NBHP v Minister for Immigration

[2005] FMCA 998

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBHP v MINISTER FOR IMMIGRATION [2005] FMCA 998

MIGRATION – RRT decision – Tribunal dispensed with hearing after receiving consent – whether applicant attempted to withdraw consent – Tribunal not obliged to wait until appointed hearing – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.414, 420, 424, 424A, 424C(1), 424C(2), 425, 425(1), 425(2)(a), 425(2)(b), 425(2)(c), 425(3), 426A, 426A(1)(b), 427, 428, 429, 429A, 430B(4), 474(1), 483A, Pt 8

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
NBHR v Minister for Immigration [2005] FMCA 477
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 213 ALR 439
SZEMB v Minister for Immigration [2005] FMCA 448
SZEUZ v Minister for Immigration [2005] FMCA 967
WABZ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 134 FCR 271

Applicant: NBHP

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2394 of 2004

Judgment of: Smith FM

Hearing date: 20 May 2005

Date of Last Submission: 24 June 2005

Delivered at: Sydney

Delivered on: 29 July 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Ms K Morgan

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2394 of 2004

NBHP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This application was made under s.39B of the Judiciary Act 1903 (Cth) to the Federal Court of Australia on 21 June 2004, and was transferred to this Court by order of Bennett J on 14 July 2004. The application seeks orders setting aside a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 May 2004 and handed down on 27 May 2004.  The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. 

2. This Court has concurrent jurisdiction with the Federal Court in matters such as the present under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). The jurisdiction of both courts is subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑77], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa.

3. In the present case, the applicant arrived in Australia from China on a temporary visitor visa in March 2004.  One week after his arrival, he lodged an application for a protection visa.  Although the applicant told me that he was assisted by an agent, Mr Meng, at all stages in his matter and in this Court, no reference to an agent is made in the visa application nor in his later applications. 

4. His claims for protection from Australia were contained in a brief typed statement: 

   I am 37 years old now, working as a section head in XXX factory.  I did a lot of contributions to the factory, but unfortunately, due to the different political divergences with the government, I was forced to leave the position.  It was really a big blow to me.  However, what was worse was the government never stopped its persecution on me and the factory forced me to do a confession in written form.  They warned me not to declare my political divergences again.  All my family members were affected on this issue in their respective lives. 

   Under this situation, I really can’t survive in China anymore. 

   
   

   I know that in Australia people can live freely and pursue their own way of life.  So please approve of my application. 

5. A delegate refused the application on 25 March 2004, drawing attention in his reasons to the absence of detail and supporting evidence. 

6. On 7 April 2004, the applicant lodged an application for review, which merely said:  “Please see file at DIMIA”.  The application gave a home address at Berala, and a mailing address at a post office box at Granville. 

7. On 15 April 2004, a new home address at Granville was provided by the applicant.  This was also the home of an unrelated Chinese woman who also had a refugee application outstanding in the Tribunal, and who in other proceedings was given the pseudonym “NBHR”.  She became a witness in the present matter, and it is convenient at this point to set out some uncontroversial facts concerning her matter taken from a judgment of Mowbray FM in NBHR v Minister for Immigration [2005] FMCA 477 (“NBHR”).  His Honour found that by letter dated 27 April 2004 the applicant had been invited to a hearing by the Tribunal to be conducted on 27 May 2004.  On 29 April 2004, the Tribunal received a “Response to Hearing Invitation” form stating that she did not want to attend the hearing.  The Tribunal in her case signed a decision on 30 April 2004 affirming the delegate’s decision, and handed this down on 25 May 2004.  In an application before Mowbray FM, the applicant on 9 March 2005 gave evidence that she had attended at the Tribunal on 4 May 2004 to request a hearing, but had been told that it was too late even though the decision in her case had not been handed down.  His Honour accepted her evidence, and on 9 March 2005 remitted the matter to the Tribunal. 

8. In the present applicant’s case, the Tribunal on 19 April 2004 posted a letter to the applicant at his mailing and home addresses.  It informed him that the Tribunal was unable to make a decision in his favour on the information before it, and invited him to attend a hearing on 29 June 2004.  On 29 April 2004, the Tribunal received by fax the “Response to Hearing Invitation” form signed by the applicant.  It responded to the question:  “Do you want to come to a hearing?”: 

   No, I do not want to come to a hearing. 

   I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it. 

9. According to the documents on the Tribunal’s file, it had no further contact with the applicant.  On 3 May 2004, the member constituting the Tribunal signed a decision affirming the delegate’s decision.  On 6 May 2004, the applicant was sent a letter informing him that the decision would be handed down on 27 May 2004.  The decision was handed down on that date, and refers to the applicant’s consent.  It said:  “This matter has therefore been determined on the evidence available to the Tribunal”.  Its reasons were, unsurprisingly, brief: 

   The applicant’s claims are so very vague and general that the Tribunal is unable to establish the relevant facts.  If the applicant had attended the hearing I would have asked him to provide further details concerning all aspects of his claims.  In particular, I would have asked him about the nature of his political differences with the government, and the circumstances surrounding his departure from his employment.  The Tribunal finds that the applicant’s claims are vague and general, and it does not accept as plausible that they would contain so few details, such as dates and details of incidents.  That the applicant was able to leave the PRC legally and obtain a Chinese passport without any difficulties in October 2003 is consistent with the view that at the time of his departure he was not of adverse interest to the authorities, and the Tribunal so finds.  If the applicant’s employment terminated in June 1999, the Tribunal does not accept as plausible that he would wait until March 2004 before finally leaving the PRC, especially since he had a passport in his possession as of October 2003.  That he waited so long before finally leaving the PRC is consistent with the view that at the time of his departure he did not have a subjective fear of persecution. 

   The Tribunal is not satisfied, on the evidence before it, that the applicant has a well‑founded fear of persecution within the meaning of the Convention. 

10. The applicant’s application for review in this Court is signed by the applicant, and was filed on 21 June 2004.  An amended application was filed on 12 August 2004, also signed by the applicant. 

11. The original application contains two grounds:  

    1.The Refugee Review Tribunal (the Tribunal) did not follow the procedure prescribed by law when making the decision on my application for a protection visa. 

    2.My claims for protection visa were not fully dealt with.  Parts of my claims have been ignored by the Tribunal.  I was not given fair and natural justice in connection with the hearing for evidence.  Loss of employment due to different political opinion from the government is a form of persecution, which the Tribunal failed to recognize. 

12. The amended application contains the following grounds presented in one paragraph: 

    My claims for protection visa were not fully dealt with.  Parts of my claims have been ignored by the Tribunal.  I was not given fair and natural justice in connection with the hearing for evidence.  Loss of employment due to different political opinions from the government is a form of persecution, which the Tribunal failed to recognise. 

13. The allegations in these documents that the Tribunal failed to address the applicant’s claims have no substance.  Plainly, the Tribunal did consider them, but was not able to be satisfied by them due to their lack of detail.  The applicant has not sought in his written or oral submissions to pursue these grounds. 

14. The allegation in the application of a failure to follow procedure is not given any specificity, and nor is the amended application’s complaint of “not given fair and natural justice in connection with the hearing”.  In particular, neither of the applications makes a suggestion that the Tribunal wrongly denied a request for a hearing.  This was made for the first time in a document filed on 28 April 2005 headed “Further Statement (for Legal Submissions)”.  This is an unsworn document signed by the applicant which includes the claims: 

    3.My grounds for review are that: 

    vI was deprived of the opportunity to give oral evidence; 

    vI was deprived of the opportunity to explain my hard situation and impossibility to obtain such documentation and written evidence. 

    4.Particulars: 

    vTribunal invited me to attend a hearing by letter dated 19 April 2004; 

    vThe date of the hearing before RRT was scheduled for 29 June 2004; 

    vOn 29 April 2004 I sent a fax to RRT advising that I was not going to attend the hearing; 

    vHowever, after I sent out the fax to the Tribunal, I realized that it was important for me to attend the hearing; 

    vTherefore, on 4 May 2004, I went to the Tribunal to advise that I wished to attend the hearing; Enclosed please find a letter from my witness; 

    vBut I was told that the Tribunal’s decision was made; 

    vI told the reception that I did not receive the decision; 

    vThe receptionist said that the decision had not been sent out yet; 

    vThen I asked Tribunal to give me another opportunity to provide oral evidence; 

    vI was refused.  I was told that it was too late to ask for it; 

    vI was so worried that I explained to the Tribunal about my hard situation to obtain relevant information and documents.  I told the Tribunal that it was impossible for me to obtain those evidence in then hard time and life threatening environment.  I did not know I had to put in my request in writing.  I thought I could do it orally; 

    vAt that time I did not know that I should present and explain all these details at the hearing; 

    vOn 3 May 2004 RRT already made a decision on my case without my presenting at hearing; 

    vThe decision was handed down on 27 May 2004; 

    vHowever, my hearing date was 29 June 2004; 

    vRRT’s conduct was against law by finalizing the decision on my case before I attended the hearing. 

    5.I say that the Tribunal did not comply with its obligations under s425, 426A(1)(b) and 430B(4) of Migration Act 1958 (“The Act”) in respect of the above mentioned information:

    vAs a matter of fact, the Tribunal has apparently failed to give me this opportunity to provide oral evidence, which is very important in assessment of my case; 

    vWithout my appearance before the Tribunal on the scheduled date for hearing, Tribunal had made a decision on my case.  This is against my will and against the law. 

15. Attached to the applicant’s statement was a “Witness Letter” signed by NBHR, which stated:  

    I went to Refugee Review Tribunal with (the applicant) on 4 May 2004 requesting the following matters:  

    1.Ask for an opportunity for hearing;  

    2.Ask for an opportunity to explain the difficulties to obtain relevant evidence;  

    3.Other relevant matters. 

16. Although the Minister’s solicitors had written to the applicant requesting that he produce NBHR to be questioned at the hearing, she was not in attendance when the hearing commenced at the appointed time of 10.15 am.  The applicant told me that NBHR “can’t come today”, and had already given her evidence to the Court.  He then tendered Mowbray FM’s judgment in her own matter, which I have referred to above.  I informed the applicant that this was not a proper basis for receiving her evidence, and invited him to arrange for her to attend at 2.15 pm.  He did this, and I took oral evidence from him and his witness at that time. 

17. In his evidence, the applicant gave evidence consistent with his statement, but with few additional details.  He said he was unable to remember most of the surrounding circumstances of his attendance at the Tribunal premises on 4 May 2004, and gave a confused and scanty account of conversations involving the Tribunal receptionist, NBHR and a Chinese‑speaking lady who “helped us”.  NBHR’s evidence concerning their attendance at the Tribunal was clearer, and suggested that “the lady” had conducted all of the relevant discussion with the receptionist:  “I talked to the lady and the lady went over to talk to the receptionist and after that she came back to talk to us”.  There was no suggestion of this procedure in the applicant’s own account.  NBHR agreed that in her evidence to Mowbray FM she had made no mention of being accompanied by the applicant, but said “I didn’t mention him because then I was not asked about him”. 

18. The questioning of both the applicant and NBHR was unsatisfactorily conducted through an interpreter, and I must give allowance for this and also for cultural difficulties which may explain many obscurities in their evidence.  I also accept that the difficulties in accepting some of their evidence might be explained by their reliance upon unnamed and unqualified advisors and translators when presenting their cases to this Court.  I have given careful consideration to whether I should believe the applicant notwithstanding manifest problems with his evidence. 

19. The basic structure of the account given by the applicant and NBHR is not devoid of credibility:  that they were two refugee applicants sharing accommodation, who both had second thoughts about their decisions (notified to the Tribunal on the same day) not to attend their appointed hearings, and who went together to attempt to rectify their mistakes.  The chronology of both of their cases is consistent with the claimed attendance occurring on 4 May 2004, although neither NBHR nor the applicant explained to my satisfaction as to how they could both be so definite as to this date, when their recollections of other matters was so imperfect.  Moreover, the applicant has not satisfactorily explained why he did not assert the claimed events of 4 May 2004 until 10 months after commencing these proceedings, and until after NBHR had successfully presented the same narrative to Mowbray FM.  Nor has NBHR explained to my satisfaction why she did not refer to the applicant’s presence and present him as a witness to Mowbray FM. 

20. The respondent met the applicant’s evidence with an affidavit by the District Registrar of the Tribunal.  He explained the Tribunal’s case management system of recording physically as well as in a computer system “oral communications with the RRT by the applicant or their representative whilst they attend at the RRT registry”.  He said that staff are instructed “in any instance where there is contact with the applicant (whether in person or by their representative), to make a record of that communication on the case management system and/or the physical file relating to the applicant”.  He explained a general procedure where an applicant attends at the RRT Registry reception desk, whereby communications are recorded even where assistance with interpretation is required.  He had reviewed the physical RRT file and the case management system in relation to the applicant’s matter, and found no record of a request for a hearing for the applicant being made by anyone on 4 May 2004 nor at any time after that date and prior to the handing down of the decision on 27 May 2004.  This evidence was not challenged by the applicant.  However, it was necessarily general in nature, and it is common experience that the best run Registries and reception desks are not always able to follow general recording procedures in every case.  I do not regard this evidence as necessarily requiring me to reject the applicant’s evidence.  However, I give it substantial weight. 

21. After careful consideration of all the evidence, including the demeanour of the witnesses when giving evidence, I have concluded that I am unable to accept the applicant’s evidence that he attended at the Tribunal’s reception counter on 4 May 2004, and that, on this occasion or at any other time, he requested the Tribunal to allow him a further opportunity to attend a hearing.  My decision to reject his evidence was significantly swayed by what I regard as his clearly untrue responses to questions concerning the preparation of his written statement dated 24 April 2005.  In her case, NBHR had earlier presented a “Further Statement” to Mowbray FM on 8 February 2005.  A simple comparison of the two documents reveals that they were probably composed by the same author and were prepared by the same typist.  They use identical English phrases for most of their description of why “I was deprived of the opportunity to give oral evidence”.  It is, in my opinion, undoubted that the applicant’s statement reproduced, with some minor amendments, the statement previously prepared for and adopted by NBHR.  This does not necessarily mean that either or both statements are untrue, but the common authorship requires explanation. 

22. However, when this issue was raised with the applicant, he said:  

    
    “I write it in Chinese then I asked somebody to translate it in English and send it”

    .  He clearly denied in cross‑examination the suggestion that he had copied his statement from somebody else’s.  At the end of his evidence he maintained:  “The documents I submitted were written by myself.  I didn’t copy other people’s story”.  I do not accept this evidence, and this supports my inability to accept the applicant generally as a credible witness of what happened on 4 May 2005.  Similarly, I do not believe NBHR when she denied that she had discussed her statement with the applicant.  Weighing all their evidence, I conclude that, with the assistance of unnamed advisors, they have put together a false account of a request being made by the applicant for a further hearing.  It is possible that NBHR’s original statement and evidence given to Mowbray FM of her attendance at the Tribunal on 4 May 2005 might be true – I do not need to make any findings in relation to this – but I find that, if this happened, she was not accompanied by the applicant in the manner they now claim. 

1. I therefore do not accept that the applicant at any stage prior to the handing down of the Tribunal’s decision communicated to the Tribunal either a desire to withdraw his consent given on 29 April 2004 nor gave any other indication that he wanted an opportunity to appear at a hearing. This means that I do not need to consider legal issues which I canvassed with counsel for the Minister as to whether a consent for the purposes of s.425(2)(b) of the Migration Act could effectively be withdrawn. It also means that I do not need to consider whether the Tribunal proceeded to hand down its substantive decision without taking into consideration communications from the applicant indicating a wish to attend a hearing, so as to vitiate its decision (c.f. similar but not identical situations in SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 213 ALR 439, SZEMB v Minister for Immigration [2005] FMCA 448, and SZEUZ v Minister for Immigration [2005] FMCA 967).

2. There still remains an argument raised by the applicant’s application and submissions which does not depend upon my acceptance of his evidence. This is that the Tribunal, having complied with its duty under s.425(1) to invite the applicant to appear at a hearing, had no power to make a decision until after the date appointed for the hearing, notwithstanding the applicant’s consent to the Tribunal making a decision without his appearing before it. There is no contest that the Tribunal thought it had this power, since it handed down its decision on 27 May 2004, and did not wait to see if the applicant would change his mind and appear at the hearing appointed for 29 June 2004. The Tribunal gave no reasons for its opinion that it had power.

3. This raises issues of construction of ss.425 and 426A on which my opinions have fluctuated. These sections provide:

   SECT 425 

   Tribunal must invite applicant to appear 

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 

   (2)Subsection (1) does not apply if:  

   (a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)subsection 424C(1) or (2) applies to the applicant. 

   (3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 

   SECT 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. 

4. The reference in s.425(2)(c) to “subsection 424C(1) or (2) applies” is to the Tribunal’s power under those provisions to make a decision without taking further action if an applicant does not provide additional information or comments when invited by a notice under ss.424 or 424A. No other provisions of the Migration Act specifically address the circumstances in which the Tribunal can proceed to make an unfavourable decision without a hearing in the course of performing its general duty to “review” the first instance decision (see s.414). General procedural powers of the Tribunal under ss.427, 428, 429, and 429A are directed at how hearings are conducted, but do not contain an express power to dispense with a hearing with the consent of an applicant or otherwise.

5. On one literal reading of s.425, the Tribunal’s power under subsection (2)(b) to dispense with a hearing with the consent of an applicant, is only available if a consent was given before the Tribunal gave an invitation to a hearing. This is on the basis that s.425(1) is solely concerned to establish a duty to send an invitation, so that once an invitation has been sent pursuant to the duty there is no room for subsections (2) and (3) to have any application. They are to be construed solely as qualifying the duty to send the invitation, and their potential operation is spent once that duty is performed.

6. If this interpretation is taken, and if s.426A is also read as an exhaustive statement of the occasions on which the Tribunal is empowered to dispense with a hearing once an invitation has been issued, then the present Tribunal had no power to make the present decision before the appointed hearing date. Its failure to wait to see whether the applicant appeared at the hearing, on that construction, would be jurisdictional (see the cases cited above at [23], and authorities referred to therein, and SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (“SAAP”) at [72‑75], [173], [208]). 

7. Somewhat curiously, these issues of construction do not seem to have been previously addressed in a considered judgment, notwithstanding that the Tribunal’s usual practice has been to invite an applicant to give consent in the same letter which invites him to attend an appointed hearing.  Perhaps this is because most Tribunal members appear to have waited until after the appointed hearing before handing down their decision even where a consent is received.  In NBHR, Mowbray FM has not discussed the point, but may have made his finding of jurisdictional error on a different basis:  by reason of the failure of the Tribunal to consider NBHR’s request for a rescheduled hearing before handing down its decision, rather than upon an interpretation that it had no discretion to dispense with the appointed hearing. 

8. Guidance on how to interpret the various procedural provisions in Division 4 of Part 7 of the Migration Act has recently been given by the High Court in SAAP. The Court divided on the issue whether the arrangement of the sections gave rise to implications as to their intended operation. The case concerned whether the requirements under s.424A for giving written notice of adverse information had a continuing operation once a hearing was held pursuant to an invitation under s.425. The majority justices found no implication of this in s.424A, and did not draw the implication from its position preceding s.425. They did not accept the minority opinion of Gummow J that Division 4 provided a “sequential chain” (c.f. at [124], [125] and [129]). 

9. McHugh J in his discussion from [45] to [63] drew attention to the reference in s.425(2)(c) to s.424C and to the overlap between the Tribunal’s power to call for written responses from an applicant, and its duties in relation to holding a hearing. His Honour saw an inconvenience arising if the two processes were segregating. His Honour also made these general points:

   [55]The main purpose of the Division is to accord procedural fairness to applicants in determining whether a decision of the Minister or the Minister’s delegate should be affirmed. The Tribunal is the vehicle through which this purpose is effected. The Tribunal is empowered to use an inquisitorial process to conduct the review of the decision. The Division does not provide for an adversarial contest that culminates in a trial of issues joined between the parties. It is inconsistent with the inquisitorial nature of the review to require the Tribunal to obtain all information relevant to the decision under review before invoking the s 425 procedure.

   ... 

   [57]No doubt there is a tension between different elements of the review process. There is the obligation to accord procedural fairness to the applicant by advising the applicant of adverse material and inviting the applicant’s response. But the object of the Division is also to facilitate the quick and efficient determination of applications for review. The second object can be achieved, however, by the Tribunal using its broad powers to obtain documentary evidence before invoking s 425 and, in some cases, enabling the Tribunal to decide the application in favour of the applicant without needing to conduct a hearing under s 425.

10. Also in the majority, Kirby J at [154] preferred an “ambulatory approach” to the construction of the provisions in Division 4 “so as to engage the performance by the Tribunal of its functions wherever by their terms, those provisions apply to the circumstances of the case”.  His Honour said at [157] that “it is ordinarily a mistake to impose upon their provisions interpretations that narrow their operation, limiting language general in its terms so that its application is exhausted once earlier steps, suggested by the chronological sequence, are taken”. 

11. Hayne J was of similar opinion.  At [185] his Honour said:  “Given the nature of the task to be undertaken by the Tribunal, the Act should not be construed as binding the Tribunal to follow a particular and invariable sequence of steps, when conducting a review, unless the language of the Act dictates that result”.  At [192] his Honour said:  “It is not right to see the applicant’s appearance before the Tribunal pursuant to s 425, to give evidence and present arguments, as the focus or culmination of the review process. It is no more than one step in what otherwise is a predominantly documentary process”.  At [196] his Honour preferred the construction which allowed the Tribunal to obtain further documentary evidence or information after the applicant was invited to appear or had appeared at a hearing. 

12. The construction issue in SAAP has no direct bearing on the present issue, and I have not found any statement in any of the judgments which has a direct bearing on it. However, I take from the majority judgments a clear rejection of interpreting the provisions of the Division in a sequential way, and a need to consider each provision in its own terms and in the light of Division 4’s dual objectives of affording measures of procedural fairness and allowing expeditious review proceedings by an inquisitorial administrative review body. I consider that their Honours’ approach points against a construction of ss.425 and 426A as requiring the Tribunal, in effect, to suspend its review proceedings once an invitation to a hearing has been issued until after the appointed hearing date, even if one of the circumstances listed in paragraphs (a), (b) or (c) of s.425(2) occurs during the intervening period.

13. A contrary interpretation is, in my opinion, available and is supported by the line of Federal Court authority which has found in s.425 not only an obligation in relation to the sending of an invitation to a hearing, but also continuing duties about the hearing offered to the applicant. These authorities, have, in effect, found in s.425 obligations of procedural fairness in relation to the conduct of the hearing itself, including its adjournment. They are based upon an opinion that s.425 intends the hearing to which an invitation relates to be “real and meaningful” and not to be “a hollow shell or an empty gesture” (see NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30], and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]).

14. Similar reasoning led the High Court in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62 at [27] to identify in s.425 the source of “a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness” which “implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed” then “it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn”.  

15. I consider that s.425(1) must, therefore, be considered as a provision directed not only at the sending of an invitation, but also at the subsequent obligations on the Tribunal in relation to the holding and conduct of the hearing. On this interpretation, subsections (2) and (3) are also not only directed at the duty to invite, but are also intended to govern the Tribunal’s duty to hold the hearing.

16. Confirmation of this construction appears in the language of subsection (3).  I consider that it is significant that this is expressed to govern whether an applicant is entitled to “appear before the Tribunal” and not whether he or she is entitled to be sent an invitation to appear.  It is irrelevant to this point, that the subsection’s “disentitlement” would not be read as conveying an injunction to the Tribunal never to allow the applicant to appear in all circumstances where subsection (2) applies (c.f. WABZ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 134 FCR 271 at [67], [90] and [93]).

17. Once s.425(1) is construed to give rise to continuing obligations in relation to the holding of a hearing, the events described in subsection (2) which have the result that “subsection (1) does not apply” can have relevance at any time before the hearing which would otherwise be required to be held consequent upon sending an invitation. That is, there is no implication that they must occur before the dispatch of the invitation. An applicant’s consent given after the invitation would, therefore, remove the Tribunal’s obligation to afford him the offered hearing. Similarly, the obligation to conduct the hearing terminates if the time for responding to a notice under ss.424 and 424A expired after a hearing invitation was given. Moreover, and sensibly, if further information was forthcoming after the hearing invitation was sent which caused the Tribunal to find favourably for an applicant, s.425(2)(a) would also remove the obligation to conduct a hearing. In all of these cases, s.425(3) would remove the entitlement of an applicant to appear at the hearing to which he or she was previously invited.

18. In my opinion, to construe s.425 as having this effect gives it a practical and flexible operation and enhances the ability of the Tribunal to pursue the objectives identified in s.420 “of providing a mechanism of review that is fair, just, economical, informal and quick”. 

19. I do not consider that the construction gives rise to procedural unfairness to applicants in a manner which points against its adoption.  The construction leaves the Tribunal with a discretion whether to wait until the appointed hearing or to continue its review under some other procedure.  All that it does is remove the mandatory requirement that a hearing be conducted. 

20. Moreover, the Tribunal may still, in particular circumstances, be bound to conduct a hearing, or at least to consider whether the hearing should continue to be offered, notwithstanding the happening of an event described in ss.425(2)(b) or (c). In my opinion, such circumstances would include where it became aware that an applicant wished to withdraw his consent, or wished to rectify a failure which triggered the discretions under ss.424C(1) or (2).

21. Moreover, the removal of a duty on the Tribunal to afford the hearing offered by an invitation, would not remove its duty to conduct and conclude its review in a substantive way and in accordance with fair procedures consistent with the other provisions of the Migration Act. Even where an applicant did not raise reasons for the Tribunal to consider whether the hearing should still be held, the Tribunal would continue to have a duty to consider the matter before it and reach a substantive decision on the merits of the decision under review. That may still require the Tribunal to “take further action” even if the applicant has given a consent and has not attempted to withdraw it. As the Full Court recently pointed out: “The Tribunal [has] no power to dismiss an application for review by reason of non‑attendance” (NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [26]).

22. My reasons for giving s.425 an effect which empowers the Tribunal not to proceed with a hearing if a consent satisfying s.425(2)(b) is received after the hearing invitation was given, would also lead me not to imply an exclusivity into s.426A(1) as to the circumstances in which “the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it” (using the language of s.426A(1)). The result of my construction of s.425 is that the two sections allow different grounds upon which the Tribunal may dispense with conducting a hearing once an invitation has been sent. Section 425 allows a discretion to conclude its review without any qualification as to the time, provided that one of the events described in s.425(2) has occurred. Section 426A(1) allows a discretion to do this only after the appointed hearing has passed, and on the ground of the non‑appearance. I do not consider that any inconsistency between the two sections arises from my construction.

23. For the above reasons, I do not consider that the present Tribunal failed to exercise its jurisdiction according to law, by relying upon the applicant’s consent lodged on 29 April 2004 and not allowing the applicant any further opportunity to appear at a hearing before affirming the delegate’s decision.  As I have found above, there were no circumstances known or unknown to the Tribunal which rendered invalid its exercise of its discretion to do this, and there is no evidence which persuades me that the Tribunal did not properly exercise its discretion. 

24. Since I have found no other jurisdictional error affecting the Tribunal’s decision, the decision is a “privative clause decision” in relation to which relief is precluded by s.474(1) of the Migration Act. I must therefore dismiss the application.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  29 July 2005