SZBNS v Minister for Immigration & Multicultural & Indigenous Affairs

Case •

[2005] FMCA 458

•

13 April 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBNS v MINISTER FOR IMMIGRATION [2005] FMCA 458
MIGRATION – Application to review decision of Refugee Review Tribunal – postponement of hearing by Tribunal – whether sufficient notice – whether lack of procedural fairness or failure to comply with Migration Act 1958 (Cth) – whether Tribunal failed to exercise jurisdiction or exceeded jurisdiction.
Commonwealth of Australia Constitution Act 1901, s.75
Migration Act 1958, ss.425, 425A, 426, 426A, 441C
Migration Regulations, reg.4.35D
Electronic Transactions Act 1999, s.14
NBBU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 767
Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62
Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 295
Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102
Plaintiff S157 v The Commonwealth (2003) 77ALJR 454
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134
Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Re, Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Applicant: SZBNS
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File Number: SYG2027 of 2003
Judgment of: Barnes FM
Hearing date: 9 March 2005
Delivered at: Sydney
Delivered on: 13 April 2005

REPRESENTATION

Counsel for the Applicant: Mr A. B. Slattery
Solicitors for the Applicant: Nil
Counsel for the Respondent: Mr J. Smith
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2027 of 2003

SZBNS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The issue in these proceedings: is if the Tribunal failed to give the applicant a proper notice of the Tribunal hearing scheduled for 19 August 2003 did this constitute a jurisdictional error so as to vitiate the Tribunal’s decision. 

  2. The applicant is a citizen of India who arrived in Australia on 17 March 2002 and applied for a protection visa on 25 March 2002.  The application was refused and on 19 August 2002 he sought review of that decision by the Refugee Review Tribunal.  In his application for review he provided one home and mailing address.  He also nominated a migration agent as an authorised recipient whom he authorised to act on his behalf in relation to the case.  On 2 December 2002 the appointment of an authorised recipient was cancelled. 

  3. On 25 June 2003 the Tribunal wrote to the applicant at his home and mail address inviting him to give evidence and present arguments at a hearing to be held on 12 August 2003.  This letter informed him that the Tribunal had considered the material before it but was unable to make a decision in his favour on this information alone.  It provided him with details of the time, place and date of the hearing.  It asked him to indicate if he wanted the Tribunal to get oral evidence from another person and advised him to send any new documents or written arguments he wanted the Tribunal to consider.  It advised of the consequences of non-attendance at the hearing. 

  4. The applicant replied to this invitation by completing a response to hearing invitation which was signed on 8 July 2003 and received by the Tribunal on 10 July 2003.  He indicated that he would attend the hearing, that he needed a Tamil interpreter and that he did not want the Tribunal to take oral evidence from witnesses or to bring someone else with him to the hearing. 

  5. By a further letter dated 4 August 2003 the Tribunal informed the applicant that it was unable to hold the hearing on 12 August 2003 but that his new hearing would be on 19 August 2003 at the same designated place and at a time specified.  The letter stated that if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice.  The letter asked the applicant to telephone a named Tribunal officer and advise whether he would be attending the hearing.  A Tribunal file note indicates that on


    8 August 2003 the applicant telephoned the Tribunal to confirm his attendance at the rescheduled hearing.  He attended the hearing on


    19 August 2003 which commenced at 11:00am and finished at 1:15pm.  The Tribunal decision was handed down on 16 September 2003. 

  6. The applicant filed an application in this court on 1 October 2003.  He filed an amended application on 9 March 2004 and now relies on a further amended application filed on 21 December 2004 which contains only one ground which is as follows:

    The Tribunal failed to exercise its jurisdiction because it did not give the applicant a proper notice of the hearing scheduled for 19 August 2003.

    Particulars

    The Tribunal is required by s.425A of the Act to give the applicant notice of  the day on which, and the time and place at which, the applicant is scheduled to appear at a hearing.  The notice must also include a notice concerning the applicant’s right to give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice (s.426).  These requirements apply even where the Tribunal has previously invited the applicants to appear and has subsequently changed the venue (see NBBU v MIMIA [2004] FCA 767). 

    The Tribunal must give the applicant the prescribed period of notice, which in this case is 14 days after the applicant receives the notice (Reg 4.35D).  The applicant is taken to have received a notice by post 7 working days after its date (s.441C(4)). 

    In this case, the Tribunal first wrote to the applicant on 23 June 2003 inviting him to appear on 12 August 2003 (CB51).  Then on


    4 August 2003 the Tribunal again wrote to the applicant cancelling that date and inviting him to appear on 19 August 2003 (CB54).  The second letter did not notify the applicant in accordance with s.426, therefore there was non-compliance with Reg 4.35D and section 441C(4).

Relevant provisions of the Migration Act 1958 and Migration Regulations 1994

SECT 425

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

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

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

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

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

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

SECT 425A

(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 441A; or

(b)if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.

(3)     The period of notice given must be at least the prescribed period if no period is prescribed, a reasonable period.

(4)     The notice must contain a statement of the effect of section 426A.

SECT 426

(1)     In the notice under section 425A, the Tribunal must notify the applicant:

(a)that he or she is invited to appear before the Tribunal to give evidence; and

(b)of the effect of subsection (2) of this section.

(2)     The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3)     If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

SECT 426A

(1)     If the applicant:

(a)is invited under section 425 to appear before the Tribunal; and

(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2)     This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.

SECT 441C

(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 441A (including in a case covered by section 441AA).

Giving by hand

(2)     If the Tribunal gives a document to a person by the method in subsection 441A(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.

Handing to a person at last residential or business address

(3)     If the Tribunal gives a document to a person by the method in subsection 441A(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.

Dispatch by prepaid post or by other prepaid means

(4)     If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

(a)if the document was dispatched from a place in Australia to an address in Australia–7 working days (in the place of that address) after the date of the document; or

(b)in any other case–21 days after the date of the document.

Transmission by fax, e-mail or other electronic means

(5)     If the Tribunal gives a document to a person by the method in subsection 441A(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.

REG 4.35D

For subsection 425A (3) of the Act, the prescribed period:

(a)if the applicant is a detainee – starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 7 days after the day on which the notice is received; or

(b) in any other case – starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.

Note 1   If the Tribunal gives a person a document by a method specified in section 441A of the Act, the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method.

Note 2   A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

  1. In written submissions the applicant claimed that the circumstances were identical to those considered in NBBU v MIMA [2004] FCA 767, that the error made by the Tribunal was identical and that therefore an identical order should be made in this case. NBBU v MIMA [2004] FCA 767 is a decision of Sackville J in which he set out the reasons he was satisfied that an error on the part of the Tribunal was sufficient to justify consent orders that the decision be set aside and the matter be remitted for reconsideration according to law. His Honour stated:

    (2)     The applicant was initially invited, by a letter from the RRT dated 28 October 2003, to attend a hearing on 16 December 2003.  Subsequently, that hearing date was changed to
    18 December 2003.  The RRT notified the applicant by a facsimile, dated 16 December 2003, sent to his authorised recipient.

    (3) Section 425A(1) of the Migration Act 1958 (Cth) states that where an applicant is invited to appear before the RRT, the RRT must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. Section 425A(3) requires that the notice be at least the ‘prescribed period’. The Migration Regulations 1994 (Cth) set the relevant prescribed period at 14 days: Reg 4.35D(b).

    (4)     The respondent accepts that non-compliance with the prescribed period constitutes jurisdictional error.  I am satisfied that the error on the part of the RRT is sufficient to justify the consent orders …

  2. In oral submissions counsel for the applicant expanded on this submission. He also provided a written ‘subsidiary argument’ in which it was submitted that regardless of the conduct of the hearing that took place, the breach (of section 425A) was a denial of procedural fairness amounting to jurisdictional error. It was submitted that the statutory breach:

    “quite apart from its failure to fulfil the prescribed requirements of the Migration Act 1958 acted to cause a breach of procedural fairness situated within the confines of the entrenched minimal provisions of judicial review under the Constitution. That breach is of procedural fairness in the nature of the disruption of preparation in readiness for the case and the additional stress and uncertainty caused to the applicant without the time to re-settle before the hearing. Its existence in s.75(v) is a product of natural justice and underpinned by the policy inherent in the substance of s.75(v) that natural justice is to serve protection in light of the disparity in power between the executive and the individual.”

  3. The initial issue is whether there is a breach of any of the provisions of the Migration Act 1958 (Cth). Section 425A(3) provides that the period of notice given in a notice under subsection (1) given must be at least the prescribed period or, if no period is prescribed, a reasonable period. The prescribed period applicable in this instance is to be found in Regulation 4.35D(b). It starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received. While there is a deeming provision as to when a person is taken to have received a document from the Tribunal (in s.441(4) of the Act) it is not necessary to have resort to that provision in this case. It is clear that the applicant received the letter of 4 August 2003 no later than 8 August 2003 as on this date he telephoned the Tribunal to advise that he would attend the rescheduled hearing. On that basis then, the applicant received no less than 11 days notice of the rescheduled hearing rather than the 14 days required by s.425A(3). Counsel for the respondent conceded that the Tribunal failed to comply with s.425A(3) in its letter to the applicant dated 4 August 2003.

  4. Less emphasis was placed on s.426(1)(b) in the submissions on behalf of the applicant. This section requires the Tribunal to notify the applicant of the effect of s.426(2) in the notice under s.425A. Section 426(2) provides that the applicant may within seven days of being so notified, give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

  5. There is, arguably, a distinction between the obligations in ss.425A(3) and 426(1)(b). The former relates to the period of notice and the latter relates to the contents of the notice. It is not disputed that the letter of 25 June 2003 complied with s.426(1) (as well as with s.425A(3)) and it is important that in the response to hearing invitation signed by the applicant on 8 July 2003 he indicated that he did not want the Tribunal to take oral evidence from other witnesses. In other words the applicant was made aware of his opportunity to ask the Tribunal to get oral evidence from another person as required by s.426(2) and indicated that he did not wish the Tribunal to do so. It may well be the case that, as submitted by the respondent, s.426 does not go so far as to impose a requirement that notification of the effect of s.426(2) be included in every notification of an adjournment of a hearing, if it is notified on the first occasion when the applicant is invited to appear before the Tribunal.

  6. Counsel for the applicant confined the bulk of his written submissions to addressing the consequences of a breach of s.425A. Indeed the reference to s.426 in the further amended application for review may be a typographical error as it appears in conjunction with Regulations 4.35D and s.441C(4) which relate to the period of notice. All that Mr Slattery said for the applicant in relation to s.426 was that a breach of s.426 constituted jurisdictional error even where a fair hearing was held because the actual preparation was disturbed and disrupted and that this was part of the content of the hearing. It is not clear how preparation for a hearing could be disturbed by a failure to repeat information about s.426(2) given that the applicant had already indicated that he did not want the Tribunal to obtain oral evidence from any other person. Mr Slattery conceded that while there was an actual failure to inform the applicant that he could ask the Tribunal to obtain oral evidence from witnesses in the second letter he would have known that from the first letter, so that it was not as material as the period of notice. The applicant did not address the submissions of the respondent to the effect that there was no breach of s.426 by the failure to include the information as to the effect of subsection (2) in the letter of 4 August 2003. In these circumstances, on the submissions of the parties it has not been established by the applicant that there was a breach of s.426(1)(b). However if there was such a breach then it would still be necessary, as with the admitted breach of s.425A(3), to consider the consequences of such a breach. I have considered this issue in relation to both sections 425A(3) and 426.

  7. The Migration Act imposes on the Tribunal a duty to review a valid application for review of a decision of a delegate of the respondent (s.414(1)). The Tribunal is obliged to provide an informal but also fair mechanism of review (s.420(1)). It is not bound by ‘technicalities, legal forms or rules of evidence’ (s.420(2)(a)), but, as McHugh, Gummow, Callinan and Heydon JJ pointed out in Applicant NAFF of 2002 v MIMIA [2004] HCA 62 at [26], the Migration Act “established important requirements of a substantive kind, several of which were designed to ensure that applicants for review received procedural fairness”.

  8. Sections 425A and 426 are within Division 4 of Part 7 of the Act which deals with the conduct of the review by the Tribunal. The critical aspect of the Tribunal’s duty to review the delegate’s decision in this instance is the duty in s.425(1) to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. As their Honours stated in Applicant NAFF of 2002 at [27]:

    “The duty to review therefore entailed the statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness.” 

  1. The Tribunal’s obligation to review the delegate’s decision is a continuing obligation and the obligation under s.425 is to provide a meaningful invitation. Counsel for the respondent conceded that s.425 contains a substantive obligation. As the Full Court of the Federal Court found in MIMIA v SCAR (2003) 198 ALR 295 at [35] – [38] it is clear from its terms that compliance with s.425 of the Act is a precondition to the valid exercise of the Tribunal’s jurisdiction and that a failure to comply involve a ‘jurisdictional error’. I am not persuaded that a breach of s.425(1) has been established, whether or not that section is seen as restricted to the invitation (as suggested by the Full Court in SCAR at [35]) or as including aspects of the hearing itself. Further, whether encompassed in s.425 or other provisions of the Migration Act or arising by way of common law concepts (and whatever the impact of s.422B of the Act, a question that was not addressed by counsel for the applicant), it has not been established that there was any lack of procedural fairness in the conduct of the review by the Tribunal. There is no evidence of unfairness or breach of s.425 in this case. The applicant was actually aware, at least by 8 July 2003 (the date on which he signed the response to hearing invitation), that he would have a hearing in mid-August 2003. He was properly informed at that time of all of the information required by ss.425A and 426. He signed the response to hearing form on 8 July 2003 and returned it to the Tribunal by 10 July 2003. He then became aware, by 8 August 2003, that the hearing would not be four days later on 12 August 2003, but rather 11 days later on 19 August 2003. Contrary to the contentions for the applicant there is nothing to suggest that the applicant’s preparation was disturbed or that he was unsettled or even that he works or needed to make some alternative arrangements. There is no evidence to suggest that his preparation for the hearing or participation in the hearing was somehow prejudiced by the delay in the hearing. This is particularly so given that he had indicated that he would be ready and prepared to attend the hearing on 12 August 2003. His preparation was not curtailed; it was in fact extended.

  2. On 19 August 2003 the applicant attended the hearing which commenced at 11:00am and finished at 1:15pm.  There is no transcript of the hearing before the court but on the Tribunal reasons for decision (which is the only evidence of what occurred in the Tribunal hearing) and the other material before the court there is nothing to suggest that the applicant took issue with the period of notification given to him in relation to the postponed hearing, that he sought any further adjournment or postponement or the opportunity to provide further information, that he raised any issue with the Tribunal about the postponement or that his preparation for the hearing was in any way adversely affected by the fact that he expected a hearing on 12 August 2003 and became aware by 8 August 2003 that the hearing would be on 19 August 2003.  Nor is there any suggestion that the absence of a second notification of his ability to ask the Tribunal to obtain oral evidence from others had any impact on him at all.  There is nothing in the Tribunal account of what occurred in the hearing to indicate that any issue of this nature was raised by the applicant.  Indeed, it is notable that the Tribunal account of the hearing reveals that the Tribunal gave the applicant an opportunity to expand on the information provided in his protection visa application, to address relevant issues raised by the Tribunal and to clarify issues of concern and inconsistencies identified by the Tribunal.  It is apparent that the Tribunal also put aspects of relevant country information to the applicant for comment and raised its concerns about the implausibility of aspects of his claims and the reasons for those concerns.  The account of the Tribunal hearing concludes with the statement that the applicant said ‘that all his claims were true and he had nothing else to say’. 

  3. On the evidence before the court there is no indication of any complaint or any suggestion that the Tribunal did other than give the applicant every opportunity to address the issues that were critical to the decision of the Tribunal and to present his case as required by s.425. No unfairness has been established. The Tribunal met its substantive obligation to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

  4. What then is the consequence of a breach of s.425A (and, if there was a breach, s.426) where the substantive obligation under s.425 was fulfilled and where no lack of procedural fairness has been established?

  5. In Applicant NAHV of 2002 v MIMIA [2003] FCAFC 102 the Full Court of the Federal Court found that a breach of s.424A(2) of the Migration Act, as to the method or vehicle of conveying the relevant substantive information required to be provided to the applicant under s.424A(1), was not jurisdictional in circumstances where there had been satisfaction of the important substantive requirement of s.424A(1) to give the appellant the information there contemplated and an opportunity to deal with it. The court reached that conclusion despite the apparently mandatory language of s.424A(2) which, like ss.425A(3) and 426(1)(b) uses the word ‘must’. The court said that the mandatory language of s.424A(2) was ‘relevant to, but not decisive of, this inquiry’ (at [23]). Their Honours had regard to the fact that the Tribunal had undertaken its task of review fairly (at [22]):

    As was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388 – 89, the fact that an act is done in breach of a condition regulating the exercise of a statutory power does not necessarily lead to the conclusion of the invalidity of the exercise of the power. Whether it does so or not depends on ascertaining from the statute whether such an intention exists. As their Honours said in Project Blue Sky, supra at 389:

    An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and with no effect.  Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.  The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.

  6. In NAHV a Full Court stated that:

    “It could not be concluded that invalidity of the Tribunal’s decision was the necessary consequence of any failure to comply with subsection 424A(2) irrespective of the absence of any unfairness whether of a substantive or procedural kind.  Thus, we do not think that the failure to convey the relevant information by the correct method or vehicle can be seen to be jurisdictional.  This is so, it seems to us, even without considering the application of s.474 of the Act.  (Quite different considerations might attend the analysis had there been a breach of s.424A(1)).” 

  7. Their Honours found (at [24] – [25]) that this conclusion was reinforced by Plaintiff S157 v The Commonwealth (2003) 77 ALJR 454 at [76] – [78] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ and that in light of the presence of s.474 in the Act (but even in its absence) the failure to observe the procedural requirements of subsection 424A(2) ‘where there was no unfairness or failure to accord procedural fairness’ did not amount to a failure to exercise jurisdiction or an exceeding of jurisdiction.

  8. Similar reasoning would apply in this case.

  9. Section 425A(1) applies ‘if the applicant is invited to appear before the Tribunal’. In such a case 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.’ Subsection (2) specifies how the subsection (1) notice is to be given and subsection (3) specifies the minimum ‘period of notice’. It is apparent from a consideration of Division 4 of Part 7 of the Act that s.425A contains the mechanism by which the required invitation to appear under s.425 is to be extended. (See VNAA v MIMIA [2004] FCAFC 134 at [14]). This provision is intended to ensure that the s.425 invitation is a meaningful invitation and that the applicant is notified in such a way and given such time that he or she is able to prepare for the hearing, as well as ensuring that the applicant is made aware of the purpose of the hearing and the consequences of non-attendance. (See MIMA v Mohammad [2000] FCA 1275 at [43] per Branson J).

  10. Section 426 deals with the contents of the notice and is also intended to ensure that the applicant is made aware of the invitation and of his right to notify the Tribunal if it wants it to obtain oral evidence from a named person in the hearing (although the Tribunal is under no obligation to do so).

  11. In this case that invitation required by ss.425 and 425A was contained in the letter of 25 June 2003. This invitation made the applicant aware of the purpose of the hearing and the consequences of non-attendance. It provided ample time for preparation. It informed the applicant of his rights under s.426. The subsequent letter of 4 August 2003 re-scheduled the time for the hearing to which the applicant had already been invited. The applicant had already been given adequate time (in accordance with s.425A(3)) to prepare for the hearing and had been made aware of the effect of s.426. A meaningful invitation had been extended. The applicant accepted this invitation and declined the opportunity to nominate other witnesses. The postponement gave additional time. In the circumstances of this case the period of notice of the postponement was a reasonable period.

  12. It is not in dispute that the Tribunal met its obligation under s.425A, in particular under s.425A(3), and under s.426 in its invitation to the applicant of 25 June 2003. Indeed in one sense it could be said that the letter of 4 August 2003 was not a fresh invitation but merely a postponement. However, on the basis that both ss.425A and 426 were breached, the relevant inquiry in this case is whether Parliament intended that any breach of the condition as to the period of notice to be given of a hearing or as to the notification of a right to ask the Tribunal to obtain oral evidence from others necessarily spells the invalidity of the Tribunal’s decision “even in circumstances where there has been satisfaction of the important substantive requirement.” (NAHV at [23]). Here the important substantive requirement of s.425 to give the applicant a proper and meaningful invitation to appear was satisfied. In such circumstances, where the invitation required by s.425 has been given in a manner which ensured the applicant had sufficient notice and was made aware of his rights and obligations and where there is no evidence that the applicant was in any way denied a fair hearing or a fair conduct of his review, despite the apparently mandatory language of ss.425A(3) and 426(1)(b) I consider that the failure to observe the procedural requirements of s.425A(3) and any failure to comply with s.426(1)(b) (if there was such a failure) was not such as to amount to a failure to exercise jurisdiction or an exceeding of jurisdiction. No unfairness, whether of the substantive or procedural kind, has been established’. The failure cannot be seen to be jurisdictional.

  13. This is not to say that, in some other circumstances, it might well be the case that a breach of s.425A(3) or, indeed, of s.426(1)(b), might give rise to a jurisdictional error because it led to a failure to comply with the substantive obligation in s.425 or with some other aspect of the substantive obligations of the Tribunal in relation to the conduct of the review. Indeed this may well be the explanation for the decision in NBBU v MIMIA as, if a failure to comply with the notice requirement of s.425A(3) led to the applicant not having the requisite opportunity to receive an invitation and attend a hearing to give evidence and present arguments as required by s.425 or as an incident of the requirements of procedural fairness, such a failure would constitute a jurisdictional error. It is notable that in NBBU his Honour was merely considering whether to make orders that the parties sought by consent and was not determining whether there had been a jurisdictional error in circumstances where this was disputed by one of the parties.  Hence the judgment contains no detail of the circumstances of the case. 

  14. It should also be noted that while the further amended application refers to NBBU as authority for the proposition that the requirements of ss.425A and 426 apply ‘even where the Tribunal has previously invited the applicant to appear and has subsequently changed the venue’ there is nothing in the decision in NBBU to suggest that there was a change of venue.  Nor was there a change of venue in this instance – merely a change of date.  Counsel for the respondent suggested that in NBBU, consequent upon the breach of s.425A(3) the applicant had been denied the opportunity to attend a hearing (which would constitute a breach of s.425 and a lack of procedural fairness). If an applicant is given an inadequate period of notice or a notification in circumstances that leads to a breach of the obligation to provide a meaningful invitation under s.425, or if he or she is not informed of his rights or the procedural aspects of a hearing in such a way as to give rise to unfairness and breach the substantive obligation under s.425 then the Tribunal will have failed to exercise jurisdiction or exceeded jurisdiction.

  15. However, consistent with the reasoning in NAHV in respect of s.424A, I am satisfied that if the substantive obligation has been met in relation to a hearing (and in this case it clearly was) a breach of the procedural or anterior steps, absent unfairness, is not intended to invalidate the exercise of the Tribunal’s power. 

  16. I am not persuaded that the Tribunal was determining the limits of its jurisdiction in determining that it had jurisdiction to conduct a review without there needing to be an adherence to the provisions for the period of notice of a hearing as contended by the applicant.  Nor do the authorities referred to by Counsel for the applicant in relation to whether or not the applicant must demonstrate the likelihood of a different result or some ‘practical injustice’ assist the applicant.  Such decisions (see for example Re MIMA; Ex parte Lam (2003) 214 CLR 1 at [34], Re, Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and Re MIMA; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [38] and [39]), which are discussed in the article by John Basten QC ‘Constitutional elements of judicial review’ 2004 15 PLR 187 at 195 – 198, dealt with the principles applicable where the alleged jurisdictional error consisted of a lack of procedural fairness. The article addresses the correct approach to procedural fairness and whether an applicant is under an obligation to establish that, absent unfairness, he or she would have taken a different course and that the process has resulted in practical injustice. It was in that context that it was suggested that “a distinction must be drawn between those cases where the issue is whether there has been a breach of procedural fairness and those cases where the breach is established, but the consequences are in doubt.” In contrast, in this instance the errors alleged in the further amended application are failures to comply with the statutory provisions in the Migration Act. There has been no breach of procedural fairness.

  17. Nor was the applicant’s argument in relation to s.75(v) of the Constitution persuasive. Whatever the basis for an argument of procedural fairness and whatever the effect of s.422B of the Migration Act (which was not addressed by counsel for the applicant) no lack of procedural fairness has been established, whether it is seen as situated ‘within the confines of the entrenched minimal provisions of judicial review under the Constitution’ or not. Moreover, as recognised by counsel for the applicant, the specific statutory provisions (particularly in relation to the period of notice in s.425A(3)) may exceed that which would have been required under the general law (insofar as something beyond a reasonable period of notice is prescribed). As Mr Basten suggested (at page 198): “It is at least theoretically open to argue that there is a minimum constitutional requirement and that, to the extent that a specific statutory procedural obligation exceeds it, the privative clause (in s.474) means that a breach of the purely statutory obligation does not, as a matter of statutory construction, lead to invalidity.” Such an argument would not assist the applicant in this instance.

  18. No failure to exercise jurisdiction or exceeding of jurisdiction as considered by the High Court in Plaintiff S157 has been established.  As in Applicant NAHV of 2002, it is sufficient to find that the failure to comply with s.425A(3) and any failure to comply with s.426(1)(b) in the circumstances of this case was not jurisdictional ‘with or without any reconciliation process involving s.474’. Similarly, as in that case, there is no basis to make the orders sought. Given the absence of any apparent prejudice to the applicant by the (non-jurisdictional) breach of the Migration Act, the reasoning in NAHV at [27] in relation to the discretion of the court to grant the relief sought is also applicable. (Also see SZBAZ v MIMIA [2004] FMCA 790).

  19. Accordingly the application should be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  13 April 2005.

Actions
Download as PDF Download as Word Document