Australian Immigration Daily News

Suppose your client has applied unsuccessfully for a visa.

Suppose further that your client has sought review of the Department’s decision before the Administrative Appeals Tribunal, and then, before the client has been notified of the hearing, has obtained a Bridging Visa B and has gone overseas. 

And suppose that while the client is overseas, the Tribunal finally issues notice of a hearing.

And suppose that the Tribunal is aware that the period during which the Bridging Visa B will be in force will extend beyond the scheduled hearing date. 

In these circumstances, can the Tribunal properly and lawfully fail to exercise its discretion to adjourn or reschedule the hearing, and determine the matter adversely to the client?

These issues were all addressed in a case that was decided in the Federal Court late last year, Malecaj v Minister for Immigration and Border Protection (2016) FCA 1508 (13 December 2016).

The background of this case was that the applicant, an Albanian national, had sought a student visa in order to study English in Australia.  His visa application was refused by the Department. He then applied for merits review to the Tribunal, with that application having been made on 7 May 2013. Although the Tribunal issued an acknowledgement that it had received the application for review on the same day that the application was made, the applicant was sent no further communication from the Tribunal until 17 months later, on 24 September 2014. 

In the meantime, the applicant had obtained a Bridging Visa B, which granted him a travel facility which authorized him to be outside Australia until 1 December 2014.

As mentioned above, the first communication that was sent to the applicant after he had applied to the Tribunal for review of the refusal of his visa application was not issued by the Tribunal until more than a year had passed after the application, on 24 September 2014. 

This communication was in the form of a letter which informed the applicant that a hearing had been scheduled on his case for 31 October 2014.  At the time this letter was sent, the applicant was overseas (under the authority of his BVB), and there was no evidence before the Federal Court that he had ever received the letter.

What happened next was that on 6 October 2014, a staff member of the Tribunal accessed the applicant’s movement details record and discovered that the applicant was not in Australia as of that date, and had not been in Australia on 24 September 2014 when the letter seeking to notify him of the date of the Tribunal hearing had been sent to him.

Then, shortly before the hearing, the Tribunal’s staff attempted to send the applicant 2 text messages to remind him of the hearing date.  These texts were sent on 24 and 30 October 2014 (the last text was sent the day before the scheduled hearing). However, both text messages “failed”, and the Tribunal was aware that this had occurred.

The applicant did not appear before the Tribunal on the scheduled hearing date of 31 October 2014. The Tribunal then recorded the applicant as a “no show” and proceeded to make a decision on the review application without taking any further action to allow or enable the applicant to appear.

The only reason given by the Tribunal for refusing to adjourn or reschedule the hearing was that the applicant had not attempted to contact the Tribunal to explain why he could not attend the scheduled hearing.

In this particular fact scenario, the Federal Court concluded that the Tribunal’s failure to grant an adjournment or to reschedule the hearing was legally unreasonable, because the outcome of this decision was that it denied the applicant of a meaningful chance to present his case.

So the moral of this case is that if the Tribunal is actually aware that an applicant is overseas on a valid bridging visa, but then proceeds to determine the applicant’s review application without rescheduling or adjourning the hearing, then it may fall into jurisdictional error.  And this is true even if the applicant does not contact the Tribunal to explain why he or she may not be able to attend the hearing.

This seems only fair, doesn’t it? If an applicant is overseas on a BVB and does not receive notice of a hearing date, and also doesn’t receive attempted text reminders from the Tribunal about the hearing, and the Tribunal is aware that these reminders have not reached the applicant, isn’t it simply basic justice in these circumstances for the Tribunal to adjourn or reschedule the hearing?

And if you have a client who finds her/himself in this circumstance, and has had their application for merits review dismissed by the Tribunal, then there is very likely a remedy available to the client, who is to go to the Federal Circuit Court and seek to have the dismissal of the application quashed.

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