SZDED v Minister for Immigration

[2006] FMCA 96

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDED v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 96

MIGRATION – Refugee – claims of persecution based on political opinion – failure to attend the Tribunal hearing – whether reasonable notice of the hearing had been given – ss.425 and 426 at the time of the Tribunal’s decision – failure to give reasonable notice of the Tribunal hearing – jurisdictional error – application allowed.

Migration Act 1958, ss.421, 477(1A), 477(2), 425, 426, 457, 458, 459, 460, 420(2)(b), 476(1)(a)
Public Service Act 1999, ss.7, 21

Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401
Periannan Murugasu v Minister for Immigration and Ethnic Affairs, Unreported Federal Court, 28 July 1987
Rahman v Minister for Immigration and Multicultural Affairs (1998) 155 ALR 465
Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584
Budiyal v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 166
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs; Re Minister for Im [2003] HCA 26
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Webb v The Queen (1994) 181 CLR 41
Electronic Rentals Pty Limited v Anderson (1971) 124 CLR 27
Ex parte Qantas Airways Ltd; Re Horsington (1969) 71 S.R. (N.S.W) 291
Peppin v R. Grayson & Co Ltd [1910] QSR 383
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
S440 of 2002 v Refugee Review Tribunal [2004] FCAFC 282
Minister for Immigration v Capitly (1999) 55 ALD 365
Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243
Haddara v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 401
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
SZAXF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1464
SZAUL v Minister for Immigration [2004] FMCA 347

Applicant: SZDED

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SZ 946 of 2004

Judgment of: Nicholls FM

Hearing date: 15 July 2005

Date of Last Submission: 22 August 2005

Delivered at: Sydney

Delivered on: 9 March 2006

REPRESENTATION

Counsel for the Applicant: Mr. S. Prince

Solicitors for the Applicant: Alfred J. Morgan & Son

Counsel for the Respondent: Mr. T. Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. A writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 13 July 1998.

3. That the matter be remitted to the Refugee Review Tribunal, differently constituted, to redetermine the review application according to law.

4. That the first respondent, her officers or agents, be prevented from taking any steps to implement the effect of the decision of the Refugee Review Tribunal.

5. Costs as agreed by the parties, with both having the liberty to apply to list the matter for argument for costs if necessary.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 946 of 2004

SZDED

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 1 April 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 July 1998 affirming the decision made on
   13 March 1997 by a delegate of the respondent Minister to refuse a protection visa to the applicant.

2. The applicant is a citizen of Nepal who arrived in Australia on
   22 October 1995 and who lodged an application for a protection visa with the respondent Minister’s Department on 22 November 1995. On 13 March 1997 a delegate of respondent Minister refused to grant the protection visa, and on 8 April 1997, the applicant applied for review of that decision.

3. The applicant’s claims to refugee protection are set out in his application to the respondent Minister’s Department (Court Book (“CB”) 23), and in his application for review to the Tribunal (CB 42 to CB 46). The applicant claimed to be a “Communist supporter” in Nepal, and that he had been “attacked by Congress supporters and nearly killed.” He also claimed to have been the leader of a group that some years earlier had killed a Congress Party member, and that Congress “people” would be waiting for him if he returned, to exact revenge. He further claimed that if he did return to Nepal he had to return to his birthplace, that is, his local village, where his property was situated. He further claimed that the authorities could not and would not protect him. In his statement attached to his application for review, the applicant made reference to the recent political history in Nepal (see in particular CB 46 and the attachment with his application for review to the Tribunal) and claimed that protection and “security” would not be available to him in a constantly changing political situation where it was hard for one party to stay in power. The applicant’s claim was that in such a situation the political parties were focused on gaining and staying in power not on “looking after the people”.

4. The Tribunal's decision record is reproduced at CB 54 to CB 60 (I will deal below with what appears to be a copy of the last page of the Tribunal’s decision record (CB 61), albeit without the Tribunal member’s signature and signature block, but bearing a Tribunal stamp). The Tribunal’s summary of the applicant's claims is set out in its decision record reproduced at CB 57.5 to CB 59.5. The Tribunal saw the applicant's claims of fear of persecution based on the Convention ground of “political opinion” (CB 54.6 and CB 57.7) and arising out of the applicant's assertion that he was in conflict with Nepalese Congress Party supporters, and was in opposition to the Congress party. The Tribunal noted his claim to have been a leader of a group which killed a member of the Congress Party, and that Congress members were, as a result, seeking to take revenge against him for this killing. It further noted his claim that the authorities would not, and could not, protect him in all these circumstances including the unstable political situation in Nepal. The Tribunal reviewed independent country information before it as to the political situation in Nepal, and in particular the changes in the makeup of the national government in Nepal. This included the changes and shifts in alliances in the years prior to its consideration of the applicant’s claims. The Tribunal also noted (CB 58.5) the applicant’s claims that the parties opposing his own were in power in local government. The Tribunal reviewed independent information available to it both at the national level and at the “grass roots” level. The latter was relevant in the context of the applicant’s claim that the “problem is local” (CB 59.6 and “in my village where I came from”: CB 20.5), and that he would have to return to his birthplace “because that is where his property is”. The Tribunal noted that the applicant had not given any evidence “of any law or convention in Nepal forcing a person to live his whole life in the place of his birth” (CB 59.6). The Tribunal saw the applicant's claims as they related to the general situation in Nepal, and his fears arising from this, as being “scant” (CB 58.4), and that he had given “no clear account of the risk” relating to his claim that the Congress Party supporters were waiting to take revenge upon him for the death of a member of that party (CB 59.5).

5. The Tribunal received the applicant's application for review on 8 April 1997. By letter dated the same day, the Deputy Registrar for the Refugee Review Tribunal wrote to the applicant at the address provided by the applicant in his application to the Tribunal (his home address). The applicant had neither provided any other address, nor specifically any address for service in his application to the Tribunal. The letter outlined for the applicant the process by which the Tribunal was intending to review his application. This letter is reproduced at CB 47. In particular, and relevant to a significant issue subsequently raised by the applicant before me, the Tribunal stated at CB 47.7:

   “If there is any change in your personal circumstances that may affect your application, please notify the Tribunal in writing immediately. It is also very important to advise the Tribunal in writing if you change your address or telephone number.” [Emphasis added].

6. On 11 June 1998 the Tribunal wrote to the applicant and advised him that it was not able to make a favourable decision on the information that was before it and advised the applicant that he could come to a hearing before the Tribunal to present oral evidence in support of his claims. This letter was again sent to the only address the applicant provided in his application to the Tribunal (CB 48 to CB 49). I should note that by this time, for the purpose of the review, the Tribunal had been constituted by a single member (s.421 of the Migration Act 1958 (“the Act”)) whose name appears on a Tribunal stamp on the face of the copy of the letter at CB 48 (“L. Hardy”). The letter enclosed a “Response to Hearing Offer” form, and directed the applicant to complete and return the form. The letter also advised the applicant that if the Tribunal did not hear from the applicant within 14 days it would assume that he did not want to come to a hearing, and the Tribunal may then make a decision on the information it already had. The hearing was scheduled for 9 July 1998. The letter further advised the applicant that if he wanted the Tribunal to take oral evidence from any witness or witnesses that again he should notify the Tribunal in writing by completing the enclosed form.

7. This letter was ultimately returned to the Tribunal as “unclaimed”. A copy of the relevant envelope is reproduced at CB 52 and a Tribunal date stamp indicates that it was “received” by the “Refugee Review Tribunal” on 14 July 1998. In the meantime the Tribunal, on the information it had before it, had proceeded to make its decision the previous day (13 July 1998).

8. The Tribunal's “Findings and Reasons” for its decision are set out in its decision record, reproduced at CB 59.5 to CB 60.6. The Tribunal made the following findings:

   1)It referred to the applicant’s claim that he was wanted by political opponents, not for reasons of party or political opinion, but over “an act of murder” committed “some years ago”, and in relation to which he was perceived by his opponents to have had considerable responsibility (CB 59.7). The Tribunal found that according to the applicant's own evidence, he was wanted over an “apparent criminal matter”, and even though he was wanted by parties other than the police, it was still a “criminal matter and not a Convention related” matter. The Tribunal relied on the authority of Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 per Lockhart J., at 404 and 416 (CB 59.8).

   2)That even accepting that Nepalese Congress Party (“NCP”) supporters occasionally harmed Communist supporters that this, based on independent country information before it, was “reciprocated if not precipitated by Communist attacks upon the NCP”. It further found that all the evidence indicated (that is, the independent country information before it, and the applicant’s evidence) that this violence is “sporadic, spontaneous and in no way systematic” (CB 60.2). Relying on authority (Periannan Murugasu v Minister for Immigration and Ethnic Affairs, Unreported Federal Court, Wilcox J, 28 July 1987 at 13) the Tribunal found that “civil unrest such as this is not the same thing as Convention-related persecution” (CB 60.3).

   3)Further, that although it dealt with the applicant's claims at face value, the Tribunal was not satisfied that the claims were, in any event, reliable. The Tribunal had invited the applicant to appear at a hearing before it to provide further evidence and argument in support of his claims. The applicant did not appear at the hearing (in circumstances which are the subject of a ground of review and which I will deal with below). The Tribunal was not satisfied that the claims were “reliable” and gave examples for this view (CB 60.4).

9. The applicant's original application to this Court, filed on 1 April 2004, sought review of the Tribunal decision on the basis of the following complaints:

   “1)I didn't have an opportunity to provide my oral evidence in relation to my case at the RRT.

   2)There was no evidence or material to justify the making of the decision in my case.

   3)The decision maker has not studied human rights law and its consequences in Nepal.

   4)The decision in my case involved an error of law whether or not the error appears on the record at the time of decision.

   5)The decision was not made by reference to subject matter, scope and objects of the Immigration Act.

   6)The error which the Tribunal made was that it failed to recognise the necessity in applying the definition of “refugee” in circumstances of country information. That is an error of law because it proceeds from an erroneous construction of the refugee convention. I am in need of fair decision and justice in relation to my case.”

   The application lacked particularity and at the time was unsupported by anything else to show error in the Tribunal's decision.

10. On 20 October 2004 the respondent Minister filed a Notice of Objection to Competency objecting to the jurisdiction of this Court to try this application. The respondent's position was that this was a privative clause decision, and that s.477(1A) of the Act requires that an application must be lodged within 28 days of the notification of the Tribunal decision. Further, by virtue of s.477(2) of the Act, the Court must not make an order allowing an applicant to lodge an application outside the period specified in s.477(1A). The respondent Minister also filed written submissions. As well as arguing that the Notice of Objection to Competency should be upheld, and that the application should be dismissed with costs, the respondent’s submission also argued that as there had been almost six years between the making of the Tribunal's decision and the filing date of the application in this Court, that the Court should in the circumstances of such unwarrantable and unexplained delay, refuse the relief sought by the applicant.

11. At a hearing before me on 17 January 2005 the applicant appeared unrepresented and was assisted by an interpreter in the Nepalese language. Mr. M. Allatt represented the respondent Minister. A number of issues arose at this hearing:

    1)The issue of the delay between the making of the Tribunal decision and the filing of the application to this Court.

    a)In this regard, there was a reference to the applicant having been part of the “Muin/Lie class action.”

    b)From the Bar table the applicant claimed that he had received the letter from the Tribunal dated 8 April 1997 (the advice of the “process of review” letter: CB 47). At the time he said he was staying with “a friend” who translated the letter for him, and told him that the he could write to, or telephone, the Tribunal to notify of a change of address or telephone number.

    c)Specifically on the issue of delay, the applicant stated (again from the Bar table) that this was the only communication he had received from the Tribunal. He claimed that he had subsequently left this address after a dispute with his friend, and that he did not receive the letter of invitation to the hearing (a matter which is not in dispute between the parties). Also on the issue of delay, he claimed that the first time he became aware of the Tribunal's negative decision was “some time” in 2000 by which time he had joined the class action before the High Court. He claimed to have been told three years later that his High Court class action had been dismissed.

    d)While there was some brief reference to a class action  in the material before me (CB 79) there was nothing by way of any particularity to show the exact dates on which the applicant may have been involved in these proceedings (the brief reference appears in a report prepared by an officer in the Department of Immigration on 28 August 1999).

    2)The failure of the applicant to attend the hearing before the Tribunal.

    a)While there was no disagreement between the parties that the applicant had not physically received the letter from the Tribunal inviting him to attend a hearing before the Tribunal, there was a difference as to the circumstances claimed to have led to this failure, and consequently whether this could amount to jurisdictional error on the part of the Tribunal in its proceeding to make a decision without the applicant having appeared before it. The applicant made a number of assertions in this regard, that at that time were unsupported by any evidence:

    (i)That he received the “first” letter (the letter of 8 April 1997) but was unable to understand it.

    (ii)That in his application to the Department he indicated that he could “read and write” English. Before me however, he said that his “roommate helped” him and that it was the roommate who had read the Tribunal letter to him. He said that the roommate had told him (relevantly) that he could write to or telephone the Tribunal to advise of any change of his address.

    (iii)   That he telephoned the Tribunal to give such advice.

    3)Given that I had before me an unrepresented applicant, I raised with Mr. Allat the issue of ss.425 and 426 of the Act (as they were at the time of review of the applicant’s application before the Tribunal) and the possible relevance of a number of authorities which may be of assistance to the applicant (Rahman v Minister for Immigration and Multicultural Affairs (1998) 155 ALR 465 (“Rahman”), Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584 (“Sook”) and Budiyal v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 166 (“Budiyal”).

    Mr. Allat was clearly not in a position to make any detailed submissions in regard to these authorities (and any others) and as they may impact on the applicant’s case.

    I thought it appropriate in all the circumstances to adjourn the matter, and to allow both parties an opportunity to make further submissions in relation to any authorities on the points at 3) above in this paragraph and further, to allow the parties to make further submissions in relation to the matters in 1) and 2) above, and for the applicant to consider whether he wished to provide any evidence to support the claims that he had made.

12. The respondent filed supplementary written submissions on 19 January 2005, and the applicant filed supplementary written submissions on
    31 January 2005, with an attached affidavit sworn on 27 January 2005, and the applicant's “chronology” of events.

13. In relation to the issue of delay, further enquiries by the respondent revealed that the applicant was a member of the “Muin/Lie” class action and the respondent, while still pressing delay as a discretionary reason to refuse relief, now acknowledged that the delay was a delay of 10 months and “not as exorbitant as previously submitted” (6 years). While this submission was relied on, it was not all that strongly pressed subsequently (in particular at the resumed hearing before me). In all the circumstances however, I would not have acted to refuse the applicant the relief he seeks on this basis.

14. Clearly delay is a discretionary criterion for the denial of the relief sought by the applicant (that of certiorari and prohibition) without needing to decide the merits of the applicant's alleged grounds of review. Unreasonable delay may even be sufficient to allow discretionary refusal of mandamus (Aronson & Ors: “Judicial Review of Administrative Action”, Third Edition, Thomson, Lawbook Co., 2004 at pages 736 to 745), also sought by the applicant. It is well accepted that relief under s.75(v) of the Constitution is like prerogative relief generally, and is discretionary: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs; Re Minister for Immigration [2003] HCA 26 at [33]. I also note McHugh J., in the High Court decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [80]:

    “The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant…”

1. It is often put that a delay of more than one year should ordinarily lead to relief being refused in the exercise of the Court's discretion:
   Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 per McHugh J., at 495 to 496. In this case the delay in question is in the order of ten months. While it has often been said that the issue of delay should not be reduced to a mere mathematical exercise, ten months in all the circumstances, particularly as the applicant did seek to pursue review by the Courts, is not such as would cause me to refuse the relief. Further, while unwarrantable delay could ground the refusal of relief without deciding the merits of the applicant’s grounds, I saw the applicant’s complaint, at least as put in his affidavit affirmed on
   27 January 2005 at paragraphs 12 to 16 (and particularly at paragraph 14) as being worthy of at least further consideration. In these circumstances, I do not believe it appropriate to refuse to examine the applicant’s claims to relief. On that basis I refuse to exercise the discretion to refuse the relief sought because of any unwarrantable delay.

2. In relation to the circumstances of the applicant’s non-attendance at the Tribunal hearing, the applicant’s evidence by way of affidavit was that (after having received the letter of 8 April 1997) he had not heard from the Tribunal. He said he received a copy of his Communist Party membership card in October 1997 and intended to “present” it to the Tribunal, but he “had not heard” from the Tribunal. He also asserted that he moved to a new address in December 1997, had phoned the Tribunal to advise of the change of address and “was told by the RRT officer that he would ‘put my new address in the computer.’” The applicant’s evidence was that he heard nothing more until 8 August 1999 when he was “put into Villawood” (the Villawood Immigration Detention Centre) and was then advised that the Tribunal had refused him protection on 14 July 1998. The respondent’s position in relation to the applicant’s non-attendance at the hearing, and the effect of ss.425 and 426 of the Act, was that the circumstances of the applicant’s case were relevantly indistinguishable from those considered by Stone J., (exercising appellate jurisdiction) in SZAXF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1464 (“SZAXF”). Further in SZAUL v Minister for Immigration [2004] FMCA 347 (“SZAUL”) Barnes FM at [20] to [21] adopted what was relevantly said in SZAXF, and the respondent argued that this should be followed as a matter of comity.

3. Subsequently, a further hearing was listed. At this hearing the applicant was represented by Mr. S. Prince of Counsel (acting pro bono), and the respondent Minister by Mr. T. Reilly of Counsel. The applicant was also represented by solicitors Alfred J Morgan & Son who filed their notice of appearance in Court during the hearing. Mr. Prince advised that he had only been briefed in this matter the previous evening, and as he had not had an opportunity to read the respondent's supplementary written submissions, I granted a short adjournment for him to do so.

4. Following resumption, Mr. Prince submitted that the Court disqualify itself from hearing this matter. He based this, in his words, on the association between the Court ‘and what is in effect the respondent.’ This was clarified as being a reference to former employment in Sydney with the Department of Immigration (“the Department”). Mr. Prince submitted that this was not an application based on an allegation of actual bias, but rather was based on the question of an apprehension of bias. He acknowledged that he had no basis to put that the Court had any personal prior knowledge of the case currently before the Court. (A situation which the Court was able to confirm). He further made reference to the recent release of an inquiry into immigration detention and national immigration detention issues (“Palmer inquiry”). He further submitted that although the decision under review was one of the “Refugee Review Tribunal”, and not the respondent Minister’s Department, there is no formal or legislative basis of independence, and that members of the Tribunal and delegates of the Minister ultimately report to the same source of executive authority, the Minister.

5. Mr. Prince referred to a number of authorities. He cited:

   ·Webb v The Queen (1994) 181 CLR 41, a case involving the impartiality of a juror in a murder trial, as authority that the appropriate test for the assessment of apprehended bias was whether the incident would give the fair-minded and informed observer a reasonable apprehension of a lack of impartiality (see below further for the relevant applicable test).

   ·Electronic Rentals Pty Limited v Anderson (1971) 124 CLR 27 and the references there to Ex parte Qantas Airways Ltd; Re Horsington (1969) 71 S.R. (N.S.W) 291. Both cases related to the conduct of a Justice of the Peace. Mr. Prince submitted that the relevance of these cases lay in the fact that they related to people employed in the public service at the time that they were exercising some official functions which may be judicial. These cases are clearly factually distinguishable from the circumstances leading to the making of this application today. There is no suggestion of any current association of the Court with the respondent Minister.

   ·Peppin v R. Grayson & Co Ltd [1910] QSR 383, a case involving the question of bias in circumstances where the Justice involved in the case was both in the employ, and the father, of a member of a partnership that was a party before the Court. It was held by the Full Court of Queensland that in those circumstances, he should be disqualified. Again this is clearly distinguishable. There is no suggestion of any current direct involvement with the matter or parties presently before this Court.

6. The most recent relevant enunciation of the test to be applied in relation to the question of an apprehension of bias was stated by the High Court in the joint judgment of Gleeson CJ., Gaudron and Gummow JJ. in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]:

   “The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public.”

   This test has been adopted and employed across the Courts and is clearly to be engaged when addressing a claim of apprehended bias: See S440 of 2002 v Refugee Review Tribunal [2004] FCAFC 282. (Although in that case the applicants’ challenge was to the Refugee Review Tribunal decision was on the basis that certain remarks made by the member during the course of the hearing gave rise to bias, or an apprehension of bias.)

7. Against the relevant test Mr. Prince’s submission is not made out:

   1)There is no personal prior knowledge of, or involvement with, this case arising from any former employment, or indeed in any other capacity.

   2)The specific subject of the judicial review before the Court is a decision of the Tribunal made on 13 July 1998. The Tribunal’s decision was made “de novo”. There is, nor has there been, any connection by the Court with the Tribunal as an institution, or the specific Tribunal member involved in this matter.

   3)The “connection” between the Tribunal and the Department such that it impugns the independence of the Tribunal, is not made out. Division 9 of Part 7 of the Act establishes the Tribunal (s.457), and amongst other things provides:

   §For the membership of the Tribunal: s.458

   §That the appointment of members is to be by the Governor-General: s.459

   §That the principal Member is responsible for the overall operation and administration of the Tribunal: s.460

   While there may be executive administrative arrangements in place involving the Minister for Immigration, the clear legislative intent was to create a Tribunal to provide independent review of protection visa decisions. There is no relationship of influence with the Tribunal such that Tribunal decisions are subject to direction or dictation from the Minister or the Department. The Tribunal operates in a very real sense as an independent body from the Department and would be, as against any standard of reasonableness, perceived as such by any well informed lay observer, particularly in circumstances where the Tribunal (and for that matter to the extent that it is a parallel, the Migration Review Tribunal), often find for applicants.

   4)As to any former employment, or indeed other, relationship with a party (the Minister), appointments to the Public Service pursuant to ss.7 and 22(1) of the Public Service Act 1999 provide for the (relevantly) Secretary of a Government Department to be the employer. There was no employment connection with the Minister. Nor was there any relevant employment connection with the Minister in the sense of employment on the personal, or parliamentary, staff of the Minister for Immigration.

   5)In relation to the inquiry into Immigration Detention there was in any event nothing put to show (in a relevant sense) a connection with the report and the Minister (the party before the Court). Nor was anything put (beyond attempted innuendo) to show any connection by the Court to the subject of that inquiry. A well informed lay observer would need to see some direct link or involvement of any former employment with the specific subject matter. None existed. But in any event any such report, not involving the Minister (in the relevant sense), would not ground a submission based on a claimed former employment relationship with the Minister.

8. Finally, in rejecting this submission, I note the ‘Guide to Judicial Conduct’ published for The Council of Chief Justices of Australia by the Australian Institute of Judicial Administration Incorporated (published 2002), with particular reference to the guidelines outlined in relation to judicial impartiality. I note that in regard to “associations” and matters “requiring consideration”, professional or business associations both past and present are relevant, as are relationships both past and present with litigants. However, I refer specifically to 3.3.4(e) (page 11 of the guide) which states:

   “Past professional association with a party as a client is not of itself a reason for disqualification unless the judge has been involved in the subject matter of the litigation prior to appointment or unless the past association gives rise to some other good reason for disqualification.”

   There has been no involvement in the subject matter of this litigation (the Tribunal decision, or the Tribunal in any relevant way) and nor, given what I have set out above, is there any past association with a party in these proceedings (the Minister) that would give rise to some other good reason for disqualification. The guide already recognises that for a prior association to be comprehended by a well informed lay observer to give rise to an apprehension of bias requires an involvement in the subject matter of the litigation or some other good reason. A past professional association with a party (in any event not relevant here) is not by itself sufficient.

9. At the hearing Mr. Prince sought leave to file an outline of a further amended application, which he indicated that he would file in Court in a more complete form, at a later date. This was filed, in the terms outlined at the hearing, with some additional particularity, after the hearing. The grounds asserted in this further amended application and on which the applicant relied are:

   “1. The applicant was denied procedural fairness in that:

   a. A decision was made against his interests without him having been heard;

   b.      Sent the notice of hearing to the wrong address;

   c. Did so even though the applicant had advised of the change of address;

   d. Proceeded to make and send a final decision even though it appears that it had been notified of the problem with the mail sent to the address used by the Tribunal in the letter notifying of the hearing;

   e. Did not take any reasonable steps to ensure that the applicant had indeed been afforded an opportunity to be heard when the applicant did not appear for the hearing (such as telephoning the number on the application to check to see why the applicant had not appeared at the hearing);

   f. Proceeded unreasonably and with undue haste to determine the application in the absence of the applicant without proper inquiry and without taking all reasonable steps to discharge its obligations under s 425 of the Act to provide the applicant with a hearing;

   2. Further and in the alternative, for the reasons above, the RRT failed to comply with s.425 of the Act in that it did not provide him, with an opportunity to be heard.

   3. Further and in the alternative, for the reasons above, the RRT failed to properly apply s. 420(2)(b) of the Act in that it did not act according to substantial justice and the merits of the case.”

10. The critical issue in the case before me, and the matter around which the applicant now grounds his complaint in the amended application, is whether the applicant, not having received actual notice of the invitation to attend a hearing before the Tribunal, was thereby denied procedural fairness, or alternatively there was a breach of s.425 of the Act, and further, in the alternative, that the Tribunal failed to properly apply s.420(2)(b) to the Act. In this regard I had before me:

    1)Relevant material in the Court Book.

    2)The affidavit declared by the applicant on 30 January 2005, filed in Court on 31 January 2005 with his supplementary written submissions.

    3)Evidence given by the applicant at the hearing before me.

    4)The applicant's supplementary submissions of 22 August 2005 (following the hearing I gave both parties the opportunity to make further written submissions).

    5)

    The respondent’s supplementary written submissions of

    
    

    19 January 2004. I note here that the respondent’s solicitors notified the applicant's solicitors and the Court, subsequent to the second hearing before me, that they did not intend to file any further written submissions.

    6)The respondent also filed on 7 September 2005 an affidavit sworn on 6 September 2005 by Jonathan Christian Willoughby-Thomas a District Registrar of the Tribunal, but following objection communicated in writing by the applicant’s solicitors, subsequently advised that the respondent no longer wished to rely on that affidavit (8 September 2005).

11. I should just note at this point that the applicant’s affidavit of

    
    

    31 January 2005 was the issue of some discussion at the hearing before me. I excluded as inadmissible, on the grounds of relevance to the issue for consideration before me, the following paragraphs:

    1)Paragraphs 7 to 11 dealing with a failure to attend hearings with the Minister's delegate. This is clearly not relevant to the issue of error on the part of the Tribunal.

    2)Those parts of paragraphs 17 to 26 dealing with the delegate’s decision which again do not go to the issue of showing error in the Tribunal’s decision.

    3)Paragraphs 27 to 30 which deal with events in Nepal subsequent to the Tribunal's decision and therefore do not show error on the part of the Tribunal, which made its decision in 1998. Nor could an “Amnesty International report of 20 January 2005”, which is essentially the subject of paragraph 28, have been put before the Tribunal in 1998 for obvious reasons.

    For the purposes of considering the applicant’s complaint I do take note, however, of that part of the affidavit dealing with the failure to attend the hearing of the Tribunal scheduled for 9 July 1998, evidence provided by the applicant before me, the applicant's written submissions of 22 August 2005 and the respondent's supplementary written submissions of 19 January 2004.

12. At the hearing before me the applicant gave evidence that the contents of his affidavit of 31 January 2005 were true and correct to the best of his knowledge and belief. I took that to be a reference amongst other things to paragraphs 12 to 16 of the affidavit which go to the central issue under consideration, relevantly that on 8 April 1997 he appealed to the Tribunal with the help of a Nepalese friend who wrote the application, including the statement reproduced at CB 46, and that in December 1997 he moved from the address at which he had been residing at the time of making the application to the Tribunal, which was the address given to the Tribunal, and that he had phoned the Tribunal about a change of address and was told by “the RRT officer” that “he would put my new address in the computer”. The applicant’s evidence is that he heard nothing further from the Tribunal until after he had been taken into immigration detention on 20 August 1999 where he learned that he had been refused refugee protection on 14 July 1998.

13. Under cross-examination the applicant stated that what he said in paragraph 14 of his affidavit was true and confirmed that he did make the phone call to the Tribunal using the English language. He maintained:

    1)That while he could “barely” speak English, he could speak a “little bit” and now could speak a “little bit better”.

    2)This was in contrast to the claim in the protection visa application that he could “read and write English” (CB 12).

    3)The explanation given in the affidavit was that his “Nepalese friend” filled out the protection visa application form and “filled this part wrongly”.

    4)That he rang the Tribunal on the number provided in the Tribunal’s letter of 8 April 1997 (CB 47).

    5)That the friend had told him (at the time earlier when he had lived with the friend) that he could ring the Tribunal on that number.

    6)That in relation to the report of an interview with a Departmental Officer on 20 August 1999 where he is recorded as stating that he did not try to contact the Tribunal because he did “not know English” (CB 66), before me he maintained that he did not remember what he said in 1999, but insisted that he had phoned the Tribunal (in 1998).

    7)That he understood enough English to read out his new address when he rang the Tribunal and understood that the “officer” he spoke to told him he put his address “in the computer”.

14. In subsequent written submissions Mr. Prince on behalf of the applicant argued that the applicant gave clear evidence at the hearing before me that he had informed an officer of the Tribunal over the phone of his new address and was told the change would be noted in the computer. He submitted that the applicant’s evidence on this point was convincing and that in re-examination the applicant was invited to recite in English what he had said in the conversation with the Tribunal officer and gave a clear and spontaneous recitation of that conversation. I noted the applicant as saying in English (about what he had been told):

    “Don't worry, I’ve put in the computer your address. No need to worry.”

    Mr. Prince submitted that the applicant gave a clear and spontaneous recitation of that conversation and that the Court could be impressed with the forthright way in which the applicant gave his evidence.

15. I do not agree with Mr. Prince's submission to the extent that he describes all of the applicant’s evidence as spontaneous, and that the Court would be impressed with the forthright way in which he gave his evidence. In cross-examination the applicant stated that his evidence at paragraph 5 of his affidavit of 27 January 2005 was true. In this affidavit the applicant stated that he did not speak English when he arrived and still barely spoke or read English as at 27 January 2005, the time of the making of the affidavit which was over seven years after the claimed conversation with the Tribunal officer. He stated in the affidavit (which before me he asserted as being true): “I still barely speak English and need assistance from Nepalese friends who speak…some English at least”.

1. I do however accept Mr. Prince's submission in relation to the applicant’s evidence as it related to how he was able to obtain the telephone number to contact the Tribunal in 1998. In this regard the applicant’s evidence was that he understood from a friend (with whom he shared accommodation at the time of the receipt of the Tribunal’s letter of advice of 8 April 1997) that he could either write to or ring the Tribunal to advise of a change of address.

2. Further, I note Mr. Reilly’s cross-examination of the applicant in relation to the material contained at CB 66. This material appears to be a record of interview on 20 August 1999 with the applicant, after he had been taken into Immigration Detention. It appears the interviewing officer recorded that he [the applicant]:

   “Did not try to contact the Tribunal because I don't know English. I did not know I could contact interpreter.”

   I accepted the applicant's evidence as being clear on this point, at the very least, in that he said that he did not remember what he said to the interviewing officer at that time. In any event, I am of the view that it is unsafe to rely on this record in circumstances where it appears to have been hastily written by the interviewing officer and contains a narrative which switches from the first to third person in expression, particularly at the relevant part at CB 66 which deals with the contact with the Tribunal. It was always open to the respondent to bring forward evidence now (for example by way of evidence from the officer concerned, or the interpreter present at the time) as to the circumstances in which this interview was conducted and the circumstances relating to how the applicant answered, and when and how these answers were recorded. None of this has been put before me. I note however that Mr. Reilly’s submission that the applicant did not deny making this statement (which it is clear was made in the presence of an interpreter and with the use of an interpreter) has some force.

3. On balance however, while the issue of the applicant’s capacity to speak and understand English at the relevant time (December 1997), and the applicant's reported statement to the officer in August 1999, remain of some concern, I accept, based particularly on what the applicant gave as evidence before me (which I note remained most consistent with his statements made from the bar table in this regard at the first hearing before me in January 2005), that he did telephone the Tribunal, and spoke to an officer of the Tribunal about a change of address. Further, I note that the applicant's statement at paragraph 5 in his affidavit of 30 January 2005 that “I still barely speak English” was put in the context of making his applications to the Minister's Department and the Tribunal. The applicant did not assert in the affidavit, which he confirmed under examination before me, that he could speak “no English”. I did find his explanation to Mr. Reilly under cross-examination, as to the extent of his understanding of English, as believable, particularly to the extent that he said he did understand at least enough English that when “you call a computer a computer” the meaning is clear. This, of course, was a reference to his assertion that he had been told when he rang the Tribunal that his new address:

   a)On the evidence given before me under re-examination: had been put into the computer.

   b)On the evidence in the affidavit of 31 January 2005: “would” be put into the computer.

4. I found that part of his evidence to be convincing as a satisfactory explanation to distinguish between being “barely” able to speak, read and write English and the difficulty this would pose in the context of making an application for a protection visa, or for review before the Tribunal, and being able to conduct a short conversation over the phone to attempt to notify of a change of address. In particular I note his remembering and understanding that the word “computer” had been used. I am further inclined to accept the applicant’s evidence in this regard because the respondent has not put into evidence anything to sufficiently challenge the applicant’s evidence that he did phone and speak to a Tribunal officer regarding a change of address. The respondent did file the affidavit of Jonathan Christian Willougby-Thomas, a District Registrar of the Tribunal sworn on 6 September 2005 which could have provided evidence of the Tribunal’s administrative procedures relating to notification of change of address at the relevant time, and particularly where an applicant may have sought to effect such notification by telephone, in circumstances where the Tribunal’s earlier advice (the letter of 8 April 1997) clearly suggests that any such notification should be done in writing. Subsequently however, the respondent advised that she no longer wished to rely on that affidavit.

5. On balance therefore, on the evidence before me, I accept that the applicant did make such a phone call to the Tribunal. However, while the applicant asserts that he was told that his new address had been, or would be, put “in the computer”, the applicant’s evidence goes to his understanding of what he was told. Although it goes to the issue that what he was told was that it had been, or would, be done, there is nothing in the applicant’s evidence to establish that it was actually and effectively done, so as to establish a permanent record in the Tribunal’s computer system. I note in this context that the Tribunal’s procedures (as notified in its letter), require written notice to effect a change of address. It is not clear in these circumstances how effective telephone advice would be in successfully recording the notification. The applicant gave two different versions as to whether the “new” address had been, or would be, put into the computer, which in my view illustrates that while the telephone conversation may have taken place, and while the word “computer” had been used, there is some doubt about the exact timing of the notification of the address change being entered into “the computer”. I further note that the applicant’s evidence did not include the name or any other indication (beyond “Tribunal officer”) of the identity of the individual that the applicant spoke to (by way of designation or status for example) which could go to support a conclusion that what the applicant says he was told, had or would be done, in fact did occur. Further, the number the applicant says that he rang, (being the number in the Tribunal’s letter of 8 April 1997), appears from the context of what is said in the Tribunal’s letter to be a telephone number for applicants to call and receive “more detailed information about the Tribunal’s procedures”. It is silent on whether by calling this number notification of a change of address would be effectively entered “into the computer”, (in the sense that it could be successfully done by telephone) even if this is what the applicant was told.

6. But most importantly, even if the information had been effectively  and successfully entered “into the computer”, there is no evidence put before me that the Tribunal member constituted to determine the applicant’s review application (“L. Hardy”) knew of the change of address, or indeed that the unnamed Tribunal officer (and in this regard I note the applicant was specifically asked before me, and said he could not remember the Tribunal officer's name) actually did record any change in the applicant's address.

7. The applicant’s complaint is that he did not have, and was not given, a reasonable opportunity to provide oral evidence in relation to his case before the Tribunal. The applicant (by way of the written submissions of 27 January 2005, and those submitted by Mr. Prince on his behalf on 22 August 2005) submits that relevantly, the effect of ss.420, 425 and 426 of the Act as they were at 13 July 1998 provided, inter alia, that the test for determining whether an applicant had been given an opportunity to appear is whether, on an objective assessment, the opportunity to appear had been reasonable in all the circumstances. The applicant seeks to rely on the authorities of Budiyal at [172] and Minister for Immigration v Capitly (1999) 55 ALD 365 (“Capitly”). The applicant asserts that he had not been given a reasonable opportunity to appear before the Tribunal when regard is had to all the relevant circumstances. He further asserts that the question of fault in the failure to provide him with the opportunity to appear relates to the Tribunal as a whole, and not to any particular member sitting in any particular proceedings and in this regard he relies on the authorities of Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243 (“Uddin”), Haddara v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 401 (“Haddara”) and Capitly. Specifically, the applicant contends in written submissions that the facts in his case are similar to those as set out in Haddara where the s.426 invitation letter was returned unclaimed to the Tribunal in circumstances where file notes in the Tribunal's records suggested that the applicant’s failure to receive the letter had been brought to the Tribunal's attention. The applicant's affidavit of 27 January 2005 deals in part with matters relating to his failure to attend a hearing before the respondent's delegate on 15 January 1997. There is nothing before me to show that any of this material is relevant or applies to the issue before me now which is the failure to attend the hearing with the Tribunal which had been set for 9 July 1998. In the context of Haddara there is nothing before me to show that the return of the letter of invitation was received by the Tribunal let alone that it was brought to the Tribunal member’s notice before the decision (the letter was returned to the Tribunal the day after). Any submission that envelopes can be returned to the Tribunal and not be stamped as “received” until some days later, remains on the state of the evidence before me, and in the absence of any evidence to support it, as mere speculation. Nor is there any evidence that the Tribunal member knew of any other address to which the letter of invitation could have been sent, nor for the reasons I have set out above, are there sufficient circumstances to infer that any notification of the change of address had been brought to the Tribunal member’s attention.

8. I note that in the written submissions prepared for the applicant and filed on 22 August 2005, the applicant confirms:

   1)The present ss.425 and 426 of the Act are not relevant in these proceedings as they were inserted in 1998, and did not commence operation until 1999.

   2)That the relevant statutory provisions that require the applicant be provided with a hearing are set out in Budiyal at [170].

   3)Whilst Budiyal was concerned with s.476 of the Act that it “could equally give rise to jurisdictional error under s.75(v) of the Constitution and s.39B of the Judiciary Act 1903 in the present case”, and should apply.

   4)Notes the High Court decision in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 and the way Gaudron and Gummow JJ., (with whom the Chief Justice and Kirby and Hayne JJ. agreed) considered the way in which s.425 “informed the duty to provide procedural fairness”, and further McHugh J.’s comments at [100] in describing the fundamental aspects of the hearing rule.

9. Relevantly the material in the Court Book shows:

   1)The Tribunal received the applicant's application for review on 8 April 1997 (a copy is at CB 42 to CB 45 with an attached statement by the applicant at CB 46). In his application the applicant provided one address only being what he described as his “home address”.

   2)On 8 April 1997 the Tribunal wrote to the applicant at the address provided by the applicant confirming that it had received his application and provided some information to the applicant as to how the application was to be processed. Relevantly at CB 47.7 the Tribunal's letter stated:

   “If there is any change in your personal circumstances that may affect your application please notify the Tribunal in writing immediately. It is also very important to advise the Tribunal in writing if you change your address or telephone number.”

   3)By letter dated 11 June 1998 (CB 48 to CB 49) the Tribunal wrote to the applicant (and again this was to the address provided by the applicant in his application but not to the address which he claimed to have notified to the Tribunal in December 1998). The Tribunal advised that it had looked at the papers relating to the application but was not prepared to make a favourable decision on this information alone. The Tribunal invited the applicant to come to a hearing of the Tribunal to give oral evidence in support of his claims. The letter emphasised that if the Tribunal did not hear from the applicant within 14 days the Tribunal would assume that he did not want to come to a hearing and the Tribunal may in those circumstances make a decision on the information before it.

   4)Both parties agree that the applicant did not receive this letter. At CB 52 is reproduced a photocopy of an envelope bearing a registered post sticker, and registered post number, and a “Returned to Sender” stamp with the notation in hand writing that the envelope was being returned as “unclaimed”. There is no dispute between the parties that this relates to the invitation to a hearing letter sent to the applicant. The envelope also has a “Refugee Review Tribunal” “time and date” stamp showing that it was “received” by the Tribunal on 14 July 1998.

10. Relevant authorities relied on by the applicant particularly in his written submissions are (and can be distinguished on the issue of return of the letter of invitation) as follows:

    Uddin: In this case there were problems with the setting out of the address to which the Tribunal sent its letter of invitation to a hearing. In relation to the applicant’s case before me there is nothing to show that there were these problems with his address. The Tribunal sent the letter to the address as it was provided by the applicant in the application for review. The issue is whether it failed to send it to the address which the applicant claims to have subsequently notified to the Tribunal or whether it acted reasonably in all the circumstances.

    Capitly: In that case the applicant’s request for an adjournment (because of illness) was refused in circumstances that led the primary judge to infer that the request had been drawn to the attention of the Tribunal member concerned. The case before me (of course) does not involve any request for any adjournment of the hearing date and to the extent that the applicant seeks to rely on the assertion that the fact that the applicant had not received the letter was or may have drawn to the attention of the Tribunal member concerned, there is nothing before me to support any such assertion. To the extent that the applicant asserts (at least in the first set of written submissions) that this is not in any event relevant, and that notice to the Tribunal is notice to the Tribunal as a whole, I will deal with this below.

    Haddara: In that case the invitation letter was returned unclaimed in circumstances in which a file note in the Tribunal's records suggested that the applicant’s failure to receive the letter had been brought to the Tribunal's attention. There is no such material before me. The applicant's sworn testimony that the phone call that he made to the Tribunal advising the Tribunal of his new address is on the applicant's own account, that this was conveyed to an officer of the Tribunal. The applicant has not provided any evidence that the Tribunal member who made the decision had this change of address brought to his attention.

11. I note paragraphs 38 and 39 of the applicant’s written submissions of 22 August 2005 (footnotes omitted) which neatly summarise the applicant’s complaints as they were ultimately before me:

    “38. In the present case the Tribunal has failed to provide the applicant with an opportunity to be heard in that it:

    (a)Sent the notice of hearing to the wrong address;

    (b)Did so even though the applicant had advised of the change of address (although that fact is not of crucial importance given the objective requirement for a decision to not be made without a hearing having been provided);

    (c)Proceeded to make and send a final decision even though it appears that it had been notified of the problem with the mail sent to the address used by the Tribunal in the letter notifying of the hearing.

    (d)Did not take any reasonable steps to ensure that the applicant had indeed been afforded an opportunity to be heard when the applicant did not appear for the hearing (such as telephone the number on the application to check to see why the applicant had not appeared at the hearing);

    (e)Proceeded unreasonably and with undue haste to determine the application in the absence of the applicant without proper inquiry and without taking all reasonable steps to discharge its obligation under s 425 of the Act to provide the applicant with a hearing;

    (f)Wrongly denied the applicant his right to a hearing under s 425 of the Act; and

    (g)Did not comply with s 420(2)(b) in that it did not act according to substantial justice and the merits of the case. 

    39.For those same reasons, the decision of the Tribunal is effected by jurisdictional error in that the Tribunal failed to make its decision in accordance with the requirements of the Act and so has not made a valid decision under the Act.”

12. In his submissions Mr. Reilly sought to rely on SZAXF (Stone J., exercising appellate jurisdiction) and submitted that the matters in the case before me are indistinguishable from those considered in that case. The respondent also referred me to SZAUL, a decision of Barnes FM, and in particular to paragraphs [20] and [21], and submitted that those comments, which adopted and elucidated SZAXF, should be followed in this Court as a matter of comity.

13. I note the respondent’s supplementary submissions, in this regard, and particularly paragraphs 4, 5 and 6:

    “4.In SZAXF Her Honour distinguished earlier Federal Court authority where the Tribunal was at fault in some way: [15], whereas no fault was apparent in SZAXF even though the Tribunal had made its decision after the hearing invitation letter had been returned to the Tribunal: see SZAXF at [17-18]. This case is a fortiori on the issue of fault compared to SZAXF, as it can be inferred from RD 52 that the Tribunal did not become aware that the Applicant had not received the invitation to the hearing (RD 48-49) until 14 July 1998, the day after its decision was made, and so the Tribunal in any form, let alone the Tribunal member personally, cannot be said to have been aware that the Applicant did not receive the invitation. The Tribunal was entitled to draw an inference against the Applicant for not giving evidence (RD 60.4) given its state of knowledge at the time of its decision, and in any event the Tribunal had already concluded against the Applicant before making this remark. As no fault is apparent on the part of the Tribunal, SZAXF at [26] suggests there is no statutory breach.

    5.In any case, Her Honour also noted that the previous decisions of the Court had concerned whether there was a failure to observe procedures required by the Act within the then s 476(1)(a) of the Act, and not the narrower question of jurisdictional error: [16]. Her Honour found no jurisdictional error made out for this reason even if there were a statutory breach; [27], and the same reasoning applies in this case.

    6.SZAXF was adopted and elucidated, with respect correctly, in SZAUL v MIMIA [2004] FMCA 347 (Barnes FM) at [20-21] in comments which are respectfully adopted and should be followed as a matter of comity.”

1. In this regard I also note paragraphs 40 to 43 of the applicant’s latest written submissions (footnotes omitted):

   “40 The present case may be distinguished from SZAXF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 496.  In that case, the applicant had not provided the Tribunal with any alternative means of contact other than the address.  In the present case, even leaving to one side the applicant’s un-contradicted evidence about notification of a change of address, the applicant had indeed provided an alternative form of contact, namely a telephone number on the form (AB 42).

   41Further, SZAXF can be distinguished because the address in question was not the only address provided by the applicant to the Tribunal.

   42In considering the approach taken by Stone J in SZAXF, it should be remembered that purpose of the Constitutional writs is to ensure that the animating principle as described by Gaudron J in Enfield City Corporation v Development Assessment Commission and cited with approval in Re Refugee Review Tribunal ex parte Aala (2000) 204 CLR 82 is applied. Her Honour said:

   "Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less." (footnote omitted)

   43The present case squarely comes within the type of judicial error envisaged by Hely J in Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243 at [30] to [31] in that it cannot meaningfully be said that the Tribunal has given to the applicant the opportunity which s.425 requires to be extended to him.”

2. In relation to the applicant's sworn evidence that he had phoned the Tribunal to advise of his change of address, there is nothing before me, and nor has the applicant asserted or sworn to the effect, that the Tribunal member knew of the conversation with the unnamed and unidentified officer, or knew of the change of address. Further, it is clear that the decision in this case was made on 13 July 1998. The material before me shows the invitation to hearing letter was returned to the Tribunal the following day, 14 July 1998. I should just note that at CB 61 there is reproduced what appears to be the unsigned last page of the Tribunal's decision record. This appears with a stamp of the Tribunal and a handwritten date of 14 July 1998. This may appear to contradict the date on which the Tribunal made its decision. But in the circumstances of the material before me it appears to correspond, and be part of, the letter sent by the Tribunal to the applicant notifying him of the decision of the Tribunal (CB 53). In any event, even if the date of the Tribunal's decision was 14 July 1998, there is still nothing before me to show that the Tribunal member can be said to have known that the letter had been returned as undeliverable, or that the applicant had notified his change of address by telephone. There is no evidence before me, even accepting the applicant’s evidence of the conversation with the Tribunal officer (who remains unidentified and unknown), that the officer actually entered the new address “into the computer”, or importantly that the Tribunal member knew of this conversation, or even that anything had been entered “into the computer”.

3. Knowledge of return of the letter should not be imputed or inferred merely from the fact of the letter being returned to the Tribunal premises. (SZAXF at [18]-[19]). I note that in SZAXF the letter had been returned to the Tribunal on the day before the Tribunal made its decision, and Stone J., held that she was not prepared to impute knowledge of this to the Tribunal member in the absence of any evidence.

4. Further, on the issue of the obligation imposed by s.425 of the Act as it was at the relevant time Her Honour said at paragraphs [26-28] ([25-27] in the FCR report):

   “[26] I am aware that there is considerable authority in the decisions of single judges of this Court that is contrary to the above analysis. Those cases are reviewed by Hely J in Uddin at [19]-[34]. After discussing the authorities Hely J said at [30]-[31]:

   ‘If one approaches the matter as a question of principle, one would conclude that s 425 requires the RRT to give the applicant a real opportunity to appear before it and give evidence, and that it is a necessary, but perhaps not a sufficient, step in the performance of that duty, that actual notice (subject, perhaps, to the regulations) of the s 426 entitlements be given to the applicant. ...
   In the present case, the opportunity for which s 425 makes provision was claimed to have been extended to the applicant by posting a letter addressed to the applicant, admittedly at a notified address for service, but when the RRT knew of facts which ought to have alerted it to the fact that a letter sent in that way might well not come to the applicant’s attention. If, as was likely to be the case, a letter sent in that way did not reach the applicant, then it cannot meaningfully be said that the RRT has given to the applicant the opportunity which s 425 requires to be extended to him.’

   [27] His Honour’s comments are pertinent to the issue of whether in the circumstances described there has been a failure to comply with the procedures laid down by the Migration Act. While not disagreeing with his Honour’s comments in relation to the circumstances in Uddin, I have real doubts that, properly construed, the Migration Act as it was at the relevant time required the Tribunal to refrain from making a decision if, for reasons beyond its control, it was unable to contact an applicant in order to notify him or her of the opportunity afforded by s 425.

   [28] In any event I am of the view that were the Tribunal to be in error in making a decision in such circumstances, this could not be characterised as a jurisdictional error. Inability to contact an applicant by sending a registered letter to the only address provided by the applicant cannot, in the absence of any knowledge that the letter has not reached the applicant, be a denial of procedural fairness.”

5. In SZAUL Barnes FM said at [20]-[21]:

   “ [20] It cannot be said that the fact that the letter of 29 March 2000 was not in fact received by the applicant was due to any fault on the part of the Tribunal. Moreover, while the letter was returned to the Tribunal office, there is no evidence before the Court to warrant deeming that the Tribunal member knew that the letter had been returned. In this case I am not satisfied on the material before me that the Tribunal member had any knowledge that the letter had not reached the applicant (cf MIMA v Capitly (1999) 55 ALD 365 and Haddara v MIMA (1999) 166 ALR 401). Knowledge of return of the letter should not be imputed or inferred merely from the fact of the letter being returned to the Tribunal premises (see SZAXF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1464 at [18] per Stone J exercising the appellate jurisdiction of the Federal Court). A similar situation arose in SZAXF. An applicant failed to receive an invitation to appear. The letter of invitation to appear was returned to the Tribunal unclaimed the day before the Tribunal made its decision. Stone J held that she was not prepared to impute to the Tribunal member notice of failure of notification of his rights to the applicant from return of the letter unopened to the Tribunal premises. Her Honour nonetheless considered whether the Tribunal was in breach of its obligations under the Migration Act 1958 in making its decision in the way that it did. She expressed real doubts (at [26]) that, properly construed, the Migration Act as it was at the relevant time, required the Tribunal to refrain from making a decision if, for reasons beyond its control, it was unable to contact an applicant in order to notify him or her of the opportunity to attend a hearing afforded by s.425. I share these doubts. Whether or not the letter should be taken to have been `received by' the applicant (see now repealed regulation 5.03, the discussion of that regulation and of relevant authorities in SZAXF at [22]-[26] and also Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1275 in relation to the decision in Minister for Immigration & Multicultural Affairs v Singh (2000) 171 ALR 53), if it were the case that the Tribunal was in error in making a decision in the absence of some actual notification to or receipt by the applicant of the invitation to a hearing this cannot be characterised as a denial of procedural fairness. As Stone J said in SZAXF at [27]: "Inability to contact an applicant by sending a registered letter to the only address provided by the applicant cannot, in the absence of any knowledge that the letter has not reached the applicant, be a denial of procedural fairness.

   [21] Moreover, I am satisfied that, as Stone J held in SZAXF in similar circumstances, if there was a technical failure by the Tribunal to comply with the provisions of the Migration Act, in particular s.425, referred to (or if knowledge that the letter was not actually received by the applicant should be attributed to the Tribunal in the absence of proof of actual knowledge: Uddin v MIMA (1999) 165 ALR 243 at [19]-[34] per Hely J), any such technical breach of the relevant provisions of the Migration Act 1958 would not amount to jurisdictional error. The Tribunal had no way of contacting the applicant other than through the address in the protection visa application. Even if the Tribunal knew that the letter was not received by the applicant it had no alternative way (whether by letter or otherwise) to advise the applicant of the opportunity afforded by s.425. On the applicant's own evidence he had moved from the only address known to the Tribunal and had not notified it of the change of address. In such circumstances it cannot be concluded that breach of s.425 (if there were such a breach) in these circumstances should necessarily spell the invalidity of the Tribunal decision irrespective of the absence of any unfairness attributable to the Tribunal, (see NAHV v MIMIA [2003] FCAFC 102 at 22-24). I do not consider that the obligations of the Tribunal to provide procedural fairness to an applicant extend so far as to require it to send on more than one occasion the same notification or hearing invitation to the same address in circumstances where the initial hearing notification is returned to sender as unclaimed and where there are no other contact details provided by the applicant.”

6. In written submissions the respondent submits that the facts in the case before me are indistinguishable from the facts in SZAXF. However, in my view there appear to be at least three differences. The first involves the return to the Tribunal’s premises of the “unclaimed” letter inviting the applicant to the hearing and the second involves the applicant’s evidence that he phoned the Tribunal’s premises and notified a change of address sometime prior to the letter of invitation being sent out.

7. In SZAXF and SZAUL the letter inviting the applicant to the hearing was returned and received at the Tribunal’s premises the day before the decision was made. In the case before me, in relation particularly to the issue of fault on the part of the Tribunal, the relevant letter was returned to the Tribunal the day after its decision was made. Even in circumstances where the date that the letter was returned had been the same day as the date of the decision, this is still a stronger situation for the Tribunal before me than what was the case in SZAXF and SZAUL. In this regard therefore I am bound by the decision in SZAXF. In relation to this point I adopt what was said in paragraphs [20]-[21] of SZAUL. I can see no fault apparent on the part of the Tribunal, and as no fault as set out above is apparent on the part of the Tribunal, as SZAXF at [26] states, there is no statutory breach on this issue. In any case as the respondent has submitted, Her Honour Stone J., also noted that the previous decisions of the Court concerned situations as to whether there was a failure to observe procedures required by the Act within the then s.476(1)(a), and not the narrower question of jurisdictional error. Her Honour in that case found no jurisdictional error made out for this reason even if there were a technical statutory breach and clearly the same reasoning applies in this case. Any technical breach of s.425 of the Act (as it then was), to the extent that there was a failure to notify the applicant of the hearing or receipt of the letter of invitation, would not on SZAXF, and as adopted in SZAUL, amount to jurisdictional error where the issue relied on was the failure to notify the applicant and this was not known by, or could be imputed to, the Tribunal member who proceeded to make the decision on what was known. As stated by Stone J., with respect, the Tribunal member’s honesty should not be impugned by suggesting, in the absence of any clear evidence, that the member knew the invitation letter had not been received, or that the applicant had changed address.

8. The second difference is that the applicant before me has given evidence that he telephoned the Tribunal and provided a change of address which he had been told was put in the computer and that this had been done at a considerable time prior to the letter of invitation being sent to him. In these circumstances the Tribunal therefore sent the letter to the “wrong address”. This also is caught by what I have set out above. Clearly the conduct of an application for review before the Tribunal rests with the individual Tribunal member constituted to conduct a particular review. While employees obviously have a role in assisting the individual Tribunal member, it is the member in whom responsibility is vested for the conduct of the review. There is no evidence before me from which it can be in shown that the Tribunal member who made the decision in the case before me, had any actual knowledge of any change of address having been notified to him. There is no evidence before me to show that whoever the applicant spoke to in December 1997 actually did what the applicant now says he was told that he would do and that was “to enter a new address into the computer”. But even if it had been entered “in the computer” there is still nothing before me to show that this particular Tribunal member was aware that had occurred, and nor can it be inferred that anything entered into the computer would have at the relevant time been drawn to the member's attention.

9. But the other distinction, and one on which I ultimately find leads to the applicant receiving the relief that he seeks, is that in the case before me the applicant had provided a telephone number in his application to the Tribunal (CB 42.8). This was given as a home number. Mr. Prince for the applicant in written submissions stated that the Tribunal did not take reasonable steps to ensure that the applicant had been afforded the opportunity to be heard when the applicant did not appear before it at the hearing. That is, to have specifically telephoned the applicant on the number provided, to determine why the applicant did not appear. Mr. Prince has characterised this as proceeding unreasonably and with “undue haste” to determine the application and that this was a failure by the Tribunal to take all reasonable steps to discharge its obligations under s.425 of the Act (as it then was) to provide the applicant with a hearing. Further, that the Tribunal did not comply with s.420(2)(b) in that it did not act according to substantial justice and the merits of the case.

10. In SZAXF the relevant statutory language is the same as applies in the case before me. As I have set out above, in following SZAXF the applicant would not in my view succeed in his complaint based on the claim of notifying the Tribunal of a new address, or that the Tribunal member would have specifically known at the time of the decision that the applicant had not received the letter. The issue remains however, whether the Tribunal fulfilled its statutory obligation as it existed at the time, in proceeding to make an adverse decision, in all the circumstances, in affording the applicant an opportunity to attend the hearing.

11. SZAXF first came on before Raphael FM (from whose Judgment the matter then went on appeal before Stone J). Stone J., referred at [10], [11] and [12] to the Judgment of Raphael FM:

    “[10] In relation to the claim of non-compliance with s 425, his Honour applied the dictum in Budiyal v Minister for Immigration (1998) 82 FCR 166 at 172, to the effect that the test for determining whether an applicant has been given an opportunity to appear is whether, on an objective assessment, the opportunity to appear has been reasonable in all the circumstances. The dictum was approved by a full court in Minister for Immigration v Capitly (1999) 55 ALD 365 (‘Capitly’) at 371.

    [11] Federal Magistrate Raphael stated that he was not satisfied that the Tribunal was aware that the letter had not been delivered and observed:

    ‘In any event there were a number of reasons why the letter might not have been delivered which are not consistent with a lack of fault on the part of the applicant. The applicant may have left his address and not informed the Tribunal. The applicant may have deliberately decided that he did not want to receive letters from the Tribunal. There is no suggestion by the applicant that he was ill at the time and indeed there is no explanation whatsoever given by the applicant as to why the letter was not received.’

    [12] Noting that the letter was sent by pre-paid registered post, Raphael FM deduced from ‘holograph indications’ on the envelope that attempts to deliver it were made on 27 October, 4 November and 10 November 1997 (see [6] above). Concluding that in all the circumstances the appellant had been offered a reasonable opportunity to appear before the Tribunal, his Honour commented:

    ‘If the applicant had left a telephone number at which he could be contacted then I would have expected the Tribunal to contact him on that. He did not. If the applicant had given an address of an agent to whom correspondence could also be sent I would have expected some communication with the agent but he did not. One wonders what else the Tribunal could reasonably have been expected to have done.’”

12. Further in her Judgment at [27] Stone J., said:

    “His Honour’s comments [with reference to Hely J. in Uddin] are pertinent to the issue of whether in the circumstances described there has been a failure to comply with the procedures laid down by the Migration Act. While not disagreeing with his Honour’s comments in relation to the circumstances in Uddin, I have real doubts that, properly construed, the Migration Act as it was at the relevant time required the Tribunal to refrain from making a decision if, for reasons beyond its control, it was unable to contact an applicant in order to notify him or her of the opportunity afforded by s 425.”

13. In the particular circumstances of the case before me at the time the Tribunal came to make its decision, it did have one other reasonable step (unlike the situation in SZAXF) that it could have taken to afford the applicant the opportunity to attend the hearing. That was that the Tribunal could have attempted, on the day of the hearing, or subsequently, when the applicant did not attend, to ring or cause an officer of the Tribuanl to ring the applicant on the contact number he had provided. I note in particular, and find it relevant, that Raphael FM in SZAXF commented that in circumstances where he could not be satisfied that the Tribunal was aware that the letter had not been delivered (as before me) he would have expected that if the applicant had given a telephone number it would have been reasonable for the Tribunal to have attempted to contact the applicant before proceeding to a decision. Clearly, in answer to His Honour’s rhetorical question of “one wonders what else the Tribunal could reasonably have been expected to have done”, in the case before me, is answered by the possibility of making or causing to be made a telephone call to the contact telephone number provided by the applicant.

1. It is clear that the Tribunal makes no mention in its decision record of any telephone number supplied by the applicant. The Tribunal's approach is relevantly set out at CB 57.5 of its decision record. Its analysis of the issue was that the applicant had been invited to give oral evidence at a hearing which had been scheduled for 9 July 1998 and that the applicant did not respond to the invitation. While noting that the applicant was not represented, it took into account that the applicant had not contacted the Tribunal since the date set for the hearing and that having heard nothing from the applicant the Tribunal considered it “correct” to proceed with decision on the basis of the material in his file. It clearly did not turn its mind as to whether a telephone call should be made to the applicant in fulfilling its obligation to provide him with a real opportunity to appear before it.

2. I am further persuaded of the reasonableness of the Tribunal attempting to contact the applicant by telephone, given the great importance that the Tribunal itself placed on the applicant’s failure to attend the hearing. In its “Findings and Reasons” decision record (CB 60.4) the Tribunal states:

   “It goes against the Applicant that he is apparently not prepared to address his claims in an oral hearing”.

   The Tribunal did not need to go beyond noting that the applicant did not attend the hearing and on what was before it, it could not reach the requisite level of satisfaction that the protection visa should be granted. But the Tribunal did go further. It saw the applicant’s failure to attend as “going against him” and as a factor or indicator of the claims being not “reliable”. If the Tribunal was seeking to rely on the failure to attend in this way in the making of its decision, then any standard of reasonableness would require that it pursue a simple avenue available to it to fully ascertain the preparedness, or otherwise, of the applicant to attend the oral hearing.

3. Similarly, in SZAUL Barnes FM was presented with a factual situation distinguishable to the one before me (the applicant had not provided any other contact details other than his residential address). She specifically ennumerated at [12], amongst other factors, that the applicant had not provided any telephone number.

4. Mr. Reilly also submitted that Stone J., had noted that previous decisions of the Federal Court (including Uddin to which she referred) were concerned with whether there was a failure to observe procedures required by the Act within the then s.476(1)(a) of the Act, and not the narrower question of jurisdictional error. He submitted that Her Honour found no jurisdictional error even if there had been a statutory breach.

5. At [27] of SZAXF the proposition in Uddin to which Her Honour with respect was responding to was the statement by Hely J., that s.425 (as it then was) required the Tribuanl to give an applicant a real opportunity to appear before it, and that it was a necessary step that actual notice of the entitlements pursuant to s.426 be given to the applicant. At [27] in her Judgment, Her Honour said she did not disagree with Hely J.’s comments as they related to the circumstances in Uddin. As I understood her subsequent comment on which Mr. Reilly seeks to rely, this also can be distinguished from the circumstances before me. Her Honour’s doubts that the Act at the relevant time required the Tribunal to refrain from making a decision if it was unable to contact an applicant to notify him, or her, of the opportunity afforded by s.425 (as it then was) is in my view reliant on the inability to contact being for reasons “beyond its control”. I accept Mr. Prince’s submission that the case before me can be distinguished from SZAXF on the basis that an alternative means of contacting the applicant had been provided – the telephone number. This avenue was not such as would be said to place the Tribunal’s inability to contact the applicant in the category of “beyond its control”.

6. I further note that in relation to Mr. Reilly’s submission that I should follow Barnes FM in SZAUL as a matter of comity, Her Honour said at [21]:

   “Moreover, I am satisfied that, as Stone J held in SZAXF in similar circumstances, if there was a technical failure by the Tribunal to comply with the provisions of the Migration Act, in particular s.425, referred to (or if knowledge that the letter was not actually received by the applicant should be attributed to the Tribunal in the absence of proof of actual knowledge: Uddin v MIMA (1999) 165 ALR 243 at [19]-[34] per Hely J), any such technical breach of the relevant provisions of the Migration Act 1958 would not amount to jurisdictional error. The Tribunal had no way of contacting the applicant other than through the address in the protection visa application. Even if the Tribunal knew that the letter was not received by the applicant it had no alternative way (whether by letter or otherwise) to advise the applicant of the opportunity afforded by s.425. On the applicant's own evidence he had moved from the only address known to the Tribunal and had not notified it of the change of address. In such circumstances it cannot be concluded that breach of s.425 (if there were such a breach) in these circumstances should necessarily spell the invalidity of the Tribunal decision irrespective of the absence of any unfairness attributable to the Tribunal, (see NAHV v MIMIA [2003] FCAFC 102 at 22-24). I do not consider that the obligations of the Tribunal to provide procedural fairness to an applicant extend so far as to require it to send on more than one occasion the same notification or hearing invitation to the same address in circumstances where the initial hearing notification is returned to sender as unclaimed and where there are no other contact details provided by the applicant.”

7. In SZAUL Barnes FM was looking at a situation where the Tribunal’s letter of invitation was not received by the applicant and this was not due to any fault on the part of the Tribunal [20]. She stated that the “doubts” expressed by Stone J., (at [26] of SZAXF) were in the context of the obligations imposed by the Act, and with reference to “reasons beyond its control”. The inability to contact the applicant in those cases was clearly in circumstances where the Tribunal had done the only thing reasonably open to it – it sent a letter to the only address provided. At [21] Barnes FM saw that any technical breach of the provisions of s.425 would not amount to jurisdictional error. Again this is followed by the explanation that the Tribunal “had no way of contacting the applicant other than through the address in the protection visa application”. Her Honour again emphasised, and this is a point of distinction with what is before me, that the Tribunal had no way of contacting the applicant other than by writing to the one address provided.

8. I agree therefore with Mr. Prince’s submission (while not necessarily  characterising the Tribunal’s actions as proceeding with “undue haste”) that the Tribunal did not take, in the circumstances before me, all reasonable steps as expected by the legislation in force at the time, of notifying the applicant of the hearing it had scheduled for him. The telephone call if made may not have resulted in contact with the applicant, let alone his appearing at the hearing. But, in all the circumstances, the Tribunal’s failure to pursue this avenue, a measure well within its control, means in my view the Tribunal did not provide a reasonable opportunity for the applicant to appear at the hearing as was expected by the legislation in force at the relevant time. On this basis I will make the orders sought by the applicant quashing the Tribunal decision and returning the matter to the Tribunal, differently constituted, for consideration.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Sybilla Waring-Lambert

Date: 9 March 2006