NBAJ v Minister for Immigration
[2005] FMCA 1668
•6 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBAJ v MINISTER FOR IMMIGRATION | [2005] FMCA 1668 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – where applicant failed to attend Tribunal hearing – where applicant not informed by migration agent of hearing – where applicant signed response to hearing form – whether lack of procedural fairness – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 441A, 441B & 441G Migration Regulations 1994, reg 2.55 |
| Hot Holdings Pty Limited v Creasy and Others (2002) 210 CLR 438 Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 Cameron v Cole (1944) 68 CLR 571 Taylor v Taylor (1979) 143 CLR 1 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Reg. v Leyland Justices, Ex parte Hawthorn [1979] QB 283 Reg. v Home Secretary; Ex parte Al-Mehdawi (1990) 1 AC 876 Haile v Immigration Appeal Tribunal [2001] EWCA Civ 663 Maqsood v The Special Adjudicator & Ors [2001] EWHC Admin 1003 Freeman v Health Insurance Commission and Others [2004] FCAFC 335 R v Criminal Injuries Compensation Board; Ex parte A (1999) 2 AC 330 O’Sullivan v Repatriation Commission [2003] FCA 387 Minister for Immigration & Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1 Minister for Immigration & Multicultural & Indigenous Affairs v George (2004) 139 FCR 127 M172 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 23 SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 303 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ‘A’ (2001) 185 ALR 489 Sullivan v Department of Transport (1978) 20 ALR 323 NAFF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52 SZBBL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 185 SZBPG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1298 SDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531 B41 of 2003 [2004] FCA 30 SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 Applicant M172/2003 v Minister for Immigration & Anor [2004] FMCA 144 NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 |
| Applicant: | NBAJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG928 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 27 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG928 of 2004
| NBAJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 23 December 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant, who is a citizen of the Peoples Republic of China, first arrived in Australia in March 1997. He claimed to have commenced practising Falun Gong in China in 1996, to have been an enthusiastic practitioner in Sydney; that in November 1997 while in Australia he received a notice from his Chinese employer that he should submit a confession to the president of the local branch or he would be removed from his position losing his sponsorship to remain in Australia; that when he failed to comply he was forced to resign from his position in 2000; that he was questioned by Chinese police on one of his visits back to China (in 2001); that he had been an active participant in Falun Gong activities in Australia and that because of these activities the Chinese authorities knew of his membership of the Falun Gong.
The application was refused and on 11 April 2003 the applicant sought review by the Tribunal. In his review application he referred the Tribunal to his Departmental file. The applicant had the assistance of the same migration agent through processing of his protection visa application and while the matter was before the Tribunal. In his application for review he provided the agent’s address as his mailing address and authorised the agent to act on his behalf in relation to the case. On 17 October 2003 the Tribunal wrote to the applicant and to his migration agent advising that it had considered the material before it in relation to the application but was unable to make a decision in the applicant’s favour on this information alone. It invited him to attend
a hearing on 21 November 2003 and advised that if he did not attend and the Tribunal did not postpone the hearing it could make a decision on his case without further notice. The Tribunal received a response to hearing invitation signed by the applicant on 20 October 2003 which indicated that he wanted to come to the hearing and required a Mandarin interpreter. However the Tribunal reasons for decision record that the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend.
In the Tribunal reasons for decision the Tribunal outlined the applicant’s claims. It accepted that he was a national of China but found that he had provided scant details in his application, had provided no evidence to support his assertions or sought to corroborate his claims about his activities in Australia. The Tribunal described matters in relation to which there was a lack of clarity that it would have pursued at a hearing had the applicant attended such a hearing.
It found that it was not clear why the applicant was identified by the police as a Falun Gong practitioner when he returned to China in 2001 and that his explanation of these events was inconclusive. In view of the lack of detail in the application the Tribunal could not be satisfied that the applicant was a Falun Gong practitioner or that he was ever of interest to the authorities in China as such. Nor, on the basis of the applicant’s statement alone, could the Tribunal be satisfied that he had maintained an active role in the movement’s public activities in Australia over the past two years. As the Tribunal could not accept the applicant’s claims it could not be satisfied that he had a well-founded fear of persecution for a Convention reason.
The applicant sought review of the Tribunal decision by application filed in this Court on 27 January 2004. He relies on an amended application filed in Court which raises one ground which is as follows:
The applicant as a result of the wrongful conduct of his migration agent, was deprived of an opportunity of a hearing before the Refugee Review Tribunal. In these circumstances, there was a denial of procedural fairness giving rise to jurisdictional error.
Counsel for the applicant contended that there were two issues that arose in the case, the first being whether the circumstances gave rise to a denial of procedural fairness constituting jurisdictional error and the second being what effect s.422B of the Migration Act 1958 had on whether there was a jurisdictional error. However counsel for the respondent contended that there was no jurisdictional error, whatever the effect of s.422B. Hence he was content to proceed on the basis that it was not necessary to determine the effect of s.422B. Accordingly argument in the case was confined to the question of whether the circumstances complained of gave rise to a denial of procedural fairness constituting a jurisdictional error.
Counsel for the respondent did not seek to cross-examine the applicant in relation to his affidavit of 25 October 2003. In that affidavit, filed in these proceedings on 26 October 2005, the applicant attested that he had consulted the migration agent for help with a protection visa application, that between February 2003 and September 2004 the agent sometimes telephoned him and asked him to come into the office to sign some documents, which the applicant did, but that the documents were written in English and he did not understand them. He also stated that between February 2003 and early 2005 he sometimes received letters in the post in relation to his refugee visa application that were written in English and that he did not understand, although he recognised they concerned his refugee visa application. When he received them he would take the letters to the migration agent. He claimed not to recall signing either the review application or response to hearing invitation but stated that he expected that at the request of the agent he would have gone to his office and signed the documents. The applicant’s evidence is that until September 2004 he did not know that his matter was or had been before the Tribunal, that in 2003 his agent never told him that there was a hearing in his matter on 21 November 2003 and that if he had been told that there was a hearing and that it was important for him to attend he would have attended and told the Tribunal about his background as a Falun Gong practitioner and how he feared returning to China.
In light of this evidence counsel for the applicant contended that as a result of being misled by his migration agent the applicant was deprived of the opportunity of a hearing before the Tribunal. There was no suggestion that the Tribunal was at fault. Nevertheless there was said to be a lack of procedural fairness constituting jurisdictional error consistent with Australian and English authorities indicating that there can be a denial of procedural fairness although there is no fault on the part of the decision-maker as Gleeson CJ stated in Hot Holdings Pty Limited v Creasy and Others (2002) 210 CLR 438 at [22]. However this statement by Gleeson CJ should be seen in context. In that case there was an allegation of apprehended bias on the part of the Minister for Mines because two of the Departmental officers involved in the process of advising the Minister had shares in certain companies affected by the decision of the Minister. There was no suggestion that the Minister knew of or was seeking to advance the interests of the officers. Gleeson CJ stated that if the respondents had a case for setting aside the Minister’s decision it was on the ground that the making of the decision involved procedural unfairness. His Honour continued at [21] – [22]:
The Minister … had a duty to act fairly, in the sense of according procedural fairness… One of the incidents of that duty was in the absence of the actuality or the appearance of disqualifying bias.
It was in that context that his Honour stated that procedural fairness can occur without any personal fault on the part of the decision-maker. However there is no suggestion of bias, either actual or apprehended, in this instance.
Reliance was also placed by counsel for the applicant on a number of Australian authorities in relation to the situation where an applicant was deprived of the opportunity to attend a hearing in circumstances where there was no fault on the part of the tribunal or court in question. The first of these, Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28, a decision of the Full Court of the Federal Court, does not advance the applicant’s case. In that instance the applicant was denied the opportunity to be heard in a review by the Administrative Appeals Tribunal of a decision of the Independent Indigenous Advisory Committee. This was due to an administrative error that occurred at the Tribunal in relation to the time of posting of a letter and the incorrect recording of the applicant’s telephone number. In that context Grey ACJ and North J held that:
“The fact that the Tribunal was unaware of the absence of notice to the applicant [of the hearing date] when it made its decision does not negate the denial of procedural fairness. It is not a necessary element of a denial of procedural fairness that it be the result of intentional conduct, or even of negligence. It is enough that it occurred.” (at 33).
However it is notable that, while there was no intentional conduct or negligence by the Tribunal in that case, nonetheless the denial of the opportunity to be heard arose due to an administrative error of the Tribunal that meant that notice of the hearing was not given to the applicant (although it was not the conduct of the Tribunal member who made the decision). This is consistent with the decision of the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 in which, because of an administrative error in the Immigration Review Tribunal, a facsimile that informed the Tribunal of an applicant’s illness and sought an adjournment did not come to the attention of the member who constituted the Tribunal. The member proceeded as if the applicant had chosen not to attend the hearing. In that context the majority of the High Court was of the view that the resulting decision was a nullity because of a denial of procedural fairness.
In each of these cases the denial of procedural fairness was attributable to a failure, albeit an ‘unintentional failure’ (see Clements at 35) of the Tribunal to provide the applicant with a proper opportunity to present his case. In Clements such error was described (at 35) as a failure on the part of the Tribunal to perform the functions bestowed on it by the Act to review the decision of the committee. In Bhardwaj the Tribunal was found to have failed to comply with a fundamental requirement for the exercise of its jurisdiction (See Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [38]). In this case there is no suggestion of any administrative error on the part of the Tribunal.
Counsel for the applicant also referred to cases in which the absence of a party at the time appointed for a court hearing (through no fault of the party) resulted in the setting aside of the orders of the court, even though the court that made the order had been unaware of the reason for the party’s absence at the time the order was made. However these cases occurred in very different contexts. Cameron v Cole (1944) 68 CLR 571 considered the statutory power of annulment of a sequestration order under the Bankruptcy Act 1966. Taylor v Taylor (1979) 143 CLR 1 considered the inherent power of the Family Court of Australia to set aside a court order for settlement of property made in the absence of a party. In Hoskins v Van Den-Braak (1998) 43 NSWLR 290 neither the appellant nor anyone acting for him was served with the claim on which judgment was given against him. This Court is not being asked to set aside its own orders. The issue is whether there was a denial of procedural fairness constituting jurisdictional error on the part of the Tribunal. Further, insofar as the applicant seeks to rely on decisions involving the power of a Court to set aside a decision where an applicant has failed to attend through fault of advisers, it is notable that the present case arose in the very different statutory context of a decision of a Tribunal which is functus officio after its decision.
It was next suggested for the applicant that the procedural impropriety which may constitute a breach of the rules of natural justice was not confined to error on the part of the decision-making body, at least where the circumstances arose as a result of fraud by some party other than the Tribunal. Support for this proposition was found in the English decision of Reg. v Leyland Justices, Ex parte Hawthorn [1979] QB 283 in which an order of certiorari to quash a conviction by a court was made where there had been an error, not on the part of the court, but rather on the part of police prosecutors who had failed to call or disclose the existence of relevant witnesses.
The applicant’s evidence is to the effect that he had never been told by his migration agent that there was a hearing in his matter on 21 November 2003 (or indeed of the correct status of his application until the conversation with the migration agent’s wife in September 2004). However this is not a case in which, on the material before me, I consider it is appropriate to draw an inference of fraud on the part of the migration agent or that it has been established the conduct complained of is such as to bring into play the principles in Ex parte Hawthorn. Moreover, while there are situations in which courts have quashed by certiorari convictions shown to have been obtained by fraud and collusion, as was pointed out in Reg. v Home Secretary;Ex parte Al-Mehdawi (1990) 1 AC 876 at 898 it is questionable whether the decision in Ex parte Hawthorn is correctly classified as a case depending on either procedural impropriety or a breach of the rules of natural justice.
It was acknowledged for the applicant that the decision in Al-Mehdawi does not advance his case. In that case it was contended for the applicant that owing to the negligence of his solicitors he had been deprived of an oral hearing before the decision-maker to which he was entitled by the rules of natural justice. In circumstances not dissimilar to those in the present case (involving a decision of a Tribunal about deportation of an overseas student whose visa had expired) the House of Lords was not persuaded that a party could complain of a denial of natural justice where he had been afforded by the decision-maker an opportunity of presenting his case but, through the fault of his own advisers, the opportunity had not been taken.
Lord Bridge of Harwich (with whom the other Lords agreed) concluded at 898:
… that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument.
Similarly in this instance the applicant entrusted carriage of the review of his protection visa application to his adviser. Counsel for the applicant acknowledged that if this principle was applicable in relation to the decision and procedures of the Refugee Review Tribunal the applicant would not succeed. However he contended that where an applicant was deprived of an opportunity of a hearing before the Tribunal as a result of the wrongful conduct of his migration agent there was a denial of procedural fairness giving rise to jurisdictional error.
The applicant sought support from what he suggested was contrary English authority in the immigration context. However these cases do not assist. In Haile v Immigration Appeal Tribunal [2001] EWCA Civ 663, a decision of the English Administrative Court in relation to an asylum application was quashed on the basis of fresh evidence put before the Court of Appeal showing that the decision-maker had misunderstood or misnoted a significant piece of evidence. There is no such suggested misunderstanding of evidence in this case. As was pointed out in Maqsood v The Special Adjudicator & Ors [2001] EWHC Admin 1003 at [47]-[48], Haile is authority for the proposition that, at least in an asylum case, “in the interests of justice” a tribunal decision may be quashed even where it has made no error if, through no fault of the tribunal or the parties, it was unaware of facts relevant to the issue before it, and where the failure to bring the matter to the attention of the tribunal was that of the appellant’s legal representatives, but in Haile “the appellant had been deprived of a fair hearing because of the failure of the decision-maker to understand or correctly to note an important item of evidence”. In contrast, in Maqsood an applicant for asylum was deprived of the opportunity to present his case to the decision-maker by the negligence of his solicitors. The Court noted that under the applicable Rules it was sufficient to give notice of a hearing to the solicitor for an applicant. It was held (at [50]) that although an applicant may be prejudiced if his solicitor fails to respond to a notice (even though the applicant is not personally at fault) to give relief would be inconsistent with the prescription of procedural order. Fairness did not require the quashing of the decision. Similarly, in this instance consistent with Part 3 of the Migration Act 1958 (C’th), the applicant had the assistance of a registered migration agent. The notice of invitation to appear was given to the applicant in accordance with s.425A (also see s.441A and 441G).
Relevantly as Kiefel J with whom Marshall J agreed, stated in Freeman v Health Insurance Commission and Others [2004] FCAFC 335 at [52]:
In the context of administrative decision-making there would not appear to be support in Australia for the view that problems which arise in the conduct of the case of the person to be the subject of the decision, through their mistaken view or that of their legal advisors, could amount to procedural unfairness. There would seem to be strong policy grounds why this should not be the case.
Her Honour noted (at [50]) there may be a divergence in the approach taken by English courts and the High Court of Australia on the question of whether there needs to be something approaching personal responsibility for the unfairness in question on the part of the decision-maker (see R v Criminal Injuries Compensation Board; Ex parte A (1999) 2 AC 330 which was distinguished in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at 459, per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ). In Freeman’s case Downes J agreed with the reasoning of Kiefel J. His Honour suggested that it was not necessary to refer to cases relating to unfairness caused by the conduct of third parties where there was no unfairness “for which any of the relevant investigating or adjudicating persons or bodies was responsible” (at [67]).
Counsel for the applicant accepted that the content of the rules of procedural fairness will depend on the relevant statutory context. (See O’Sullivan v Repatriation Commission [2003] FCA 387 at [55] per Sackville J). As McHugh and Gummow JJ stated in Minister for Immigration & Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1 at [105] in the migration context: “… the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision-making process not the decision … what is delivered by the requirement of natural justice is the right to a hearing, a technical expression at law, before action is taken”.
There are a number of authorities addressing the scope of procedural fairness in the context of migration decisions or review by the Refugee Review Tribunal which are directly in point and of more assistance than the English authorities. The first of these is a decision relied on by counsel for the applicant: Minister for Immigration & Multicultural & Indigenous Affairs v George (2004) 139 FCR 127. It is said that this case demonstrates that the principle that all the Australian authorities require some defect in the decision-making process (as was suggested by Bryant CFM (as she then was) in M172 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 23) is not correct. Critically, in George’s case the Department attempted to inform the respondent in writing that the Minister intended cancelling his visa and that he therefore had the opportunity to make submissions or comments. However the letters were sent to addresses which were not, and in fact never had been, addresses of the respondent. In those circumstances the relevant deeming provisions about giving notice under the Migration Regulations 1994 (Reg 2.55) did not apply. While there was no fault on the part of the Minister, the Full Court of the Federal Court held that even if the Minister had acted reasonably in assuming (on the basis of information and material available) that a visa holder had been notified of the proposal to cancel that person’s visa, if that information and material was wrong and the person had not been notified it would be objectively unfair for a decision to be made because the person would not in fact have been afforded the opportunity of being heard (at [50]). However, as the Court clarified at [53]:
In circumstances where a visa entitles the holder to permanent residence in Australia and cancellation will render that person liable to detention and removal from Australia, a mistake as to whether the person has been notified of the intention to consider cancelling the visa is a very significant one. Such a mistake will be even more significant if the consequences of the cancellation of a visa entitling the holder to permanent residence in Australia may include separation from his family and removal to a country with which he no longer has any social connection. Such a mistake, acted upon as it was here, must be regarded as going to the jurisdiction of the decision-maker to cancel the visa where procedural fairness is required before doing so. Failure to do so will normally involve jurisdictional error, notwithstanding that what occurred was subjectively fair from the point of view of the decision-maker, because, on the material and information available to the decision-maker, it was reasonable to conclude that a right to be heard had been afforded. Of course, this general statement is subject to any contrary indications within the relevant statutory scheme including, in this case, the deeming provisions within the Act. However, for the reasons already given, they do not assist in this case.
In this instance there is no suggestion that the Tribunal did not meet its notification requirements under the Migration Act 1958 (Cth). It notified the applicant of the hearing at his mailing address and also by letter sent to his authorised recipient (see ss.441A, 441C and 441G). It properly invited the applicant to a hearing as required by s.425 of the Act. There was no “mistake” on the part of the decision-maker akin to that which occurred in George. It had, as requested in the review application, notified the applicant personally of the hearing invitation. The applicant chose not to ask his adviser about this invitation. He chose to sign an untranslated response to hearing invitation without inquiring as to its content. The Tribunal in this case was entitled under s.426A of the Migration Act1958 to make a decision without taking any further action to allow or enable the applicant to appear before it. There is nothing to suggest that the procedure adopted by the Tribunal was unfair. As their Honours stated in George at [54]: “The general statement [quoted above] will also not be applicable if, in any event, the procedure that has been followed is nevertheless a fair one”.
George is not inconsistent with what was said in M172, particularly when one take into account the statutory scheme applicable to review by the Refugee Review Tribunal. Provided the Tribunal has afforded an applicant an opportunity to be heard, by the adoption of a procedure which is a fair one, no error going to the jurisdiction of the Tribunal to make a decision without giving the applicant a further opportunity to be heard will be established.
In M172 Bryant CFM considered applicants’ claims that they had relied on and were misled by their migration agent who was not authorised to tell the Tribunal that the applicants would not be attending the Tribunal hearing. They claimed that they were denied natural justice. Bryant CFM suggested there was reason to be cautious in relying on English authorities in this area (see SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 303 at [29]-[31]). She stated at [28] that “all the Australian authorities require some defect in the decision-making process” referring to Lam at [105] per McHugh and Gummow JJ. (Also see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte “A” (2001) 185 ALR 489 and Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J.) Her Honour also took into account the fact that there was no evidence led to support the allegation by the applicants that they were misled by their migration agent.
Counsel for the applicant took issue with the correctness of the statement that “All the Australian authorities require some defect in the decision-making process”. No contrary authority in the context of review of decisions of the Refugee Review Tribunal was cited. As Lindgren and Stone JJ suggested in NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52 it is necessary to determine the scope and content of the requirements of natural justice in the particular factual circumstances of the case and whether those requirements were met. As Bryant CFM also observed in M172 at [30]:
What must be demonstrated is “unfairness” and the concern of the law is to avoid “practical injustice”.
There are a number of other authorities in relation to decisions of the Refugee Review Tribunal which adopt the approach taken in M172. I consider that such decisions are correct and should be followed. I bear in mind however, that there may be a “defect” in the decision-making process without “fault” on the part of the Tribunal. George’s case is an example in the context of a Ministerial decision.
In SZBBL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 185 it was suggested, at [13], that M172 clearly and conclusively dealt with the issue of whether proceedings were rendered procedurally unfair by reason of some fault on the part of a migration agent which prevented an applicant enjoying the full benefit of a Tribunal hearing. It was concluded that default on the part of a migration agent could not support a claim of jurisdictional error on the part of a review Tribunal. In SZBPG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1298 I held that where a self-represented applicant appeared to claim that her failure to attend the Tribunal hearing was in some way attributable to her migration agent, there had been no denial of procedural fairness by the Tribunal which had complied with the statutory notification of hearing provisions in the Migration Act and that it was open to the Tribunal to proceed to make a decision in the applicant’s absence (see SDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531). If the applicant had a complaint about the conduct of her migration agent, that was not a matter that established jurisdictional error by the Tribunal reviewable by the court.
In B41 of 2003 [2004] FCA 30 an invitation to attend a Tribunal hearing was sent (as had been requested) to the applicant’s migration agent. The applicant denied having received the letter inviting him to a hearing and claimed that he was not informed of the date for the Tribunal hearing. However in an affidavit filed in different proceedings he had sworn that he was advised by his migration adviser that the hearing had been fixed for 1 February 2000 and had asked if he could attend but was told this was not necessary. In these circumstances Dowsett J held that, even accepting that the applicant did not receive the letters from the Tribunal, the court could not accept that the applicant was unaware of the purpose of the hearing, having asked his migration adviser whether he could attend and understanding that it was the occasion for making submissions. His Honour held that the applicant had chosen to act on the adviser’s advice that there was no point in his attending. That he did not attend the hearing was a consequence of such choice. In such circumstances there was no denial of procedural fairness. The applicant “cannot complain that his actions, taken in reliance upon the advice received from his immigration adviser, led to his being denied procedural fairness” (at [25]).
While in this instance the applicant’s contention that he was not aware of the Tribunal hearing distinguishes the facts from those considered in B41 of 2003, nonetheless it is clear that he chose not to seek clarification from his migration agent of relevant documents (such as the response to hearing invitation which he conceded bore his signature) or to seek translation of documents written in English which he received from the Tribunal and which he understood related to his refugee visa application. In that sense he also chose to rely upon the advice received from his migration agent. That he did not attend the Tribunal hearing was a consequence of his decision to proceed in that manner.
Finally, in SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 Bennett J, sitting as the Full Court of the Federal Court, considered circumstances where an applicant had claimed to the Court that his migration agent had acted without consultation or instructions when an invitation to attend a Tribunal hearing was declined. The Tribunal had sent a letter to the applicant care of his migration agent and to the postal address nominated in the application for review inviting the applicant to attend a hearing. There was evidence of a signed response to the Tribunal’s invitation. There was, however, no evidence in support of the applicant’s assertions as to the actions of his migration agent before the Court. Driver FM had held at first instance, in reliance on Applicant M172/2003 v Minister for Immigration & Anor [2004] FMCA 144, that any fault on the part of the migration agent in dealing with the hearing invitation could not support an assertion of jurisdictional error. Bennett J found that the Tribunal’s letter to the applicant was sent in accordance with the statutory requirements and that, although the applicant asserted that he did not receive notice, the Tribunal had complied with its obligations to give the applicant notice of the hearing (See ss.425A(2)(a), 441A(4), 441C(4) and 426A(1)). Her Honour concluded that she was satisfied that “within the framework of the Act there was no failure to give the applicant the opportunity to appear before the Tribunal and the Tribunal was entitled to make a decision on the application for review in the absence of the applicant”. (See NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184) (at [25]). Similarly in this case there is no suggestion that the Tribunal failed to comply with its obligations to give the applicant notice of the hearing.
I am not persuaded that the conduct of the migration agent complained of by the applicant in this case establishes a denial of procedural fairness giving rise to jurisdictional error. The applicant was given an opportunity by the Tribunal to be heard. No shortcoming in the procedures adopted by the Tribunal has been suggested. No mistake, misunderstanding or any “procedural impropriety” in the context of administrative decision-making by the Tribunal or defect in the decision-making process has been established. The applicant chose to rely on his migration agent and did not seek translation of documents he received and signed. It cannot be said that, even on the broadest view, procedural fairness requires that the Tribunal decision be set aside. What transpired between the applicant and his migration agent does not amount to a breach of procedural fairness and therefore jurisdictional error on the part of the Tribunal. The application must be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 6 December 2005
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