Hossain v Minister for Immigration - [2009] FMCA 1100

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOSSAIN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1100

MIGRATION – MRT decision – hearing commencing late due to delayed arrival of applicant – solicitor absent – no interpreter provided – formal notice of late commencement not required – no injustice shown to have occurred – no procedural error giving rise to jurisdictional error established – refusal by Tribunal to allow long delay to allow further attempts at IELTS test – no reasonable apprehension of bias established – application dismissed.

Migration Act 1958 (Cth), ss.353(1), 360, 360(1), 360(2), 360(2)(c), 360A, 360A(1), 362B, 363A, 366A, 366A(1), 366C, 366C(3), 379G, 379G(1)

Migration Regulations 1994 (Cth), regs.1.03, 1.15B, 1.15B(3), 1.15B(4), Sch.2 item 880.223

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181
Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221
Minister for Immigration & Citizenship v SZIZO [2009] HCA 37, (2009) 259 ALR 405
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Russo v Aiello (2003) 215 CLR 643
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189
SZFOH v Minister for Immigration & Citizenship (2007) 159 FCR 199
SZIZO v Minister for Immigration & Citizenship (2008) 172 FCR 152

First Applicant:

K M SHAKAWAT HOSSAIN

Second Applicant:

KAMRUN NAHAR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1456 of 2009

Judgment of:

Smith FM

Hearing date:

4 November 2009

Delivered at:

Sydney

Delivered on:

4 November 2009

REPRESENTATION

Counsel for the Applicants:

Mr P Reynolds

Solicitors for the Applicants:

Parish Patience Immigration Lawyers

Counsel for the First Respondent:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1456 of 2009

K M SHAKAWAT HOSSAIN

First Applicant

KAMRUN NAHAR

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Mr Hossain came to Australia in 1998 and for ten years pursued his education by way of courses in cookery, business studies and information systems. On 22 March 2007 his solicitors, Parish Patience Immigration Lawyers, forwarded an application for a permanent residence visa class DD, subclass 880 “skilled — independent overseas student”, identifying his relevant skill as being cook ASCO code 4513‑11. Their covering letter said that Mr Hossain was currently studying hospitality management which would be completed in a further year. The visa application also included Mr Hossain’s wife as secondary applicant, and she is the second applicant in the present proceedings. It is not necessary to consider her position further.
It is unnecessary to identify all the criteria which needed to be satisfied before the residence visa could be granted to Mr Hossain. They included the criterion in Sch.2 item 880.223 of the Migration Regulations 1994 (Cth) that at the time of decision “the applicant has vocational English”.
The definition of ‘vocational English’ was found in reg.1.15B(3) and (4), and included the satisfaction of the Minister that the person had achieved, in a test conducted “not more than 12 months before the day on which the application was lodged; or… during the processing of the application”, “an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening”. Regulation 1.03 defined an IELTS test as “the International English Language Testing System test”. There were alternative and exceptional avenues for establishing vocational English, but at no time did Mr Hossain attempt to satisfy them. His efforts over a very protracted period have been to obtain an IELTS test result meeting the above description in reg.1.15B.
Mr Hossain’s solicitors, in their covering letter for the visa application, attached numerous documents aimed at establishing other criteria, but omitted any evidence that he had vocational English. Their letter said:
Original IELTS result for the applicant will be forwarded to your office shortly.
There then followed over the subsequent year, an extended exchange between the solicitors and the Department of Immigration in which the forwarding of such evidence was successfully procrastinated. Deadlines were set by the officers in the Department of Immigration, which were not met. Undertakings were given by the solicitors that tests were being sat, but the results from these were never presented. Only one result was ever forwarded to the Department. It showed that Mr Hossain sat for a test on 3 November 2007, and failed to achieve the requisite scores in listening and reading.
Ultimately, the delegate on 2 April 2008 gave a deadline for receiving the results from a test which Mr Hossain was said to have undertaken on 8 March 2008, and warned that if no response was received within seven days “I will proceed to finalise this application based on documents on file”. It now appears that once again Mr Hossain had failed to achieve satisfactory results in that test, and his results were not forwarded to the Department. The delegate therefore made a decision on 15 April 2008, refusing a visa on the ground that Mr Hossain did not have vocational English.
An application for review was lodged with the Tribunal by Parish Patience on 24 April 2008. It attached a copy of the decision of the delegate, but no evidence that Mr Hossain had ever achieved the necessary IELTS results was forwarded to the Tribunal during the period that the matter was pending there.
The Tribunal sent two letters dated 27 April 2009 to the solicitor who had the carriage of the matter at Parish Patience, and was Mr Hossain’s nominated recipient for correspondence. In the first letter, the Tribunal invited Mr Hossain to appear before the Tribunal at a hearing arranged for 14 May 2009 at 12 pm.
In the second letter, it invited him to comment before 25 May 2009 upon the provisions of the Migration Regulations requiring him to establish vocational English. It identified the manifest issue in the case, that “there is no IELTS test score concerning you that shows you have achieved an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening”. The letter pointed out that the Tribunal might find that he did not have vocational English in the absence of that evidence, and might therefore refuse the visa. In my opinion, this was an issue that must have been indisputably apparent to the applicant and his solicitors at all the times that the appeal was pending in the Tribunal.
The evidence before me as to what happened while the matter continued before the Tribunal, confirms that Mr Hossain’s objective continued to be to obtain more time, so that he could make further attempts on sitting the test and obtaining a successful result. However, in my opinion, there was nothing in the circumstances requiring the Tribunal to give way to that objective in the face of its obligation to decide matters quickly (see s.353(1)), and it has not been submitted by Mr Hossain that the Tribunal acted unreasonably by declining Mr Hossain’s requests that he be given more time to sit more tests before it made its decision on 27 May 2009. Inevitably, having declined to protract its proceedings, the Tribunal’s decision affirmed the delegate’s decision on the ground that Mr Hossain had not established that he had ‘vocational English’.
Mr Hossain now challenges the Tribunal’s decision on the ground that there were procedural errors in its conduct of the hearing on 14 May 2009, before making that decision. His grounds require me closely to examine the evidence of what happened before, during and after the hearing.
Before identifying the relevant evidence, I note that the findings which I am able to make about these events have been significantly constrained by the fact that neither Mr Hossain, nor any of his solicitors with the carriage of the matter at the relevant time at Parish Patience, have gone into evidence, nor explained any inability to present their relevant evidence to the Court. My findings are based entirely upon a consideration of the documents from the files of the Tribunal which have been reproduced in a Court Book which was served on Mr Hossain by the respondents. They contain unsworn statements attributed to Mr Hossain and his solicitors, the veracity of which is untested. In a situation where his sworn evidence might have been directly relevant to elucidate various uncertainties about these events, I am conscious of the axiomatic principle that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” (see Russo v Aiello (2003) 215 CLR 643 at 647).
The Court Book does not contain a ‘response to hearing form’ completed on behalf of Mr Hossain, and it is unclear whether such a document was returned to the Tribunal in accordance with its request in the hearing invitation. It would have provided an opportunity for Mr Hossain to request an interpreter, if he needed one, and to indicate whether he intended to have a representative present at the hearing.
The listing report for the appointed hearing shows that the hearing which had been appointed for 12.00 pm on 14 May 2009, commenced at 1.32 pm on that day with the applicant present but his solicitor not present. The hearing is recorded as having concluded at 1.51 pm.
A file note by a clerk at the Tribunal was made at 12.12 pm on that day, and states:
Mr Jack from Mr David Bitel’s office came at the reception area in relation to Mr K M Shakawat Hossain’s hearing at 12.00PM. Mr Jack said their office sent hearing invitation letter to a wrong address and Mr Hossain is not aware of his hearing date. Mr Jack called the review applicant this morning to attend the Tribunal’s hearing today, 14 May 2009 @ 12.00PM. The review applicant said he won’t be able to make it because it would take him approx 2 hours to come to city. Mr Jack admitted that the problem was from their end. He has requested if this hearing can be rescheduled. I advised Mr Jack to send his claim in writing for the Tribunal Member’s consideration. Mr Jack said he will do that. Member informed.
It is common ground that the reference to Mr Jack is a reference to Mr Jia Li, a solicitor at Parish Patience. He has not made an affidavit in the proceedings as to what happened in his dealings with either the Tribunal or with his client at that time and subsequently. The implication of the file note is that Mr Jack did not stay at the Tribunal’s premises to see whether his client would attend the hearing after its appointed commencement time at 12 noon. However, it is speculative whether he then returned to his office with, or without, making further contact with his client.
It is undoubted that Mr Hossain did attend at the Tribunal no later than 1.30 pm, and that a hearing was then conducted whose proceedings were recorded. The transcript shows that he was a willing participant, and made no objection to the hearing proceeding in the absence of his representative. What is not revealed by any evidence is the preceding exchanges between Mr Hossain and the Tribunal officers, in relation to the commencement of his hearing at that later time. There is no evidence whether anything was said in those exchanges as to the absence of Mr Hossain’s representative from the hearing. There is also no evidence whether either the applicant, or a Tribunal officer, or both, made attempts to telephone the solicitor to give notice of the Tribunal’s intention to commence the hearing at the later time. It is therefore also obscure whether, if such contacts were made, anything was discussed about the hearing proceeding without Mr Hossain’s solicitor present.
I am not prepared, in the absence of relevant witnesses, to draw any conclusions that any of these things did or did not happen. The hearing transcript itself shows only that during the period that the recording apparatus was operating, the Tribunal member and Mr Hossain proceeded without the presence of the solicitor, but the reasons for that absence, and whether this was a matter which Mr Hossain desired or consented to, is unclear from the transcript. There is certainly no reliable evidence that at any time he made an application for adjournment or postponement of the hearing to allow his solicitor to attend.
The Tribunal’s file contains a letter from Parish Patience Immigration Lawyers dated 14 May 2009, the day of the hearing, which is recorded as having been received ‘by hand’ by the Tribunal, but the time at which it was received is not shown in the records. The letter stated:
We refer to the MRT hearing listed for today and our previous conversation with your office.
Due to administrative error, where the notification letter was forwarded the review applicants previous address, the review applicants were not aware of the scheduled hearing until earlier today. The applicant did try to make his way to the hearing but he was too far away to attend the hearing on time.
Please reschedule the hearing to a date convenient to the tribunal.
We thank you for your understanding and apologise for any inconvenience caused.
The last sentence in paragraph 2 of this letter might suggest that Mr Li wished the Tribunal to believe that Mr Hossain had attempted to attend the hearing, but did not do so. It certainly does not acknowledge that in fact he had attended the hearing, arriving late. Nor does it indicate how or when Mr Li obtained instructions to seek a rescheduled hearing. Its contents tend to suggest that it was written at some point after Mr Li left the Tribunal, and before he became aware that a hearing had, in fact, been held. This remains the more likely possibility in my mind, but I am unable to draw any conclusion on the balance of probabilities about the circumstances of its making. There is no direct evidence whether Mr Li’s letter was delivered to the Tribunal by hand before or after 1.30 pm. I do, however, consider it likely that, if it had been delivered before the conclusion of the hearing, it would have come to the attention of the Tribunal member and some reference to it would have been made in the course of the hearing.
There is some evidence that the applicant did contact his solicitor during 14 May 2009, after the conclusion of the hearing. This is in a file note made on 15 May 2009 at 10.23 am by a Tribunal officer. This stated:
Mr Jack called yesterday, 14 May 2009 and today, 15 May 2009. He said that the review applicant told their office that he had a discussion with his case officer/Tribunal officer (not sure) and he was told he will have an extension of time until August 2009 to provide his IELTS result. I advised Mr Jack that I am not aware of this discussion. After my phone conversation with Mr Jack, I went to see the Presiding Member about it. The applicant appeared before the Tribunal for his hearing after the scheduled time. The hearing started at 1.32PM and the Presiding Member informed the review applicant that the Tribunal will wait until 25 May 2009 for his respond. Mr Jack had requested for a copy of Mr Hossain’s hearing recordings. Hearing recordings (One CD) ready for collection.
There is no basis in the evidence before me that Mr Hossain had ever been told by anyone on behalf of the Tribunal that he would be given an extension of time until August 2009 to provide his IELTS results. Rather, the transcript of the hearing shows very clearly that he was told otherwise. All that he was told, was that the Tribunal would consider a response, which was still outstanding, to its invitation to comment on the issue identified in the second letter sent to the applicant’s solicitor on 27 April 2009. This had set a deadline of 25 May 2009 for a response. In the absence of evidence from the applicant or Mr Li, it is impossible to make any conclusions as to the basis of Mr Li’s misrepresentation to the Tribunal officer as to what had been said at the hearing.
However, it is clear from the Tribunal’s records, that by 15 May 2009 Mr Li was aware that a hearing had been held, albeit late, on 14 May 2009. It is notable that subsequently the solicitors did not again ask for a rescheduling of the hearing. This suggests that the request for rescheduling made in the letter delivered by hand on 14 May 2009 was not pressed, once Mr Hossain’s solicitors understood that the hearing had actually been held.
The sound recording of the hearing was sent to the solicitors on 15 May 2009. The next communication from the solicitors was on 25 May 2009, when Mr Bitel sent to the Tribunal by facsimile a letter containing the following request:
We refer to our last correspondence dated 14 May 2009 and a copy of which is enclosed for your reference. We request your office to grant our client a further 7 days from today to response to your letter dated 27 April 2009. We request the Tribunal not to make any adverse decision in the meantime. Should you disagree, please advise.
We thank you for your understanding and apologise for any inconvenience caused.
A response to this letter was communicated to Mr Bitel on the following day, according to the following file note:
At the instruction of the Presiding Member, I called Mr David Bitel and left message to call me back regarding his request for an extension of time for Mr Hossain. Mr Bitel returned my call. I advised him that the Tribunal does not propose to further delay the review but any information provided before a decision is made will be fully considered. Mr Bitel asked if I can give him an indication when the decision will be made. I told him that I haven’t received any indication when the decision will be made. Mr Bitel said that is fine.
The last communication from the applicant or his solicitors before the Tribunal made its decision, is a letter to the Tribunal from Mr Bitel, sent and received on 27 May 2009, which stated:
We refer to our letter of 25 May. We note the Tribunal has responded advising that further time would not be given to respond to the Tribunal’s letter of 27 April 2009.
We are concerned that the Tribunal proceeded with a hearing on 14 May in our absence. As the Tribunal would be aware, Jack Li, a solicitor/migration agent from this office, attended at the hearing and an officer of the Tribunal directed that he could depart and that a new date would be scheduled.
The Tribunal then proceeded with a hearing when the applicant attended without our presence.
At the conclusion of the hearing it was indicated the Tribunal would not agree to grant the applicant more time to achieve a satisfactory IELTS result. The applicant informed the Tribunal that he had by aggregation of different test results achieved the required score. However, of course it is no longer possible for the Tribunal to accept an aggregation of results. The applicant must achieve the required score in one test.
The applicant has attempted diligently to achieve this score and, as the Tribunal is aware, has attempted to do so on several occasions. The applicant has made further bookings to sit for the test and it is submitted that it is reasonable, just and fair to allow the applicant one last attempt to achieve this required score rather than for the Tribunal now to proceed to make a decision without giving the applicant his last opportunity.
We note that in other similar cases where we have acted Tribunal Members have been prepared to agree to allow applicants this one last opportunity and submit that this is an appropriate course for the Tribunal to adopt in this case.
We await the Tribunal’s advice.

The assertion in this letter that on 14 May 2009 Mr Li had been told “that a new date would be scheduled” is inconsistent with the contemporaneous file note of the Tribunal officer. It is inconsistent with the letter written by Mr Li on 14 May 2009. It is unsupported by any sworn evidence from Mr Li, and I do not accept that any such a statement was ever made. I find that at no time was either Mr Hossain or his solicitor told anything which suggested that the Tribunal would appoint a rescheduled hearing on a date subsequent to 14 May 2009. I am also not satisfied, in the absence of sworn evidence, that Mr Hossain or his solicitors in fact ever believed that any rescheduled hearing would be appointed.
The Tribunal responded to this letter in the body of its statement of reasons for its decision made on 27 May 2009 to affirm the delegate’s decision. I shall extract the relevant passage below.
Mr Hossain now relies upon the following grounds of review in his amended application:
1.The Tribunal committed jurisdictional error by adjourning the hearing listed on 14 May 2009 at 12:00 pm to 1:32 pm later that day without sending the authorised recipient notification of the adjourned hearing in accordance with section 360A of the Migration Act 1958 (Cth) (“Act”), as required by section 379G(1).
1A.The Tribunal committed jurisdictional error by rescheduling the hearing listed on 14 May 2009 at 12:00 pm to 1:32 pm later that day, in that no notice at all or, in the alternative, unreasonably short notice, was provided in respect of the rescheduled hearing.
2.The Tribunal committed jurisdictional error by proceeding with the hearing on May 2009 at 1:32 pm in the absence of the Applicants’ solicitor and migration agent, in that:
(a)it constituted a breach of section 366A(1) of the Act, which conferred an entitlement upon the Applicants to have another person present to assist them while appearing before the Tribunal. The Tribunal proceeded in a manner that deprived them of or otherwise failed to recognise this entitlement;
(b)further and in the alternative, it constituted a breach of section 366A(2) of the Act, which conferred an opportunity on the Applicant to satisfy the Tribunal that exceptional circumstances existed that warranted the Applicants having an assistant to present arguments and address the Tribunal on their behalf under section 366A(2). The Tribunal did not recognise or provide any such opportunity to the Applicant;
(c)further and in the alternative, it constituted a breach of section 366C(3) of the Act, which required the Tribunal to appoint an interpreter where it considered that a person appearing before it was not sufficiently proficient in English.
Particulars
The Tribunal considered that the Applicant was not sufficiently proficient in English given that at the hearing it noted that the Applicant had a problem, inter alia, with listening to English and, further, considered that the Applicant had been unable to demonstrate that he possessed English language skills at a vocational level across a period of time. Accordingly, it was obliged to appoint an interpreter, which it failed to do;
(d)further and in the alternative, it constituted a breach of section 360, in that the Applicant did not have a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review because he did not have the assistance of the solicitor and migration agent whom he had engaged to attend the hearing with him.
3.The Tribunal committed jurisdictional error by conducting the hearing in a manner that gave rise to an apprehension of bias.
Particulars
A fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the issues on the basis of:
a)the Tribunal proceeding with the hearing without (i) the Applicant’s solicitor and migration agent being present, and (ii) attempting to contact the solicitor and migration agent. A fair minded lay observer might conclude that the Tribunal had formed the view that there was nothing that could be said or done by the solicitor and migration agent to alter its view of the case;
b)comments by the Tribunal member at the hearing to the effect that (i) it was clear that the Applicant was unable to meet the criteria requiring a particular score in an International English Language Testing System test, and (ii) it would not grant an adjournment to the Applicant to wait for the results of a test booked in June 2009. A fair minded lay observer might conclude that the Tribunal had at that point determined that it would reject the application.

Grounds 1, 1A, 2(a), 2(b) and 2(d)

Section 360 of the Migration Act 1958 (Cth) provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 360A provides:
(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.
The form of the notice is then indicated in s.360A and other sections. Where an applicant has given notice of an authorised recipient for correspondence, the notice must be given to the authorised recipient “instead of the applicant” (see s.379G and SZFOH v Minister for Immigration & Citizenship (2007) 159 FCR 199 and Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181, overruling Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221, followed in SZIZO v Minister for Immigration & Citizenship (2008) 172 FCR 152 at [77]).
There was controversy whether the formal requirements of s.360A apply whenever a Tribunal postpones, adjourns or reschedules a hearing which was duly appointed by a valid notice. The issue was settled by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572. Their Honours discussed the structure of the legislation and considered the implications of s.426A, which is in similar terms to s.362B:
362B     Failure of applicant to appear before Tribunal
(1)If the applicant:
(a)     is invited under section 360 to appear before the Tribunal; and
(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;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
Their Honours also considered the general power of the Tribunal to adjourn hearings. They concluded, in effect, that the formalities of a s.360A invitation are exhausted by the first appointment of a hearing. They said, referring to equivalent provisions concerning the Refugee Review Tribunal:
79In dealing with an application for review the Tribunal has power, under s 427 of the Act, to “adjourn the review from time to time”. The review is a larger process than the oral hearing. The hearing is but a component of the review. Section 426A(2), under which the Tribunal may reschedule a hearing, is not apposite. That subsection is concerned with the case in which an applicant does not appear before the Tribunal on the appointed date and time. Section 426A(1) authorises the Tribunal to proceed to decision without further ado in the case of such non‑appearance. What s 426A(2) makes clear is that the Tribunal is not bound to proceed to a decision then. It can reschedule the hearing. If express power to do that is necessary it is to be found, as an application of the general power to adjourn the review for which s 427 provides. Significantly, notification of a rescheduled hearing does not involve a fresh invitation for the purposes of s 425(1). But where the hearing is rescheduled, then it is implicit in the obligation imposed on the Tribunal under s 425A(1) that the Tribunal must give the applicant notice of the amended day on which, and time and place at which, the applicant is scheduled to appear.
…
82It is implicit in the statutory scheme that the Tribunal’s invitation to a person to appear, where it has been accepted, cannot be compromised by rescheduling the appointed hearing to another date on unreasonably short notice. However it is not suggested that that occurred here. It is open to the Tribunal in the conduct of a hearing to adjourn it from time to time. If express authority were necessary it would be provided by s 427. In any event there is an implied incidental power for the Tribunal to do so in order to give practical effect to its obligation to provide a hearing. The power of the Tribunal to reschedule a hearing of which notice has been given is of the same character. Provided the notice of the rescheduling is reasonable there is no requirement, applicable to that procedure, for the application of the minimum prescribed period applicable to the notice required by s 425A.
Their Honours’ opinions were given in a context where the Tribunal rescheduled to a later date, a hearing which it had originally appointed in a notice. The circumstances therefore were different to those in the present case, where the Tribunal proceeded with a hearing on the appointed date, but commenced the hearing one and a half hours after the appointed time due to the late arrival of the applicant. However, in my opinion the reasoning of their Honours is clearly against the proposition that the Tribunal was obliged to serve a notice under s.360A giving notice of the later time for commencing the hearing, either to Mr Hossain or to his solicitors as his authorised recipient.
In my opinion, applying SZFML, and giving a sensible operation of the provisions governing the Tribunal’s conduct of hearings, the Tribunal has power to commence a hearing at a later time than the appointed time, without giving any formal notice whether in writing or orally. If no written notice is required in a ‘document’ then s.379G(1) does not operate so as to require any particular written or other notice to an authorised recipient. The only implicit obligation is that the Tribunal’s postponement of the time of commencing the hearing should be reasonable in the circumstances, and should not deny the applicant the opportunity identified in s.360(1), i.e. to participate in the hearing in a real and meaningful manner.
As I have explained above, the evidence before me in the present case is insufficient to allow me to make any findings as to what sort of notice was given to Mr Hossain in relation to the late commencement of the hearing on 14 May 2009. Something, at least, must have been said to him in the waiting room about this, and there is no suggestion in the evidence that he made any objection to the late commencement of the hearing or to the notice he was given that this would happen. Nor for the reasons I have explained above, am I persuaded to make any findings whether any notice of this course was given to the solicitors in an informal telephone conversation or otherwise by the Tribunal. As I have explained, I also would make no findings whether Mr Hossain himself communicated with his solicitor after 12.12 pm and before 1.30 pm, concerning the proposal to commence the hearing without the presence of his solicitor.
In this situation, it is difficult to discern any legal or factual foundation for the contention that the Tribunal committed jurisdictional error by failing to follow a procedure in relation to notifying either the applicant or his solicitor of its intention to commence the hearing at 1.30 pm. In particular, I am not able to form any conclusion whether this occurred on “unreasonably short notice”, by reference to the sort of considerations referred to in SZFML. The commencement late of a hearing due to the failure of an applicant to attend on time does not, in itself, suggest any procedural unfairness or irregularity. I therefore do not accept the contentions of jurisdictional error made in Grounds 1 and 1A.
Ground 2 invites the Court to consider the issue from the perspective of Mr Hossain’s right to the opportunity indicated in s.360(1) and the related provisions of s.366A.
There is High Court authority suggesting that this can be assessed from perspectives of common law procedural fairness (see SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 at [30]‑[35], [48]‑[53], also Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 at [27] and [32], NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 at [37], [164], and [171], and SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [26]‑[29], and [32]‑[37]). When looked at from that perspective there are cases where, without any failing by the Tribunal and indeed without the Tribunal being aware of relevant circumstances, an applicant may lose an opportunity to present his evidence and to address the issues in ‘a meaningful fashion’ as revealed by subsequent evidence to the Court (compare Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553, and the ‘fraud’ and ‘interpreter’ cases).
In aid of the argument that the applicant was denied such an opportunity, I was referred to s.366A. This provides:
366AApplicant may be assisted by another person while appearing before Tribunal
(1)The applicant is entitled, while appearing before the Tribunal, to have another person (the assistant) present to assist him or her.
(2)The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so.
(3)Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person.
(4)This section does not affect the entitlement of the applicant to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.
As was pointed out by counsel for the Minister, this section has to be read in the context where other provisions of the Act entitle an applicant only to one opportunity to attend a hearing held on a date appointed by the Tribunal, and where this entitlement may be lost pursuant to the provisions of s.363A and s.360(2)(c). In this context, there is significance in the words “while appearing before the Tribunal” in s.366A(1), which carry the implication that the section gives a right to bring an assistant to a hearing appointed by the Tribunal, but not an unconstrained right to a hearing with an assistant in attendance. In my opinion, the section does not give an independent right to appear with a representative at a second hearing in circumstances where an applicant lacked a representative when first attending a Tribunal hearing, if the relevant formalities in relation to the invitation to that hearing were complied with, and if the applicant can be seen to have enjoyed the benefit of the opportunity promised by s.360(1) at that first hearing.
In the present case, it was submitted by the Minister’s counsel that this meant that Mr Hossain had the right to have a solicitor with him when the hearing commenced at 1.30 pm due to his late arrival, but that there was no breach of s.366A arising from the absence of the solicitor at that time, in the absence of any evidence that the Tribunal did or said anything to prevent the solicitor being present as Mr Hossain’s assistant at that time. Indeed, there is no evidence that the hearing did not proceed without the solicitor at the request of Mr Hossain himself or, at least, with his consent. I accept that submission, and therefore do not think that reference to s.366A identifies any jurisdictional error. I therefore do not accept the contention in Grounds 2(a) and (b).
Ground 2(d) raises whether Mr Hossain failed in a real or meaningful sense to enjoy the opportunity to present his evidence and arguments relating to the issues arising in the review, due to the absence of the solicitor for whatever reason. However, I am not at all persuaded that this happened. As I have indicated, the manifest issue of concern to the Tribunal was the absence of a successful IELTS test result. The only way that Mr Hossain could succeed on the issue must have been abundantly clear to him, being the procuring of a postponement by the Tribunal of its decision, to allow him further opportunities to sit the test. The transcript which I shall extract below shows that, in fact, he was fully aware of this, as was the Tribunal, in his discussions with the Tribunal. The Tribunal gave him and his solicitor further opportunities to address this issue in the course of responding to its written invitation for comments made in its letter of 27 April 2009. The solicitor’s subsequent response to that letter showed that he and Mr Hossain remained fully aware of the significance of the lack of a successful IELTS result, and the need for protraction of the proceedings in the Tribunal if Mr Hossain was to succeed in the review.
In my opinion, Mr Hossain sufficiently enjoyed his entitlements under s.360(1) when appearing without his solicitor at the delayed hearing, taking into account the surrounding circumstances and the subsequent correspondence with the solicitor concerning the issue in contention. I am not satisfied that the absence of the solicitor from the hearing caused any denial of Mr Hossain’s opportunity to be heard.
I am therefore not satisfied on the evidence that there was a breach of procedure under any of the provisions of the Migration Act which were invoked in the above grounds.
Moreover, if a breach of procedure occurred which might have been capable of characterisation as jurisdictional error, I am not persuaded that the circumstances shown in the evidence before me allows such a characterisation in the present case.
Recent decisions of the High Court, in particular Minister for Immigration & Citizenship v SZIZO [2009] HCA 37, (2009) 259 ALR 405, have emphasised that when considering the jurisdictional significance of departures from procedures of the Tribunal designed to confer rights of procedural fairness on applicants for review, it does not follow “that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure” (SZIZO at [35]). Their Honours, in effect, suggest that the existence of jurisdictional error by way of procedural ultra vires in relation to procedural protections should be viewed through the general principles of procedural fairness. These allow and require the Court to consider whether any injustice occurred by reason of a breach of procedure.
The consequence is that considerations such as were addressed in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 are applicable when considering whether a jurisdictional error of a procedural nature has occurred. In some cases an injustice is manifest, and does not need to be explained by evidence. However, in other cases such as Lam the absence of any evidence showing ‘practical injustice’ will result in the refusal of relief on the ground that no jurisdictional error has been established (see Lam’s case at [38], [105], [114] and [149]).

In the present case, there is a complete absence of evidence from Mr Hossain or his solicitor explaining an injustice which attended the absence of the solicitor when the hearing commenced late. There is no evidence which I would accept showing that any representation of a procedural nature was made to either Mr Hossain or to one of his solicitors that the hearing would not proceed if Mr Hossain arrived late, or would not proceed without the solicitor if he was not in attendance. Nor is there evidence showing that they held expectations arising from the general procedures of the Tribunal or otherwise, by which the absence of the solicitor at the late hearing revealed a circumstance of injustice. Moreover, there is no evidence from them showing how Mr Hossain would have benefited at the hearing by the presence of a solicitor in any way that was not addressed either by the solicitor’s subsequent response to the Tribunal’s letter raising its concern, or by Mr Hossain’s own responses to the Tribunal when this concern was explained to him by the Tribunal member.
For that reason, even if a procedural departure from a requirement of the Act was established in this case, I would not be satisfied that any of the grounds of contended jurisdictional error occurred in the present case, justifying the grant of relief.

Ground 2(c)

Section 366C provides:
366CInterpreters
(1)A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person.
(2)The Tribunal must comply with a request made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English.
(3)If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection (1).
It is significant that no complaint is made that Mr Hossain was denied an interpreter following a request for this by him or his solicitor. Nor has he made an affidavit claiming that he suffered any material disadvantage by reason of an interpreter not being provided at the hearing.
The documents before the Tribunal revealed a long history of his participation in education in Australia using the English language. There is no evidence that his solicitors at any time suggested he was in the need of an interpreter at the hearing, and the application for review by the Tribunal, completed by them, expressly indicated that he did not need an interpreter.
The Tribunal’s description of the hearing indicates that it did turn its mind to the issue raised by s.366C(3) of whether he was “sufficiently proficient in English” to participate in the hearing. Its description of the hearing was:
11.A hearing was scheduled for 14 May 2009 at 12.00. At the scheduled time the representative advised the Tribunal that they had sent a letter to the applicant at the wrong address; they had spoken to the applicant just before the hearing time and he was unable to make it into the city in time. However, the applicant arrived late at the Tribunal and so the hearing proceeded at 1332 hours. Only the applicant was present and he spoke English well and indicated that he fully understood English. A concise summary of the proceedings follows.
The Tribunal explained the legislative requirements; pointed out that he had not achieved the required score in any particular test; and so it appeared he did not satisfy the requirements. The Tribunal asked what he wished to say.
He stated he was aware he had not yet attained a successful IELTS test. However, he has booked further tests on 26 June, 8 and 28 August 2009. He gave copies of his previous tests to the Tribunal.
He explained he has been in Australia since 1998. He spoke about the courses he has completed and he has passed a Bachelor degree. He explained that he becomes nervous during exams and cannot concentrate. Nonetheless, he is able to communicate in English.
The Tribunal advised him that there was an outstanding s359A letter and the Tribunal would not make a decision until after 25 May 2009. However, it was unlikely the Tribunal would delay the review beyond that date. The Tribunal pointed out the review was over 12 months old and he had not yet achieved a successful score.
He repeated that he becomes nervous. He works part‑time only because he needs to study English. He could work full‑time otherwise. He stated he had nothing else to say. (emphasis added)
It is obscure on the present evidence as to the basis on which the Tribunal said that Mr Hossain “indicated that he fully understood English”. Such a communication may well have occurred in the unrecorded preliminaries to the commencement of the hearing at 1.30 pm. Alternatively, it might have arisen from statements by the applicant in the course of the hearing, or from the Tribunal’s understanding of the documentation before it. Mr Hossain has not himself gone into evidence denying that he indicated that he fully understood English.
The transcript which is before me has imperfections particularly at the start of the recording, where it is garbled in relation to the introductory statements of the Tribunal member. However, it is clear that the Tribunal member made his concern very clear from the start:
However, the issue is that there is no IELTS test score which shows you have achieved at least five for each of the four test components: … (see page 2)
It is also clear that Mr Hossain had no difficulty explaining that his response to this concern was to request that the Tribunal should delay making a decision until he had had three more opportunities for sitting for the IELTS test. He told the Tribunal that there were more tests that he could sit on “26 June and 8 August and 28 August. It give me three chance”. The Tribunal gave no encouragement to his thinking that he would be given that opportunity. It elicited from him that he had been sitting more tests between the date of the delegate’s decision and the date of the hearing. He said he sat several times “every two months, one month”. The exact number of tests that he had attempted is most unclear on the evidence but they were numerous. He showed the Tribunal the results from six of these, but these were not all his attempts.
The transcript then shows the following:
MR PACKER:         Today’s hearing is your opportunity, though to say whatever you would like about your case and, you know, to give evidence and present arguments. So what would you like to say?
MR HOSSAIN:       Actually, I have been in Australia 1998 and I studied – I study English language and then I studied Diploma of business Management as well as I do Bachelor of Business … System and then I intend to change my mind to study Hospitality Management and then I enrolled Bachelor of Business in Conference – Bachelor of Business Hospitality Management and I’m that I take a Diploma Course, Hospitality Management and I apply for skilled migration and I understood that if my English is bad so I can pass my bachelor’s degree and all my study. The problem is when I sit for exam, so I do sometimes panic and some other disturb like … or people sometime make noise, I can’t concentrate and as well as I feel so nervous and I can’t put my attention 100 per cent.
MR PACKER:         Yes.
MR HOSSAIN:       And if my English is bad so like I can’t work in Australia – so I think my English is enough to communicate to every people – my problem is actually some time panic and nervous and timeframe, so the sudden thing, this make my IELTS exam is bad and if my English is good – like all the time I have one compliment or two compliments there’s problem. So I feel it’s not the right way to just speak the English ability. So thus I feel nervous and like nervous and take some time. So I think if you give me this chance I’ll try my best to pass my IELTS, but I think this, for an international student is too hard and a lot of – sometimes some problem, can’t concentrate for test time. And also I want to point out that I don’t have the same exam sheet - … score 5, my different exam sheet I have more than five, sometimes I’ve got speaking six and other time, my writing I got 5.5, some time I got listening 5.5 and reading I got 5.5, but different paper, not only the same paper. So I request if you consider, so I’ll be happy. Thank you.
MR PACKER:         Yes, the problems seem to be listening and reading and it’s more often than not writing and speaking you get the required score. All right. So well, thank you for that. The requirement is in the legislation, as I said and so we’ve gone ahead – I don’t know whether you – well, obviously, your solicitor must have planned to attend the hearing. So he’s not here now. So he would’ve commentated on the fact that we still have that letter, which apparently he hasn’t told you about?
MR HOSSAIN:       No.
MR PACKER:         So you may care to just inquire about that. But, as I said, the letter has given you until 25 May to answer. Basically, the information is that you haven’t yet got a successful test. The information you’ve given today still shows that there’s no successful test and I have to say, sir, it’s unlikely that I’m going to – that the tribunal will further delay this review until after 26 June because it has been – the review has been before the tribunal since 28 April 2008. So that’s now over a year and it seems that within that year you still haven’t been able to get a successful result. Now, do you have any comments about that?
MR HOSSAIN:       Actually, I’m trying my best and I don’t know there’s – all the time one compliment, I get problem. If I get one time listening, another time is reading, so still am trying hard, so - - -
MR PACKER:         Are you working at present or - - -
MR HOSSAIN:       At the moment, I’m working, but trying – because I had to study my English, so I have chance to full‑time work, but I couldn’t because of my study.
MR PACKER:         Okay. All right. So you’re still studying English?
MR HOSSAIN:       Yes.
MR PACKER:         I, Chris Packer, ready to finish. Thank you. Got those. All right, sir, sorry, I don’t have better news for you. As I suggested, you may care to just consult with your agents to see whether they need any input from you in order to answer this letter. Other than that, I would have to say, based on the information before me now, as I said, it’s unlikely that I will delay the review after 25 May. However, that might be something you would put down in a letter, in reply, if you wish. Finally, this is probably the last time you’ll see me, was there anything else you wanted to say?
MR HOSSAIN:       No. Yes, thank you.
Counsel for Mr Hossain pointed to the passage in this transcript where the Tribunal member discussed the results in the presented IELTS test results, which showed his not achieving the requisite scores in all four matters. In particular, to Mr Packer’s suggestion that “the problems seem to be listening and reading”. It was suggested that this contained a concession by the Tribunal member, which was inconsistent with the Tribunal also being satisfied that Mr Hossain was “sufficiently proficient in English” to participate in the hearing.
However, I cannot read the member’s statement in that way. It is more likely that the Tribunal member gave weight to Mr Hossain’s opinion that “my English is enough to communicate to every people”, when considering whether he was sufficiently able to communicate in relation to the issue in the review.
Nor do I accept the submission of Mr Hossain’s counsel that the fact that the issue in the case was the applicant’s satisfaction of the test for vocational English necessarily indicated that he was not sufficiently proficient in English to participate in the hearing by the Tribunal. The evidence does not support such a conclusion, in my opinion. In its terms, the tests for vocational English are directed at different considerations than those relevant to a consideration of participation in a hearing using the English language, particularly in a case where the issue in the review was so starkly clear.
It is clear to me from the transcript that Mr Hossain had no difficulty understanding the matters which were being put to him by the Tribunal, and was sufficiently able to respond to them in English. I am unpersuaded that a factual foundation for this ground has been established.

Ground 3

Ground 3, in my opinion, suffers from the same difficulties of proof as do the above grounds. The transcript which I have extracted above, shows far from a situation where the Tribunal member’s statements at a hearing might reveal to an informed bystander that there was nothing Mr Hossain or his solicitor could say to advance his case, in particular, by persuading the Tribunal to postpone its decision until August. I accept that the Tribunal member said nothing to encourage the thought that he would defer his decision beyond 25 May 2009, and his statements might have appeared to have lent no encouragement to this aspiration. However, the member certainly indicated that he was open in the future to consider whatever submissions and arguments were presented by Mr Hossain and his solicitor in response to the outstanding letter. He expressly indicated that he would not make any decision until after the 25 May 2009 deadline, and in my opinion an informed observer would not have doubted that this was said honestly. I therefore do not accept that the transcript provides any substance to satisfy the test of apprehended bias referred to in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
Mr Hossain’s counsel submitted that the fact that the Tribunal proceeded with the hearing in the absence of the solicitor itself provided evidence of relevant pre‑determination. However, a basic problem with this submission is, as I have indicated above, that the current evidence does not allow me to make any findings as to the circumstances concerning the absence of the solicitor. It remains possible, even probable, that Mr Hossain requested, or at least consented, to this.
The Tribunal said in the passage quoted above: “well, obviously, your solicitor must have planned to attend the hearing. So he’s not here now”. This statement neither explains why he was not there, nor shows that the Tribunal was proceeding in the face of resistance by Mr Hossain or the solicitor to the hearing proceeding in the absence of the solicitor. I do not consider that a bystander, informed as inadequately as I am as to the background circumstances of the hearing proceeding with the solicitor absent, would have formed a relevant apprehension, even taking into account this statement by the Tribunal member.
For the above reasons, I have not been persuaded that any of the grounds of review that were argued in front of me have been made out. The decision of the Tribunal is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 26 November 2009