FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3045 |
| Catchwords: JUDICIAL REVIEW – Applicant contends s 360A notice invalid for failing adequately to state effect of s 362B – statutory construction – scope of obligation to state effect of s 362B – notice stating effect of s 362B deficient – effect of error on validity of decisions to dismiss and confirm dismissal – procedural fairness – whether magnitude or gravity of error warrants conclusion that error is jurisdictional – whether practical injustice to applicant from service of partially complete statement – no want of procedural fairness shown – whether decisions to dismiss and confirm dismissal of application beyond power – whether legislative purpose of power to dismiss for non-appearance is that act done in breach of s 360A should render decisions invalid – distinction between substantive and procedural requirements of Part 5, Div 5 of Act – relevance of relative significance of decision – reinstatement was available – decisions not invalid – unreasonableness – whether Tribunal’s failure to take into account factors relied upon warrants conclusion that exercise of powers to dismiss and confirm dismissal of application was legally unreasonable – decisions not affected by jurisdictional error upon ground of unreasonableness – failure to take account of relevant considerations – need to demonstrate that factors relied upon were factors which the Tribunal was expressly or impliedly required to take into account – factors not mandatory relevant considerations – no jurisdictional error. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AA Federal Circuit Court Rules 2001, r.44.05 Migration Act 1958 (Cth), ss.29, 65, 66, 348, 353, 357A, 359A, 360, 360A, 361, 362, 362A, 362B, 362C, 368, 368D, 379A, 379C, 379G, 416, 417, 422B, 425, 425A, 426A, 437, 438, 441A, 441C, 441G, 476 Migration Amendment (Protection and Other Measures) Act 2015 Migration Legislation Amendment Act (No.1) 1998, s.22 Migration Regulations 1994, cll 820.211, 820.221, reg.4.21 |
| Other texts cited: Statutory Interpretation in Australia, Pearce & Geddes 8th Ed (2014) The Oxford English Dictionary, 2nd Ed |
| Applicant: | THI KIM NGAN NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 685 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 20 June 2017 |
| Date of Last Submission: | 20 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Luat Lawyers |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Sparke Helmore |
THE COURT ORDERS THAT:
The amended application filed on 20 June 2017 be dismissed.
The Applicant pay the costs of the First Respondent fixed at $7,206.
By 4.00pm on Thursday, 8 November 2018, the first respondent:
(a)notify Sabelberg Morcos Lawyers of any application which is made pursuant to paragraph 3 of the Order made on 1 June 2017; and
(b)serve a copy of the reasons for judgment delivered on 31 October 2018 upon Sabelberg Morcos Lawyers.
By 4.00pm on Thursday, 15 November 2018, Sabelberg Mocos Lawyers file and serve on the solicitors for the first respondent:
(a)any affidavit upon which they seek to rely in relation to any application for non-party costs.
(b)any submissions respecting such application.
By 4.00pm on Thursday, 22 November 2018, the first respondent file and serve:
(a)any affidavit in reply.
(b)any submissions respecting such application.
AND THE COURT NOTES THAT:
A.The first respondent makes application that an order be made pursuant to r 21.07(1) of the Federal Circuit Court Rules 2001 that the applicant’s former lawyer, Sabelberg Morcos Lawyers pay the costs of the first respondent fixed at $1,680, being costs thrown away by reason of the adjournment granted on 1 June 2017 and reserved pursuant to paragraph 3 of the Order made on that day.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 685 of 2016
| THI KIM NGAN NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed on 20 June 2017, judicial review is sought of decisions of the Administrative Appeals Tribunal (Tribunal) made on 15 January 2016 and 2 February 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Partner visa under the Migration Act 1958 (Cth) (Act).
As counsel for the applicant aptly observed, the history of the visa application is beset with complexity, for which the applicant bore no responsibility in many respects. Her former lawyers, who had taken the case on a pro bono basis, did not appear at a tribunal hearing. Text messages to the applicant reminding her of the hearing were sent to her in English, which she had some difficulty in understanding. The decisional process of the Tribunal took an odd course. These matters notwithstanding, I have determined that the application must be dismissed. It is a separate question whether the Minister may be persuaded to take a different view of the visa application.
Background
The applicant, a Vietnamese citizen aged 26 years, first arrived in Australia on 26 January 2010 on a student visa which visa expired on 15 January 2012. On 23 March 2012, the applicant applied for a Protection visa. A delegate of the Minister refused the Protection visa application on 13 July 2012. This decision was affirmed by the then Refugee Review Tribunal on 8 January 2013.
On 15 March 2013, the applicant made a request to the Minister to intervene under s 417 of the Act.
By letter dated 12 November 2014, the Department of Immigration and Border Protection wrote to a firm of solicitors then acting for the applicant, advising that the application for Ministerial Intervention had been refused. The Department advised that the Minister did not wish to consider cases where the option of a valid application within Australia for a Partner visa existed.
On 22 December 2014, the applicant applied for the Partner visa which is the subject of the present proceeding, doing so on the basis of her spousal relationship with her sponsor, an Australian citizen, Mr Nguc The Vu (sponsor), whom she had married on 12 July 2014. The applicant and her husband now have two children.
The applicant’s former lawyers lodged the application.
On 23 December 2014, the Department wrote to the applicant’s lawyers by email acknowledging the visa application.
By letter dated 19 May 2015, the Department wrote to the applicant’s lawyers stating in part that when her visa application had been lodged she was not the holder of a substantive visa. The letter stated that in those circumstances the applicant was obliged to satisfy certain additional criteria prescribed by Sched 3 to the Migration Regulations 1994 (specifically, each of criteria 3001, 3003 and 3004), in addition to satisfying other standard Partner visa criteria.
The applicant was invited to put forward any claim that she wanted the Department to consider and to explain the circumstances that had led to her becoming a person who was not the holder of a substantive visa.
On 22 September 2015, the Department notified the applicant of the refusal of her visa application.
The delegate’s decision stated that the applicant was represented by her lawyer, a migration agent, and that the applicant had not met the criteria for a Partner visa. Included in the reasons for that decision was that, by operation of sub-cl 820.211(2)(d)(ii) of the Regulations, the applicant was obliged to satisfy criteria 3001, 3003 and 3004, unless the Minister was satisfied that there were compelling reasons for not applying those criteria.
The delegate found that as the applicant had ceased to hold a substantive visa more than 28 days before lodging her application, she did not meet criterion 3001, concluding that:
As you fail to meet criterion 3001, I am not required to assess against the remaining Schedule 3 criteria.
The delegate found that as the applicant did not meet cl 820.221(2)(d), the criteria for the grant of a Partner visa were not met and accordingly the application was refused.
On 8 October 2015, the applicant’s former lawyers lodged an application for a review of the delegate’s decision advising the Tribunal that that firm would act on a pro bono basis. The applicant’s lawyers further informed the Tribunal that the applicant did not have work rights at that time, her husband was currently unemployed,[1] the parties were reliant upon free accommodation until the year’s end and that the applicant was pregnant (with her first child).
[1] But starting a part-time job next month.
The attached application for review relevantly included the applicant’s contact mobile phone number and the email address of her lawyers together with confirmation that the applicant wished to appoint those lawyers as her representatives and to be her authorised recipient. The applicant relied upon this information as informing the Tribunal that she was legally represented and of the lawyer’s contact details. The application disclosed that the applicant needed the assistance of a Vietnamese interpreter in addressing the application.
Also accompanying the application was a radiologist’s report confirming that the applicant’s predicted date for the delivery of her child was on 2 March 2016. The applicant relied upon the radiological report as supplying the Tribunal with the means of knowledge of the fact of her pregnancy and pending delivery date of 2 March 2016.
On 12 October 2015, the Tribunal wrote to the applicant’s lawyers confirming receipt of the application for review and advising in part:
By providing you with these documents, we are taken to have given the documents to the applicant. You should ensure that the applicant is informed of this letter as soon as possible. (emphasis in original)
An attachment to that letter was an acknowledgment of application also dated 12 October 2015 which stated in part:
If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.
Neither the applicant nor her lawyers responded to that invitation.
On 26 October 2015, the Tribunal transmitted an email to the applicant’s lawyers confirming the grant of her application for a fee reduction. The applicant relied upon that communication as indicating knowledge on the Tribunal’s part that the applicant was a person of modest means. A Case Note of the same date recorded the fact of the applicant’s pregnancy and her modest circumstances.
On 8 December 2015, the Tribunal transmitted an email to the applicant’s lawyers inviting the applicant to attend a hearing stating:
By providing you with these documents, we are taken to have given the documents to the applicant. You should ensure that the applicant is informed of this invitation as soon as possible. (emphasis in original)
Attached to that email was a letter also dated 8 December 2015 entitled Invitation to Attend a Hearing – Ms Thi Kim Ngan Nguyen. The content of that invitation is the main focus of the present application.
The invitation informed the applicant that the Tribunal had considered the material provided to it but concluded that it was unable to make a favourable decision on the information alone and accordingly invited the applicant to attend before the Tribunal to give evidence and present arguments relating to the issues arising in her case.
The invitation stated distinctly that the date of the Tribunal hearing was 15 January 2016, with an appointed hearing time of 10:00 am.
The Tribunal must invite an applicant to appear at a hearing: s 360(1). As set out above, it did so. It follows from the matters in [20]-[23] that the applicant’s lawyers had been informed by email on 8 December 2015 that the scheduled hearing date of the application for a merits review of the delegate’s decision was 10:00 am on 15 January 2016.
By s 360A(5), the Tribunal’s invitation must contain as statement of the effect of s 362B. In this context, and of central importance to this application is the content of the invitation that was given by the Tribunal to the applicant’s authorised recipients, her former lawyers, the relevant text of which is reproduced at [120] below.
The applicant now seeks to impugn the content of the invitation. While the applicant accepts that the invitation contained a statement of the effect of sub-s 362B(1A)(a)-(b), she contends that the invitation did not comply with sub-s 360A(5) in that it did not inform the applicant of the effect of sub-s 362B(1B)-(1G). I address this contention below.
Also supplied to the applicant was a document entitled Response to Hearing Invitation – MR Division, which the applicant was requested to complete and return to the Tribunal. Included in Part 2 of the pro forma response was an inquiry, whether any person attending the hearing, including the applicant, needed the assistance of an interpreter.
There was no response to that offer of assistance.
The Tribunal’s case notes indicate that on 8 January 2016, and again on 14 January 2016, the Tribunal had sent an SMS hearing reminder to the applicant’s designated mobile phone number. In her affidavit made on 20 June 2017, the applicant deposed:
I did not know that the Tribunal sent me two text messages about the hearing scheduled on 15 January 2016. I have checked my old mobile phone for these text messages and I did receive them, but I did not understand them. They were English. I did not know what “AAT” was. I thought the messages were junk mail.
The applicant did not depose that the SMS text application had a junk folder or that the messages had been sent to her junk mail.
Exhibited to the applicant’s affidavit were two SMS messages, which confirmed that the Tribunal had sent the applicant a reminder of the hearing appointed for 15 January 2016. Each of those SMS messages were in English, not Vietnamese. The applicant relied upon her limited command of English as explaining her asserted inability to comprehend the content of the two messages.
Equally, the Tribunal did not send any SMS or other message to the applicant’s lawyers reminding them of the appointed hearing date.
On 15 January 2016, there was no appearance before the Tribunal by the applicant or her migration lawyer. The Tribunal made a decision to dismiss the application under s 362B(1A)(b).
The Tribunal’s brief reasons for its decision relevantly stated:
NON-APPEARANCE DECISION
DATE: 15 December 2015
DECISION:Application dismissed under s.362B(1A)(b) of the Migration Act 1958
The review applicant was invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 15 January 2015 (sic, 2016), but did not appear at the scheduled time and place.
As no satisfactory reason for the non-appearance has been given, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The parties acknowledged that this decision contained two errors. First, the stated date of the decision was said to be 15 December 2015, whereas in truth, the decision was made on 15 January 2016. In this context, I note a certificate in the body of this decision certified that the Tribunal’s statement of decision and reasons was a statement made on 15 January 2016 at 11:59 am. Secondly, the Tribunal’s reasons for the decision stated that the applicant had been invited to appear before the Tribunal on 15 January 2015, when in truth, the invitation to appear was an invitation to appear on 15 January 2016.
On 18 January 2016, the Tribunal wrote to the applicant’s lawyers notifying them of the decision to dismiss the application. The letter was provided as an attachment to an email transmitted to the applicant’s lawyers on that date. Also attached to the email was a letter addressed to the applicant personally, a copy of the decision and an information sheet about dismissal of an application by a Tribunal. In the body of this letter, the Tribunal stated:
You may apply to us, in writing, for reinstatement of the application by 1 February 2016.
Accordingly, the applicant’s former lawyers were sent an email advising of the fact of dismissal and giving notice that the applicant might apply for reinstatement of her application: see s 362B(1B).
An attached information sheet also provided by the Tribunal stated:
What happens if an application is dismissed?
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
The matters in [36]-[37] above confirm that the applicant’s former lawyers were informed on two instances of the right of reinstatement.
A Tribunal case note records in the following terms, that on 18 January 2016 at 2:33 pm, the applicant’s lawyer called the Tribunal:
[Applicant’s former lawyer] called from the rep’s office upon receipt of a decision notification dismissing this matter. [He] said they did not receive notification of the hearing and I confirmed that a invitation was emailed to the recipient on 8/12/15. [He] said he would look into this and get back to the Tribunal.
It may be noted that the above communication with the Tribunal on 18 January 2016 had been initiated by the applicant’s former lawyer.
To this point, it appeared that the applicant’s lawyers had either not received or overlooked the email transmitted on 8 December 2015 notifying them – and thus the applicant – of the appointed hearing date.
There is no evidence suggesting that on or after 18 January 2016, the applicant’s lawyers did “get back to the Tribunal”. The absence of that evidence lends support to a conclusion that the Tribunal’s notification of the appointed hearing date was received on 8 December 2015.
The applicant deposed that she was not aware of the dismissal of her application on 15 January 2016 and further that, had she known that she needed to apply for reinstatement, she would have done so.
On 20 January 2016, the Tribunal sent an email to the applicant’s lawyers attaching two letters, each dated 20 January 2016, and a corrigendum to the AATs decision, which made the following corrections to the decision:
The decision and hearing date on the first page of the Non-Appearance Decision were incorrect. The date should be 15 January 2016, with the first paragraph stating:
The review applicant was invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 15 January 2016 but did not appear at the scheduled time and place.
The letter stated that the corrigendum was a correction of the text of the decision and did not change the reasons or outcome of that decision such that the response date for reinstatement of 1 February 2016 remained in place.
On 2 February 2016, the Tribunal made a decision confirming the decision under review and provided a statement of decision and reasons for that decision. The Tribunal’s statement of decision and reasons dated 2 February 2016 included the following:
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 September 2015 to refuse to grant the visa applicant a [visa] …
2On 15 January 2016, the Tribunal dismissed the application under s362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
3.The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision…The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
4.As the review applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. (emphasis added)
On 4 February 2016, the Tribunal sent an email to the applicant’s lawyers, attaching the decision confirming the decision under review.
It is from the decision made on 15 January 2016 as confirmed on 2 February 2016 that the applicant seeks judicial review.
Procedural History
On 5 April 2016, the applicant commenced a proceeding in this court seeking an order that the respondents show cause why a remedy should not be granted in exercise of the court’s jurisdiction under s 476 in respect of a decision made on 4 February 2016. Final orders were sought quashing the Tribunal’s decision together with prerogative relief directing the Tribunal to determine the application in accordance with law. An application for interim injunctive relief was never made.
The application was signed and filed on the applicant’s behalf by her former lawyers.
The substantive ground of the application was stated to be that the Tribunal constructively failed to exercise its jurisdiction. Six particulars of that ground were stated including that the applicant had not received letters inviting her to attend the Tribunal hearing or the letter of the Tribunal affirming the decision of the delegate. The further ground relied upon by the applicant was that she had been represented by a lawyer and not advised of his invitation to attend the hearing. The applicant relied upon her having been involved in a motor vehicle incident in which she had broken her hip and further that she had recently given birth which also affected her health with the result that, it was said, she had not been fit to appeal the decision earlier.
The applicant swore an affidavit on 5 April 2016, which affidavit was also prepared on her behalf by her former lawyers.
Relevantly, this affidavit deposed that the applicant had sustained injuries in a motor vehicle incident as a result of which her hip had been broken. She deposed that she had recently given birth. She swore that she had lodged an application for review of the decision to refuse her a Partner visa application but that she had not attended the hearing and that the Tribunal member had affirmed the decision without her evidence being heard or an opportunity for her to respond to any information. The applicant deposed that she believed she had not been provided natural justice as the Tribunal had made no attempt to contact her. She exhibited to her affidavit a copy of two letters, each dated 4 February 2016, an AAT document entitled “Information About Decisions – MR Division”, the Decision Record made on 2 February 2016 and the Tribunal’s Statement of Decision and Reasons.
The Minister filed a Response opposing the making of the orders sought, noting that the applicant had requested an extension of time but had not filed an affidavit explaining the delay or why an extension should be granted pursuant to r 44.05(2)(c) of the Federal Circuit Court Rules 2001. The Response further contended that the application for judicial review did not identify any jurisdictional error.
On 31 August 2016, orders were made by consent regulating the preparation of the matter for trial. Those orders included that the applicant should file and serve any amended application, affidavits and submissions by 5 October 2016. No such amended application, affidavits or submissions were prepared at that time by the applicant.
Notwithstanding the applicant’s failure to comply with that order, the Minister prepared submissions which responded to the application.
The matter was listed for hearing on 1 June 2017. On that date, the applicant filed a notice of address for service which indicated that the applicant was then self-represented. At the hearing, the applicant appeared in person and stated to the court that she no longer had legal representation. Neither the respondents nor the court had been informed that the applicant’s lawyers had withdrawn from the proceeding. In those circumstances, the proceeding was adjourned to 20 June 2017 and it was ordered that the applicant file and serve any submissions on which she intended to rely by 4.00pm on 19 June 2017.
On 19 June 2017, the applicant filed an amended application prepared on the applicant’s behalf by another firm of solicitors which provided more detailed particulars and additional grounds in support of the application for judicial review.
On the morning of the adjourned hearing, the applicant swore an affidavit in which she deposed to her present circumstances, including the fact of her marriage in 2014, of her husband being an Australian citizen, as to the birth of their son born on 23 February 2016, her current pregnancy, the fact that English is her second language such that she required an interpreter to assist her with words with which she was not familiar and that she was unemployed.
The applicant further deposed that when, on 4 April 2016, a case officer from the Department had attended her home, she had discovered that she was “an illegal” and had promptly contacted her solicitor. I infer that it was in those circumstances that her former solicitor had prepared her earlier affidavit and filed the application for review, doing so in recognition that they had overlooked the email which had been sent to them on 8 December 2015 notifying them of the appointed date time and place of the Tribunal hearing which was fixed to commence at 10.00 am on 15 January 2016.
The applicant’s further affidavit did not distinctly explain when, why or how the applicant had determined that it was necessary for her to file a notice of address for service. I assume that the applicant had become aware that her former solicitors were no longer acting for her.
The applicant’s affidavit made on 20 June 2017 deposed that she had not been aware of the Tribunal hearing on 15 January 2016 and to having only discovered the fact of that hearing when she attended court on 1 June 2017. The applicant further deposed that she had not been aware of the requirement that she apply to court for review within 35 days from the date of the Tribunal decision and that she had believed that everything was “under control”. She deposed to a belief, based upon a statement by her former lawyer that her visa application had been accepted and that accordingly:
. . . I only needed to go to Court to talk about things that happened in the past, such as my car accident. I thought this was strange and I remember it the most. I did not know of understand at that time, that my Partner visa application had been refused.
The applicant was not cross-examined upon her affidavit.
In the hearing before me, the applicant was represented by counsel who had prepared detailed written submissions. The Minister did not oppose the making of an order extending time for the hearing of the application, preferring that the proceeding be determined on its merits.
An order was made extending the time for the filing of the application.
Judicial review
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).[2]
[2]Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [75]-[76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
Subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to travel to, enter or remain in Australia: s 29. One class of visa is a Partner visa, certain criteria for which are set out in Part 801 of Sch 2 of the Regulations.
As the fundamental basis on which the applicant claims relief upon judicial review is that the Tribunal committed jurisdictional error arising from deficiencies in the content of a notice required to be given under sub-s 360A(5), it is unnecessary to address the requirements of Ministerial satisfaction of the criteria for a Partner visa any further.
Suffice to observe that by para 65(2)(b) of the Act, the decision-maker is required to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied.[3]
[3]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
The amended application contained six grounds of review, some of which were further amended in the course of the hearing.
Ground 1 – overview
Ground 1 reads:
The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (The Tribunal) which a decision was made on 4th February 2016 whether the Tribunal affirmed a decision of a delegate to refuse to grant the applicant a Partner Temporary Class UK 820/801 Visa.
This is not a ground of review.
Ground 2 – non-attendance at hearing
Ground 2, as amended, reads:
The tribunal constructively failed to exercise its jurisdiction
PARTICULARS
(i) The applicant applied to the Department of Immigration and
Citizenship for aBorder Protection for a Partner (Temporary) (class UK) (subclass 820)/(Partner (Residence) (class BS) (subclass 801)subclass 866visa on15th November 201323 December 2014. The delegate refusedhimher on the18th March 201422 September 2015 and sheappealedsoughtjudicialmerits review intotheRefugee ReviewAdministrative Appeals Tribunal.The visa was affirmed on the 17th December 2015.(ii) On 8 December 2015, the Tribunal invited the applicant to attend a hearing scheduled on 15 January 2016 at 10:00am. The applicant did not receive letters inviting her to attend a tribunal hearing and on 15 January 2016, at 11:59am, the tribunal made a decision to dismiss the application without further consideration of the application or the information before the Tribunal and affirming the decision of the delegate.
(iii) The applicant was represented by a lawyer and was not advised of
histhe Tribunal’s invitation to attend the hearing.(iv) The tribunal has made errors in administration and has not determined the case according to law.
(v) The tribunal failed to give the applicant an opportunity to state her case. The tribunal therefore failed to exercise its jurisdiction according to law.
(vi) The applicant is a victim of a motor vehicle incident where she broke her hip, she has recently give birth and this has affected her health, she would have a good case before the Tribunal for the exercise of its discretion to waive the Schedule 3 criteria. There were compelling reasons to waive compliance with the Schedule 3 criteria
hence was not fit to appeal the decision earlier.As the particulars to Ground 2 make clear and as was accepted during submissions, the applicant had appointed lawyers to act on her behalf for the purposes of the application for a merits review by the Tribunal. The Tribunal had notified those lawyers of the appointed date and time of the hearing. So much was not in contest.
The Tribunal had notified the applicant by SMS text on two occasions reminding her, in English, of the appointed hearing. It did so in circumstances where the application made plain that the applicant had appointed lawyers to act for her before the Tribunal. The application was dismissed for non-appearance on 15 January 2016.
On 18 January 2016, well before expiry of the date fixed for making an application for reinstatement of the application, the applicant’s lawyer had contacted the Tribunal respecting the dismissal of the application. Although that lawyer said that he would get back to the Tribunal in relation to the assertion that his firm had not been notified of the scheduled date and time of the hearing, he did not do so.
The respective failures to appear at the hearing on 15 January 2016 and to apply for reinstatement were not attributable to any conduct of the Tribunal. There were no errors in the administration of the application as claimed in the particulars to Ground 2. Nor was there any denial of an opportunity for the applicant to advance her case. There was no constructive failure to exercise jurisdiction in the manner claimed.
The applicant was legally represented at the time of the appointed hearing. Any oversight of the applicant’s former lawyers or their resultant neglect to inform her of the appointed date for the Tribunal hearing or to seek reinstatement does not vitiate the decisions.[4]
[4]Cf SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, [53] (per curiam); Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501, [33] (Tamberlin, Finn and Dowsett JJ); SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73, [52], [60] (Perram, Robertson and Griffiths JJ).
Ground 2 is rejected.
Ground 3 – non-compliance with s 362B (procedural fairness)
Ground 3, which was introduced by amendment to the application filed on the day before the hearing, reads:
The Tribunal breached a procedural fairness provision, in that the hearing invitation was not given in accordance with s.360A of the Migration Act 1958 (Cth) (the Act) because it did not include a statement to the effect of s.362B in the invitation notice. As such, the Applicant was deprived of the opportunity to appear before the Tribunal to give evidence and present arguments before the Tribunal.
The applicant submitted that where a Tribunal had failed to furnish an applicant with a invitation which complied with s 360A(5), the purported invitation did not constitute an invitation for the purposes of s 360, with the consequence that the Tribunal then lacked power to proceed under s 362B to make a decision to dismiss an application. The applicant further submitted that power to dismiss an application under s 362B was available for exercise only where an applicant had been invited to appear, and had not appeared, at a scheduled hearing. It was submitted that the applicant had not been so invited because, in breach of s 360A(5), the invitation was deficient for failure to provide a statement which sufficiently described the effect of s 362B.
The Minister submitted that the invitation furnished to the applicant’s lawyers on 8 December 2018 was a valid invitation but, if it was not, that the applicant suffered no practical injustice by reason of any non-compliance with the obligation to provide a statement which adequately addressed the effect s 362B. It was further submitted that, in either event, the Tribunal’s decision to dismiss the application under s 362B(1A)(b) was not affected by jurisdictional error.
Counsel for the applicant described the challenge based upon want of compliance with s 360A(5) as novel. The scope and operation of the obligation contained in s 360A(5) to provide an applicant with notice containing a statement of the effect of s 362B does not appear to have been judicially considered.[5] An analogue provision in Part 7, Div 4 of the Act, s 425A(6), has also been cited in a series of decisions but not considered.[6] In my opinion, principles as to the possible consequences of departure from such procedural requirements and any resultant invalidity in the decision-making process under the Act were settled for this court by Minister for Immigration and Citizenship v SZIZO.[7]
[5] The provision has been cited in a number of decisions but not examined.
[6]To my research, the only decision which touches the issues is SZCOZ v Minister for Immigration [2005] FMCA 1907, [24] where Smith FM found that the content of the notice given to the applicant was compliant with the requirement to state the effect of s 426A.
[7] (2009) 238 CLR 627, [34]-[36] (French CJ, Gummow, Hayne, Crennan and Bell JJ).
Statutory scheme
Part 5 of the Act, Review of Part 5-Reviewable decisions, is arranged in nine Divisions and comprises ss 336M-379G. Division 5 of Part 5 (ss 357A-367), concerns the subject, Conduct of Review. Division 5 is taken to contain an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals: s 357A(1).
Amongst the matters with which Div 5 does deal are the Tribunal’s obligations to issue an invitation to an applicant to attend a hearing in certain circumstances and the procedural requirements of giving notice.
Where it applies, s 360 imposes an obligation expressed in imperative terms to invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the issues under review. No argument was raised that s 360(1) did not apply. Rather, the argument focussed upon whether the invitation complied with s 360A(5).
Where an applicant is to be invited under s 360 to appear at a hearing, the content of the procedural requirements for notifying an applicant of matter relevant to the scheduled hearing is addressed by s 360A. The procedure fixed by s 360A(1) requires the Tribunal to notify an applicant of the date, time and place at which the hearing is to occur. Sub-sections 360A(2) and (4) address the manner of giving notice and the period of notice that is to be given. Sub-section 360A(5), provides:
The notice must contain a statement of the effect of s 362B.
Sections 361, 362 and 362A are not material.
Section 362B confers, amongst other things, a qualified power to dismiss a proceeding in the absence of an appearance by an applicant for review without any further consideration of the application or information that is before the Tribunal.
Section 362B reads (Notes omitted):
362B Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a)is invited under section 360 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so--reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or
(b) confirm the decision to dismiss the application, by written statement under section 368.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E) If the applicant fails to apply for reinstatement within the 14 -day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(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.
Section 362C addresses the Tribunal’s decisions, written statements and obligations to notify an applicant in relation to the dismissal or reinstatement of a proceeding under s 362B (which are defined collectively, as ‘a non-appearance decision’: see sub-s 362C(1)).
A Tribunal has no power to vary or revoke a non-appearance decision: sub-s 362C(4). Further, sub-s 362C(6) provides that:
In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 362B(1B) to (1F).
The remaining provisions in Div 5 of Part 5 were not relied upon.
Legislative history
The genesis of the applicant’s contention respecting the sufficiency of the notice and its impact upon the validity of the invitation may be seen to lie in the legislative history of ss 360, 360A and 362B.
Section 360, which was inserted in the Act by s 22 of the Migration Legislation Amendment Act (No.1) 1998, No 113 of 1998 (1998 Act), commenced operation on 1 June 1999 and has not been further amended.
Section 360A was also inserted the Act by the 1998 Act.[8] When so inserted, s 360A comprised sub-s (1)-(5). Relevantly, sub-s 360A(5) was in identical form to that in which it presently appears. It has only ever provided that the notice given by the Tribunal must contain a statement of the effect of s 362B.
[8] Section 360A was amended by Act No 58 of 2001 in respects which are not material.
Section 362B, when inserted in the Act by the 1998 Act, then read:
362B Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 360 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
When enacted, sub-s 362B(1) conferred express power on a Tribunal to “make a decision” on an application for review where an applicant did not appear. It did not expressly authorise dismissal. Sub-section 362(2) conferred power to reschedule or to delay a hearing.
Section 362B was amended by the Migration Amendment (Protection and Other Measures) Act 2015, No 35 of 2015 (2015 Act). The amendments effected by the 2015 Act entailed[9] the repeal of sub-s (1), the insertion of sub-s (1), (1A)-(1G) and the addition before sub-s (2) of the heading, Other measures to deal with failure of applicant to appear. Section 362B has not been further amended. The amendments effected to s 362B commenced operation on 18 April 2015.[10]
[9] See Item 11, Sched 4 to the 2015 Act.
[10] See Item 12, Sched 4 to the 2015 Act.
Section 362C was also inserted in the 2015 Act[11] and has not been amended since it commenced operation.
[11] See s 2 and Item 10 of Table and, Item 34, Sched 4 to the 2015 Act.
For completeness, I note that the 2015 Act also repealed from Part 7, sub-s 426A(1) and inserted sub-s 426A(1), (1A)-(1G), being the corresponding provisions to those inserted in Part 5 of the Act. In the result, by the 2015 Act, these substantially identical amendments were effected to the provisions regulating the conduct of review of both Part 5 and Part 7 Reviewable Decisions.
Meaning of s 360A(5)
As the scope of the procedural requirement contained in s 360A(5) to provide an applicant with notice containing a statement of the effect of s 362B has not been judicially considered, the question is to be approached upon settled principles of statutory construction. Those principles require that attention first be focussed upon the text of s 360A(5). Should the meaning of the provision be clear, that meaning cannot be displaced by other considerations. However, ascertainment of the meaning of a provision requires that consideration be given also to the context in which it appears, the purpose of the provision and any mischief which it addresses. The context in which a provision appears is to be considered in the first instance and not at some later stage. These principles recognise that in the final analysis, when account is taken of each of these considerations, some meaning of a provision other than its ordinary meaning may be suggested and that where that ordinary meaning is not consistent with the evident statutory purpose, that meaning must be rejected.
In SZTAL v Minister for Immigration and Border Protection,[12] Kiefel CJ, Nettle and Gordon JJ said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.[13] Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.[14] This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
Gageler J stated:[15]
The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.[16]
See more recently, DBB16 v Minister for Immigration and Border Protection;[17] Mighty River International Limited v Hughes; Mighty River International Limited v Mineral Resources Limited.[18]
[12] (2017) 91 ALJR 936, [14].
[13]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47].
[15] (2017) 91 ALJR 34, [37].
[16]Thiess v Collector of Customs (2014) 250 CLR 664 at 671, [22], quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519, [39].
[17] [2018] FCAFC 178, [33]-[36] (Perram, Wigney and Lee JJ).
[18] [2018] HCA 38, [42] (Kiefel CJ and Edelman J, Gageler J agreeing).
A central question arising under Ground 3 is to ascertain the meaning of the expression “a statement of the effect of s 362B” as appearing in s 360A(5). In my opinion, the text of sub-s 360A(5) is cast in clear terms. The notice to be given by a Tribunal to an applicant “must contain a statement of the effect of section 362B.” It does not provide that the Tribunal must provide an applicant with a copy of that section or prescribe a particular form. Instead, it requires that the notice must contain a statement of the effect of the provision. It does not provide that the notice contain a statement of the effect of only a part of the provision or only so much as appears to be material to the Tribunal.
In a narrow context, s 360A concerns the subject Notice of invitation to appear.[19] Sub-sections (1)-(4) address a variety of other notice requirements, including that a Tribunal must provide notice to an applicant of the scheduled date, time and place of the hearing: sub-s 360A(1). The section prescribes the methods by which the notice may be given: sub-s 360A(2). It addresses the period of notice that must be given: sub-s 360A(4).
[19]Section 360A now comprises sub-s (1), (2), (4) and (5). Sub-section (3) was repealed by Act No 58 of 2001, Item 6, Sched 3.
More widely, sub-s 360A(5) appears in Div 5, Part 5, which contains an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals. The Division codifies the scope of that rule in relation to the manner of a Tribunal’s conduct of the review of a Part 5-reviewable decision. From one perspective, the rights and obligations that are expressed exhaustively in Div 5 may be seen to be of somewhat greater importance since aspects of the natural justice hearing rule at common law are modified by operation of s 357A. In SZFOH v Minister for Immigration and Multicultural and Indigenous Affair[20] Buchanan J stated of the cognate provisions in Part 7:
Consequently the directives in s 441G and the way in which they interact with the provisions of s 425A, 426A, 441A and 441C are an exhaustive statement with respect to natural justice and procedural fairness. Correspondingly they must be complied with strictly – see SAAPv Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009
See also SZIZO v Minister for Immigration and Citizenship.[21]
[20] (2007) 159 FCR 199, [58].
[21] (2008) 172 FCR 167 (rev’d on appeal – see below).
Section 360A is located in Part 5, Div 5 immediately after s 360(1). In the circumstances where s 360 applies, it obliges a Tribunal to invite an applicant to appear at a hearing. The clear purpose of the provision is to facilitate that an applicant may have an opportunity to present arguments and evidence in relation to the decision under review.
The meaning of s 360A may be assisted by consideration of s 362B which is arranged in four parts: (i) scope; (ii) power to make decision or to dismiss proceedings; (iii) reinstatement, and; (iv) other measures.
As to the scope of the provision, the applicant correctly submitted that the power conferred by s 362B to dismiss a claim in the absence of an applicant may be applied only where an invitation under s 360 has been given but the applicant has not appeared at the scheduled hearing.
Concerning the power to make a decision or to dismiss a proceeding, by force of par 362B(1A)(b), the Tribunal is authorised to dismiss an application without any further consideration where an applicant has been invited under s 360 to appear before it but the applicant has not appeared at the scheduled date, time and place of the hearing. The dismissal of a proceeding under s 362B(1A) can only be effected by a written statement: 362B(1A)(b), 362B(1G).
Reinstatement of the proceeding is then addressed by sub-s 362B(1B)-(1G). The determination of an application for reinstatement of a proceeding can only be effected by a written statement: 362B(1C), 362B(1E), 362B(1G).
As concerns other measures, sub-s 362B(2) provides that the section does not prevent a Tribunal from rescheduling or delaying its hearing.
As stated above, the applicant accepts that the invitation contained a statement of the effect of sub-s 362B(1A)(a)-(b) but contends that the invitation did not comply with sub-s 360A(5) in that it did not contain a statement of the effect of sub-s 362B(1B)-(1G) or (2).
Comparing the text of ss 360A(5) and 362C(6), it is apparent that the procedure under s 360A(5) requires that the notice must contain a statement of the effect of section 362B, whereas the text of s 362C(6) requires that the Tribunal provide a statement describing the effect of each of sub-s 362B(1A)-(1F).
The express obligation in s 360A(5) is to provide a notice which contains a statement of the effect of s 362B. Contrastingly, the obligation expressed in s 362C(6) is to provide a statement which describes the effect of only s 362B(1B)-(1F). As counsel for the Minister correctly observed, these textual differences are explained by the circumstance that the work to be done by s 362C(6) arises at the point where a Tribunal has reinstated or dismissed an application under s 362B(1A). Where a Tribunal has dismissed an application, the absence in s 362C(6) of a requirement to describe the effect of sub-s 362B(1A), (1G) or (2) are explicable on the basis that any such requirements would by then appear to be otiose.
As concerns certain express consequences of non-compliance:
a)neither s 360 nor s 360A contain a provision which expressly provide that the validity of a hearing invitation or a notice containing a statement of the effect of s 362B respectively is not affected by a failure to comply with the requirements of those sections;
b)by contrast, sub-s 362C(8), a failure to comply with the obligation expressed in sub-s 362C(6) (namely, to provide a statement which describes the effect of sub-s 362B(1B)-(1F)), will not affect the validity of a non-appearance decision;
c)other provisions in the Act are to similar effect as sub-s 362C(8). For example, sub-s 66(4) provides that failure to give notification of a decision to grant or refuse a visa does not affect the validity of the decision. Like provision is made to preserve the validity of oral decisions affected by certain procedural defects: s 368D(7).
The absence in s 360A of a savings provision preserving the validity of a notice given under sub-s 360A(5) that may be partially compliant with its requirements is a consideration[22] which may bear on the proper meaning of that provision.
[22] Minister for Immigration v SZIZO (2009) 238 CLR 627, [25] (per curiam).
I have considered the legislative history of the subject provisions. When s 360A(5) commenced operation, the provision was expressed in the same terms as are now operative. However, the scope of the target provision, s 362B, was of narrower ambit. Section 362B was then comprised of sub-s 362B(1)-(2).
The content of the requirement that the Tribunal’s s 360A notice must contain a statement of the effect of s 362B, was originally confined to and thus required only that the hearing notice must contain a statement of the effect of sub-s 362B(1) and (2). However, following the 2015 Act, and as a direct consequence of the amendment of s 362B, the obligation in s 360A(5) was expanded so as to require a statement of the effect of the matters in each of sub-s 362B(1A)-(1G) and (2).
As noted above, there is apparently no decision which considers the issue arising under s 360A(5) now raised by the applicant. I was referred to no decision in which the term ‘effect’ has been considered.
The ordinary meaning of ‘effect’ is “Something accomplished, caused or produced; a result, consequence. Correlative with caused”[23] Applied to s 360A(5), a notice given by the Tribunal of a scheduled hearing must contain a statement which describes the effect, in the sense of the results or consequences which would flow under s 362B, upon the failure of an applicant to appear at such a hearing.
[23] The Oxford English Dictionary, 2nd Ed.
I see no reason why the ordinary meaning of ‘effect’ should not be applied to that term as it is employed in sub-s 360A(5). I am fortified in that conclusion upon consideration of the context provided by ss 360A, 362B and the purpose and content of Part 5, Div 5. I see no reason why that ordinary meaning should be displaced in favour of a narrower meaning which would confine the scope of the requirement in s 360A(5) such that the notice should only contain a statement of the effect of sub-s 362B(1A). To the contrary, I conclude that when s 360A is engaged, the Tribunal’s notice of invitation to appear must contain a statement of the effect of the whole of s 362B. Such a construction would in my opinion, best achieve the purpose of the exhaustive requirements of the natural justice hearing rule as contained in Div 5, Part 5.[24] The procedural requirement to state the effect of s 362B is to be distinguished from a requirement to provide a particular form of notice.[25] The statement must only be of the ‘effect’ of s 362B.
[24] Acts Interpretation Act 1901 (Cth), s 15AA.
[25] See Statutory Interpretation in Australia, Pearce & Geddes 8th Ed (2014) at [11.30].
Notice did not comply with s 360A(5)
Insofar as the Tribunal’s invitation given on 8 December 2015 included a notice containing a statement of the effect of s 362B, it read:
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application without any further consideration of the application or the information before us.
The Tribunal’s invitation included a notice containing a statement concerning the effect of 362B(1A) that if the applicant failed to attend the scheduled hearing the Tribunal may proceed to a decision without taking further action to enable her to appear before it and further, that her application may be dismissed without any further consideration of the application or the information before it. However, the statement did not tell the applicant of a right to seek reinstatement in the event of dismissal or of the risk of confirmation of dismissal or the other matters conferred by sub-s 362B(1B)-(1G). Nor did it contain a statement to the effect that the Tribunal might reschedule or delay the hearing as provided by sub-s 362B(2).
In the result, the hearing notice did not contain a statement of the effect of the matters in sub-s 362B(1B)-(1G) or (2). It should be recognised that the notice contained a statement which was partially compliant with s 362B. It follows that although the notice was partially compliant with the procedural requirements of s 360A, the Tribunal committed error in that the statement did not describe adequately the effect of s 362B. Accordingly, the further question arising is whether that error should be characterised as jurisdictional.
Consequences of non-compliance – no want of procedural fairness
Ground 3 was advanced as a failure to afford procedural fairness.
The Tribunal was obliged to afford the applicant procedural fairness. However, as noted above, Div 5 of Part 5, which concerns the conduct of review of Part 5-Reviewable Decisions, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals: s 357A. In that sense, the scope of the obligation to afford procedural fairness is not at large.
In Snedden v Minister for Justice for the Commonwealth of Australia,[26] Middleton and Wigney JJ held that the rules of procedural fairness do not have an immutably fixed content, observing “What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts.” This statement of principle serves as useful reminder in the assessment of an alleged failure to observe procedural fairness.
[26] (2014) 230 FCR 82, [177].
By dent of their nomination as authorised recipients, the Tribunal was obliged to give the applicant’s former lawyers the invitation and to do so in an authorised manner.[27] The applicant was deemed to have received the notice given to that recipient.[28]
[27] See ss 379A(5)(d) and 379G.
[28] Sub-s 379C(5).
Subject to an overriding obligation to exercise its powers in a legally reasonable manner, beyond notifying those lawyers of the scheduled hearing in accordance with s 360A(5), the Tribunal was not subject to an additional obligation to communicate further with the applicant or her former lawyers before doing so.[29] There was no contest that the applicant’s former lawyers were given the notice. This supports the conclusion that the applicant was afforded an opportunity to present arguments and evidence on the issues arising on the application. That opportunity was not stripped of content by reason of any conduct on the part of the Tribunal.
[29] Singh v Minister for Immigration and Border Protection [2014] FCA 955, [57]-[58] (Beach J).
I accept the Minister’s submission that the substantive effect of s 362B is that the Tribunal may proceed to dismiss the application in default of appearance.[30] I further accept that the main object of s 360A(5) is to inform an applicant that the Tribunal may so dismiss the application for want of appearance.
[30] Ibid, [55].
As stated, the Tribunal’s notice of the scheduled hearing constituted partial compliance with the requirement that it contain a statement of the effect of s 362B. The notice did state the effect of s 362B(1A) and this was, in the first instance, the most important aspect of the section to which attention should have been, and was, drawn.
At this primary level, the applicant was not denied procedural fairness in relation to the giving of notice that the consequence of her failure to appear at the scheduled hearing was that the Tribunal could proceed and make a decision to dismiss the application in her absence.
As the applicant’s lawyers had been notified of both the scheduled hearing and then of the decision, which included advice that the applicant might apply for reinstatement of the application, I consider that the applicant was afforded a meaningful opportunity – that is, a real chance – to present her case.[31]
[31]Cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [61] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Guder [2018] FCA 626, [36]-[41] (Griffiths J)
At a secondary level, the provisions in sub-s 362B(1B)-(1G) and (2) remain of importance, albeit that some of those provisions might be considered to be of lesser practical significance in terms of procedural fairness.[32] The further question posed by Ground 3 is whether the applicant was denied procedural fairness by a failure to provide a notice containing a statement of the effect of those other provisions.
[32] See, eg, par (1G) and (2).
In this case, the applicant’s former lawyers had been informed by two means on 18 January 2016 of their client’s right to seek reinstatement. Further, immediately following the making of the decision to dismiss the application for non-appearance, those lawyers had initiated a communication with the Tribunal, asserting that they had not been notified of the hearing and that they would “get back” to the Tribunal. They did not do so. Instead, when on 4 February 2016, the Tribunal notified them of the decision under s 362B(1E) confirming the decision to dismiss the application, they initiated the present application. In this case, any absence from the s 360A(5) notice of a statement of the effect of sub-s 362B(1B)-(1G) or (2) was not productive of any prejudice or unfairness to the applicant. I consider that there was no want of procedural fairness. I conclude that the Tribunal’s procedural error was not of a kind that would bear the character of jurisdictional error.
Consequences of non-compliance - no practical injustice
If I am wrong in the conclusion that the Tribunal’s failure to provide a statement of the effect of sub-s 362B(1B)-(1G) or (2) did not entail any want of procedural fairness, I would in any event conclude that the error in failing to provide a compliant notice entailed no practical injustice to the applicant and accordingly, that any such error did not constitute or should not be characterised as jurisdictional error.
The Minister’s submissions, which pre-dated those of the applicant, drew attention to the High Court’s decision in Minister for Immigration v SZIZO.[33] In that circumstance, it was perhaps surprising that the applicant’s written submissions did not address the decision and that the decision was only then addressed fleeting in reply.
[33] (2009) 238 CLR 627, [34]-[36] (French CJ, Gummow, Hayne, Crennan and Bell JJ).
In SZIZO, all six members of an applicant family had attended a hearing after receiving and responding to a hearing invitation that had been sent to the first applicant instead of the nominated authorised recipient (the eldest daughter). Reversing the Full Court’s decision, the Court held that this procedural error did not vitiate the decision under review. In doing so, the Court considered that the dispositive issue was whether the legislative scheme disclosed “an intention to invalidate a decision in consequence of non-compliance with any of the obligations dealing with the manner of giving and receiving documents.”[34]
[34] (2009) 238 CLR 627, [32].
Despite the imperative language[35] of the provision, the Court accepted[36] the Minister’s submission that while compliance with the procedural requirements of a hearing invitation would discharge the Tribunal’s obligations to give a timely and effective notice, it did not follow that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The Court stated of the equivalent provisions in Part 7:
In combination, ss 425A and 441G ensure that an applicant for review receives timely and effective notice of the hearing. They impose obligations which facilitate the conduct of a procedurally fair hearing. However, the manner of providing timely and effective notice of hearing is not an end in itself. The procedural steps dealing with the manner of giving notice are to be distinguished from other components of the statutory statement of the hearing rule, including the obligation to give particulars of adverse information and to invite the applicant to appear to give evidence and to present arguments relating to the issues arising in the decision under review.
While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal’s obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal’s omission and they do not take issue with the Full Court's characterisation of the result in the circumstances as being “rather absurd”. The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing. In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case.
Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal's jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case. (footnotes omitted, emphasis added)
SZIZO may be distinguishable insofar as the Court did not expressly address the question whether the notice adequately stated the effect of non-attendance at the hearing. The notice was described as being otherwise free of any procedural flaw.[37] I accept that the case arose in circumstances where the applicants had attended the hearing. However, to state as much serves to underline that focus should be paid to the unique features of the present case rather than to look to other decisions as indicating the result upon judicial review.
[35] (2009) 238 CLR 627, [36].
[36] (2009) 238 CLR 627, [28], [35].
[37] (2009) 238 CLR 627, [2], [26].
As the Court’s reasoning in SZIZO confirms, the critical inquiry in cases involving a want of procedural compliance with the hearing rule involves the consideration of the extent and consequences of the relevant departure. It is clear, for example, that “where the procedure adopted by a decision-maker can be shown to have failed to afford a fair opportunity to be heard, the denial of procedural fairness is established by nothing more than that failure . . . The practical injustice lies in the denial of an opportunity which in fairness ought to have been given.”: Minister for Immigration and Border Protection v WZARH.[38]
[38] (2015) 256 CLR 326, [60] (Gageler and Gordon JJ).
More recently, in Hossain v Minister for Immigration and Border Protection[39], Kiefel CJ, Gageler and Keane JJ stated:[40]
Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.
Edelman J, who employed SZIZO as illustrating the principle that not every express or implied condition to which a legislative provision is subject must be construed in a binary way, stated:[41]
The broad test for determining whether an implied legislative condition is jurisdictional was set out by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority. Their Honours said that it was necessary to:
. . . ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.
A close examination of legislation will usually have the effect that not every express or implied condition must be construed in a binary way. A legislative condition need not be construed as (i) always depriving a decision maker of power, or (ii) never doing so, no matter how it is breached. The question is always one of construction of the legislation: which breaches of a provision does the legislation, either expressly or, more commonly, impliedly, treat as depriving the decision maker of power? Just as it is unlikely to be concluded that Parliament intended to authorise an unreasonable exercise of power, so too it is unlikely to be an intention that the legislature is taken to have that a decision be rendered invalid by an immaterial error. (footnotes omitted, emphasis added)
In WZARH, Gageler and Gordon JJ further stated[42] that “[w]hat must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process.”
[42] (2015) 256 CLR 326, [58].
In my opinion, the want of procedural compliance with s 360A in this case is to be distinguished from a failure to discharge the substantive obligation under s 360 to invite an applicant to a hearing. And as the Act recognises that some applicants are unlikely to understand English, the requirement to inform an authorised recipient of a scheduled hearing is also a matter of substantive importance.[43] No less important is the requirement that a Tribunal must take steps directed to informing an applicant of the relevance to the review of any adverse information that is being conveyed pursuant to s 359A.[44] Cases of this kind, involve a direct breach of the natural justice hearing rule.
[43] (2009) 238 CLR 627, [33]; ie s 379G.
[44]Cf SAAP v Minister for Immigration and Indigenous Affairs (2005) 228 CLR 294, [77] (McHugh J), [208] (Hayne J); SZIZO, [29]-[30] (per curiam).
In cases involving a failure to comply strictly with a procedural requirement under s 360A, the main, but not sole, focus of the inquiry is whether the applicant has received a timely and otherwise effective notice which facilitated a procedurally fair hearing. SZIZO held that a fundamental purpose of a s 360A notice was “to lay the foundation for the Tribunal to determine a review without further notice where an applicant has failed to attend a scheduled hearing.”[45] SZIZO was decided before the amendments to the Act were affected by the 2015 Act. Since those amendments became operative, secondary purposes of s 360(5) are to provide an applicant with a statement of the effect of the matters in sub-s 362B(1B)-(1G) and (2).
[45] SZIZO, (2009) 238 CLR 627, [33].
The broad requirement in s 360A(5) to state the effect of s 362B draws attention to the need to identify the relative significance of each of the matters in sub-s 362B(1A)-(1G) and (2). Those matters are not of equal significance. The most important is of course that the application may be dismissed for non-appearance. At the other end of the spectrum, is that the Tribunal is empowered to delay the review of the decision. I do not consider the nature of the defects in this notice were of such magnitude as to support a conclusion that the applicant was denied procedural fairness.
In the present case, the Tribunal discharged the substantive obligation to invite the applicant to attend a hearing. As those former lawyers were the applicant’s authorised recipient, it follows that the Tribunal did not deny the applicant an opportunity to attend that hearing or to present arguments or evidence in relation to the issues arising upon the decision under review. The notice which was given facilitated that the applicant was enabled properly to advance her case. However, the applicant never took up the invitation to file submissions and, for whatever reason, did not appear. The non-appearance was not the Tribunal’s fault. And when the non-appearance decision was issued, the applicant’s authorised recipient was notified in two ways of the right to seek reinstatement. Again, the applicant was not denied an opportunity to do so. There was no want of procedural fairness. Further, no practical injustice was occasioned to the applicant by reason of the Tribunal’s partial compliance with s 360A(5).
For the foregoing reasons, Ground 3 is rejected.
Ground 4 – dismissal beyond power
Ground 4 reads:
The Tribunal acted beyond power in purporting to dismiss the application under s.362B(1A) of the Act. This is because in the absence of a proper hearing invitation being given under s.360A of the Act, the Tribunal’s power under s.362B of the Act was not enlivened.
The applicant submitted that the Tribunal purported to exercise a power which it did not have in that the power to dismiss the application without further consideration of the application or information which was before the Tribunal never arose by reason that the Tribunal had not given an invitation under s 360 which complied with s 360A(5). The submissions on Ground 4 were framed upon the validity of the notice.
In Project Blue Sky Inc v Australian Broadcasting Authority,[46] McHugh, Gummow, Kirby and Hayne JJ observed that the traditional distinction made between mandatory and directory provisions had outlived its usefulness, preferring a test of validity which asked whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. As appears at [136] above, this approach was to be adopted in the resolution of SZIZO.[47]
[46] (1998) 194 CLR 355, [93], see also per Brennan CJ at [36]-[37].
[47] (2009) 238 CLR 627, [26].
To similar effect, the learned authors of Statutory Interpretation in Australia[48] structure their analysis of obligatory and discretionary provisions, including by reference to whether the legislature indicated that strict compliance was required as to the use of prescribed forms, compliance with procedural requirements, obligatory compliance, partial compliance and non-compliance.
[48] 8th Ed, (2014), [11.30]-[11.35].
In support of her submission, the applicant contended that ss 360 and 360A should be read together. Support for that contention was drawn from the Full Court’s judgment in Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC.[49] There Spender, French and Cowdroy JJ at [34], [39] accepted that the equivalent provisions in Part 7 – ss 425 and 425A – were closely connected and so should be read together. The Full Court accepted that approach to the proper construction of those provisions in holding that if a Tribunal complied with one of two prescribed methods of giving notice to an applicant of the appointed date, time and place of a hearing, it was under no further obligation to ascertain whether some other method of notification was also available. SZFHC holds that s 425 contains an obligation to give notice of a scheduled hearing, while s 425A prescribes methods by which that obligation may be satisfied. The decision is of importance in defining this aspect of a Tribunal’s obligation to afford procedural fairness to an applicant in order that they might have a real opportunity to be heard.
[49] (2006) 150 FCR 439.
Parity of reasoning supports the conclusion that ss 360 and 360A are also closely connected and thus should be read together.
However, the present case may be distinguished from SZFHC inasmuch that the complaint raised here does not turn upon the manner of giving notice. Instead, the question arises from partial compliance of the procedural requirement to give an applicant notice of a scheduled hearing which contains a statement of the right to seek reinstatement of the application and of the other matters addressed by s 362B(1B)-(1G) and (2). It is in this distinct context that the question arises whether the Tribunal’s decisions are affected by jurisdictional error grounded upon an asserted want of power to make such decisions.
The applicant submitted that non-compliance with s 360A(5) rendered the purported exercise of power to dismiss the application under s 362B(1A) invalid and so, in proceeding to dismiss the application and later in confirming that decision, the Tribunal had thereby committed jurisdictional error. In support of that conclusion, reliance was placed upon SZFOH v Minister for Immigration and Multicultural and Indigenous Affairs.[50] There, the Full Court held that a failure to give the hearing invitation to an applicant’s authorised recipient had the consequence that the power to make a decision on review without taking any further action to allow or enable the applicant to appear was not enlivened. Besanko J, with whom Moore J agreed, held at [28]-[31] that a failure to serve an authorised recipient by one of the two prescribed methods meant that the power to proceed was not enlivened and the Tribunal’s decision was affected by jurisdictional error. Buchanan J at [59] held that the failure to send the notice to “the last address provided to the RRT by the authorised recipient was a fatal failure to comply with the statutory regime with the result that the Tribunal’s decision was made without jurisdiction and is invalid.”
[50] (2007) 159 FCR 199.
SZFOH has been cited and discussed in a number of decisions. In SZIZO v Minister for Immigration and Citizenship,[51] Lander J, with whom Moore and Marshall JJ agreed, referred to SZFOH and held that:
In my opinion, the provision of s 422B, which makes the content of Division 4 and Division 7A, together with ss 416, 437 and 438 a complete code for the discharge of the Tribunal’s obligations in relation to the natural justice hearing rule, suggests that Parliament intended that there be strict adherence to each of the procedural steps leading up to the hearing. Each of the procedural steps is imperative and must be complied with in the manner described in the Act
[51] (2008) 172 FCR 167 at [86]-[87].
The facts of SZFOH presented a basis for challenge to the purported exercise of power that are quite different to this case. In this case, the applicant eschewed any complaint based on a failure to serve the applicant’s authorised recipient as required by s 360A(2). No question arises here as to any failure to effect service by an authorised mode of service or as to the fact or time of service upon an authorised recipient.
Ground 4 hinges upon the absence of a statement as to the effect of s 362B(1B)-(1G) and (2) and the effect of those omissions. The question is whether that conduct constitutes jurisdictional error.
As noted above, the Full Court’s decision in SZIZO was reversed on appeal. The decision in SZFOH should be considered in light of the High Court’s analysis in SZIZO. The requirement of strict adherence to substantive requirements, including, for example, in relation to the giving of a hearing invitation, the service upon an authorised recipient or the provision of adverse information, is undoubted.
The adoption of that approach may not obtain in relation to procedural requirements. Whether a Tribunal’s failure to comply strictly with procedural requirements is an error which should be characterised as jurisdictional will depend upon the magnitude of the error in all the circumstances. It need not be binary. As the plurality stated[52] in Hossain, “[a] decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to ‘have such force and effect as is given to it by the law pursuant to which it was made.” As their Honours’ further analysis[53] indicated, in the case of non-compliance with express or implied statutory preconditions to the exercise of power, consideration is required of the gravity or magnitude of the particular failure.
[52][2018] HCA 34, [23], citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, [46]; cf Nettle J at [42].
[53] [2018] HCA 34, [24]-[28].
Such consideration turns on the proper construction of the Act which, in turn, may reveal that a higher or lower level of materiality attaches to a particular condition on the exercise of power.[54] As Kiefel CJ, Gageler and Keane JJ concluded:[55]
Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
Edelman J, in whose reasons Nettle J agreed, also considered that the process of construction of the statute required that:
. . . the consequences of an error that a legislature will be taken to intend will usually depend on the gravity of the error. [56]
Speaking of s 65, his Honour concluded[57] that in the construction of the Act it should be implied that an immaterial error would not invalidate a decision made under that section; that is, materiality is a requirement for jurisdictional error. Edelman J observed that materiality was not to be assessed in the abstract, but against the existing facts.[58]
[54] [2018] HCA 34, [29]-[30].
[55] [2018] HCA 34, [31].
[56] [2018] HCA 34, [64], citing Kirk v Industrial Court (NSW) (2010) 239 CLR 531, [64].
[57] [2018] HCA 34, [76].
[58] [2018] HCA 34, [78].
The Tribunal had written to the applicant’s authorised recipient at the stipulated email address inviting the applicant to attend a hearing to give evidence and present arguments in relation to her application.[59] Should it be the case that the applicant’s former lawyers had failed to inform her of the scheduled hearing or the receipt of the notice of hearing, this would not alter the effect of s 379C(5).[60] Here, the authorised recipient had contacted the Tribunal after the hearing and had only done so because they had been served with the decision to which was attached two documents, each containing statements to the effect that the applicant could seek reinstatement. She did not do so.
[59] See ss 360A, 379A(5)(b), 379C(5) and the notice requirements prescribed by reg 4.21(4).
[60] Singh v Minister for Immigration and Border Protection [2014] FCA 955, [57]-[58] (Beach J).
As counsel for the Minister submitted, the court is also entitled to consider the nature of the decision under consideration. The relative significance of the decision was illustrated by reference to the distinction between a decision made upon the application of a person claiming refugee status for a protection visa with the instant application being for a Partner visa. As counsel observed, the applicant is not unable to pursue an application, albeit that it must be done from abroad. Moreover, the nature of the non-appearance decision was not conclusive. To the contrary, the decision was subject to a right to seek reinstatement. Upon the proper construction of the Act, it is plain that a decision under s 362B(1A) carried an immediate right to apply for reinstatement. The magnitude or gravity of a decision made under s 362B(1A), is thus relevant to the consideration whether the procedural error affects the decision with jurisdictional error.[61]
[61] Cf Hossain, [2018, HCA 34, [27].
For these reasons, I do not consider that the extent of non-compliance in this case results in the invalidity of the Tribunal’s decisions to dismiss the application for non-appearance or to confirm that decision.
Ground 4 is rejected.
Ground 5 – unreasonableness
Ground 5 reads:
The Tribunal unreasonable exercised its discretion under s.362B(1A) of the Act to dismiss the application for non-appearance without any further consideration of the application or the information before the Tribunal. The decision was unreasonable in circumstances where:
(a) The Tribunal was on notice that the Applicant:
(i) was impecunious,
(ii)was being housed short-term by the Asylum Seekers Resource Centre;
(iii) has an unemployed or casually employed partner;
(iv)needed an interpreter in the Vietnamese language for communication with the Tribunal;
(v)was pregnant, with her baby due on 2 March 2016, which meant she was around seven months pregnant at the time the hearing was to take place;
(vi) was represented pro bono by SML; and
(vii) had a caseworker at the Asylum Seeker Resource Centre.
(b)Despite knowing that the Applicant needed an interpreter in the Vietnamese language for communication with the Tribunal and despite knowing that the Applicant was represented pro bono by SML, on 8 January and 14 January 2014, the Tribunal sent texts, in English rather than in Vietnamese, to the Applicant rather than to SML, purportedly reminding her of her hearing.
(c)Despite sending the notification of the non-appearance decision to the Applicant’s representative with an information sheet stating that the Applicant had 14 days from notice of the dismissal decision to apply for reinstatement, the Non-Appearance Decision notified on around 15 January 2016 stated that it was dated 15 December 2015.
It may be accepted that legal reasonableness is an essential element of lawful decision-making. Exercise of the respective powers to make the decisions to dismiss the application and, upon the applicant’s failure to apply for reinstatement, to confirm that decision pursuant ss 362B(1A)(b) and 362B(1E), were constrained by the requirement to observe legal reasonableness in the decision-making process.
Counsel for the applicant quite properly submitted that a challenge based upon legal unreasonableness required a fact specific inquiry. Counsel for the applicant pressed upon my consideration the Full Court’s judgment in Minister for Immigration and Border Protection v SZVFW.[62] As I was asked to do, I have paid close regard to the Full Court’s statement of principles and analysis, in particular, at [37]-[39], [48]-[49]. For the avoidance of doubt, I have not ignored the result of an appeal from that judgment: Minister for Immigration and Border Protection v SZVFW.[63] I have paid close regard to the statement of principles in the High Court’s judgment also.
[62] [2017] FCAFC 33 (Griffiths, Kerr and Farrell JJ).
[63] (2018) 92 ALJR 713.
Although the Tribunal was not obliged to take further steps to invite the applicant to the hearing Tribunal sent two SMS hearing reminders to the applicant’s mobile number, albeit in English. Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC;[64] BZAHM v Minister for Immigration.[65]
[64] (2006) 150 FCR 439 at [39] (Spender French and Cowdroy JJ).
[65][2015] FCA 675, [46] (Reeves J); application for an extension of time in which to appeal dismissed: [2016] FCA 25.
The applicant was not self-represented – her lawyers had been notified of the hearing date and that her application might be dismissed in default of appearance. While the personal circumstances relied upon by the applicant indicated that she and her husband were in difficult circumstances, they do not place the applicant in a situation that is very different from others. The applicant’s reliance on the transmission in English of those text messages may resonate where an applicant was self-represented, but that was not this case. The applicant’s former lawyers were aware of each of the scheduled hearing, the decision and of the opportunity to make application for reinstatement. Counsel for the applicant accepted that no such application had been made.
I reject the applicant’s submission that, upon the applicant’s failure to apply for reinstatement, a factor which should have weighed against the Tribunal was that it had ‘got rid of [the application] so quickly’ in confirming the decision to dismiss the application. The Tribunal was obliged[66] to review the delegate’s decision to refuse the Partner visa application and in doing so to act according to the substantial justice and the merits of the case.[67] It was obliged to act in a way that was fair, just, economical, informal and quick.[68] Upon dismissal of the application and the failure to apply for reinstatement, the Tribunal was obliged to confirm the dismissal: s 362B(1E).
[66] See s 348.
[67] See s 353.
[68]Cf SZVFW, supra (2018) 92 ALJR 713, [13] (Kiefel CJ), [68]-[69] (Gageler J), [140] (Edelman J).
The test of legal unreasonableness is stringent. While there is no universally applicable test, the determination of the issue is heavily fact dependent and so requires close attention to the circumstances of the particular case. Other authorities will necessarily be fact dependent. Having regard to the particulars to Ground 5, I approach the resolution of this issue on the basis that the supposed legal unreasonableness in the making of the decisions was outcome focussed.
In my opinion, the Tribunal’s conduct in the administration and determination of the application was not unreasonable in a sense which would bear the character of jurisdictional error. In each case the Tribunal’s exercise of power to dismiss and then confirm dismissal of the application was in accordance with the statutory scheme of s 362B. Each of the decisions was open on the material and did not lack an evident or intelligible justification. In the absence of any response to the invitation to attend the scheduled hearing and (despite the contact from the former lawyers) any application for reinstatement, there was no utility in the Tribunal waiting further to confirm the decision. I consider that it was not unreasonable for the Tribunal to proceed to make its decision to dismiss the application pursuant par 362B(1A)(b). Nor was it unreasonable for the Tribunal to proceed to confirm that decision pursuant par 362B(1E): Minister for Immigration and Citizenship v Li;[69] Minister for Immigration and Border Protection v Singh;[70] BRJ15 v Minister for Immigration and Border Protection;[71] Minister for Immigration and Border Protection v SZVFW.[72]
[69] (2013) 249 CLR 332, [76] (Hayne, Kiefel, and Bell JJ), [113] (Gageler J).
[70](2014) 231 FCR 437, [44], [47]-[48] (Allsop CJ, Robertson and Mortimer JJ).
[71] [2017] FCA 588, [36]-[38] (Mortimer J).
[72](2018) 92 ALJR 713, [14] (Kiefel CJ), [69]-[70] (Gageler J), [118]-[123] (Nettle and Gordon JJ), [141] (Edelman J).
Ground 5 is rejected.
Ground 6 – failure to take account of relevant considerations
Ground 6 reads:
The Tribunal failed to take into account relevant considerations in exercising its discretion to make a non-appearance decision under s.362B(1A) of the Act, in this case. The considerations were:
a.a hearing reminder had been sent by a text message to the Applicant, rather than to her representative SML, in circumstances where the Tribunal’s application form stated that the Applicant authorised the Tribunal to send correspondence to her representative rather than to herself;
b.the hearing reminders had been sent in English, not in Vietnamese; and
c.the Applicant was around seven months pregnant at the time of the hearing, and may have been unable to attend for a reason related to the pregnancy.
Ground 6 was put as an alternative to Ground 5.
Counsel for the applicant submitted that, in exercising discretion to make a decision under s 362B(1A), the Tribunal ought to have, but had not, considered that: (i) the SMS hearing reminders had been sent to her instead of to her former lawyers when the Tribunal knew she was represented by those lawyers; (ii) those SMS messages had been in English, not Vietnamese; (iii) the applicant was at that time, seven months pregnant. The applicant further submitted that each of those matters were important and/or relevant questions of fact.
The applicant submitted that as the Reasons did not refer to any of those matters, the court should infer they had not been considered by the Tribunal in reaching its decision.[73] I accept that the Reasons did not refer to any of those matters.
[73]Citing Minister for Immigration and Multiculltural Affairs v Yusuf (2001) 206 CLR 323, [69] (McHugh, Gummow and Hayne JJ).
An administrative decision may be vitiated by legal error where a decision-maker failed to take into account a mandatory relevant consideration.[74] However, the Tribunal can only have erred for a failure to take account of relevant considerations if it was bound to take into account the matters relied upon.
[74] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).
Identification of the relevant considerations of which mandatory account is required to be taken, is to be determined by reference to the subject matter, scope and purpose of the applicable legislation. Counsel for the Minister referred to Lo v Chief Commissioner of State Revenue, in which Basten JA, (with whom Beazley P agreed) said:[75]
The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd, it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.
McFarlan JA, with whom Beazley P and Basten JA also agreed, said:
Furthermore, in judicial review proceedings the omission of a decision maker acting under a statute to take into account a relevant factor is only regarded as vitiating the decision if the statute, expressly or impliedly, mandates that that factor must be taken into account and indicates that failure to do so is intended to invalidate the decision (Peko at 39-40; ProjectBlue Sky v Australian Broadcasting Authority [1988] HCA 28; 194 CLR 355 at [91]-[93]). Likewise in appeals on questions of law, no relevant error of this type will be established unless it is at least shown that the decision maker failed to take into account a matter that the statute required him or her to take into account. If that is shown, the decision maker will have erred in law in expressly or impliedly misconstruing the statute.
See also Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No.2).[76]
[75] (2013) 85 NSWLR 86, [9].
[76] [2018] NSWCA 124, [132]-[140] (McColl JA, McFarlan JA and Emmett AJA agreeing).
The circumstance that the Tribunal had sent two SMS hearing reminders to the applicant rather than her authorised representative was of no relevance to the decisions under consideration. Nor was it to the point that those reminders were in English rather than Vietnamese. Whether the applicant’s state of health by reason of her pregnancy was such that she may have been unable to attend the hearing is in truth a matter of speculation and about which the Tribunal had no evidence.
I accept the Minister’s submission that the matters relied upon by the applicant were not mandatory considerations for either decision. The Act neither expressly nor impliedly mandated that factors of the kind set out in the particulars to Ground 6 were to be taken into account. Nor does it reflect an intention that a failure to do so would invalidate a Tribunal’s decisions to dismiss an application for non-appearance or to confirm such a decision absent an application for reinstatement.
Ground 6 is rejected.
Conclusion
The Tribunal’s notice which accompanied its non-appearance decision contained advice that the Minister may substitute a more favourable decision but that this would only occur if compelling, compassionate or humanitarian considerations militated in favour of such a decision.[77] The Minister refused an application for intervention on the stated basis that it would not be considered at this stage. The applicant and her husband have been married for over four years and now have two children. Those may be matters for the Minister to consider.
[77] Choi v Minister for Immigration and Border Protection [2018] FCA 291, (Allsop CJ).
As no grounds for judicial review have been made out, the application must be dismissed.
I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 31 October 2018
- AGLC
- Nguyen v Minister for Immigration [2018] FCCA 3045
- Case
- [2018] FCCA 3045
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the notice provided to the applicant's former lawyers adequately stated the effect of section 362B of the Migration Act 1958, rendering it invalid. The court was also required to determine if any error in the notice, or the Tribunal's subsequent decisions to dismiss and confirm the dismissal, constituted jurisdictional error. Furthermore, the court considered whether the Tribunal failed to take into account mandatory relevant considerations when exercising its discretion to dismiss the application for non-appearance, and if such failure amounted to legal unreasonableness.
The court reasoned that while the notice regarding the effect of section 362B was deficient, this error did not render the Tribunal's decisions invalid. The court applied principles of statutory construction, distinguishing between substantive and procedural requirements of the Act, and noted that the legislative purpose of the power to dismiss for non-appearance was not intended to be undermined by such an error. Crucially, the court found that reinstatement of the application was available, mitigating any potential practical injustice. Regarding the alleged failure to consider relevant factors, the court held that for a failure to take into account a consideration to be an error of law, the consideration must be mandatory, meaning the Tribunal was expressly or impliedly required to take it into account by the legislation. The court determined that the factors raised by the applicant – the sending of SMS reminders to her instead of her lawyers, the language of the reminders, and her pregnancy – were not mandatory relevant considerations under the Act.
Consequently, the court found no jurisdictional error and dismissed the application for judicial review.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Ground 6 reads:The Tribunal failed to take into account relevant considerations in exercising its discretion to make a non-appearance decision under s.362B(1A) of the Act, in this case. The considerations were:a.a hearing reminder had been sent by a text message to the Applicant, rather than to her representative SML, in circumstances where the Tribunal’s application form stated that the Applicant authorised the Tribunal to send correspondence to her representative rather than to herself;b.the hearing reminders had been sent in English, not in Vietnamese; andc.the Applicant was around seven months pregnant at the time of the hearing, and may have been unable to attend for a reason related to the pregnancy.Ground 6 was put as an alternative to Ground 5. Counsel for the applicant submitted that, in exercising discretion to make a decision under s 362B(1A), the Tribunal ought to have, but had not, considered that: (i) the SMS hearing reminders had been sent to her instead of to her former lawyers when the Tribunal knew she was represented by those lawyers; (ii) those SMS messages had been in English, not Vietnamese; (iii) the applicant was at that time, seven months pregnant. The applicant further submitted that each of those matters were important and/or relevant questions of fact. The applicant submitted that as the Reasons did not refer to any of those matters, the court should infer they had not been considered by the Tribunal in reaching its decision.[73] I accept that the Reasons did not refer to any of those matters.[73]Citing Minister for Immigration and Multiculltural Affairs v Yusuf (2001) 206 CLR 323, [69] (McHugh, Gummow and Hayne JJ). An administrative decision may be vitiated by legal error where a decision-maker failed to take into account a mandatory relevant consideration.[74] However, the Tribunal can only have erred for a failure to take account of relevant considerations if it was bound to take into account the matters relied upon. [74] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J). Identification of the relevant considerations of which mandatory account is required to be taken, is to be determined by reference to the subject matter, scope and purpose of the applicable legislation. Counsel for the Minister referred to Lo v Chief Commissioner of State Revenue, in which Basten JA, (with whom Beazley P agreed) said:[75] The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd, it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.McFarlan JA, with whom Beazley P and Basten JA also agreed, said:Furthermore, in judicial review proceedings the omission of a decision maker acting under a statute to take into account a relevant factor is only regarded as vitiating the decision if the statute, expressly or impliedly, mandates that that factor must be taken into account and indicates that failure to do so is intended to invalidate the decision (Peko at 39-40; ProjectBlue Sky v Australian Broadcasting Authority [1988] HCA 28; 194 CLR 355 at [91]-[93]). Likewise in appeals on questions of law, no relevant error of this type will be established unless it is at least shown that the decision maker failed to take into account a matter that the statute required him or her to take into account. If that is shown, the decision maker will have erred in law in expressly or impliedly misconstruing the statute.See also Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No.2).[76] [75] (2013) 85 NSWLR 86, [9].[76] [2018] NSWCA 124, [132]-[140] (McColl JA, McFarlan JA and Emmett AJA agreeing).