DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 299
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 299
File number: MLG 2702 of 2022 Judgment of: JUDGE FORBES Date of judgment: 26 April 2023 Catchwords: MIGRATION – Application for judicial review of decisions of Administrative Appeals Tribunal – extension of time to seek judicial review – duty of Secretary to give the Tribunal documents considered relevant to Tribunal’s review of delegate’s decision – where Secretary had document recording that applicant in prison – where Secretary failed to form opinion about whether document relevant to review – where Tribunal unaware of document – Tribunal sent invitation to email address notified by applicant – where Tribunal dismissed application for non-attendance – whether Secretary’s non-compliance with s 418(3) led to jurisdictional error by Tribunal – whether late amendment to application should be allowed – no error found Legislation: Migration Act 1958 (Cth), s 36, 418, 425, 426, 430, 441, 477
Federal Circuit and Family Court of Australia Act 2021 s 109(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, R1.04
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175
Applicant S1693 of 2003 v Refugee Review Tribunal [2004] FCA 1512 at [41]
Applicants S487 of 2022 v Minister for Immigration and Multicultural and Indigenous Affairs [2023] FCA 1309
CLK21 v Minister for Home Affairs [2022] FCAFC 70
CNY17 v Minister for Immigration (2019) 268 CLR 76
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12
Kaur v Minister for immigration and Border Protection (2017) 256 FCR 235
Minister for Immigration and Citizenship v Le (2007) 164 FCR 151
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
SZNZK v Minister for Immigration and Citizenship [2010] FCA 651
SZOIN v Minister for Immigration and Citizenship [2011] 191 FCR 123WAGP v Minister for Immigration and Multicultural and Indigineous Affairs [2006] FCAFC 103
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 28 March 2023 Place: Melbourne Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the Applicant: Mr Guo Solicitor for the Respondent: Australian Government Solicitor Counsel for the Respondent: Mr Hosking ORDERS
MLG 2702 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXF22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
26 april 2023
THE COURT ORDERS THAT:
1.The time for the making of an application for judicial review of the dismissal decision made by the Administrative Appeals Tribunal on 1 November 2021 and the confirmation decision made by the Tribunal on 17 November 2021 be extended to 13 December 2022.
2.The oral application made during the hearing on 28 March 2023 to further amend the amended application for judicial review filed on 20 March 2023 is refused.
3.The application for judicial review of the Tribunal’s decisions is dismissed.
4.The applicant pay the First Respondent’s costs of the proceeding fixed at $8,371.
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 FORBES
INTRODUCTION
By an amended application filed on 20 March 2023 the applicant seeks judicial review of two decisions of the Administrative Appeals Tribunal, namely:
(a)a decision made by the Tribunal on 1 November 2021, by which the Tribunal exercised its power under s 426A(1A)(b) of the Migration Act 1958 (Cth) (Act) to dismiss the applicant’s application for review of a decision of a delegate of the Minister refusing to grant the applicant a protection visa (the dismissal decision); and
(b)a subsequent decision made on 17 November 2021, by which the Tribunal confirmed the dismissal decision in accordance with s 426A(1E) of the Act (the confirmation decision).
The application for judicial review of the confirmation decision was filed with the Court on 13 December 2022, just over 12 months beyond the statutory time limit set by s 477(1) of the Act. In his application, the applicant sought an extension of time.
By an affidavit sworn on 14 March 2023 the applicant’s solicitor Ms Svehla deposed to instructions received from the applicant about the reasons for delay in making his application for judicial review. Those reasons included that the applicant had encountered difficulties obtaining legal assistance, that he had been in immigration detention for much of the time and unable to access his mobile phone and that he had been awaiting documents in response to a Freedom of Information application. Having regard to the explanation given for the delay, the first respondent (Minister) did not oppose the grant of an extension of time. I am satisfied that it is necessary in the interests of the administration of justice to make an order extending the period within which a judicial review application may be made.
On 28 February 2023 I made orders by consent requiring the applicant to file and serve any amended originating application by no later than 14 March 2023.
On 20 March 2023 the applicant amended his application to seek judicial review of both the dismissal decision and the confirmation decision. No objection was taken to this late amendment. However, as I discuss below, the Minister did oppose an oral application made by the applicant during the hearing to amend the application to add a further ground of review.
FACTUAL BACKGROUND
The chronology is largely uncontentious and is informed by documents in the joint court book filed by the parties and some further documents annexed to the affidavit of the applicant’s solicitor sworn 14 March 2023 (Svehla affidavit).
Based on the written submissions filed on behalf of the applicant and the Minister the following matters are not contested, unless I state otherwise.
The applicant is a citizen of Thailand[1].
[1] Court Book (‘CB’) 22
On 8 November 2018, the applicant applied for a protection visa[2].
[2] CB 14 – 47
On 20 January 2020, a delegate of the Minister refused the application on the basis that the applicant did not satisfy the refugee criteria in s 36(2)(a) or the complementary protection criteria under s 36(2)(aa) of the Act[3].
[3] CB 60 – 70
On 5 February 2020 the applicant applied to the Tribunal for review of the delegate’s decision[4]. In his application to the Tribunal for review, the applicant provided a postal address and an email address[5].
[4] CB 71 – 72
[5] CB 72
On the same date, the Tribunal sent the applicant a letter acknowledging the fact of his application[6]. The Tribunal sent that letter to the email address provided by the applicant in his application for review. Among other things, the Tribunal’s communication to the applicant included the following caution:
It is important that you:
tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;
tell us immediately if your personal circumstances change and this is relevant to the review of the decision;
use your case number [omitted] when you contact us.
[6] CB 74 – 75
On 23 October 2020, the applicant was arrested and taken into the custody of Corrective Services NSW[7].
[7] Affidavit of the applicant sworn 12 December 2022 at [6]
On a date no later than 2 November 2020[8], Corrective Services NSW provided to the Department of Home Affairs (Department) a spreadsheet document which informed the Department that the applicant was in custody[9]. That spreadsheet document identified the name of the applicant, his date of birth, the date he was taken into custody, the alleged offences and his remand location. Pages of the document are redacted and I infer that the applicant was one of many names on the spreadsheet.
[8] Amended Statement of Agreed Facts dated 21 March 2023
[9] Svehla affidavit, annexure ES-4
It appears that the Department amended its contact details for the applicant sometime after the receipt of this information. A client contact list recently obtained by the applicant’s solicitor following a freedom of information request[10] indicates that the Department of Home Affairs recorded the applicant’s address between 1 March 2021 to 23 May 2022 as ‘Corrective Services NSW Sydney’, although it is not clear when this record was made.
[10] Svehla affidavit, annexure ES-5
On 14 October 2021, pursuant to s 425(1) of the Act, the Tribunal invited the applicant to a hearing to be held on 1 November 2021 at which the applicant could give evidence and present arguments[11].
[11] CB 77 – 78
As to the notice to be given to the applicant of the hearing, s 425A of the Act relevantly provided that:
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
Section 441A prescribes the methods by which the notice of the hearing must be given to an applicant where, as here, the applicant was not in immigration detention. Relevantly, s 441A states:
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.
…
Giving by hand
(2)One method consists of a member or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to the recipient.
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
(e)if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.
(emphasis added)
The notification of the hearing was sent to the applicant at the email address he provided in his application to the Tribunal. By sending a notice of the hearing to that email address, the Tribunal met the requirements of ss 425A and 441A of the Act.
On 14 October 2021 the applicant was still in prison. The applicant’s evidence is that he did not receive the hearing invitation[12]. His solicitor has deposed that prisoners do not have general access to the internet[13].
[12] Applicant’s affidavit at [7] – [9]
[13] Svehla affidavit, annexure ES-3
The applicant did not appear at the Tribunal hearing on 1 November 2021[14] The Tribunal marked the applicant as a “no show” on that day[15].
[14] CB 90 – 92, 104
[15] CB 93
Section 426A of the Act is engaged when an applicant has been invited to attend a hearing but does not appear. Relevantly, s 426A states:
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:
(a)by written statement under section 430, 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 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
…
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 426B, apply to the Tribunal for reinstatement of the application.
…
(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.
…
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
…
Other measures to deal with failure of applicant to appear
(2)This section does not prevent the Tribunal from rescheduling the applicant’s delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
On 1 November 2021, the Tribunal dismissed the applicant’s merits review application without further consideration pursuant to s 426A(1A)(b) of the Act on the basis of his non-appearance.
The following day, the Tribunal sent its decision record and a fact sheet headed “Information About Dismissal of Applications”[16] to the email address provided by the applicant in his application for review. The fact sheet which accompanied the decision record informed the applicant of his right under s 426B to apply to the Tribunal for reinstatement of the application and, absent an application for reinstatement, that the decision to dismiss the application must be confirmed.
[16] CB 98 – 99
The Tribunal also sent its decision record to the Secretary of the Department as it was obliged to do under s 430A(2) of the Act[17].
[17] Svehla affidavit, annexure ES-6
The applicant’s evidence is that he did not receive the Tribunal’s dismissal decision because he was still in prison.
The applicant did not apply for reinstatement of his application for review of the delegate’s decision.
On 17 November 2021, the Tribunal confirmed the dismissal decision pursuant to s 426A(1E) of the Act[18]. The Minister contends that this was the only course open to the Tribunal in circumstances where the applicant had not applied for reinstatement within 14 days of the dismissal decision.
[18] CB 100 – 103
The Secretary of the Department did not at any time prior to the Tribunal’s confirmation decision on 17 November 2021 form an opinion about whether the spreadsheet document received from Corrective Services NSW was relevant to the Tribunal’s review of the delegate’s decision made on 20 January 2020 to refuse to grant the applicant a protection visa. The Tribunal was not aware of the spreadsheet document at the time it made the dismissal decision or the confirmation decision.
The applicant was released from prison in late May 2022 and is currently in immigration detention.
GROUND OF JUDICIAL REVIEW
By his Amended Application filed on 20 March 2023, the applicant contends that the Tribunal’s dismissal decision and confirmation decision were affected by jurisdictional error on the basis that:
(1)the Secretary of the Department breached his duty in s 418(3) of the Act to form an opinion on the relevance to the Tribunal’s review of a document in his possession which indicated that the applicant had been taken into the custody of Corrective Services NSW; and
(2)the failure of the Secretary to form an opinion on the relevance of the document disclosing the applicant’s whereabouts affected the way in which the Tribunal contacted the applicant under ss 425A(2) and s 426B(5)-(6) of the Act prior to each decision and that but for the failure, the Tribunal would not have contacted the applicant by unanswerable email.
Further or alternatively, the applicant also contends that the Tribunal’s decisions were affected by jurisdictional error on the basis that the Tribunal failed to make an obvious inquiry, namely an inquiry of the Secretary as to the applicant’s whereabouts which, if made, would have revealed that the applicant had been taken into custody and was not contactable by email.
Relevant concessions
Section 418 of the Act relevantly provides as follows:
(1)If an application for review is made to the Tribunal, the Registrar must, as soon as applicable, give the Secretary written notice of the making of the application;
(2)….
(3)The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
It is an agreed fact[19], the Department was in possession of the Corrective Services NSW spreadsheet on a date no later than 2 November 2020 and that the document would have disclosed that the applicant was in custody.
[19] Amended Statement of Agreed Facts dated 21 March 2023
The Minister accepts that the Secretary did not form an opinion about whether the spreadsheet document received from Corrective Services NSW was relevant to the Tribunal’s review. The Minister also accepts that this constituted a failure by the Secretary to comply with s 418(3) of the Act in relation to the Tribunal’s review of the delegate’s decision[20]. It is also conceded that the requirement to comply with s 418(3) is an ongoing obligation and continues until the completion of the Tribunal’s review[21].
[20] Minister’s outline of submissions at [4], [33]
[21] Minister’s outline of submissions at [14]
The Minister does not concede, however, that the Tribunal’s decisions were affected by jurisdictional error by reason of that failure[22].
[22] Minister’s outline of submissions at [29]
The Minister acknowledges that the spreadsheet could reasonably have been considered to be relevant to the Tribunal’s review because it may have informed the Tribunal’s exercise of its discretion, including the power in s 426A(1A) to dismiss an application where the applicant fails to appear at a hearing. The Minister concedes that if the Tribunal had been aware that the applicant was in custody at the date of the hearing of the review application, it might have chosen to take a different course other than dismissing the application under s 426A(1A)(b).
However, for the avoidance of doubt, the Minister does not concede that the spreadsheet was objectively relevant to the Tribunal’s review or that would have been legally unreasonable for the Secretary to form the opinion that the spreadsheet was not relevant to the review. The Minister submits that establishing materiality of the Secretary’s breach does not of itself give rise to jurisdictional error.
Applicant’s submissions
The applicant submits that pursuant to section 418 the Secretary of the Department was required not only to form an opinion about whether the spreadsheet document received from Corrective Services NSW was relevant to the Tribunal’s review but was also subject to a duty to give the document to the Tribunal if the Secretary considered the document to be relevant.
The applicant submits that having received the spreadsheet document from Corrections NSW the Secretary “at least constructively knew” that the applicant was in custody. The applicant submits that the constructive knowledge of the Secretary should extend to knowledge that the applicant, as a prisoner, would not have internet or email access and that he would not be able to be contacted by the Tribunal by electronic means. The applicant contends that in those circumstances, the Secretary could not reasonably have formed the view that a document disclosing the applicant’s whereabouts was irrelevant to the Tribunal’s review.
The applicant contends that when the Tribunal exercised its power in s 425 of the Act to invite the applicant to a hearing, the Tribunal confronted a choice pursuant to s 425A(2)(a) as to how that invitation should be communicated. The methods available to the Tribunal are those specified in s 441A and the applicant submits that when faced with such a choice, the Tribunal’s selection of communication method must be made reasonably. The applicant contends that the Secretary’s failure to tell the Tribunal that he knew of a material change in the applicant’s circumstances struck directly at the Tribunal’s reasonable choice of communication method, “because it could never be said that email to a prisoner would be reasonable”[23]. It is in this sense that the Secretary’s breach is said to be jurisdictional.
[23] Applicant's written outline of submissions at [20]
The applicant further submits that upon the Tribunal dismissing his merits review application for non-appearance under s 426A(1A)(b), the Tribunal was required to inform the applicant of that decision pursuant to s 426B(5), again using one of the methods prescribed by s 441A. In those circumstances it is submitted that the Tribunal was once again confronted with a choice of communication methodology, which it could not exercise reasonably by reason of the Secretary’s continuing breach of duty. The applicant submits that his right to be informed about the dismissal decision and his right to seek reinstatement and the subsequent “confirmation” decision were infected by the Secretary’s continuing and compounding breach and therefore led to jurisdictional error.
The applicant submits that the real issue to be determined is whether the conduct of the Secretary was sufficiently material to invalidate the Tribunal’s exercise of jurisdiction.[24] The applicant submits that the relevant inquiry is to be directed to the statutory task which the Tribunal had to discharge and then to determining whether the quality of the conduct complained about (i.e. the Secretary’s breach of s 418(3)) is such as to have stultified the performance of that statutory task. The applicant submits that in this case the spreadsheet document held by the Secretary, albeit not known by the Tribunal, goes to whether there could be a hearing at all.
[24] CNY17 v Minister for Immigration (2019) 268 CLR 76, per Edelman J at [125]
The applicant also submitted that there are particular characteristics of his case which put it into the category of the rare and exceptional cases in which the Secretary’s breach of duty can be said to have resulted in a jurisdictional error by the Tribunal. First, he submits that the spreadsheet document received by the Secretary from Corrective Services NSW was “crucial” or “clearly critical” to a proper discharge by the Tribunal of its jurisdiction to notify the applicant of the hearing and of his right to reinstatement after the dismissal of his application. Secondly, it is contended that the Secretary’s breach resulted in a malfunction in the exercise of the Tribunal’s jurisdiction because proper notifications were “pre-conditions” to the Tribunal making decisions that were reasonable and lawful. Thirdly, the applicant places emphasis on the fact that there was an established protocol for the passing of information from Corrective Services NSW to the Department and that the Secretary used the spreadsheet to update its own record of the applicant’s whereabouts. It is submitted that the Secretary’s duty to inform the Tribunal was obvious and the failure to inform the Tribunal was inexplicable.
Furthermore, the applicant also contends that there was jurisdictional error on the part of the Tribunal in failing to make an obvious enquiry of the Secretary as to whether the Department had updated information about the applicant’s whereabouts when he failed to respond to the Tribunal’s emails. It is submitted that in circumstances where the applicant was unrepresented and a year had passed since he lodged his review application, non-appearance at the hearing and non-response to Tribunal’s emails should have prompted an obvious enquiry about a critical matter (namely his whereabouts) which, if made, would have easily ascertained[25] that the applicant was held in custody.
[25] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]
CONSIDERATION
The Minister has accepted that the Secretary failed to comply with s 418(3) of the Act. The Secretary did not form an opinion about whether the spreadsheet was relevant to the Tribunal’s review of the delegate’s decision. The dismissal decision and the confirmation decisions were made by the Tribunal without knowledge of the spreadsheet or the information contained in the document.
The relevant question in this application for judicial review is whether the Secretary’s breach of s 418(3) had the consequence that the Tribunal’s decisions were affected by jurisdictional error. In order to determine that question, the Minister submits that it is necessary to identify a breach by the Tribunal of a condition of the exercise of the Tribunals power.
In my view, for the reasons articulated in the Minister’s written and oral submissions, the Tribunal did not fail to comply with any of its statutory obligations pursuant to ss 425, 425A, 426A, 426B or 441A in respect of either the dismissal decision or confirmation decision. The Tribunal, unaware that the applicant was in criminal detention and having no reason to suspect that he might not be able to access the internet or his nominated email address, did not act unreasonably in sending documents to the address that the applicant had provided to the Tribunal in his application for review. The statutory scheme for the Tribunal’s communications with the applicant did not malfunction and the Tribunal was not led into jurisdictional error by any failure on the part of the Secretary.
The Minister submits, correctly in my view, that save for relatively rare and exceptional circumstances, a breach of s 418(3) cannot of itself give rise to jurisdictional error. It has been held that breaches of s 418 are not jurisdictional errors[26] and it appears to be accepted wisdom that an error in the performance of a function under s 418 by the Secretary will not of itself[27] or “at least without something more”[28], result in a jurisdictional error by the Tribunal.
[26] Applicant S1693 of 2003 v Refugee Review Tribunal [2004] FCA 1512 at [41] per French J.
[27] Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at [21], [46], [183], [251]
[28] SZNZK v Minister for Immigration and Citizenship [2010] FCA 651 at [20] per Perram J
The Minister submits that relevant and binding authority leads to the conclusion that a breach of s 418(3) can only result in the Tribunal’s decision being affected by jurisdictional error if the breach has either:
(3)led to the Tribunal’s processes being stultified by fraud; or
(4)caused the Tribunal to mislead the applicant to mistakenly believe that a state of affairs exists and that in turn affects the manner in which the case is conducted to the applicant’s detriment.
A survey of relevant authorities confirms that a breach of s 418(3), not known to the Tribunal, will only result in jurisdictional error in rare and exceptional cases.
In WAGP v Minister for Immigration and Multicultural and Indigineous Affairs [2006] FCAFC 103 the Full Court of the Federal Court found that inadvertence on the part of the Secretary in failing to ensure that a document was forwarded to the Tribunal was not something of which the Tribunal was aware or something within its power or control. That is because the obligation under s 418(3) is not imposed on the Tribunal but rather on the Secretary and there is nothing in the Act to suggest that the Secretary’s compliance with s 418(3) is either a precondition to the Tribunal’s conduct of review proceedings or to its making of a decision on review[29]. Moreover, in WAGP the Full Court concluded that it would be surprising if it were intended that a breach of s 418(3) by the Secretary, whether through inadvertence or an error of judgment, should result in the Tribunal’s decision being tainted with jurisdictional error.
[29] See Muinv Refugee Review Tribunal (2002) 76 ALJR 966 at [46] per Gaudron J; also Applicants S487 of 2022 v Minister for Immigration and Multicultural and Indigenous Affairs [2023] FCA 1309 per Sackville J
In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, in circumstances which are very different to those currently before the Court, the High Court held that a decision of the Refugee Review Tribunal was affected by jurisdictional error. In that case a family of Lebanese citizens applied for protection visas after their arrival in Australia. The applications were refused. After commencing proceedings before the Refugee Review Tribunal for the purpose of reversing the refusals, the Tribunal invited the family to appear before it pursuant to s 425(1) of the Migration Act 1958 (Cth). A rogue, who wrongly claimed to be entitled to practise as a solicitor and migration agent, advised the family not to attend the Tribunal hearing. The family followed the rogue’s advice and pursuant to s 426A the Tribunal made a decision without taking further action to allow or enable the applicant to appear before it. In its reasons, the Tribunal relied on the family’s failure to appear as a ground for rejecting the applications for review.
The High Court held that the legislative scheme established by ss 425 and 426A was of central importance to the provision of natural justice in the conduct of applications for review by the Tribunal. So too was the system of registered migration agents in the statutory scheme. The Court held that the conduct of the rogue was fraudulent and was perpetrated “on” the Tribunal as well as on the family. The fraud visited on the Tribunal by the rogue migration agent subverted the observance by the Tribunal of its obligation to accord procedural fairness to the applicants for review. While the Tribunal had acted blamelessly on an assumption of regularity, in truth, by reason of the fraud of the applicants’ agent, the Tribunal was disabled from the due discharge of its statutory function with respect to the conduct of the review. As the fraud of the rogue stultified[30] the operation of the statutory scheme, the jurisdiction of the Tribunal remained unexercised and jurisdictional error was established.
[30] SZFDE at [51]
In SZOIN v Minister for Immigration and Citizenship [2011] 191 FCR 123, a majority of the Full Court of the Federal Court held that a breach of s 418(3) arising from the Secretary’s failure to form an opinion about whether a document was relevant to the Tribunal’s review did not result in jurisdictional error. In that case the Secretary had failed to give the Tribunal the applicant’s mental health records, material which could have corroborated his claims of having suffered traumatic experiences in his home country and provided an explanation of his conduct at the Tribunal hearing. The Tribunal affirmed the decision under review without being told that the mental health reports existed. The appellant contended he had not been afforded fair procedures within the meaning of that expression as used by the High Court in Kioa v West (1985) 159 CLR 550[31].
[31] At [584], [621]
In SZOIN the Court proceeded on the basis that in conducting its review the Tribunal was obliged to accord procedural fairness to the appellant. The Court also accepted that the documents not passed to the Tribunal were relevant to the issues arising on the review – presumably materiality was made out. However, as in WAGP, there was nothing to indicate that the Tribunal was aware of the existence of the missing document at the time of its decision.
The majority in SZOIN observed at [60] that the circumstances in which a third-party breach not known to the Tribunal may result in jurisdictional error would be extremely limited. The court noted that even in an extreme case such as SZFDE where the Tribunal’s decision-making process had been compromised by “third-party fraud”, the finding of jurisdictional error was limited and that bad or negligent advice to a party “or some other mishap, that applies to the party’s detriment” does not vitiate the decision made. It is not an issue about fairness but about the effect of fraud on the Tribunal’s decision-making process.[32]
[32] See SZFDE at [53]
More recently the question of whether a failure by the Secretary to comply with s 418(3) would result in the Tribunal falling into jurisdictional error was considered by the Full Court in BBS15 v Minister for Immigration and Border Protection (2017) 248 FCR 159. In that case the Refugee Review Tribunal denied the appellant a protection visa on the basis that it did not believe he was a genuine Christian convert. It subsequently transpired that the appellant’s pastor had sent a supporting letter to the Department which it had accidentally failed to forward to the Tribunal in accordance with its obligation under s 418(3). The appellant argued that he had been denied a reasonable opportunity to be heard as he had been led by the Tribunal at the hearing to believe that it was in possession of all documents which had been provided to the Department.
In BBS15 the Court found that a failure by the Department to comply with the duty to provide relevant information is not in and of itself sufficient to constitute jurisdictional error, however error could arise if the Department’s failure causes the Tribunal (even innocently), to mislead an applicant to mistakenly believe that a state of affairs exists and that in turn affects the manner in which the case is conducted to the applicant’s detriment. What distinguished BBS15 from cases such as WAGP and SZOIN is that none of those cases involved “a party being misled by the Tribunal regarding the materials before it so as to have caused them to conduct their part in a hearing to their substantive disadvantage”.[33]
[33] BBS15 at [93]
Notably in BBS15, the Full Court gave consideration to the caveat “at least without something more” as used by Perram J in SZNZK and referred to with the approval of the majority in SZOIN. In BBS15 the court held that those words recognise and accommodate the exceptional cases such as SZFDE but otherwise confirm the general principle that in and of itself a failure of the Secretary to comply with his or her duty does not constitute jurisdictional error in the Tribunal[34].
[34] BBS15 at [103]-[106]
I return then to the specific circumstances of this case.
In order to determine whether the Secretary’s breach of s 418(3) had the consequence that the Tribunal’s decisions were affected by jurisdictional error, it is first necessary to identify a breach by the Tribunal of a condition of the exercise of its power.
The Minister submits that the question of whether the Tribunal fell into jurisdictional error must be approached on the facts and circumstances as known to the Tribunal at the time. As observed by Gordon J in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (at [101], citations omitted)[35]:
Judicial power is concerned with whether the rules set down by the statute were met. Generally, this manifests as a concern with the manner in which power conferred by the statute was exercised. That inquiry is, logically, concerned with the time at which the power was exercised and, in cases of legal unreasonableness, also the result. The inquiry therefore has a temporal element. (emphasis added)
[35] See also DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 at [21] and CLK21 v Minister for Home Affairs [2022] FCAFC 70 at [111].
Objectively the Tribunal did not know that the applicant was in custody nor could it have known that the applicant’s access to the internet or emails may have been compromised. This circumstance did not come about by reason of a fraud on the Tribunal nor did it in my view cause the Tribunal to mislead the applicant as to a state of affairs, innocently or otherwise.
In SZFDE the court was concerned with the protection of the legislative scheme, including the observance of the Tribunal of its obligation to accord procedural fairness. What gave rise to jurisdictional error in that case was the Tribunal being disabled or stultified from the discharge of its statutory function by a fraud perpetrated on it by a third-party. It was the subversion of the statutory scheme by that fraud which undermined the lawful exercise of the Tribunal’s powers.
Unlike BBS15 this was not a scenario where the applicant had been misled by the Tribunal to conduct his case on a false premise regarding the materials which were before the Tribunal. There is no suggestion that the Secretary’s failure to form an opinion was deliberate. The Tribunal was not even aware of the existence of the spreadsheet document and was, in my view, entitled to proceed to discharge its statutory function having regard to the legislative scheme.
When the applicant applied to the Tribunal for review of the delegate’s decision, he provided a postal address and an email address for notices and the service of documents. The Tribunal sent the applicant a letter acknowledging his application. That letter was sent to the email address provided by the applicant and the Tribunal cautioned him about the importance of immediately informing the Tribunal of any change in contact details, such as residential address, mailing address, telephone number, fax number or email address.
The Minister concedes that the Tribunal did have a discretion in making a choice as to the manner in which notice of the hearing would be communicated to the applicant. However, in exercising that choice, the Tribunal was entitled to rely on the presumption that the onus was on the applicant to keep his contact information up to date. At the time of acknowledging receipt of his application for review, the Tribunal expressly cautioned the applicant about the importance of keeping his contact information up to date and the potential consequences of not doing so.
In the circumstances known to the Tribunal at the time, it cannot be said that the Tribunal lacked an “evident and intelligible justification” for choosing to send the hearing invitation and other documents to the e-mail address which had been provided by the applicant at the time he filed his application for review. The Tribunal invited the applicant to attend a hearing and at all relevant times communicated with the applicant in the manner prescribed by the statutory scheme. The rules set down by the statute were met. The Tribunal was entitled to adhere to the statutory scheme for communication with applicants and was not reasonably required to speculate as to whether an applicant’s contact details had changed or as to the circumstances for his non‑attendance at the hearing or non-responsiveness to emails.
The present case does not reveal exceptional circumstances of the type which could lead to jurisdictional error. In my view it was entirely proper for the Tribunal to have performed its statutory task on the presumption that if the applicant had changed his address or could no longer access the e-mail address that he had provided to the Tribunal, he would have heeded the caution in the Tribunal’s letter and taken some steps in his own interests, to provide a new address or alternative contact details to the Tribunal. The applicant’s submission that his access to emails was compromised whilst in custody does not give rise to an obvious or necessary inference that there were no means available to him to inform the Tribunal of a change in contact details.
In the current case, the relevant legislative scheme was not undermined, subverted, disabled or stultified. Rather, the scheme operated as it should and the failure of the Secretary to form an opinion about whether the spreadsheet was relevant to the Tribunal’s review of the delegate’s decision or to give the spreadsheet to the Tribunal did not result in jurisdictional error.
Tribunal’s failure to make an inquiry about the applicant’s whereabouts
The Minister also rejects the proposition that the Tribunal failed to make an obvious inquiry about a critical fact which was easily ascertainable, to use the formulation expressed by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]. The Minister submits that it is only in “rare or exceptional circumstances” that such a failure could result in jurisdictional error[36] and that in order to succeed the applicant must show that it was legally unreasonable for the Tribunal not to have made an inquiry. The fact that it may have been reasonable to make an inquiry does not mean the lack of such an inquiry amounts to jurisdictional error[37].
[36] Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60] per Kenny J
[37] SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] per Bennett J; Kaur v Minister for immigration and Border Protection (2017) 256 FCR 235 at [33]
I accept the submission. In my view the Tribunal did not fall into jurisdictional error by not making an inquiry about the whereabouts of the applicant before making its dismissal or confirmation decisions.
Section 426A(1A)(b) provides that where an applicant 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, the Tribunal may by written instrument under s 426B dismiss the application without any further consideration of the application or information before the tribunal. The scheme does not envisage that non-appearance should trigger an enquiry into the reasons for the failure to attend, including a consideration of the application or information before the Tribunal as a source for further enquiry. If anything the legislation provides otherwise. Subject to the notice of hearing having been sent by one of the methods prescribed by s 441A, non-appearance in and of itself permits dismissal of the application without more.
Application for leave to amend the application for review
During his submissions in reply, counsel for the applicant sought leave to amend the application to include, as a further ground of review, an allegation that the applicant had been misled by the correspondence from the Tribunal. The proposed additional ground was to the effect that the applicant had been misled by the Tribunal’s letter dated 5 February 2020[38] to believe that the Department had been requested to provide the Tribunal with all documents and files which the Department considered to be relevant to his application.
[38] CB 74, letter confirming lodgement of the application for review
The Minister opposed the application. The Minister contended that the amendment involved the case being put on a different footing to the way it had been run and that the new ground could not be advanced without a proper evidentiary basis including proof that the applicant received the letter, had read it and had in fact been misled by its content. The Minister submitted that an allegation that the Tribunal had misled the applicant was serious and could not be advanced on the material before the Court or simply by inviting the Court to infer that the letter may have been misleading. The Minister argued that it was too late to make the application and the Minister would be prejudiced by it.
I refused to grant leave. My reasons for doing so follow.
The application was made during the course of the applicant’s reply. The amendment was a substantive amendment which sought to introduce a new and separate ground of review. The application was made after the time allowed for the filing of an amended application by my orders of 28 February 2023. No explanation was offered as to why the amendment had not been sought prior to reply.
In my view the ground sought to be advanced could only be brought with a proper evidentiary basis, including evidence from the applicant. In order to fit within the narrow range of rare and exceptional cases (as discussed above), the Court would require actual evidence that the applicant had been misled and could not proceed on inferences to be drawn from the letter itself. The Minister was entitled to be on notice of the ground and to adduce evidence. An on-the-run offer by the applicant’s counsel, subject to instructions, to call the applicant to give evidence and be cross‑examined by the Minister was insufficient in my view to save the late application.
The overarching purpose of the Court’s procedure is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible[39]. The Court has powers to make directions about the practice and procedure to be followed in a proceeding before it. Those powers must be exercised or carried out in a way that best promotes the overarching purpose.
[39] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, R1.04; Federal Circuit and Family Court of Australia Act 2021 s 109(1)
In this case, orders had been made affording the applicant ample opportunity to file in advance of the hearing any amended application, any affidavits on which he intended to rely and an outline of submissions. A timetable for the service of such material was set well in advance of trial. This prior exchange of material best promotes the overarching purpose and serves the purpose of procedural fairness.
The applicant has been legally represented. The Minister has prepared its submissions in response to meet the case advanced by the applicant. Although the time and expense of preparing for trial might not, in and of itself, inflict significant prejudice on the respondent, the respondent has nonetheless come to Court to meet an application, which the applicant now seeks to amend at the last minute.
As the High Court explained in Aon[40], the requirement to make amendments for the purposes of deciding the real issues in the proceeding does not impose some unqualified duty to permit the late addition of any new claim; the real issues in the proceeding are determined by reference to the limited way in which the party deliberately chooses to frame its original claim[41]. Where an application to amend is made late in a proceeding and raises new claims not previously agitated, the applicant bears a heavy burden to show why leave should be granted.
[40] Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175
[41] Aon at [31]
I accept the Minister’s submission that the application for leave to amend the application was made very late in the proceeding and that it does require an evidentiary basis which cannot be established on the material already before the Court. In my view, the proposed amendment raises a ground with poor prospects having regard to the authorities discussed earlier in these reasons. Leave to amend will necessarily result in further delay, cost and inconvenience to the Minister and to the Court and these considerations weigh heavily against the applicant. Taking other matters, including case management into account, an adjournment is an unsatisfactory course. It is notorious that this Court carries an extremely heavy workload and is required to case manage and schedule hearings from an ever growing and ageing list of proceedings. The inconvenience to the Court and to other litigants who have been patiently waiting for their day is a matter which must be weighed in the overall consideration of this application for leave.
For these reasons the applicant’s oral application for leave to amend his application to include a further ground for review is refused.
DISPOSITION
For the reasons set out above, I find that the decision made by the Administrative Appeals Tribunal on 1 November 2021 to dismiss the application for review and the confirmation decision made by the Tribunal on 17 November 2021 were not affected by jurisdictional error.
The application for review of the Tribunal’s decision is dismissed.
The applicant should pay the Minister’s costs of the application.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 26 April 2023
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