its decision:

Written statement of decision

(2)     If the Tribunal makes a non-appearance decision, the Tribunal must make a written statement that:

(a)     sets out the decision; and

(b)     sets out the reasons for the decision; and

…

(d)     records the day and time the statement is made.

…

Notice to applicant

(5)    The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under sub-section (2). The copy must be given to the applicant:

(a)     within 14 days after the day on which the decision is taken to have been made; and

(b)    by one of the methods specified in section 441A.

(6)    In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).

19    Section 426B(8)(b) of the Act provides that a failure to comply with ss 426B(5) to (7) does not affect the validity of a written statement pursuant to s 426B(2) or the operation of s 426(4) that precludes the Tribunal varying or revoking a non-appearance decision after the day and time the written statement is made.

20    The statutory scheme thus permits the Tribunal, pursuant to s 426A(1A)(b) to dismiss an application for review if an applicant does not appear at a hearing without any further consideration of the application or information before the Tribunal. If the Tribunal makes a dismissal decision pursuant to s 426(1A)(b), however, it must provide the applicant with a copy of a written statement of the dismissal decision (described in the statutory scheme as a “non-appearance decision”) and a statement describing the effect of s 426(1B) to (1F) within 14 days of making the decision by one of the methods for service provided in s 441A of the Act.

21    Section 441A relevantly provides that:

441A Methods by which Tribunal gives documents to a person other than the Secretary

Coverage of section

(1)     For the purposes of provisions of this Part or the regulations that:

(a)     require or permit the Tribunal to give a document to a person (the recipient); and

(b)     state that the Tribunal must do so by one of the methods specified in this section;

the methods are as follows.

…

Note:    If the Tribunal gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 441C in respect of that method.

…

Handing to a person at last residential or business address

(3)     Another method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:

(a)    is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and

(b)     appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(c)     appears to be at least 16 years of age.

Dispatch by prepaid post or by other prepaid means

(4)     Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:

(a)     within 3 working days (in the place of dispatch) of the date of the document; and

(b)     by prepaid post or by other prepaid means; and

(c)     to:

(i)     the last address for service provided to the Tribunal by the recipient in connection with the review; or

(ii)     the last residential or business address provided to the Tribunal by the recipient in connection with the review;

or

(iii)     if the recipient is a minor—the last address for a carer of the minor that is known by the member or officer.

Transmission by fax, email or other electronic means

(5)     Another method consists of a member or an officer of the Tribunal transmitting the document by:

(a)     fax; or

(b)     email; or

(c)     other electronic means;

to:

(d)     the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or …

22    Pursuant to s 441C of the Act, an applicant is deemed to have received a written statement at the time specified in the provision for the relevant method deployed pursuant to s 441A of the Act. Relevantly, s 441C(5) provides that if a document is given to a person by the Tribunal by email, the person is taken to have received the document at the end of the day on which the document is transmitted.

23    Within 14 days after the receipt (or deemed receipt) of the written statement (or “notice”), an applicant may apply for reinstatement of their application, pursuant to s 426A(1B) of the Act. If an applicant fails to apply for a reinstatement within 14 days, the Tribunal must confirm the decision to dismiss the application, with the effect that the decision under review is taken to be affirmed: s 426A(1E) and (1F) of the Act.

24    The legislature is taken to intend that a statutory power will be exercised reasonably by the decision-maker: Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18 (Li) at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88] (Gageler J).

25    As noted by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZVFW and Others (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at [96]-[97]:

[The] exercise of the discretion in s 426A does not require the Tribunal to postpone or refrain from making a decision on a review every time an applicant suggests they wish to provide further information, cannot meet a deadline, or fails to appear.

The discretion in s 426A recognises that the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course the review has taken, the Tribunal’s approach throughout the review, the applicant’s situation and conduct throughout the review and the other surrounding circumstances. That is, there is an area within which the decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness.

[Emphasis in original, footnote omitted.]

26    As stated by Nettle and Gordon JJ in SZVFW at [80], citing Li at [67] (Hayne, Kiefel and Bell JJ):

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.

[Emphasis in original, footnote omitted.]

27    The conclusion will be open where a decision is “manifestly unreasonable”, is so unreasonable so as to be “irrational or bizarre” or that no reasonable person could have arrived at it, although it is not limited to such a case: SZVFW at [82] (Nettle and Gordon JJ), citing Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 at 41 (Mason J, as his Honour then was); Li at [68] (Hayne, Kiefel and Bell JJ), [105] (Gageler J). A conclusion of legal unreasonableness may be outcome focussed, and may be applied to a decision which lacks an evident and intelligible justification: Li at [76] (Hayne, Kiefel and Bell JJ).

28    Legal unreasonableness is fact-dependant and requires a careful evaluation of the evidence: SZVFW at [84] (Nettle and Gordon JJ).

29    The High Court’s decision in SZVFW involved a husband and wife who were refused protection visas by a delegate of the Minister and applied to the Refugee Review Tribunal for a review of the delegate’s decision. The application for review specified a postal address to which correspondence was to be sent, a mobile number and an email address. The Refugee Review Tribunal sent a letter to the postal address in which it acknowledged receipt of the application and invited the couple to provide written arguments in support of their application. The Tribunal did not receive any response to the letter. Another letter was sent by the Tribunal three months later inviting the couple to appear before the Tribunal on a certain date. The couple did not appear on that date. The Tribunal made a decision pursuant to s 426A(1) of the Act, affirming the decision under review to refuse protection visas. There was no evidence before the High Court that the Tribunal had attempted to contact the couple on the mobile number or email address provided before it had affirmed the decision under review.

30    The High Court held that the Tribunal’s decision to proceed to make a decision without taking any further action to allow or enable the applicants to appear before it was not unreasonable: Kiefel CJ at [9], Gageler J at [70]-[71], Nettle and Gordon JJ at [76] and [123], Edelman J at [130] and [141].

31    Chief Justice Kiefel stated at [8]-[9]:

… The invitation required by s 425 was given by one of the methods specified in s 441A, as s 425A requires. Moreover, s 441C has the effect that a person is deemed to have received a document given by one of the methods so specified. There was nothing before the Tribunal to suggest to the contrary of that state of affairs. It was entitled to proceed to consider the exercise of its powers under s 426A.

It is difficult to see how it might be concluded that the decision that the Tribunal then made – not to make further contact with the respondents and adjourn its hearing for that purpose – was unreasonable. To the contrary, it was perfectly explicable given the history of the respondents’ non-responsiveness. It is to be inferred that a conclusion that it was unreasonable must involve some misapprehension of what is comprehended by the legal standard of unreasonableness.

[Emphasis added.]

32    Justice Gageler said at [68]:

The Tribunal is exhorted to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”, to “act according to substantial justice and the merits of the case”, and in applying Div 4 of Pt 7, within which ss 425 and 426A are located, to “act in a way that is fair and just”. Because Div 4 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”, the Tribunal acting fairly and justly is entitled to regard an applicant to whom it is satisfied that an invitation complying with s 425 has been sent as having had adequate notice of his or her opportunity to appear before the Tribunal when considering exercising the discretion under s 426A(1) in the event of non-appearance.

[Footnotes omitted.]

33    At [141] of that decision, Edelman J stated:

The decision by the Tribunal, for the reasons it gave, was not legally unreasonable. Three further reasons, additional to those given by the Tribunal, are also relevant. First, in the original applications by the respondents to the Minister, they undertook to inform the Department if they intended to change their address for more than 14 days while their applications were being considered. No change of address was provided. It was reasonable for the Tribunal to draw the inference that the respondents were still accessing mail at that address. Secondly, the letter from the Department refusing the respondents’ original applications was sent to their nominated address. Thirdly, prior to the decision of the delegate, the respondents had not attended a scheduled interview with the Department, despite apparently being made aware of the interview by letters sent to their nominated address and a telephone call rescheduling the interview. It would have been reasonable to infer that a rescheduled hearing before

the Tribunal might have been futile.

[Emphasis added.]

34    A different conclusion was reached by the High Court in TTY167 v Republic of Nauru (2018) 362 ALR 246; [2018] HCA 61 (TTY167). A protection applicant failed to attend a hearing of his application before the Tribunal. The High Court upheld a ground of appeal that the Tribunal had acting legally unreasonably in exercising its powers under s 41(1) of the Refugees Convention Act 2012 (Nr) to decide a matter without taking further action to allow or enable the applicant to appear.

35    In their joint judgment, Gageler, Nettle and Edelman JJ stated at [24]:

It was not in dispute that the standard of legal unreasonableness implied as a condition of exercise of the power in the Refugees Convention Act is a demanding standard, particularly in light of the concerns of informality and the need for efficiency that underlie Tribunal hearings and the wide latitude that the Tribunal has in making a decision under s 41(1) to decide the matter in an applicant’s absence. Nevertheless, there are six reasons, in combination, why the circumstances of this case were so exceptional that the decision of the Tribunal to proceed to decide the matter without making any enquiry about the appellant’s absence on the date of the hearing was legally unreasonable.

[Footnotes omitted.]

36    The six reasons were identified at [25] to [30]. In summary, their Honours concluded that:

(a)    the appellant had been highly engaged in pursuing his application for protection, he had provided a written statement and instructed his lawyers to prepare substantial submissions;

(b)    the appellant had indicated two weeks before the hearing in his statement to the Tribunal that he intended to appear at the hearing;

(c)    the appellant’s oral evidence was of considerable importance because the Tribunal had concluded his claims were lacking in detail and not corroborated;

(d)    the Tribunal was aware that the appellant was suffering from mental health issues;

(e)    the warning that the Tribunal “may make a decision on the review” without taking further action to allow the appellant to appear could not be relied upon by the Tribunal as an informed decision not to appear because of its knowledge of the appellant’s limited understanding of English and his illiteracy; and

(f)    finally, it would have been a simple matter for the Tribunal to have contacted the appellant’s lawyers or persons at CAPS, who the Tribunal would reasonably have been aware were assisting the appellant.

37    In SZTHQ v Minister for Immigration and Border Protection [2014] FCA 1231, Murphy J, after agreeing with the analysis of Mortimer J in Kaur and Another v Minister for Immigration and Border Protection and Another (2014) 236 FCR 393; [2014] FCA 915 at [83] with respect to analogous provisions that the Act does not require the Tribunal to postpone or refrain from making a decision because the applicant does not attend, stated at [41]:

While the terms of s 426A recognise the need for flexibility in the context of a particular review there is no free-standing obligation on the Tribunal in every case in which there has been a failure to respond to a hearing invitation or a failure to appear at a scheduled hearing to search its records to seek to find another way of communicating with the applicant, or to adjourn the hearing: Kaur at [133]

Decision of the Tribunal

38    On 19 April 2017, the Tribunal made the Confirmation Decision. In its statement of decision and reasons for making the Confirmation Decision the Tribunal relevantly recorded:

3.     The applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s.426B(5). The applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

4.     As the applicant did not apply for reinstatement of the application within the 14 day period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.

39    At 4.30 pm on 19 April 2017, the Tribunal emailed a copy of the Confirmation Decision to the appellant’s nominated email address. The email address used by the Tribunal to send the email to the appellant was “MRDivision@aat.gov.au”.

40    At 8.42 pm on 20 April 2017, the appellant sent an email to the Tribunal. The email was sent from a new email address (being a different email address to the appellant’s nominated email address and original email address) to an email address of the Tribunal, “OPNSW Admin” (20 April Email). The email read as follows:

Dear Sir/Madam

I am [the appellant] and I applied for a Protection (Class XA).

I apologise for not being able to attend the hearing. I got the notification about the email but I lost my phone. and now I am using new email. I work long hours sometimes just tired. I am sorry couldn’t go to the hearing appointment on March, 27th. I’m very sorry for this lateness. I’m also sorry that I didn’t answer few calls from you.

Please give me another date and this time I will come to the hearing. Good feedback is really appreciated. Thank you.

and my new email is [redacted] my passport number :[redacted] file number :[redacted].

[The appellant]

41    At or about 4.12 pm on 8 May 2017, the appellant telephoned the Tribunal. A case note of that telephone conversation prepared by an officer of the Tribunal (Subsequent Case Note) records that:

The applicant rang to say that he had not received his decision as he had forgotten the password to his old e-mail address ([appellant’s nominated email address]). He confirmed his birth date and mobile number and asked that a copy of the decision and hearing “decision” be sent to his new e-mail address of [redacted]. I advised I would send him a copy of the hearing invitation, the Initial Dismissal after his hearing and the Decision made on 19 April 2017.

Decision of the primary judge

42    On 10 May 2017, the appellant commenced proceedings in the FCCA seeking to challenge the Confirmation Decision. The proceedings were heard and determined by the primary judge on 23 August 2019. The appellant was not legally represented.

43    The primary judge observed in his reasons for judgment that the appellant advanced two grounds in his application. The first ground was that the Confirmation Decision was made without any proper process. The primary judge dismissed this ground on the basis that the Tribunal had notified the appellant in accordance with the statutory requirements. His Honour found by reference to the Case Note that the appellant had telephoned the Tribunal on the day of the hearing, explained he had not received the notice of the hearing because he had changed his email address and had obtained a new telephone and was then advised to provide his new contact details in writing. The primary judge noted that the appellant had failed to provide his new contact details and failed to respond to telephone messages left for him on 28 and 29 March 2017.

44    The primary judge stated at [14] of his reasons:

The decision to dismiss the application was sent to the applicant’s notified email address. In accordance with the statutory regime, the applicant was taken to have been notified of that decision. The applicant did not seek to have the proceedings reinstated within the 14 days and in those circumstances the Tribunal found that the applicant had not made an application for reinstatement within 14 days and had been notified of the dismissal and confirmed the decision under review.

45    The primary judge concluded that it was reasonable for the Tribunal to make the Confirmation Decision as on the material before the Court there was no apparent failure to follow proper processes and therefore no jurisdictional error had been established.

46    The primary judge dismissed the second ground of appeal, which was a “bare allegation that there were errors in the decision” on the basis that it was meaningless without particulars

47    The primary judge dismissed the application for review of the Confirmation Decision and made a costs order against the appellant.

Amended Notice of Appeal

48    In his amended notice of appeal the appellant advanced the following grounds of appeal:

1.     The primary judge erred in concluding that it was reasonable for the Administrative Appeals Tribunal to confirm dismissal of the appellant’s application for review pursuant to s 426A of the Migration Act 1958.

2.     Further or in the alternative, the primary judge erred in failing to find that the Administrative Appeals Tribunal fell into jurisdictional error in exercising its statutory duty under s 426A(1E) of the Migration Act 1958.

49    The grounds of appeal were further refined in the written and oral submissions of the parties. The appeal ultimately proceeded on the basis that the ground of appeal was that the primary judge had fallen into jurisdictional error because his Honour had failed to find that the Tribunal had acted legally unreasonably in exercising its statutory duty pursuant to s 426A(1E) by reason of it purporting to provide a copy of the Dismissal Decision to the appellant by emailing it to the appellant’s nominated email address.

Submissions

50    Mr Widjaja of counsel, who appeared for the appellant, submitted that it was legally unreasonable for the Tribunal to give the appellant the written statement required under s 426B(2) of the Act by a method it knew or should have known would result in the appellant not receiving it, in circumstances in which it had been provided with an alternative method for service pursuant to s 441A of the Act, namely a residential address of the appellant. He submitted that this was a decision by the Tribunal in the exercise of its statutory power that was unreasonable in the legal sense because it lacked an evident and intelligible justification, citing the statement by Kiefel CJ in SZVFW at [10].

51    He submitted that it followed that a necessary precondition under s 426A(1E) of the Act had not been met. The appellant could not have “failed to apply for reinstatement” because he did not receive notice of the decision in accordance with s 426A(1B) of the Act, and therefore the Tribunal had fallen into jurisdictional error.

52    The Minister submitted that the primary judge was correct in finding that the appellant had been provided with a copy of the Dismissal Decision in accordance with s 441A(5) of the Act because it had been sent to his nominated email address. The Minister submitted that there was no obligation on the Tribunal to provide the decision by more than one means of despatch. The Minister also submitted that in any event the appellant had failed to provide written confirmation of his new contact details notwithstanding the request to do so recorded in the Case Note and the unsuccessful attempts to contact him by telephone on 28 and 29 March 2017.

53    Ms Donald appeared for the Minister at the hearing. In the course of her oral submissions, Ms Donald contended that it was not legally unreasonable for the Tribunal to have proceeded on the assumption that the email address previously notified by the appellant could be used for the purpose of complying with its obligations under s 441A(5). She submitted that it was open for the Tribunal to conclude that, given the appellant rang to apologise for his non-appearance on the day of the hearing, the appellant must have received the notification of the hearing sent to the email address that he had previously notified to the Tribunal on his review application.

54    Ms Donald submitted that the following matters also supported a conclusion that the Tribunal had not acted unreasonably in using that email address: the appellant had not notified the Tribunal that he no longer had access to that email address; there was nothing otherwise before the Tribunal that indicated that the appellant did not have access to this email address; and the Tribunal had previously contacted the appellant by email at that address.

55    In addition, Ms Donald submitted that, “read beneficially”, the record of the Dismissal Decision supported the contention that the only inference available was that the appellant had received the notification of the hearing of the review application at the appellant’s nominated email address.

Consideration

56    In order to determine whether the decision by the Tribunal to give the appellant the written statement required under s 426B(2) of the Act by sending it to the appellant’s nominated email address was unreasonable, it is necessary to pay close attention to the material before the Tribunal.

57    The most important evidence before the Tribunal was the Case Note.

58    The Case Note records an “Enquiry By Phone” with a “Date & Time” of “27/03/2017 11:15:00 AM.” The opening sentence of the Case Note states:

The applicant rang to say that he had missed his hearing date today because he had not got the notice, because he had changed his e-mail address recently and had also only just got a new telephone.

59    The time is significant. It is only five minutes after the signed and handwritten notation “11:10” appears next to the handwritten “NO SHOW” on each page of the two pages of the Hearing Record. It might be thought to be a remarkable co-incidence that the appellant, unprompted by some communication from the Tribunal, contacted the Tribunal only five minutes after his application was recorded as having been dismissed to apologise for failing to attend the hearing.

60    In any event, the appellant is recorded as expressly stating “he had not got the notice” because he had changed his email address. In the absence of any information to the contrary, the only logical inference to draw from that notification by the appellant was that he did not have access to the appellant’s nominated email address.

61    Contrary to the submissions made by the Minister, I do not accept that it was reasonably open to the Tribunal to draw an inference that the appellant must have received the notice in order to make the telephone call the subject of the Case Note. It simply does not follow logically that, contrary to the express statement recorded in the Case Note, the appellant must have received the notice in order to know that he had missed the hearing of his review application.

62    The conversation, as recorded in the Case Note, proceeds on the basis that the appellant was ringing to provide an explanation for his non-appearance. The explanation is not sickness, forgetfulness or some form of misadventure. Rather, the explanation provided by the appellant is that he did not receive notice of the hearing because he had recently changed his email address. Given the significance of the review application for the appellant, it would appear unlikely and contrary to the apparent logic of events for the appellant to have received notification of the hearing of the review application at the appellant’s nominated email address, simply forgotten that he had received the notification and then, unprompted, suddenly remembered receiving the notification only five minutes after the Tribunal recorded “NO SHOW” on the Hearing Record.

63    The Dismissal Decision does not assist the Minister. It does not provide any rational basis for the drawing of the inference sought by the Minister The record of the Dismissal Decision, inconsistently with the Case Note, states that:

The applicant telephoned the Tribunal on the morning of the hearing (27 March 2017) and advised that he had missed his hearing date because he had only just received the notice.

64    The Case Note does not record any statement by the appellant that he had received the notice. To the contrary, it expressly records that he had stated that he had not received the notice.

65    Moreover, the record of the Dismissal Decision does not state that the Tribunal has inferred that the appellant must have received the notice in order to be able to contact the Tribunal to explain his non-attendance.

66    In the absence of any indication in the Case Note that the Tribunal officer had sought to clarify the position, I do not consider that it is reasonably open to conclude that a representation to the effect that something had not been received at an email address because of a change in an email address could readily be construed as meaning that a person nevertheless still had access to their former email address.

67    Nor is the existence of previous communications from the Tribunal to the appellant’s nominated email address of any material relevance in the face of the communication recorded in the Case Note.

68    Further, the failure of the appellant to respond to the telephone messages left on 28 and 29 March 2017 does not provide any material support for the reasonableness of the Dismissal Decision. First, the stated purpose of the telephone calls, as recorded in the record of the Dismissal Decision was to “explain that he should provide a written request which would then be considered by the Tribunal”. That request had already been made to the appellant in the course of the telephone call on 27 March 2017. Second, the statutory obligation on the Tribunal was to provide the appellant with a copy of the Dismissal Decision together with a statement of the effect of ss 426A(1B) to (1F) by way of one of the methods stipulated in s 441A of the Act. By reason of s 426B(6) of the Act, the obligation to provide an applicant with a statement describing the effect of ss 426A(1B) to (1F) is inextricably linked with the obligation to provide an applicant with a copy of the written statement of the decision made under s 426B(2).

69    The appellant had also nominated a residential address. Rather than utilising that residential address in the light of the communication by the appellant recorded in the Case Note or asking for his new email address in the course of the telephone call on 27 March 2017, the Tribunal requested he notify them in writing of his new email address and when that written notification was not immediately forthcoming, the Tribunal made the Dismissal Decision and emailed the decision and the statement of the effect of ss 426A(1B) to (1F) to the appellant’s nominated email address in purported compliance with ss 426(B)(5) and (6) of the Act.

70    The Case Note records that the appellant was told by the Tribunal officer that he should make a request in writing for a new hearing explaining why he had not attended as soon as possible and that he should send the request using the quickest method available to him “because a decision may be made in his case soon if he did not contact the Tribunal”. It also records that the appellant “asked about forms and the [Tribunal officer] advised him of the Tribunal’s website, but explained that any written notice that was signed would be sufficient”.

71    It must therefore have been apparent to the Tribunal that, at the time that it made the Dismissal Decision, the appellant had expressly denied receiving notice of the hearing of his review application because he had recently changed his email address. Further, it must have been apparent to the Tribunal that the appellant had provided an oral explanation for his failure to attend the hearing, the appellant wished to confirm that explanation in writing and request a new hearing date and the appellant had not been given any specific deadline by which the written request had to be submitted.

72    Unlike in SZVFW, on no reasonable view was this a case in which there was nothing before the Tribunal to suggest that the appellant had not received the notice of the hearing at a designated address. Further, this was a case in which it would appear from the content of the Case Note that the appellant was seeking to become engaged in the process of pursuing his application for protection, albeit in differing circumstances and involving a different statutory framework to TTY167, where the applicant was already engaged with the process. Nor was this a case in which it could be suggested that the appellant was seeking to rely on any free-standing obligation imposed on the Tribunal to search its records to seek to find another way of communicating with the appellant or to adjourn the hearing.

73    Finally, it is necessary to address the communications between the appellant and the Tribunal following the making of the Confirmation Decision in the event that it might be thought that they might bear on the reasonableness of the decision by the Tribunal to use the appellant’s nominated email address as the mechanism to provide the appellant with the Dismissal Decision.

74    The 20 April Email would appear to be the response by the appellant to the request made on 27 March 2017 for a written explanation of his non-attendance at the hearing that day and for details of his new email address to be provided. Given the content of the email and the use of a different email address for the Tribunal, I am satisfied that it was not a response to the email sent by the Tribunal on 19 April 2017 to the appellant’s nominated email address attaching a copy of the Confirmation Decision. In any event, there was no evidence before the primary judge from which it could be inferred that the email address, “OPNSW Admin” was the same email address as “MRDivision@aat.gov.au”.

75    I note the reference by the appellant in the 20 April Email to “I got the notification about the email”. The meaning of this phrase is not readily apparent. Significantly, the appellant does not state that “I got the email” or “I got the notification in the email”. On balance, it would appear to suggest that he received a communication about “the email” by a different means of communication, such as a text or telephone call.

76    Any residual doubt that the 20 April Email might have been evidence from which it could be inferred that the appellant was still able to access emails sent to the appellant’s nominated email address would appear to be dispelled by the Subsequent Case Note. As noted above, the case note recorded that the appellant advised the officer of the Tribunal in the telephone call on that date that he had “not received his decision as he had forgotten the password to his old e-mail address”.

77    For these reasons, I am satisfied that the decision by the Tribunal to give the appellant the written statement required under ss 426B(2) of the Act by sending it to the appellant’s nominated email address could be appropriately characterised as manifestly unreasonable, so unreasonable as to be irrational or a decision that lacked an evident or intelligible justification. As Kiefel J (as her Honour then was) stated in Li at [76]:

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

[Footnote omitted.]

78    It follows that the Tribunal has thereby fallen into jurisdictional error. Its decision to use the appellant’s nominated email address, in purported satisfaction of the notice requirements in s 426B(5) of the Act did not provide the appellant with a real or meaningful opportunity to make an application for a reinstatement of the review application, pursuant to s 426A(1B), particularly when it also used that email address to provide the statement describing the effect of ss 426A(1B) to (1F). That failure was material. The provision of both a written statement of a dismissal/non-appearance decision and a written statement of the effect of ss 426A(1B) to (1F) is an important element in the statutory regime. It seeks to balance the need for finality with the reasonable protection of the interests of an applicant. If the recipient of a notice of a decision under s 426A(1A)(b) of the Act fails to apply for reinstatement within 14 days after receiving notice of that decision, s 426A(1E) provides that the Tribunal must confirm a decision to dismiss an application. In those circumstances there is no consideration by the Tribunal of the merits of the application or indeed, any consideration of the merits of any explanation from the applicant for their non-attendance at the hearing.

Disposition

79    The appeal is to be allowed and orders are to be made setting aside the orders of the primary judge and remitting the matter to the Tribunal, constituted by a different member, for determination according to law as set out in these reasons.

Associate:

Dated:    10 August 2022