AZC23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1208
•14 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AZC23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1208
File number(s): BRG 169 of 2023 Judgment of: JUDGE EGAN Date of judgment: 14 November 2024 Catchwords: MIGRATION LAW – Where the Tribunal cancelled a hearing based upon the alleged consent of the applicant – where the consent relied upon by the Tribunal was said to have arisen out of a conversation conducted in the English language between a Tribunal member fluent in English and the applicant who required a Vietnamese interpreter when responding to questions put to him in English, but who was not relevantly assisted by an interpreter during the conversation – where applicant was denied an opportunity to appear before the Tribunal, give evidence, and make submissions – jurisdictional error established – application granted. Legislation: Migration Act 1958(Cth) s.65, s.425 Cases cited: Minister for Immigration, Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572
Minister for Immigration and Multicultural and Indigenous Affairs v Scar (2003) 128 FCR 553
Division: Division 2 General Federal Law Number of paragraphs: 14 Date of last submission/s: 11 November 2024 Date of hearing: 11 November 2024 Place: Brisbane Counsel for the Applicant: Mr G. Rebetzke of Counsel Solicitor for the Applicant: Taylor Rose Counsel for the Respondents: Mr D. Freeburn of Counsel Solicitor for the Respondents: Clayton Utz ORDERS
BRG 169 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZC23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
14 NOVEMBER 2024
IT IS ORDERED THAT:
1.The name of the First Respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The name of the Second Respondent be changed to “Administrative Review Tribunal”.
3.A writ of certiorari issue quashing the decision of the Administrative Review Tribunal made on 16 March 2023.
4.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to determine according to law the Applicant’s Application for Review of the Second Respondent’s decision, and that the matter be remitted to the Administrative Review Tribunal for re-determination.
5.For the purpose of the Administrative Review Tribunal again re-determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 16 March 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
The Applicant is a citizen of the Republic of Vietnam who applied for a protection visa pursuant to the provision of s. 65 of the Migration Act 1958(Cth) (the Act) on 2 December 2016.
Matters of relevance in this proceeding are as follows:
a.In his protection visa application at Q. 41, the applicant nominated a migration agent’s email address as the address via which the Department might communicate with him. [1]
[1] Court Book (CB) p. 5.
b.At Q. 101 of the visa application, the applicant indicated that he had received assistance from an interpreter when filling out the visa application form. [2]
[2] CB p. 25.
c.Annexed to the visa application was a translation of a statement made by the applicant in the Vietnamese language, as well as the original statement. [3]
[3] CB pp. 27 – 28.
d.On 27 November 2017, the Department wrote to the applicant requesting him to attend an interview at the Melbourne offices of the Department. In that letter, the applicant was advised that a Vietnamese speaking interpreter would be present at the interview.[4]
[4] CB pp. 69 – 70.
e.The Department at all relevant times appreciated that the applicant required the services of an interpreter, and that a migration agent trading under the name Global Move Services Pty Ltd was acting on behalf of the applicant. [5]
[5] CB p. 110.
f.It was submitted by Counsel on behalf of the applicant, and accepted by Counsel for the first respondent, that at the time of the protection visa interview before the delegate, the applicant had a Vietnamese interpreter present for translation purposes.
g.By written reasons dated 22 February 2018, a delegate of the Minister refused the visa application, finding that the Australian Government did not owe any protection obligations to the applicant. [6]
[6] CB pp. 112 – 122.
h.The applicant appointed Global Move Services Pty Ltd as his authorised representative for the purpose of his applying to the Administrative Appeals Tribunal (the Tribunal) for the review of the decision of the delegate. [7]
[7] CB pp. 123 – 124.
i.On 16 March 2018, an application for review of the decision of the delegate was lodged with the Tribunal. [8]
[8] CB pp. 125 – 127.
j.On 20 March 2018, the Tribunal acknowledged receipt of the application for review. [9]
[9] CB pp. 130 – 138.
k.By letter dated 25 September 2020, the applicant was advised by the Department that his application for a bridging visa had been granted. [10] That letter was sent to the applicant’s new residential address, being an address in the Brisbane suburb of Inala. [11]
[10] CB pp. 179 – 180.
[11] CB p. 177.
l.On 24 June 2022, the Tribunal sent email correspondence to Global Move Services Pty Ltd inviting the applicant to attend a hearing before it. Annexed to that email was a form titled “Response To Hearing Invitation”. [12]
[12] CB pp. 184 – 198.
m.By an email dated 24 June 2022, one Mr Khan of Global Move Services Pty Ltd advised the Tribunal that the applicant had transferred his representation to another migration agent, details of whom were provided to the Tribunal. [13]
[13] CB p. 200.
n.On 7 July 2022, the applicant emailed the Tribunal and provided the Tribunal with a form titled "Change of Contact Details – MR Division” in which the applicant provided his residential address as one at Bli Bli in Queensland, his mobile number, and his personal email address. [14]
[14] CB pp. 213 – 218.
o.Also attached to the 7 July 2022 email was a Response To Hearing Invitation which was internally contradictory on the question as to whether the applicant intended to personally appear before the Tribunal at a hearing, or whether the applicant was agreeing to the Tribunal proceeding on the basis of the material before it in the absence of the applicant. In answer to Question A on Part 1 of the form, when asked whether the applicant would take part in hearing scheduled for 21 July 2022, the applicant ticked the box which read “No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear.” However, in answer to Question C of Part 2 of the form, when asked whether he required an interpreter during the course of the hearing, the applicant ticked the box and inserted the word “Vietnamese”, then reading “Yes (please specify the language/s … Vietnamese … )”. [15]
[15] CB pp. 214 – 215.
p.On 8 July 2022, a Tribunal officer, having been confronted with the internally inconsistent response to hearing form, telephoned the applicant so as to clarify, inter alia, what the applicant’s intentions were as to whether or not he would be personally appearing at the Tribunal hearing. The relevant part of the Tribunal officer’s case note, which recorded, from the officer’s perspective, what transpired, and what was said during the conversation, was as follows: [16]
[16] CB p. 244.
Called PRA at 4:04pm on 0432888189 to clarify hearing response and change in name. Identity confirmed (case number, name and DoB). I asked the PRA if he could confirm his full name. PRA stated that he accidentally wrote his name as "XXXX" on the MR6 form submitted to the Tribunal. PRA confirmed that his full name is "XXXX” as currently on file. PRA apologised for the mix up. I stated that I would proceed to update the PRA's other details as outlined in the MR6. PRA acknowledged this.
I also explained I was calling to clarify his response to hearing invitation form also submitted on 7.7.22. I noted that the PRA had ticked "No" to attending the scheduled hearing. I asked if the PRA could confirm his instruction regarding this. PRA said this was correct and that he would not be attending the hearing. I asked if the PRA understood that this would mean that the hearing would be cancelled and the Tribunal would proceed to make a decision on the papers. PRA said "yes".
I stated that I would send the PRA an email requesting he confirm this in writing. PRA said he would respond to the Tribunal's email. I asked if the PRA had any questions. PRA said he did not. Call ended with thanks.
q.On 8 July 2022, the Tribunal officer who had spoken to the applicant that day emailed the applicant and attached which provided as follows: [17]
[17] CB pp. 220 – 221.
Dear Mr XXXX (name omitted)
RESPONSE TO HEARING AND CLARIFICATION OF NAME – MR XXXX
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.
Thank you for your time over the phone today Friday 8 July 2022.
As discussed over the phone, the Tribunal refers to your email correspondence attaching your response to hearing invitation form dated 5 July 2022. The Tribunal notes that you have advised that you do not wish to attend the hearing and consent to the Tribunal making a decision on the papers without taking further steps to allow you to appear.
If you consent to the Tribunal deciding your review without a hearing -
•you will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case.
•our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker. Accordingly you should provide us with any additional information you would like us to consider in your case without further delay. Please see our Information about Decisions fact sheet for more information about different types of decisions and what happens once our decision has been made.
Please confirm by reply email by 5pm Monday 11 July 2022 that you consent to the Tribunal deciding the review without a hearing.
As also discussed over the phone, the Tribunal currently has your full name listed as “XXXX”. Please also confirm by reply email by 5pm Monday 11 July 2022 that this is the correct spelling of your name.
If you have any questions, please email [email protected], or contact me on thenumber listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
Yours sincerely
Fil R
For the Registrar
Telephone: 03 9454 6100
r.The nominated time for confirmation by return email was 5:00 pm on July 2022, but because there was no confirmation response provided by the applicant by that time and date, the same Tribunal officer sent an email to the applicant on 15 July 2022 which provided as follows: [18]
[18] CB p. 222.
Dear Mr XXXX,
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
The Tribunal refers to your response to hearing invitation form dated 5 July 2022. The Tribunal also refers to the phone conversation had with you on 8 July 2022.
As you have consented to the Tribunal deciding the application for review without conducting a hearing, you will not be invited to attend a hearing to give evidence and present arguments relating to the issues in this case. Our decision will now be made based on the information and evidence currently before us, and we may consider criteria or issues that were not previously considered by the primary decision maker. You should provide us with any additional information you would like us to consider in your case without further delay.
Accordingly the In-person Hearing scheduled for 9:00 am (AEST) on 21 July 2022 has now been cancelled and your attendance at the hearing is now no longer required.
If you have any questions, please contact us immediately at [email protected], or call 1800 228 333.
Please refer to the AAT website for information about temporary changes in place to respond to the impact of COVID-19 on services: sincerely
Fil R
For the Registrar
(underlining inserted)s.On 17 March 2023, the Notice of Decision was emailed to the applicant together with the written reasons of the Tribunal. The Tribunal had affirmed the decision of the delegate.
GROUNDS OF REVIEW
On 28 February 2024, the Applicant filed an Amended Application for Review, the grounds of which were as follows:
1.The Applicant was denied procedural fairness.
Particulars
a. The Applicant was denied an opportunity to be heard by the Tribunal by reason of the Tribunal’s cancellation of a hearing and determination of the review on the papers.
b. The Tribunal’s cancelation of the hearing was due to a common misunderstanding as to whether the Applicant understood that he was consenting to the Tribunal cancelling the oral hearing and would determine the review solely on the papers;
c. The misunderstanding arose as a result of the Tribunal using the English language to communicate with the Applicant;
d. The Tribunal was on notice that the Applicant required a Vietnamese interpreter.
2.In the alternative to ground 1, the Tribunal’s decision was unreasonable by reason of its decision to cancel the oral hearing and determine the review on the papers.
Particulars
a. The Applicant stated the need for an interpreter in the Vietnamese language in the Application for Review lodged with the Tribunal on 16 March 2018;
b. The Tribunal subsequently communicated with the Applicant directly in writing and orally in the English language without a Vietnamese interpreter;
c. The responses provided on the “Response to hearing invitation” (a form in the English language” contained contradictory answers to questions 1A and 2C with respect to the Applicant’s intention to participate in a hearing;
d. The Tribunal’s wrote to the Applicant (in English) 8 July 2022 requiring the Applicant to confirm by return email by 11 July 2022 the Tribunal’s (mis)understanding that he had consented to the Tribunal deciding the review without a hearing;
As to Ground 1, the claim of procedural unfairness was made in the context of the applicant claiming protection from harm should he be returned to Vietnam. It is trite that if an applicant wished to impress upon a Tribunal member the seriousness of the consequences to them if returned to their home country, the best way of their doing so would be to personally appear before the Tribunal, at a hearing, and implore the Tribunal member to find in their favour. In the Vietnamese translated affidavit of the applicant filed on 28 February 2024, [19] at [9] – [15] thereof, the applicant explained how, when ticking the “No” box, he intended to convey that he could not attend the hearing in Melbourne because he was no longer residing there [20], and how he did not appreciate that it was not an adjournment of the hearing that was being discussed during the telephone conversation with the Tribunal officer, but rather the cancellation of the hearing. Otherwise, the applicant reiterated in his affidavit that he had clearly articulated in the Response To Hearing Form that he required a Vietnamese interpreter to be present at any hearing before the Tribunal. The Court finds such explanations to be logical and plausible. The applicant was not required for cross-examination on any issue.
[19] See Vietnamese interpreter’s certification on page 6 of the applicant’s affidavit.
[20] See Change of Contact Details Form at CB pp. 217 – 218 dated 5 July 2022 which indicated that the
Further, the Court finds that in circumstances where the Tribunal was in possession of relevant documentation which clearly indicated that the applicant had previously required the assistance of a Vietnamese interpreter on all occasions, it was unreasonable for the Tribunal officer to have sought to extract important information from the applicant without first arranging for a Vietnamese interpreter to at least participate in the conversation for the purpose of clarifying what the applicant’s actual intentions were regarding any appearance before the Tribunal at a hearing. It flies in the face of common sense and practical reality for the conversation to have been conducted solely in English when the applicant clearly lacked an understanding of the English language.
The Court does not accept the submissions made by Counsel for the Respondent to the effect that the applicant had at least twice agreed to the holding of a hearing in his absence. There was no reasonable basis for the making of such submissions. It is a fundamental right of an applicant under the provisions of s. 425 of the Act to personally appear before the Tribunal, give evidence, and present arguments. If there was some concern on the part of the Tribunal as to whether there was some ambiguity as to whether or not an applicant had consented to the Tribunal making a decision in his absence, the Court holds that the Tribunal ought to have taken the prudent step of engaging an interpreter for the short period of time required to resolve the ambiguity. Had that been done, the hearing before the Court would most likely not have occurred.
The assumption in the Tribunal’s email of 15 July 2022 that the applicant had, based upon the conversation with the Court Officer on 8 July 2022, “ … consented to the Tribunal deciding the application for review without conducting a hearing …” was likewise unreasonable for the same reasons as found above.
Had the applicant been given the opportunity to appear before the Tribunal at a hearing, the applicant could realistically have swayed the Tribunal member into arriving at a different and favourable decision. The provisions of s. 425 of the Act are important. As was held by Gray, Cooper and Selway JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Scar (2003) 128 FCR 553 at [35] - [38]:
35.Section 425 is not a code setting out all of the requirements for a fair hearing by the Tribunal. For example, s 425 is directed to the invitation, rather than the hearing itself – this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s 425. This does not mean that there is no such obligation – only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that the Parliament has made compliance with s 425 of the Act a necessary condition and element of a fair hearing by the Tribunal.
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. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
38. It is clear from its terms that compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal’s jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a ‘jurisdictional error’.
At the least, the ambiguity in the Response To Hearing form received by the Tribunal should have put the Tribunal on inquiry. In Minister for Immigration, Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 at [72] and [74], the Court (Spender, French and Cowdroy JJ) found as follows:
72. As a prudential measure the Tribunal might be well advised, where an applicant apparently consents through an agent to a decision being made without a hearing, to require that the applicant’s signature appear on any such written advice together with a verifying statement that the applicant has read the invitation and the proposed response or had it interpreted into the applicant’s own language. In this case there is room for the argument that the Tribunal should have been put upon inquiry by the sudden apparent reversal of the applicant’s attitude to participation in a hearing between the hearing as originally scheduled and the rescheduled hearing.
73. To the extent that there is any analogy to be drawn from the common law of procedural unfairness, the general position in Australia is that it is not necessary to show fault on the part of a decision-maker in order to establish procedural unfairness. That is subject to the qualification that there must be more than unfairness which is purely the fault of the affected party’s own legal advisers – Aronson, Dyer and Grove, Judicial Review of Administration Action (3rd ed, Thomson Law Book Co 2004) (at 461). As Gleeson CJ said in Hot Holdings Pty Limited v Creasy and Others (2002) 210 CLR 438 ‘procedural unfairness can occur without any personal fault on the part of the decision-maker’ (448). And in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28, Gray ACJ and North J said at 38:
‘The fact that the Tribunal is unaware of the absence of notice to the applicant when it made its decision does not negate the denial of procedural fairness. It is not a necessary element of a denial of procedural fairness that it be the result of intentional conduct, or even of negligence. It is enough that it occurred.’
Gyles J agreed with the substance of the joint judgment.
74. In the present case the hearing requirements for procedural fairness are as prescribed in the statute. An effective consent or non-attendance by an applicant at a scheduled hearing are alternative necessary conditions of the Tribunal’s power to determine an application without a hearing. Absent an effective consent, the condition under which the Tribunal may treat the applicant as disentitled from a hearing is not satisfied.
The Court finds that there was no true consent on the part of the applicant for him not to appear personally before the Tribunal at a hearing, and that the Tribunal ought to have appreciated that.
Grounds 1 and 2 of the Amended Application for Review have been made out.
The applicant has established jurisdictional error on the part of the Tribunal.
The decision of the Tribunal is accordingly quashed.
The Court will hear the parties as to costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 14 November 2024
applicant was then living at Bli Bli in Queensland.
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