Perera v MIAC
[2008] FMCA 1526
•12 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PERERA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1526 |
| MIGRATION – Migration Review Tribunal – Skilled Independent Overseas Student (Residence) (Class DD) visa – bonus points – capital investment – whether Tribunal considered issue – whether denial of procedural fairness. |
| Migration Act 1958 (Cth), ss.360A, 362B, 379A and (5), 379C (1), (5) and (6) and 379G |
| Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 Tickner v Chapman (1995) 57 FCR 451 SZEMB v Minister for Immigration [2005] FMCA 448 VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 |
| Applicant: | HITHESI HARENDRA MAPATUNA PERERA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 710 of 2008 |
| Judgment of: | Riley FM |
| Hearing date: | 27 October 2008 |
| Date of Last Submission: | 27 October 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 12 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms King-Sien |
| Solicitors for the Applicant: | Fairfields Lawyers |
| Counsel for the First Respondent: | Sharon Burchell |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 13 June 2008 and amended on 27 October 2008 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 710 of 2008
| HITHESI HARENDRA MAPATUNA PERERA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”). On 1 June 2006, the applicant applied for a Skilled Independent Overseas Student (Residence) (Class DD) visa. To qualify for the visa, the applicant needed 120 points. Based on his skills, age, English-language ability and an Australian qualification, the delegate accepted that the applicant was entitled to 115 points.
In addition, five bonus points could have been awarded if the applicant, at the time of the application or at the time of decision:
a. [had] deposited at least AUD100000 in a designated security for a term of not less than 12 months; or
b.…; or
c.…; or
d.[was] accredited as a professional interpreter or translator (level 3) in a designated language by the National Accreditation Authority for Translators and Interpreters.[1]
[1] Item 6A81 of Schedule 6A to the Migration Regulations 1994.
The applicant claimed that he was entitled to five bonus points on the basis that he was fluent in an Australian community language, namely Sinhalese. However, despite repeated requests and extensions of time, the applicant failed to provide to the delegate a language accreditation certificate or a NAATI test result. Eventually, on 20 February 2007, the delegate concluded that the applicant was not entitled to any bonus points and refused the application.
The applicant applied to the Tribunal on 22 March 2007 for review of the delegate’s decision. The applicant did not provide any additional information or documents. Almost one year later, on 12 March 2008, the Tribunal invited the applicant to attend a hearing on 16 April 2008. The invitation was sent by facsimile to the applicant's representative who he had nominated as his authorised recipient.
The applicant did not return the response to hearing invitation form to the Tribunal. On 10 April 2008, the Tribunal telephoned the applicant's representative. The person who answered the telephone said that the applicant's representative was overseas and might not return in time for the hearing. The Tribunal asked whether another member of staff had been allocated to manage the applicant's review. The Tribunal was told that the representative’s office would advise the Tribunal by telephone about what, if any, arrangements would be put in place. However, the Tribunal did not receive any telephone call from the representative’s office.
The applicant did not attend the hearing. The Tribunal contacted the representative’s office by telephone on the day of the hearing but there was no answer. The Tribunal attempted to contact the applicant directly by telephone but was unsuccessful as the applicant's contact number was the same as his representative’s. In these circumstances, and pursuant to s.362B of the Migration Act 1958 (“the Act”), the Tribunal decided to determine the application without taking any further steps to enable the applicant to appear before it.
By facsimile dated 23 April 2008, the Tribunal invited the applicant to the handing down of its decision on 2 May 2008. The applicant's representative sent a facsimile to the Tribunal on 1 May 2008 at
5:55 p.m.It said, among other things, that:
… we were unable to find a notification for a hearing for this application in our office. …
…
I wish to confirm that the applicant has first claimed the bonus points on Community Language and the applicant's intention to make the capital investment to satisfy the bonus points.
…
Hence now this matter is at the time of decision we request to consider the capital investment option for this application to be finalised.
Upon receipt of that facsimile from the applicant's representative, the Tribunal recalled the decision that it had intended to hand down on 2 May 2008. By facsimile dated 8 May 2008, the Tribunal invited the applicant to the handing down of its decision on 16 May 2008.
In relation to the question of bonus points, the Tribunal said:
38. There is no evidence before the Tribunal that the applicant qualifies for any Bonus Points.
39. The Tribunal notes that in his visa application the applicant has claimed 5 points in this part under fluency in one of Australia’s community languages – Sinhalese. No Accreditation Certificate from NAATI has been submitted to the department or to the Tribunal to indicate that the applicant can make claim to Bonus Points under this part. Had the applicant attended the Tribunal hearing the Tribunal would have investigated the applicant’s ability or otherwise to qualify for the award of Bonus Points for the possession of a community language and for the other items contained within Item 6A81 of Schedule 6A to the Regulations.
40. On 1 May 2008 the Tribunal received a submission that the applicant now intends to make the capital investment to enable the allocation of 5 Bonus Points under Item 6A81(a). At the time of this decision there is no evidence before the Tribunal that supports this intention or even that the process has been commenced. The submission does not provide any indication of a timeline in which this event is to be brought to fruition. In regard to bonus points under Part 8 the Tribunal notes that the applicant has been provided with ample time and opportunity in the past to put this information before it and believes an extension of time to do so is not warranted.
41. The Tribunal finds that the applicant does not meet the requirements of Item 6A81 of Schedule 6A to the Regulations and therefore is not entitled to any points for this Part.
The Tribunal concluded that the applicant should be awarded 115 points. As the applicant fell short of the required 120 points, the Tribunal affirmed the decision under review.
Grounds of review
At the hearing before this court, the applicant sought leave to amend ground 1(i) of the application filed on 13 June 2008 to read:
The Tribunal erred in not considering adequately the applicant's intention to make a capital investment.
The first respondent did not oppose the amendment and leave to amend was granted in the terms sought by the applicant.
The applicant also relied on the grounds set out in the original application as follows:
Ground 1(ii): The Tribunal erred in not making proper attempts to advise the applicant or his representative of the hearing date.
Ground 2: The applicant contends that the Tribunal acted without regard to procedural fairness and natural justice.
Ground 1(i): adequate consideration
The applicant argued that the Tribunal did not give adequate consideration to the applicant's claim that he intended to make a capital investment. The first respondent argued that the decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 excluded a failure to adequately consider a matter as a ground of review.
However, Anthonypillai was clearly concerned with the limited question of whether a failure to give proper, genuine and realistic consideration to an application was available as a ground of review under Part 8 of the Act as it then stood. More particularly, the question before the court in Anthonypillai was whether the requirement for a tribunal to give proper, realistic and genuine consideration to an application was a procedure under the Act. The Full Court held that it was not at [66].
There have been dramatic changes to the available grounds of review under the Act since Anthonypillai was decided. The question now is whether there has been a jurisdictional error. The Full Federal Court’s decision in Anthonypillai, in fact, contains a number of statements, albeit obiter, indicating that an error analogous to a failure to give proper, genuine and realistic consideration to an application would be a jurisdictional error.
The court noted in Anthonypillai at [28] and [37] the statement by Gummow J (then sitting in the Federal Court) that the Refugee Review Tribunal must give “proper, genuine and realistic consideration to the merits of the case”: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292. It seems that Khan was not applied in Anthonypillai because after Khan was decided and before the Tribunal made its decision in Anthonypillai, a new version of Part 8 of the Act was introduced. As already noted, that version of Part 8 is no longer in force.
However, the Full Federal Court in Anthonypillai discussed at some length whether a failure to consider an application would provide a ground of review under the general law. The Full Federal Court said:
67It is clear from what we have said that whatever may be the position regarding the use of the expression "proper, genuine and realistic consideration" in the context of principles of judicial review generally, a failure to accord such consideration does not, of itself, give rise to a ground of review in this Court under Pt 8 of the Act.
68In stating that conclusion we emphasise that nothing we have said should be taken to diminish in any way the importance of the obligations which the Act imposes upon the Minister and the Tribunal. Section 65 requires the Minister to "consider" a valid application for a visa. Section 414 imposes upon the Tribunal an obligation, when a valid application for review is made, to "review" an RRT-reviewable decision. …
69It was determined in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 that when the Administrative Appeals Tribunal was asked to review a decision of the Minister it stood in his or her shoes. …
70Those comments were directed specifically to the Administrative Appeals Tribunal. An application to the Refugee Review Tribunal is dealt with in exactly the same way. The review is by way of rehearing de novo. It follows that the Tribunal must "consider" a valid application for a visa. If the Tribunal is satisfied that the criteria for the grant of that visa are satisfied, it must grant the visa. If the Tribunal is not so satisfied, it must refuse to grant the visa.
71 The word "consider" is defined in the Oxford English Dictionary, in part, as:
"to view or contemplate attentively ... examine ... scrutinise ... to fix the mind upon ... to reflect upon".
72It is precisely that obligation which s 414 imposes, albeit indirectly, upon the Tribunal. If the Tribunal fails to discharge that obligation that does not, of itself, give rise to a right of review in this Court. However, if the Tribunal fails to discharge that obligation by reason of any of the grounds set out in s 476(1), there is such a right of review.
73The expression "proper, genuine and realistic consideration" had its genesis in the broadly analogous doctrine of "constructive failure to exercise jurisdiction". That doctrine seems to have developed in the context of the common law principles governing the grant of mandamus and, in particular, in the context of the requirement that there be a demand that the respondent perform a relevant duty, and an actual or constructive refusal.
…
78… it seems to us that there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to "review" the decision of the Minister. In other words, although we consider the use of the formula "proper, genuine and realistic consideration" to be an unsuitable method of expressing the circumstances in which that contention can be maintained, we accept that there may be some cases where it can properly be said that the Tribunal has not in truth "considered" the application for a visa at all.
79 It is often dangerous to seek to elucidate a principle by the use of examples, particularly when they are far removed from the facts before the Court. However, … were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it, it would be difficult to conclude that it had "considered" the application.
80 … It should be remembered that a constructive failure to exercise jurisdiction which does not fall within any of the grounds for review contained within s 476(1) may, nonetheless, give rise to a claim for relief in the High Court. It will not, however, form the basis for review of any decision in this Court.
The last sentence quoted above from the decision in Anthonypillai clearly only applied to the review of a decision under the version of Part 8 introduced in 1992. Otherwise, the extracts from Anthonypillai set out above support the proposition that a failure to consider an application for a visa is a jurisdictional error. The extracts also support the proposition that, to consider an application, the Tribunal must
"…view or contemplate attentively ... examine ... scrutinise ... fix the mind upon ... [or] reflect upon" the application.
Similar statements were made by the Full Court in Tickner v Chapman (1995) 57 FCR 451. In that case, Black CJ said at 462:
39. The meaning of "consider" used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary, 2nd ed. as "to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of." Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
Burchett J said at 476:
18. What is it to "consider" material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances.
Kiefel J (sitting in the Federal Court) said at 495:
40. To "consider" is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s.10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate.
It is also well established that, in the migration context, the obligation to take into account relevant considerations requires that each integer of the claim be taken into account. That must mean that each integer of the claim must be considered. Accordingly, in the present case, the Tribunal would have adequately considered the question of the applicant’s intention to make a capital investment if the Tribunal had applied its mind to that question. If it failed to do so, it would have committed a jurisdictional error.
The applicant produced no authority suggesting that, in the present context, there is a question of degree. As I understand it, the question is whether the Tribunal considered the relevant matters, in the sense of fixing its mind upon them. It either considered them or it did not. Accordingly, it is unhelpful to speak of “adequate consideration”.
However, for present purposes, I understand the applicant’s contention to be that the Tribunal did not consider the question of the applicant’s intention to make a capital investment in the sense that the Tribunal did not fix its mind upon that question.
The Tribunal dealt with the question of the applicant’s intention to make a capital investment at paragraph 40 of its reasons for decision which state as follows:
40. On 1 May 2008 the Tribunal received a submission that the applicant now intends to make the capital investment to enable the allocation of 5 Bonus Points under Item 6A81(a). At the time of this decision there is no evidence before the Tribunal that supports this intention or even that the process has been commenced. The submission does not provide any indication of a timeline in which this event is to be brought to fruition. In regard to bonus points under Part 8 the Tribunal notes that the applicant has been provided with ample time and opportunity in the past to put this information before it and believes an extension of time to do so is not warranted.
The applicant argued that the Tribunal did not consider the question of the applicant’s intention to make a capital investment because it confused that issue with the issue of language fluency. The applicant argued that confusion was demonstrated by the Tribunal saying the applicant had had ample time to put its material regarding bonus points when the applicant only had a few days between first stating his intention on 1 May 2008 and the Tribunal handing down its decision on 16 May 2008.
I do not take the Tribunal’s reference to ample time as evidence of confusion. The Tribunal said that the applicant had had ample time to put his material regarding bonus points. The visa application was filed on 1 June 2006. The applicant applied to the Tribunal on
22 March 2007. The Tribunal’s decision was not signed until
6 May 2008. As I read the Tribunal’s decision, it meant that the applicant had had nearly two years to put whatever material he wished in relation to bonus points. The fact that the applicant only raised the question of a capital investment at the last minute did not alter that fact.
The applicant also argued that the Tribunal should have advised the applicant that he needed to provide evidence of his intention to make a capital investment. However, it is very well established that it is for an applicant to put forward whatever material he wishes in support of his claims. It is not for the Tribunal to point out omissions in the applicant’s case.
The applicant argued that the Tribunal should have provided the applicant with more time to provide evidence of his intention to make a capital investment. The applicant said that the delegate had provided time for the applicant to provide evidence of his language fluency, and, on that basis, the Tribunal should have provided more time for the applicant to provide evidence of his intention to make a capital investment. I do not accept that argument. The circumstance that the delegate granted the applicant an indulgence does not oblige the Tribunal to grant a similar indulgence.
All in all, I do not consider that the Tribunal failed to apply its mind to the question of the applicant’s stated intention of making a capital investment. The Tribunal expressly considered that matter in paragraph 40 of its reasons for decision. The Tribunal considered that there was no evidence before it that supported the intention, and no evidence that the process had even begun. The Tribunal implicitly did not accept that the applicant’s stated intention was his genuine intention.
In any event, the regulations required the applicant to have actually deposited the $100,000 at the time of application or decision. The applicant clearly had not done so.
The first respondent pointed out that the Policy and Procedure Manual provided for a certain approach to capital investments under
Item 6A81. However, those guidelines are not binding on the Tribunal. In any event, the applicant did not base his argument on the guidelines. I do not accept that ground 1(i) is made out.
Grounds 1(ii) and 2: advice of the hearing date
Grounds 1(ii) and 2 were essentially the same, namely, that the Tribunal had failed to give the applicant proper notice of the hearing date. The applicant submitted that, ordinarily, the five weeks notice of the hearing that the applicant was given would have been sufficient. However, the applicant argued that the applicant’s representative was overseas when the notice was given, and at the time of the hearing, so the notice was inadequate. However, it was incumbent on the applicant’s representative to ensure that appropriate arrangements were put in place to enable the applicant’s case to be properly conducted, even if the particular agent was overseas at the relevant period.
In any event, there was no evidence that the applicant’s representative was overseas at the time the invitation to the hearing was sent on
12 March 2008. The representative’s letter dated 1 May 2008 said, in effect, that the representative was overseas in early May when the Tribunal telephoned about the hearing date. That was obviously a typographical error. The Tribunal telephoned on 10 April 2008.
The applicant relied on Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [33] where it was said that:
The applicant did not receive such an opportunity, because the written notice of his hearing date did not reach him in time and the incorrect recording of his telephone number frustrated attempts to contact him by telephone. The fact that the Tribunal was unaware of the absence of notice to the applicant when it made its decision does not negate the denial of procedural fairness. It is not a necessary element of a denial of procedural fairness that it be the result of intentional conduct, or even of negligence. It is enough that it occurred. See Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 584 per Latham CJ, 589 per Rich J, 593 per Starke J and 600 per McTiernan J, Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 8 per Gibbs J, 10 per Stephen J, 15 - 16 per Mason J, 20 per Murphy J and 22 per Aickin J, and Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 at 129. Each of those cases concerned the absence of a party at the time appointed for a hearing, through no fault of that party, and resulted in the setting aside of the order of the court because of that absence, even though the court that had made the order had been unaware of the reason for the party's absence.
However, the present legislative scheme is different to that under consideration in Clements. The Migration Act 1958 provides that if notice is sent in accordance with its provisions, the person is deemed to have been properly served. Section 360A of the Act provides that:
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2)The notice must be given to the applicant:
(a)except where paragraph (b) applies–by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.
(4)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(5)The notice must contain a statement of the effect of section 362B.
Regulation 4.21 prescribes seven working days as the applicable notice period. Subsections 379A(1) and (5) provide that:
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
(5) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review.
Section 379C(1), (5) and (6) of the Act provides that:
(1)This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA).
Transmission by fax, e‑mail or other electronic means
(5) If the Tribunal gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, e‑mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
(6) Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999.
Section 379G of the Act provides that:
(1)If:
(a) a person (the applicant) applies for review of an MRT‑reviewable decision; and
(b )the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
(2)If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3)The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.
(4)The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.
(5)This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.
Section 362B of the Act provides that:
(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.
In the present case, in his application for review, the applicant nominated Don Susantha Katugampala of Fairfields Lawyers as his representative. The applicant also asked for all correspondence to be sent to the representative, who the applicant nominated as his authorised recipient. The application stated the representative’s facsimile number as (03) 9650 4559. There is no suggestion that the applicant changed his contact information after the application for review was lodged.
The court book contains a copy of the hearing invitation dated
12 March 2008 which shows that it was to be faxed to (03) 9650 4559. The court book also contains a confirmation that a facsimile was sent by the Tribunal on 12 March 2008 at 2.28pm to facsimile number
(03) 9650 4559. The applicant did not question that the facsimile was sent by the Tribunal. The applicant simply argued, based on the material in the court book, that the facsimile was not received by the representative. The applicant did not adduce any sworn evidence from his representative to the effect that the hearing invitation was not received.In the circumstances, I accept that, on 12 March 2008, the Tribunal sent the hearing invitation to the applicant’s representative at his facsimile number as stated in the application for review. I do not accept that the representative did not receive the hearing invitation on 12 March 2008, although it may have been subsequently misplaced.
Consequently, I accept that the applicant’s authorised recipient was given the hearing invitation on 12 March 2008. By virtue of s.379C(5) of the Act, the applicant was taken to have received the document at the end of that day. Consequently, the applicant was given adequate notice of the hearing listed for 16 April 2008.
The applicant sought to rely on SZEMB v Minister for Immigration [2005] FMCA 448. In that case, the applicant gave unchallenged evidence that he had not received notice of the hearing. Additionally, the court accepted that the Tribunal had not sent the hearing notice to the applicant’s current address for service, but to an earlier address. In SZEMB, the court accepted that the applicant had been denied procedural fairness.
The present case is quite different. Here, the notice of hearing was sent to the applicant’s current address, being the current address of his authorised recipient. Moreover, there was no sworn evidence that the applicant and the authorised recipient had not received the notice.
The applicant argued that there was authority that, even where a notice of hearing was sent in accordance with the Act, if the applicant did not receive it, there was a jurisdictional error consisting of a denial of procedural fairness. However, the applicant was unable to identify that authority. Moreover, the applicant conceded that any such cases would have depended on evidence that the applicant had not received the notice. There was no such evidence in this case.
In any event, the Full Federal Court in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [16] said:
That what happened in the present case involved a breach of
s 420 does not appear to have been put to the primary judge. That section requires the Tribunal to pursue the objectives of providing a fair and just mechanism of review, and to act according to substantial justice and the merits of the case. Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence.[2]
[2] The sections referred to in VNAA are the equivalent in the refugee context of the sections mentioned in paragraphs 36-40 above.
The applicant argued that the Tribunal should have made enquiries about whether the applicant’s authorised recipient had received the notice of hearing. However, it is well established that the Tribunal is under no obligation to make enquiries, at least unless compelling evidence is readily available. I do not accept that such evidence was readily available in this case. If the Tribunal had enquired, the likelihood is that it would have been given more unsubstantiated assertions. If the applicant’s representative had been in possession of compelling evidence, he could have been expected to provide it without being asked for it.
The applicant also argued that the Tribunal should have rescheduled the hearing date, when the Tribunal learned during its telephone call on 10 April 2008 that the applicant’s representative was overseas. However, the decision record shows that the Tribunal asked if another person would be allocated to attend the hearing on the applicant’s behalf. The Tribunal was told that enquiries would be made and the Tribunal would be informed. However, there was no further communication from the applicant’s representative prior to the hearing. In these circumstances, I do not consider that the Tribunal was in any way obliged to reschedule the hearing date. On the contrary, the applicant’s representative was obliged to ensure that the applicant was adequately represented at the hearing.
In all the circumstances, I do not accept that there was a reviewable denial of procedural fairness in this case.
Conclusion
For these reasons, the application must be dismissed with costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Alexandra Sidoti
Date: 12 November 2008
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