Federal Court. Can it be said that, "if an applicant fails to appear at a scheduled hearing, the Tribunal has three options: (i) to proceed to make a decision on the review (s 426A(1A)(a)); (ii) to dismiss the application “without any further consideration of the application or information before the Tribunal” (s 426A(1A)(b)); or (iii) to adjourn the review and reschedule the hearing (ss 426A(2) and 427(1)(b))"? If so, must its decision nevertheless have an evident and intelligible justification?
The Federal Court (FCA) said as follows:
1 The appellant failed to appear at a scheduled hearing before the Administrative Appeals Tribunal on an application for review of a decision of a delegate of the first respondent (the Minister) to refuse to grant him a Protection (Class XZ) visa. The Tribunal exercised its discretion under s 426A(1A)(a) of the Migration Act 1958 (Cth) to make a decision on the review without taking any further action to allow or enable the appellant to appear before it, and affirmed the delegate’s decision not to grant the appellant a protection visa.
2 The appellant sought judicial review of the Tribunal’s decision on the ground that the Tribunal acted unreasonably in proceeding to make a decision on the review by affirming the refusal decision, rather than exercising its powers to adjourn the review or to dismiss the application pursuant to s 427(1)(b) or s 426A(1A)(b) of the Migration Act respectively, which would have given the applicant anopportunity either to appear at a rescheduled hearing or to apply for the reinstatement of the review application. Alternatively, healleged that the Tribunal acted unreasonably and failed to comply with s 426 of the Migration Act by not having regard to his response to the hearing invitation in which he had given written notice that he wished to appear at the hearing and to give oral evidence on the review.
...
4 On this appeal from the decision of the Federal Circuit Court, the appellant presses his grounds that the Tribunal acted unreasonably in the ways set out in paragraph 2 above. Accordingly, the questions for determination are:
(a) first, was the Tribunal’s decision legally unreasonable on the basis that the Tribunal failed to exercise, or to consider the exercise of, its powers to adjourn the review under s 427(1)(b) or to dismiss the review under s 426A(1A)(b) of the Migration Act; and
(b) secondly, was the Tribunal’s decision legally unreasonable on the basis that it failed to have regard to a written notice given by the appellant under s 426(2) of the Migration Act?
Some of the questions to the FCA were as follows:
Question 1: Is it implied that, if none of the specified exceptions referred to at s 425(3)(c) of the Migration Act 1958 (Cth) apply and a hearing invitation is required, an applicant is entitled to appear before the Tribunal to give evidence and present arguments?
Question 2: Can it be said that, "if an applicant fails to appear at a scheduled hearing, the Tribunal has three options: (i) to proceed to make a decision on the review (s 426A(1A)(a)); (ii) to dismiss the application “without any further consideration of the application or information before the Tribunal” (s 426A(1A)(b)); or (iii) to adjourn the review and reschedule the hearing (ss 426A(2) and 427(1)(b))"?
Question 3: May be Tribunal's power under s 427(1)(b) to adjourn the review from time to time be exercised in advance of a scheduled hearing as well as after the applicant fails to appear at a hearing as and when it is scheduled?
Question 4: Once the Tribunal makes a written statement of decision under s 430, is that decision final? In other words, is the Tribunal functus officio, with the result that its decision cannot be reopened?
Question 5: Although the requirement in s 430(1)(c) and 430(1)(d) to set out findings on material questions of fact and supporting evidence applies to a written statement to affirm a dismissal, would the material facts in relation to a decision of this kind presumably focus on the procedural history as opposed to the substantive merits of the visa application?
Question 6: If the Tribunal decides to reschedule the applicant’s appearance before it, and to delay its decision on the review in order to enable the applicant’s appearance at the rescheduled hearing, would s 426A no longer apply unless and until the applicant does not appear before the Tribunal at the rescheduled hearing?
Question 7: If the Tribunal is not required to invite the applicant to appear before the Tribunal, and has therefore not given notice of a scheduled hearing under s 425A, can it be said that "the power to dismiss the application under s 426A(1A)(b) will not be enlivened and the Tribunal will be required to make a decision on the review based on the material before it"?
Question 8: If the answer to Question 2 is 'yes', must the decision by the Tribunal nevertheless be made within the bounds of legal reasonableness, and must it have an evident and intelligible justification?
Question 9: When exercising the discretion under s 426A(1A) to make a decision on the review without taking any further action to allow or enable the applicant to appear before it, is the Tribunal necessarily also declining to take the alternative option of dismissing the application without any further consideration of the application or information before it?
Question 10: Is the availability of the dismissal power under s 426A(1A)(b) a mandatory relevant consideration in the exercise of the power to decide the review under s 426A(1A)(a), and vice versa?
Question 11: Can the reasons for adopting one option often be regarded as encompassing the reasons for not adopting the other option?
Question 12: Can it be said that "any additional information in support of a reinstatement application would not be limited to establishing a valid reason for non-attendance at the hearing, and could include additional details of the protection claims"?
Question 13: In a hearing invitation form sent by the Tribunal, the appellant responded 'yes' to a question of whether he would give evidence and 'no' to a question of whether he requested the Tribunal to call any witnesses to give evidence. Can it be said that "s 426(2) permits a review applicant to name themselves as a person from whom they want the Tribunal to obtain evidence, and the Tribunal is bound to have regard to the applicant’s wishes in that regard"?
Question 14: Is a review applicant required to give notice that he or she wishes to give evidence?
The FCA answered those questions as follows: