MZZSK v Minister for Immigration & Anor
[2014] FCCA 883
•7 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZSK v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 883 |
| Catchwords: MIGRATION – Refuge Review Tribunal – application for extension of time – merits of substantive claim – discretion under s.426(A) of Migration Act 1958 exercised unreasonably – jurisdictional error – extension granted – Tribunal decision quashed and remitted for re-hearing. |
| Legislation: Migration Act 1958 (Cth), ss.36, 420, 424, 425(A), 426(A), 441, 477 |
| Huiyang Li v Minister for Immigration & Anor [2011] FMCA 12 WZASC v Minister for Immigration & Anor [2013] FCCA 1452 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349 SZQHK v Minister for Immigration and Citizenship (2012) 125 ALD 458 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 VNNA v Minister for Immigration (2004) 136 FCR 407 Hossain v Minister for Immigration and Multicultural Affairs [2000] FCA 842 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCA 73 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 Minister for Immigration and Citizenship v Li [2013] HCA 18 SZJQP v Minister for Immigration and Citizenship [2007] FCA 1613 |
| Applicant: | MZZSK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1481 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 28 April 2014 |
| Date of Last Submission: | 28 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 7 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Wong |
| Solicitors for the Applicant: | Bardo Lawyers |
| Counsel for the Respondents: | Mr Kaplan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for extension of time pursuant s.477(2) of the Migration Act 1958 (“the Act”) is granted.
The time within which the application filed on 11 September 2013 may be made is extended to 12 September 2013.
A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 25 July 2013.
A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the applicant for review of the delegate of the First Respondent’s decision.
The first respondent pay the applicant his costs fixed in the sum of $6,646.00 within 28 days of this Order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1481 of 2013
| MZZSK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 July 2013 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”), dated 29 October 2012 not to grant the applicant a Protection (Class XA) visa (“the Protection visa”).
The applicant is a male citizen of Lebanon. His claims for a Protection visa are that he fears, on his return to Lebanon, he will be persecuted or suffer significant harm because of his membership of a particular social group (homosexual men in Lebanon) as well as for reasons of religion (associated with his status as a homosexual).
As the decision of the Tribunal was dated 25 July 2013 and the application for judicial review was not lodged until 11 September 2013, the provisions of s.477 of the Migration Act 1958 (Cth) (“the Act”) require that the applicant be granted an extension of time if he is to proceed with his application. Section 477(2) of the Act provides the Court with a discretion to extend the period within which a review may be made, provided the Court is satisfied that it would be in the interests of the administration of justice to make such an order.
Section 477(2) provides:
“(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
In his application filed on 11 September 2013, the applicant specified the grounds of application for extension of time as follows:
“1.Throughout the merits review at the RRT, the second respondent sent the applicant an invitation to attend hearing notice through the applicant’s RRT representative.
2.The applicant’s representative did not receive the invitation to hearing.
3.The applicant’s representative only became aware that hearing invitation was sent out by the second respondent when he received the decision record from the RRT in refusing the applicant’s review application. One of the main reasons for refusal was that the applicant fail to appear before the RRT to answer questions about adverse information that was raised by the Tribunal.
4.Upon receiving the decision, the applicant’s representative wrote to the second respondent about the issue of never receiving a hearing invitation, the second respondent responded on the same day advising the RRT’ decision are “functus officio” and that the RRT has no power to take any further action on the review.
5.Since 25 July 2013, the applicant’s representative has made several attempts to contact the applicant but to no avail, until the 3rd of September 2013 when the applicant contacted the representative to update his contact details.
6.Based on the above, the applicant never had the opportunity to appear before the RRT to present his case and to respond to adverse information raised by the RRT.”
The non-exhaustive list of factors to be considered by the Court in determining whether an extension of time is “in the interests of the administration of justice” include:
a)the extent of the delay;
b)the reasons for it;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion, and
g) the merits of the proposed substantive application.[1]
[1] HuiyangLi v Minister for Immigration & Anor [2011] FMCA 12 at para.35 per Nicholls FM; WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at para.7 per Judge Lucev (“WZASC”).
Otherwise, the applicant seeks, in his substantive application, by way of final order that the decision of the Tribunal be quashed and a writ of mandamus must directed to the Tribunal, requiring it to determine the applicant’s application according to law. The grounds specified in the application for judicial review are:
“1.The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s.65 to grant or refuse the applications and its powers to conduct a review under s.414 of the Act.
Particulars
a)The Tribunal exceeded its jurisdiction.
b)The Tribunal failed to exercise its jurisdiction.
c)The Tribunal failed to offer the applicant procedural fairness.”
At the hearing the applicant’s Counsel refined the grounds for judicial review as follows:
a)the Tribunal lacked jurisdiction to exercise its discretion under s. 426A of the Act as there was not a relevant, “non-appearance” within the meaning of that section; or
b)in the alternative, the Tribunal exercised its discretion under s. 426(A) of the Act unreasonably such as to constitute jurisdictional error.
Counsel for the applicant further clarified that the applicant accepted that the Tribunal had complied with s.425 of the Act; these being the notification provisions for the purpose of the Tribunal inviting a review applicant to appear before it at a hearing conducted by the Tribunal. Counsel also stated that the applicant accepted that, at the time the applicant’s representative forwarded correspondence to the Tribunal by facsimile on 25 July 2013, following the representative’s receipt of the Tribunal’s decision, the Tribunal was functus officio and, consequently, lacked power to re-open the review.
Chronology and Tribunal proceedings
On 10 August 2012, the applicant’s representative lodged an application, on behalf of the applicant for a Protection visa. In this application, the applicant identified his representative as the person to whom all written communications should be sent (CB 1 - 35). On 24 September 2012, the applicant’s representative provided to the Department for Immigration and Border Protection submissions in support of the applicant’s Protection visa application (CB 63-84), including a statutory declaration made by the applicant on 17 September 2012 (CB 77-82).
The application for a Protection visa was refused by the Minister’s delegate on 29 October 2012 (CB 126-142). On 20 November 2012, the applicant applied to the Tribunal for review of the delegate’s decision (CB 143 - 149). In his application form the applicant nominated Mr Nazim El-Bardouh (“the representative”), pursuant to s.441G(1) of the Act to be his representative and authorised recipient (CB 146). The representative’s postal, telephone numbers, facsimile number and email address was specified at section 11 of the application form (CB 146).
On 14 June 2013, the Tribunal sent to the representative an invitation, pursuant to s.425 of the Act inviting the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case. The invitation specified the date, time and location of the hearing. The invitation further stated that, “if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.” (CB 167) The invitation was sent by facsimile to the representative’s facsimile number as specified by the applicant in his application form. There is a copy in the Court Book of the transaction report for the facsimile transmission which records that the facsimile was successfully sent to the facsimile number at 9:50am to on 14 June 2013 (CB 175). The documents transmitted to the representative included a, “Response to Hearing Invitation” which the Tribunal requested be returned to it within seven days of being notified of the invitation (CB 172 - 174). A response was not returned by the representative or applicant to the Tribunal.
Neither the applicant nor the representative attended the Tribunal at the specified time and date. The Tribunal Hearing Record contained relevant details including the telephone numbers of both the applicant and the representative and has in hand writing over each page of the Record, “no show applicant.” (CB 176-179)
The Tribunal proceeded to make a decision without taking further action to allow or enable the applicant to appear before it (CB 186).
On 25 July 2013, the Tribunal made its decision affirming the decision of the Minister’s delegate refusing to grant the applicant a Protection visa (CB 185-192). A copy of the Tribunal’s decision record was sent by facsimile to the representative’s facsimile number on that same date at around 11:55am (CB 193). At around 1:59 pm on 25 July 2013, the applicant’s representative forwarded by facsimile correspondence to the Tribunal stating relevantly:
“We confirm that at no time have we received an invitation for a hearing on behalf fire client by any mean, (sic) our office was not aware of any scheduled hearing at any stage.
We submit that our clients claims and application should not be prejudiced by missing document that was not received by our office.”
On 25 July 2013, at around 4.17pm, the Tribunal sent to the applicant’s representative by facsimile correspondence in which it relevantly stated:
“The Tribunal made its decision in this case on 25 July 2013. Once the Tribunal has made a decision under the Migration Act 1958, it becomes functus officio and has no power to take any further action on the review.”
For completeness, reference should be made to an affidavit sworn by the applicant’s representative on 7 November 2013 and filed and served on 20 November 2013. In this affidavit the representative relevantly affirms:
“4.I am in receipt of the Court Book filed by the solicitors acting for the First and Second respondent’s (sic). Since receiving said Court Book I have noted that at page 175 of the Court Book, that a purported Hearing Invitation dated 14 June 2013 was sent by the Second Respondent to my firm.
5.Since the Receipt of the Decision of the 25 July 2013, I have had occasion to investigate my firm’s file records to ascertain whether an invitation to appear at the Tribunal Hearing was ever received by my firm. From my enquiries, I verily believe that the document (a fax) containing the invitation to appear was not received by my firm.
…
7.Since the receipt of the decision Of the 25 July 2013, I have occasion to check my email box which receives all emails sent to the address [email protected]. I note that the email address on the Form 956 is incorrect as it states my email address to be [email protected]. If the Second Respondent had sent an email to the email address the Form 956 I would not have received that email because the email address is incorrect.
8.I say that the reason my client did not appear before the Second Respondent is that I was unable to advise him that a Hearing Invitation has been issued - as none had been received by me.
9.I further say that the findings of the Second Respondent, formulated without my clients input are infected by jurisdictional error, due to my client not being afforded the opportunity to appear at the scheduled hearing.”
Tribunal Decision
It is unnecessary, given the grounds for judicial review in relation to the applicant’s substantive claim to set out in any detail the Tribunal’s decision. It is, however, relevant to note the following. Firstly, the Tribunal stated that it was, “satisfied that the hearing invitation sent to the applicant on 14 June 2013 was a valid invitation in accordance with section 425A of the Act” (CB 186 at [6]) and that, in deciding to proceed to a decision, it took into account, “the discrepancies of the applicant’s claims and the absence of any material to support those claims.” (CB 186 at [8]).
Secondly, having regard to the discrepancies and inconsistencies in the evidence before it, the Tribunal, “finds that the applicant is not a homosexual.” (CB 192 at [42]). As to the applicant’s claim that his brother, upon discovering that he had attended a gay club in July 2012, had become very angry and called the applicant’s parents and told them and that his father had disowned him and said he would be at Beirut airport with a gun (CB 189 at [24]), the Tribunal stated (CB 192 at [41]):
“The Tribunal does not accept that this incident occurred. The Tribunal does not accept that the applicant’s brother, who now supports him, acted in this manner as described by the applicant. The Tribunal does not accept that the applicant’s brother would contact the applicant’s family in Lebanon in such circumstances where there was very little information available to make such allegations.”
As a consequence of its finding that the applicant was not a homosexual, the Tribunal found that the applicant does not have a well-founded fear of persecution by reason of his membership of a particular social group or for religious reasons nor that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Lebanon, there is a real risk that the applicant would suffer “significant harm” as that expression as defined in the Act. (CB 192 at [42] – [44]).
Extension of Time
Extent of Delay
The applicant submits that his application was 13 days beyond the 35 day period for making an application to the Court pursuant to s.477(1) of the Act. I accept the applicant’s submissions that this does not constitute a substantial delay.
Reasons for Delay
I agree with the Minister’s submission that the explanation provided by the applicant in the grounds contained in his application for judicial review, are unconvincing. Even if the Court were to accept that unsuccessful attempts were made by the representative to contact the applicant from the time of the Tribunal’s decision to 3 September 2013, there is no explanation why prompt action was not then taken to immediately make an application to the Court for judicial review.
In all of the above circumstances, the Court does not consider that there has been a satisfactory explanation for the delay.
Prejudice
The applicant submits that given the nature of the visa he seeks, he would be severely prejudiced by a refusal to grant an extension of time. The Minister accepts that he would not be prejudiced by the grant of an extension of time, however, it is submitted that the mere absence of prejudice is not sufficient reason to grant an extension in time: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349; SZQHK v Minister for Immigration and Citizenship (2012) 125 ALD 458 at 471 [76].
I find, in the circumstances, that the prejudice flowing from a refusal to grant an extension of time would be very significant for the applicant and that this consideration should weigh in his favour. However, this prejudice is only enlivened where the merits of the applicant’s substantive claim are strong.
Merits of Substantive Application
As noted earlier, the applicant accepts that the Tribunal complied with s.425 of the Act. Such compliance is a precondition to the valid exercise of the Tribunal’s jurisdiction. Failure to comply will constitute jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553. Where an applicant is invited to a hearing by the Tribunal s.425A prescribes certain matters which must be complied with, including that the notice is to be given to the applicant in accordance with s.441A (s.425A(2)(a)). Section 441A specifies the methods by which a Tribunal must give documents to a person, including an application seeking review. One such method specified at s.441A(5) is by transmitting the relevant document by fax, email or other electronic means to the last fax number, email address or other electronic address provided to the Tribunal by the applicant in connection with the review.
The significance of these requirements regarding the manner in which documents are to be given, in the circumstances of this case, are what are described as the “deeming provisions”: Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [13]. Where the Tribunal gives the documents to a person by a method specified in s.441A(5), then s.441C(5) provides that the person, “is taken to have received the document at the end of the day on which the document is transmitted.” In VNNA v Minister for Immigration (2004) 136 FCR 407 (“VNNA”) the Tribunal had sent a notice inviting the applicants to attend a hearing by registered post at the applicants’ last residential address appearing on their application for review. The notice was sent back to the Tribunal marked, “Return to Sender”. The applicants failed to attend the scheduled hearing and the Tribunal proceeded to make its decision without attempting to contact the applicants. Sunberg and Heeley JJ (with whom Gyles J agreed) held at p. 414 at [15] that the fact that the applicants were not aware of the hearing did not displace the effect of s.441C.
Section 441G provides for an applicant, for the purpose of a review, to nominate an authorised recipient to receive documents from the Tribunal, on his or her behalf. If the applicant does so, then the Tribunal must give to the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Section 441G(2) provides that if the Tribunal gives a document to the authorised recipient by a method specified in s.441A, the person is, taken to have received the document at the time specified in s.441C.
In this matter, the applicant nominated Mr El-Bardouh as the authorised recipient. The Tribunal transmitted by facsimile the invitation to the applicant to appear at hearing to the facsimile number specified by the applicant in his application for review; this being his authorised recipient’s facsimile number. This was the last known facsimile number provided by the applicant to the Tribunal. By reason of the successful transmission the applicant was taken to have received the notice of invitation to the hearing.
The applicant’s grounds for judicial review relates solely to section 426A which provides:
“426A Failure of applicant to appear before Tribunal
(1) If the applicant:
(a)is invited under section 425 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.”
Whether the Tribunal lacked jurisdiction to exercise its discretion under s.426A
The applicant submits that there are two preconditions to the exercise of the Tribunal’s discretion under s.426A. First, that the applicant was invited to appear before the Tribunal in accordance with s.425. Second, that the applicant “does not appear” before the Tribunal at the scheduled date and time. The applicant concedes the first precondition was satisfied. However, it submits that, in the circumstances, there was not a non-appearance within the meaning of s.426A(1)(b). The applicant relies on the decision of Mansfield J in Hossain v Minister for Immigration and Multicultural Affairs [2000] FCA 842 and specifically his Honour’s observations at [19] to [20]:
“19.It was further submitted that s 426A did not entitle the Tribunal to proceed with the review on 9 November 1999 because s 426A(1)(b) comes into operation only when the Tribunal is satisfied that a visa applicant has abandoned the application or abandoned the desire to give evidence before the Tribunal. In my judgment, that is reading more into the plain words of s 426A(1)(b) than is warranted. The plain words indicate that the section empowers the Tribunal to proceed to make a decision on the review without taking further action to allow or enable the applicant to appear before it.
20If the applicant has been invited under s 425(1) to appear before the Tribunal to give evidence, as was the case in this instance, and the applicant does not appear before the Tribunal on the day on which and at the time and place at which the applicant is scheduled to appear, an issue may arise as to whether the Tribunal can proceed whatever the reason for that non-appearance. The expression "does not appear" in s 426A(1)(b) may require further judicial exposition in other cases. For instance, it may be that there is clear evidence that a visa applicant is unable to attend although he has expressed a desire to attend. He may be hospitalised. There may be many explanatory circumstances. No doubt the issue has not arisen because the Tribunal responds appropriately to true cases of hardship.”
The applicant submits that the phrase, “does not appear” in s.426A(1)(b) has effect only where or, is conditioned by whether or not, the applicant had actual control over whether or not he or she could appear before the Tribunal. The applicant contrasts the circumstances where an applicant for review knew the date of the hearing, was unwell but found to be medically fit by the Tribunal and those circumstances where an applicant was aware of the date of the hearing but was struck by a car preventing him or her from in fact attending the hearing. In the latter circumstances, it is submitted is that an applicant, having no actual control over whether or not he or she could appear, cannot be said, fall within the meaning of the phrase, “does not appear” in s.426A(1)(b). By analogy, the applicant submits that both the applicant and the representative intended to attend the hearing, this being apparent from the fact that the applicant lodged an application for review and nominated his representative as the authorised recipient. In addition, it is argued, neither the applicant nor the representative had actual knowledge of the date and time of the Tribunal hearing. Consequently, the applicant submits that in circumstances where he did not have actual knowledge of the date, time and place of the Tribunal hearing and the Tribunal had constructive knowledge that the applicant and his representative intended to a attend the hearing, the precondition specified in s.426A(1)(b) of the Act that the applicant, “does not appear” was not met. Consequently the Tribunal lacked jurisdiction to exercise its discretion under s.426A.
The Minister agrees that there are two pre-conditions to be exercised by the Tribunal of its discretion under s.426A. The Minister submits that as the pre-condition specified under s.426A(1)(a) was satisfied and neither the applicant nor his representative appeared at the scheduled hearing (specified in the notice of invitation), the Tribunal was entitled to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The Minister relies on the Full Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCA 73 (“SZFHC”). In this case the Tribunal wrote to the applicant inviting him to appear at the hearing of the Tribunal. The invitation was sent to the applicant’s mailing address (which was in fact the address of the migration agent) as well is the applicant’s residential address as nominated in his application for review. The invitation enclosed a, “Response to Hearing Invitation.” One of the letters inviting the applicant to attend was returned marked, “unknown at address.” The Full Court surmised that it was likely that this letter was the one sent to the respondent’s residential address. The “Response to Hearing Invitation” form was not returned to the Tribunal and the applicant did not attend the hearing as scheduled. The Tribunal proceeded to determine the application in the applicant’s absence pursuant to section 426A of the Act.
The Full Court stated at [33]:
“33.The question to be determined by the Court is whether compliance with s 425A of the Migration Act exhausts the obligation of the Tribunal to invite an applicant under s 425, or whether additional steps must be taken by the Tribunal to comply with its obligation under s 425. It is of course clear that internal management mechanisms within the Tribunal, such as the checklist in the present case, cannot alter the extent and content of the duty imposed by the statute.”
The Full Court considered the applicant’s argument that the Tribunal was on notice that he may not have received the letter containing the invitation to appear because the “response to hearing Invitation” form was not returned, the letter to the applicant’s residential address was returned unclaimed and because the applicant did not appear at the hearing. The Full Court stated at [39]:
“39.The submissions of the respondent in this respect are rejected. In view of the decision in VNAA, it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s 425A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.”
The Minister submits that once the Tribunal had properly complied with s.425 it was under no obligation to ascertain the applicant’s whereabouts or if he had received the notice of invitation to appear before exercising its discretion under s.426A(1)(b).
In VNAA the Full Court stated at [15] to [16]:
“15.There was no breach of s 425, as alleged in the notice of appeal. The Tribunal invited the appellants to appear to give evidence and present arguments. The invitation and the notice of the time and place of the hearing were embodied in the one document, as ss 425 and 425A contemplate. See NAOZ at [19] . They were sent to the appellants' address for service at their last residential address appearing on their application for review. By force of s 441C(4) they are taken to have received the document seven working days after the date it bears. As the primary judge said, the fact that they did not become aware of the invitation does not displace the effect of s 441C. A Full Court so decided in NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [14]-[16]. Section 426A empowered the Tribunal to decide the review in the absence of the appellants and without taking any further action to allow or enable them to appear before it. We agree with the primary judge when he said:
“If the applicants' argument were right, the Tribunal would be required in each case to be affirmatively satisfied that the invitation under s 425 had actually come to the notice of the applicant. To proceed in the absence of such affirmative satisfaction would, on the applicants' argument, convict the Tribunal of jurisdictional error. That argument flies in the face of the statutory scheme discernible in ss 441A and 441C and must, I consider, be rejected.”
16.That what happened in the present case involved a breach of s420 does not appear to have been put to the primary judge. That section requires the Tribunal to pursue the objectives of providing a fair and just mechanism of review, and to act according to substantial justice and the merits of the case. Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant's absence.”
I find that the applicant’s submissions cannot be accepted. The argument that the reference in s.426A(1)(b) to “does not appear” is conditioned by the applicant having actual knowledge that he has been invited to appear at a Tribunal hearing, notwithstanding the fact that the invitation was made in accordance with s.425 and hence by operation of one of the subsections of s.441C the applicant was deemed to have received notice, is inconsistent with the statutory scheme so far as the operation of s.441A and s.441C are concerned. I cannot accept that the mere making of an application for review and the insertion in the application form of details of an authorised recipient puts a Tribunal conducting the review on notice that the applicant and/or his or her representative intends to appear at a Tribunal hearing. I agree with the Minister’s submission that the Full Court decisions in SZFHC and VNNA are against the applicant’s submissions.
I am satisfied that in the circumstances where the Tribunal complied with s.425 of the Act and the applicant and his representative did not appear at the scheduled hearing, the Tribunal had jurisdiction to proceed to determine the application without taking any further action to allow or enable the applicant to appear before it.
Did the Tribunal Exercise its Discretion Unreasonably?
The applicant’s alternative ground for judicial review is that the Tribunal, in proceeding to make its decision without taking any further action to allow or enable the applicant to appear before it, exercised its discretion unreasonably and for this reason it fell into jurisdictional error. The applicant points out that the Tribunal failed to take even the smallest step of attempting to contact either the applicant or his representative by telephone, in circumstances where their telephone numbers were set out on the Hearing Record. The applicant concedes that the Tribunal is not obliged, in exercising its discretion, to make enquiries as to the whereabouts of an applicant or the reasons for non-appearance. However, it submits that the failure of the Tribunal to do so, in circumstances where firstly, the credibility of the applicant and the discrepancies in the information before the Tribunal formed the basis for its decision to affirm the delegate’s decision under review; secondly, the Tribunal had constructive notice that the applicant intended to appear; and thirdly, the ease with which the Tribunal could have made simple enquiries, had the consequence that the Tribunal exercise its discretion unreasonably.
The applicant refers to reasons given by the Tribunal for exercising its discretion in the way that it did at [8] (CB186):
“8.In reaching its decision to proceed, the Tribunal took into account the discrepancies of the applicant’s claims, and the absence of any material to support those claims. As such the Tribunal concluded that in light of the provision of the notice to the applicant about the hearing, it was appropriate to proceed to a decision without taking further action to allow or enable the applicant to appear before it.”
The applicant submits that the decision of the Tribunal affirming the delegate’s decision hinged on its assessment of the applicant’s credibility and personal attributes; namely whether he was a homosexual male. This is to be compared with a decision in which a finding as to whether a person was a member of a particular social group based on country information was central to the Tribunal’s decision. The applicant submits that in these circumstances his personal testimony and appearance before the tribunal was critical to the decision the tribunal was required to make. The applicant points out, as an example the Tribunal’s identification in its decision record of “significant concerns” with the applicant’s claims about his brother’s response to the information being provided to him.
The applicant’s evidence on this is contained in a statutory declaration attached to his application for the Protection visa (at CB 81 to 82). At paragraph 15 of the statutory declaration the applicant states that on 28 July 2012 he lied to his brother about meeting a Lebanese girl, went to a gay club and left the club at about 3.00 am the following morning, catching a taxi home. His mobile phone was switched off and when he got home his brother was going crazy because he thought something had happened to him. At paragraph 16 the applicant then states that later in the afternoon, after he had a good sleep, his brother came into his bedroom angry and screaming because he had been informed by someone that the applicant was seen walking into the gay club (CB 81). The significant concerns identified by the Tribunal (CB 191 at [41]) regarding his brothers response included “the applicant’s brother being angry at the applicant in the early hours of the morning, then the applicant was able to have a good sleep until later in the day, until his brother came into his room screaming very loud and looking very angry.” The applicant submits that given the manner in which those significant concerns were identified by the Tribunal, the Tribunal ought to have taken steps to allow the applicant to appear before it to respond to the Tribunal’s issues with the applicant’s evidence and credibility.
The applicant further submits that the Tribunal was obliged to exercise its discretion in a manner consistent with s.420 of the Act. Section 420 provides that the Tribunal must conduct its hearings in a “fair and just” way. In the circumstances, the applicant maintains that the Tribunal did not conduct the hearing in a fair and just way.
The Minister concedes that once the jurisdiction of the Tribunal under s.426A is enlivened, there are limits to the exercise of the Tribunal’s discretion. Firstly, the discretion must not be exercised capriciously: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 Secondly, the discretion must not be exercised unreasonably within the meaning of unreasonableness as set out by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”). At [85] of the decision the plurality stated (footnotes omitted):
“The Tribunal's error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error. In the circumstances of this case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Because error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law. The Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction.”
The Minister also relied on the decision of his Honour, Gilmour J in SZJQP v Minister for Immigration and Citizenship [2007] FCA 1613 (“SZJQP”) at [30] to [35].
The Minister submits that in this case there was no communication by the applicant or his representative with the Tribunal, between the date of the application for review and the hearing date. The only correspondence received by the Tribunal occurred after the Tribunal made its decision (CB196). The Minister submits that the considerations of the Tribunal in exercising its discretion to proceed to make a decision under s.426A(1)(b) articulated at paragraph [8] of its decision record were relevant considerations.
The Minister submits that the applicant’s reliance on s.420 of the Act is misguided. In Li, his Honour French CJ dealt with an identical proposition in relation to analogous provisions of the Act dealing with reviews conducted by the Migration Review Tribunal (“MRT”). His Honour stated at [12] (footnotes omitted):
“Section 420 of the Act gives the same legislative directions to the RRT as s 353 gives to the MRT. The direction in subs (1) of each provision is, as was said in SZGUR, a “requirement imposed on the Tribunal, in the discharge of its core function”. That requirement is formulated in terms of broad legislative objectives which are, to some degree, “inconsistent as between themselves.” They are not expressed in terms or in a context which would support a claim of jurisdictional error based on the non-observance of any of them. That view is well supported by observations about s 420 in the judgments of this Court in Minister for Immigration and Multicultural Affairs v Eshetu. There was a focus in that case on the interaction between s 420 and the limited grounds for judicial review of Migration Act decisions in the Federal Court which were enumerated in s 476 as it then stood. Nevertheless, it was the broad facultative language of s 420 that supported the conclusion that it did not give rise to grounds for judicial review based on a failure to comply with its exhortations. Gleeson CJ and McHugh J described its function as “intended to be facultative, not restrictive” and “to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.” Gaudron and Kirby JJ described s 420 as determining the general nature of review proceedings and held that there was no basis for concluding that it operated to mandate specific procedures to be observed by the RRT or the method by which it was to reach its decision. Gummow J agreed with what Lindgren J had said, particularly about s 420(1), in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs. Lindgren J pointed to the difficulty of invoking a failure to comply with s 420(1) as a ground of non-performance of a requisite procedure for the purposes of s 476 of the Act. Although his analysis was based upon the interaction with s 476, it threw up the general difficulty of invoking s 420(1) and similarly s 353(1) as giving rise to grounds for judicial review. A complaint about alleged non-compliance with s 420(1) might require consideration of the RRT's staff and financial resources and its internal organisations and practices. His Honour said:
“A mere conclusion that a mechanism of review in its operation in a particular case did not satisfy one or more of the epithets in [s] 420(1), would not necessarily establish that the [Tribunal] had not been pursuing the specified objective.”
Accordingly, the Minister submits, the exercise by the Tribunal of its discretion did not give rise to jurisdictional error.
I am satisfied that failure to comply with s.420 of the Act does not provide grounds for judicial review. Therefore, the applicant’s arguments on this point are dismissed.
I turned to now consider whether the Tribunal’s exercise of discretion discloses jurisdictional error.
Consideration
In Li, the plurality stated, regarding the discretion afforded the MRT under analogous provisions of the Act (s.363 (1) (b)), at [63] to [72] (footnotes omitted):
“63.Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.
64.A standard of reasonableness in the exercise of a discretionary power given by statute had been required by the law long before the first statement of “Wednesbury unreasonableness” in Associated Provincial Picture Houses Ltd v Wednesbury Corporation. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002, McHugh and Gummow JJ instanced the 1891 decision of Sharp v Wakefield. In Re Refugee Review Tribunal; Ex parte Aala, Gaudron and Gummow JJ said that the requirement of reasonableness represents the development of legal thought which began before federation and accommodates s 75(v) to that development.
65.In Sharp v Wakefield, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by “according to law”. It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be “exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself”. It is pointed out in Wade and Forsyth that the legal conception of discretion dates from at least the 16th century. In Sharp v Wakefield, Lord Halsbury LC had referred to Rooke's Case of 1598, in which it was stated that the discretion of commissioners of sewers “ought to be limited and bound with the rule of reason and law”.
66.This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
67.In Klein v Domus Pty Ltd, Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority, requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.
68.Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.
69.In Wednesbury, Lord Greene MR discussed the various grounds upon which an exercise of statutory power may be abused. His Lordship foreshadowed defining those grounds under a single head of unreasonableness, stating that it was “perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty ... unreasonableness, attention given to extraneous circumstances, disregard of public policy” were all relevant to the question of whether a statutory discretion was exercised reasonably.
70.The test proposed by Lord Russell of Killowen CJ in Kruse v Johnson, a case which is cited chiefly in relation to the unreasonableness of the exercise of delegated law-making power, may avoid some of the circularity identified in the Wednesbury formulation. Lord Russell considered that unreasonableness was found where delegated laws were:
“partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; [or] if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”.
71.In Secretary of State for Education and Science v Tameside Metropolitan Borough Council, Lord Diplock opined that unreasonableness would be shown where “no sensible authority acting with due appreciation of its responsibilities” would have so decided. This reflects the requirement of the law that a decision-maker understand his or her statutory powers and obligations. It is evident in the more specific errors, going to jurisdiction, which the law recognises and to which Lord Greene MR referred in Wednesbury, such as misdirecting oneself as to the operation of the statute, taking into account irrelevant considerations or failing to take into account relevant considerations.
72.The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another”. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.”
In SZJQP, his Honour Gilmour J stated, regarding the discretion afforded the Tribunal under s.426A(1)(b) at [30] to [36] (footnotes omitted):
“32.The Tribunal is not required, where there is compliance with ss 425 and 425A of the Act, to make further enquiries, if the applicant fails to attend the review hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 [38]-[39]. Nor is it required to give reasons for its exercise of discretion under s 426A: SZHSQ at [60]. Further, this is not one of those cases where there was requisite compliance by the Tribunal with ss 425 and 425A but the appellant did not, in fact, receive the letter of invitation to attend the Tribunal hearing. See VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16]; NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16]; NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162 at [16]. Nor is it a case where the appellant’s non-appearance was the result of the negligence of a migration agent: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365 at [127] per French J, cited with approval by the High Court in SZFDE at [53].
33.In SZIGQ v Minister for Immigration & Citizenship [2007] FCA 328, Downes J at [5] reiterated that the authorities are clear that the reason for non-attendance at a hearing does not matter. If there is compliance with ss 425 and 425A, the Tribunal may proceed under s 426A to consider and decide the matter without conducting any further enquiries. I do not take his Honour to be saying that where the Tribunal is in fact appraised of the reason for non-attendance at a scheduled hearing by an applicant for review that due consideration should not be given to this.
34.Nonetheless, where, as in this case, the discretion is unconfined, the Tribunal may have regard to a range of factors in the exercise of its discretion. That range too is unconfined except in so far as the subject matter, scope and purpose of the statute by implication limit those factors to which the decision-maker may legitimately have regard: SZHSQ at [49]. See also Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1996) 162 CLR 24 at 40.
35.I do not accept the submission of the first respondent that the only constraint upon the exercise of the discretion is that it not be exercised capriciously. NBBL as I mentioned was said to be authority for this proposition. A proper reading of Greenwood J’s reasons however shows that his Honour referred to a capricious decision as but one example of a circumstance which might give rise to procedural unfairness [24]. At [21] of his Honour’s reasons, a wider foundation is apparent.
36.In this case the Tribunal elected to make enquiries and to give reasons for the exercise of its discretion. It did not make its decision on the day scheduled for the hearing but delayed its decision, it seems in effect, to consider whether, under s 426A(2) of the Act, it would reschedule the hearing in order to enable the appellant’s appearance before it. In my opinion it is relevant then to consider whether, arguably, it took irrelevant matters into account and/or failed to take relevant matters into account in exercising its discretion.”
In this case the Tribunal decided to make its decision without taking further action to allow or enable the applicant to appear before it taking into account:
·the discrepancies of the applicant’s claims; and
·the absence of any material to support those claims.
The applicant’s claims for the grant of a Protection visa rested on his claimed status as a homosexual male. This personal attribute formed the basis for the applicant’s claim that he was a member of a particular social group (homosexual men in Lebanon). In its decision record, the Tribunal found that the applicant was not a homosexual male based on the discrepancies in the applicant’s evidence. This finding of fact, alone, resulted in the Tribunal not being satisfied that the applicant met the criteria under s.36 of the Act for the grant of a Protection visa. In these circumstances, I am satisfied that the discrepancies in the applicant’s claims were not a relevant consideration to the Tribunal’s discretion under section 426A (1)(b). The purpose of inviting the applicant to a hearing conducted by the Tribunal is to consider oral evidence and argument regarding issues arising in relation to the decision under review. This purpose is evidenced in the statutory provisions governing the conduct by the Tribunal of reviews of reviewable decisions. Section 425 of the Act provides that the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in relation to the decision under review, except if the applicant has been invited to give information or comment on or respond to information and does not do so (s.424C). Section 424A and s.424AA reflect this purpose requiring the Tribunal to give an applicant clear particulars of information that the Tribunal considers would be the reason, or reasons, for affirming the decision under review. It is accepted that s.424AA has effect only where the applicant attends a hearing to which he or she has been invited. Nevertheless, it evidences the legislative purpose of the conduct of hearings by the Tribunal.
Manifestly, the critical issue identified by the Tribunal arising in relation to the decision under review was the discrepancies in the applicant’s claim that he was a homosexual male. To take into account these discrepancies as a basis for proceeding to determine the applicant’s application for review without taking further action to allow or enable the applicant to appear before it, is, in my opinion, inconsistent with the purpose of the statute conferring the discretion. For those reasons, in my opinion, the Tribunal took into account an irrelevant consideration.
The Tribunal also took into account the absence of any material to support the claims which it found were inconsistent. This consideration misconceives the legal obligation on the applicant who had been invited to appear at the Tribunal hearing. Although applicants or their representatives may well provide submissions and evidence to a Tribunal, they are not legally obliged to do so.
In SZJQP, his Honour Gilmour J dealt with considerations the Tribunal had taken into account in exercising its discretion under s.426A. One such consideration was failure of the applicant to complete the “Response to Hearing Invitation” enclosed with the notice of invitation sent to the applicant in accordance with s.425 of the Act. His Honour stated at [41]:
“41.Whilst there are plainly very practical reasons for making such requests of the applicant, he was under no legal obligation to comply with those requests. Section 425 (one) is clear in its terms. The invitation to the applicant is “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. It contemplates that such evidence, oral or documentary or both, which of course might well go beyond the content of the written application for the protection visa, will be given, and any arguments will be presented, at the hearing. I consider it irrelevant to the exercise of discretion that the applicant did not reply to this letter prior to the scheduled date of the hearing.”
His Honour’s reasoning apply with equal force, in my opinion, to the Tribunal’s consideration regarding the absence of any material to support the applicant’s claims. There was no obligation on the applicant to provide such material prior to the hearing. Section 425 contemplates that the applicant will give evidence and present arguments, including material in support of his claims, at the hearing. Consequently, this was an irrelevant consideration.
For these reasons I am satisfied that the Tribunal took into account irrelevant considerations and in so doing acted unreasonably in a legal sense such as to constitute jurisdictional error.
Conclusion
I am satisfied, having regard to the length of the delay, the reasons for the delay, the prejudice to the parties and the merits of the applicant’s proposed substantive application, that it is necessary in the interests of the administration of justice to extend the 35 day period to enable the applicant to make his application. By order that period shall be extended to 12 September 2013.
I am further satisfied, for the reasons set out above, that the Tribunal acted unreasonably in exercising its discretion under s.426A(1)(b) and as a consequence, its decision is affected by jurisdictional error. Consequently, I shall grant the orders sought by the applicant in relation to his substantive claim with costs.
Consequently, I refuse to extend the time within which the applicant may make his application for judicial review under s.477(2) of the Act.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 7 July 2014
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