Federal Court. In determining under s 362B(1C)(a) of the Migration Act 1958 (Cth) whether it was "appropriate" to re-instate a Tribunal application dismissed for non-appearance at the hearing, were "the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at a hearing, the explanation for it", relevant considerations?
Section 362B provided:
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.
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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.
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(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.
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Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In determining under s 362B(1C)(a) of the Migration Act 1958 (Cth) whether it was "appropriate" to re-instate a Tribunal application dismissed for non-appearance at the hearing, were "the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at a hearing, the explanation for it", relevant considerations?
Question 2: In the same context, is the question of whether the relevant party has provided a “reasonable excuse for their absence at the hearing” a mandatory consideration?
Question 3: In deciding under s 362B whether to dismiss a review application for non-appearance, is the sole determining factor the applicant’s non-appearance?
Question 4: Was the major determinant of whether a Tribunal application should be reinstated whether there existed a reasonable explanation for the applicant’s non-appearance?
Question 5: Is it "difficult to think of circumstances in which an application would be reinstated in the absence of such explanation"?
Question 6: If a reasonable explanation for the non-appearance is provided, does it automatically follow that reinstatement will occur?
Question 7: Can it be said that "medical certificates must address the critical question of whether, and if so why, the medical condition in question would prevent the “sufferer” from travelling to court and participating effectively in a hearing" before the Tribunal?
Question 8: Should a medical certificate provide reasons to allow the Tribunal to form its own view about the reliability of the opinion of the certifying doctor?
The FCA answered those questions as follows: