SZEMB v Minister for Immigration - [2005] FMCA 448

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEMB v MINISTER FOR IMMIGRATION

[2005] FMCA 448

MIGRATION – RRT decision – applicant absent from hearing – invitation sent to residential address but not authorised recipient – applicant reasonably attempted to notify change of address – Tribunal mistakenly thought agent was notified – invalid exercise of discretion to make decision without taking further action – denial of procedural fairness – matter remitted.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 420, 422B, 425, 425(1), 425(2), 425A , 426A, 426A(1), 430B(4), 441A, 441A(1), 441A(4), 441A(4)(c), 441C, 441C(4), 441G, 441G(1), 441G(2), 479, 483A, Part 8
Migration Regulations 1994 (Cth), reg.4.35D

Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 359
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
NAAA v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 287
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
NANF v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 134 FCR 141
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502
Samad v District Court of NSW (2002) 209 CLR 140
SBBS v Minister for Immigration& Multicultural & Indigenous Affairs [2002] FCAFC 361
SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 213 ALR 439
SZEEM v Minister for Immigration [2005] FMCA 27
VEAN of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 133 FCR 570
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant:

SZEMB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2949 of 2004

Judgment of:

Smith FM

Hearing dates:

23 December 2004, 5 April 2005

Delivered at:

Sydney

Delivered on:

21 April 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms L A Clegg

Solicitors for the Respondent:

Clayton Utz

ORDERS

Order that a writ of certiorari issue directed to the Refugee Review Tribunal, quashing the decision of the Tribunal handed down on 12 June 2002 in matter N00/33526.
Order that a writ of mandamus issue directed to the Refugee Review Tribunal, requiring the Tribunal to determine according to law the application for review of the decision of the delegate of the respondent dated 27 April 2000.
Liberty to either party and to the Refugee Review Tribunal to apply for further orders staying or modifying these orders or in relation to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2949 of 2004

SZEMB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) seeking to set aside a decision of the Refugee Review Tribunal (“the Tribunal) dated 20 May 2002 and handed down on 12 June 2002. The Tribunal affirmed a decision of a delegate dated 27 April 2000 which refused to grant a protection visa to the applicant, a citizen of Nepal.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In relation to the present matter, the relevant jurisdiction of the Federal Court is its judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, these limitations prevent my setting aside the Tribunal decision and remitting the matter for further hearing unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error.
Even if a jurisdictional error is found, the Court has a discretion to refuse relief on the ground that there had been unwarranted delay in challenging the Tribunal’s decision. In the present case, more than two years’ delay has occurred. The documents filed by the Minister disclose that for part of this time the applicant was unaware of the decision and then pursued a request for a discretionary intervention by the Minister under s.417 of the Migration Act. Notice that this was unsuccessful was sent on 18 September 2003, but the letter was returned unopened. The applicant has not explained how this came about, nor his subsequent delay in coming to the Court, nor the circumstances in which he was taken into detention. His present application to the Court was filed on 28 September 2004 while he was held at Villawood. However, the Minister has not contended that relief should be refused on the ground of delay, and the applicant has not been put on notice that he is required to explain his delays. In these circumstances, and given that his complaint is that he was wrongly denied an opportunity to appear before the Tribunal and have his claims fully considered, I consider that he should be given relief if jurisdictional error can be found.
In this Court, the proceedings became protracted due to the decision of the Minister to move the applicant to Baxter Detention Centre on 18 November 2004. A hearing had already been appointed in Sydney for 23 December 2004. Moreover, the Minister then released the applicant without informing her solicitors or the Court. When the matter was called, the applicant appeared and informed me that he had been released at Port Augusta on 8 December 2004. He had been able to return to Sydney and find accommodation, and had attempted to find legal assistance but this was not available in the short time since his return. I granted his application for an adjournment to allow him further time to seek assistance and prepare his case.
At the resumed hearing, the applicant informed me that he had been unable to obtain representation. He presented a focused submission raising the procedural fairness points which I shall address below, but understandably was unable to assist me with legal submissions. This was unfortunate, since I consider that his point has merit. His lack of representation also meant that he did not appreciate the need for evidence to explain relevant circumstances. The need for further evidence became apparent during the hearing, and at my invitation he gave oral evidence and was cross‑examined briefly. Since his evidence had not been fully foreshadowed in his documents filed before the hearing, I offered the Minister an adjournment to allow her to seek further evidence from the Tribunal about the circumstances surrounding the applicant’s non‑attendance at its hearing, but this was declined by counsel.
Notwithstanding the less than satisfactory circumstances in which the applicant gave evidence, and its lack of detail in relation to some important aspects, I accept his evidence which I shall refer to below. He gave evidence clearly and frankly, in English except on some occasions when he appropriately sought assistance from an interpreter. His evidence was not shaken in cross‑examination but, in my view, gained in credibility. My only hesitation was in relation to his claim to have telephoned the Tribunal to inform it of a new address. However, I am not prepared to disbelieve him, particularly since the Minister has not sought to lead evidence in rebuttal. In any event, as will appear below, this part of his evidence does not form the principal basis for my conclusion that the Tribunal made jurisdictional errors when deciding the matter without making further attempts to allow the applicant to attend a hearing.
Since the issues in this Court concern the procedures followed by the Tribunal rather than its substantive reasoning, it is not necessary for me to detail the refugee claims made by the applicant nor the reasoning of the Tribunal on them. The applicant’s claim in his visa application made on 7 April 2000 was brief: “I am an active member of CPN (Maoist). I left my country because I was in fear of persecution by the government authority. Further description of detail will be submitted in due course”. The delegate noted that nothing had been submitted before she refused the application on 27 April 2000. She also thought there was some implausibility in the applicant’s claim to have been a Maoist, given information in the application that he resided at his mother’s home in Kathmandu and was a credit controller in a bank from 1991 to 1999.
The applicant’s application to the Tribunal was lodged on 26 May 2000, and said: “The disagreement of Department’s decision and further relevant documents will be submitted later”. Two years then elapsed before the Tribunal handed down its decision, and during that time no further information was received by the Tribunal from the applicant. When, in circumstances I shall examine below, the Tribunal decided to make a decision without holding a hearing attended by the applicant, its conclusion was unsurprising. It was that it was “not satisfied, on the evidence before it, that the applicant has a well‑founded fear of persecution within the meaning of the Convention”. The applicant did not attempt to argue that this conclusion was not open to the Tribunal on the information which was before the Tribunal.
The applicant’s application to the Court claims that he did not receive a letter from the Tribunal which invited him to a hearing on 14 May 2002, and that he was denied an opportunity to put forward at a hearing information which might have persuaded the Tribunal to accept his claims. In effect, he claims that the Tribunal knew, or ought to have known, that he had moved to another address, that it failed to notify his agent of the hearing date in accordance with the requirements of the Migration Act, and that the Tribunal’s decision to decide his appeal without taking further steps to notify him of a hearing was because the Tribunal acted on a mistaken view of the relevant circumstances.
The evidence relevant to assessing these contentions is as follows. In his visa application to the Department, the applicant requested that “all correspondence relating to my application is to be sent to” his agent, who was identified as “Pralhad KC” at the address “Network Migration & Student Services, Suite 7, 40-44 Darcy Street, Parramatta NSW 2150”. The application identified that firm as the holder of a migration licence, not Mr Pralhad. His application to the Tribunal also identified Mr Pralhad of that “organisation” as the “adviser you authorise to act for you in relation to this application”.
His visa application and his application to the Tribunal also gave a home address at Rockdale and referred to this address as his “address for service”. Both applications also gave a telephone number. I understood the applicant’s evidence to be that this was the number of a telephone service to his Rockdale home, which was an account in the name of a fellow Nepalese man whose accommodation he shared.
The Tribunal sent an acknowledgement of receiving the application to the applicant’s home address and a copy to the agent. In his evidence before me, the applicant agreed that he had received that letter, and that he had read its statement: “It is very important to tell the Tribunal in writing if you change your telephone number, home address or your address for service (the address where you want letters from the Tribunal sent). The Tribunal will acknowledge any change of address information you provide. If we are unable to contact you, or if you do not respond to our letters, you may lose your opportunity to appear before the Tribunal and give evidence on your case”. The applicant said that he understood from this letter, and from further correspondence in November 2000 to which I shall refer, that he had to tell the Tribunal of a change of his home address, but that he thought that this should be done in writing through his agent.
He said that he moved from Rockdale to an address at Stanmore in February or March of 2002, and at that time he wrote to his agent at the last address he had received from the agent, asking him to notify the Tribunal. The applicant said in his evidence that the last address he had for Mr Pralhad was at “Consolidated Lawyers, Suite 502, 379-383 Pitt St, Sydney NSW 2000”. It was to this address that he wrote to his agent when he moved to Stanmore, and he thought that his instructions would be received by the agent and would be acted upon. He said that it now appears from the documents tendered by the respondent that Mr Pralhad had moved to another firm at another address without telling him, and that his agent might not have received his letter.
The applicant claimed in the course of cross‑examination that he also told the Tribunal by telephone when he moved to Stanmore. Counsel for the Minister did not attempt to elicit details of this telephone call, and declined an opportunity to lead evidence as to the Tribunal’s records or practices which might contradict this claim. The applicant’s unverified application states that the applicant “informed my new address and the telephone no. to the Department of Immigration & the advisor immediately regarding the change of address”, but he was not cross‑examined on this. The respondent had filed an affidavit from an officer of the Department stating that its records showed the applicant’s address as being unchanged from the Rockdale address at all times prior to 20 May 2002. No such affidavit was obtained from a Tribunal officer in relation to the Tribunal’s records.
Although there are some unsatisfactory aspects to how this evidence has emerged, and although it is uncorroborated, I accept the applicant’s evidence, and find that he made efforts to ensure that the Tribunal was informed of his change of home address. I consider that his efforts should be accepted as being reasonable in the circumstances, taking into account that he was a Nepalese claimant for refugee status in Australia, and the fact that there is no evidence to suggest that he should have been aware that the long delay before the Tribunal appointed a hearing in his case was about to come to an end in April 2002.
The documents tendered by the respondent contain correspondence which confirms that Mr Pralhad changed his employer in 2000, and that the applicant appointed him at Consolidated Lawyers as his agent for the purposes of receiving correspondence from the Tribunal. Mr Pralhad had written to the Tribunal in October 2000 requesting “please forward all future correspondence of the following files to my new address”, and referred to the applicant’s matter. The applicant was sent a letter to his Rockdale home, asking him to “please confirm in writing that Mr Pralhad is still your migration agent and that you would like copies of any Tribunal correspondence also to be sent to Mr Pralhad at his new address with Consolidated Lawyers”. On 20 December 2000, Mr Pralhad lodged with the Tribunal a form of “Appointment of Person to Act as Agent” executed by the applicant on 24 November 2000. This identified him at Consolidated Lawyers as the applicant’s agent and directed: “All correspondence relating to my sponsorship/application is to be sent to the above agent. If any information, additional documentation or action is required on my case, the above agent is to be contacted”.
There is nothing in the material before me to explain why there was then a long delay before the Tribunal appointed a hearing date in the applicant’s matter.
The Tribunal sent a letter dated 15 April 2002 addressed to the applicant at the Rockdale address which gave notice of a hearing at 2.30 pm on Tuesday, 14 May 2002. The copy in evidence has an annotation that it was sent by registered post, and I am satisfied by a copy of the envelope that it was posted on 16 April 2002. Significantly, the letter has no writing on it suggesting that a copy was also sent at this time to the applicant or to his agent at any other address. In particular, there is no evidence that it was ever sent at this time to Mr Pralhad at Consolidated Lawyers or at any other address. Counsel for the Minister accepted that I should make a finding that it was not sent to the applicant’s agent at the time required under the Migration Act and Regulations.
The letter which was sent to Rockdale was returned to the Tribunal “unclaimed” and is marked as received by the Tribunal on 31 May 2002. This was after the date on which the Tribunal member signed her decision, but before the date when the Tribunal handed down the decision: 12 June 2002. Under s.430B(4), “the date of the decision is the date on which the decision is handed down”, and it has been held that the Tribunal must take into account relevant information received by it between the signing and handing down of its decisions (see authorities cited by me in SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 213 ALR 439 at [31‑32]). There is no evidence before me that the return of the letter was drawn to the attention of the member before her decision was handed down, and her reasons might suggest otherwise. I shall consider the significance of this below.
On the material before me, no attempt was made by the Tribunal to inform the applicant’s agent of the hearing until the Thursday before the appointed Tuesday hearing. A Tribunal file note records “9‑5‑02 Called advisor to find out if the applicant is attending the hearing. Advisor said he will find out and would call me back. Also asked advisor applicant’s address and is the same address the Tribunal has”. A facsimile was sent at 11.46 am on the same day to “K & G Associates, attention Pralhad Kc” referring to the applicant’s matter and stating “please refer to accompanying correspondence sent to your client”. There is no evidence identifying what the correspondence was, but I infer that it was the hearing invitation dated 15 April 2002.
There is no evidence indicating how the Tribunal knew that Mr Pralhad could be contacted at a different firm, at a different address and on a different facsimile number. There is no evidence that it ever satisfied itself that the applicant was aware that Mr Pralhad had again changed his employers and addresses. In view of its correspondence with the applicant when this happened the first time, I infer that the Tribunal did not attempt to obtain the applicant’s confirmation and acknowledgment of the change of agent’s address and (on one view of the documents) identity.
The Tribunal’s file notes record the following:
10‑5‑02 Called advisor again to find out if he got in touch with applicant. Advisor said that he found out with an applicant’s friend that applicant had moved, but his friend does not know the address. Advisor said that he told applicant’s friend if he sees applicant asked him to get in contact with advisor as soon as possible. Advisor said he will wait until today afternoon and will let me know.
10‑5‑02 Called applicant to find out if he is attending the hearing. Applicant’s telephone is disconnected.
10‑5‑02 No Reply checklist done.
13‑5‑02 Rec’d fax letter from adviser – unable to contact applicant. Fwd to case team.
31‑5‑02 Invitation to hearing letter dated 15/4 returned unclaimed.
The letter sent by Mr Pralhad on Monday, 13 May 2002 is written on the letterhead of his new firm “K&G Associates”, and says: “We advise the Tribunal that despite our many attempts, we are unable to contact the above named and unable to help to the Tribunal in this matter”.

The applicant maintained in his evidence and submissions that, if Mr Pralhad had been given more time to contact the applicant, he would have located him at his new Stanmore address, so as to bring the hearing appointment to his attention. This is speculative, but I accept that it was at least a strong possibility. Moreover, I consider that it should have been apparent to the Tribunal that it had allowed insufficient time to Mr Pralhad to make thorough enquiries as to the present location of his client. As I shall explain below, it should also have been apparent to the Tribunal that it had failed to perform its statutory duty under s.441G to send to the agent a copy of the hearing invitation on 15 April 2002. I consider that if it had performed this duty, there is at least a strong possibility that the applicant would have learned of the hearing and would have attended.
The applicant criticised the assertion in the file note (and repeated in the Tribunal’s reasons) that “the applicant’s telephone was disconnected”. He said that this must be a reference to the telephone at the Rockdale address, and that he understood that his Nepalese friend was still living there at that time and was using the telephone. He said that it was probably this friend to whom Mr Pralhad claimed to have spoken on 10 May 2002. He said that he had made enquiries whether this person could give evidence about this, but had found that he had returned to Nepal. However, I do not consider that this is a matter upon which I need to make findings.
The applicant gave evidence, and the Minister did not contest, that he did not in fact receive any notice from any source that the Tribunal had appointed a hearing in his case for 14 May 2002 before learning of the Tribunal’s decision. He claimed that if he had known of the hearing he would have attended, and would have presented information to the Tribunal which might have caused it to reach a favourable conclusion. In an affidavit sworn on 15 December 2004, he refers to country information concerning Nepal, and responds to points made in the delegate’s decision. This includes the claim that he had supported the Maoists Party before they declared a people’s war, and had done so in the course of his work at the bank: “I used to support the party providing the financial needs and other things secretly. For this reason’s, I was able to remained in the same employment and address until 2000”. He claimed that he had obtained his passport in 1999, when the Nepalese authorities were “completely unaware about my party activities”. These are responses with prima‑facie cogency. If accepted, I consider that they could lead a Tribunal to find that the applicant had and has a well‑founded fear of persecution by Nepalese security authorities on the ground of perceived association with the Maoist terrorist insurgency movement in Nepal.
I consider that it is reasonable to infer that the applicant would have provided and elaborated this information to the Tribunal if he had attended the hearing. I am certainly unable to conclude that his absence from a hearing would have made no difference to the outcome of the matter before the Tribunal. If the Tribunal’s decision to proceed in his absence was attended by jurisdictional error, I do not consider that there is good reason for refusing relief. I reject the contentions of counsel for the Minister that I cannot find “practical injustice” nor “an arguable case that the result in the Tribunal would have been different” (counsel cited Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [37] and [106], and SBBS v Minister for Immigration& Multicultural & Indigenous Affairs [2002] FCAFC 361 at [36‑39]).
I consider that the real issues for me to decide are whether the decision of the Tribunal to proceed in the absence of the applicant in the circumstances described above resulted in a denial of procedural fairness according to common law principles, or whether it involved a breach of a statutory procedural requirement on the Tribunal which resulted in a constructive failure to exercise jurisdiction. It is possible for the applicant to succeed on the former basis even if there was no breach of a statutory procedural duty, since s.422B of the Migration Act does not apply to the present matter so as to make the statutory procedures an “exhaustive statement of the requirements of the natural justice hearing rule”.
It is convenient to consider the Tribunal’s compliance with the statutory provisions governing its actions, before reaching a conclusion on procedural fairness. This is because the content of the implied obligations of procedural fairness is to be considered in the light of the statutory context (see Hely J in Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 359 at [34]).
Section 425(1) provides that 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”. This duty does not arise if one of the events described in s.425(2) arises, but they have no application to the present case. The Tribunal was, therefore, obliged to hold a hearing in the present matter and to invite the applicant to attend. It has been held that the legislation intends the invitation to be “real and meaningful” and not to be “a hollow shell or an empty gesture” (see NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30], and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]). The scheme of the legislation plainly holds out to applicants an entitlement to a hearing at which they can attempt to persuade the Tribunal to accept their claims.
The provisions to which I refer below allow the Tribunal to make a decision if an applicant does not take up an invitation, but only in defined circumstances and, in my opinion, only after a discretionary consideration by the Tribunal of the fairness of doing this. Moreover, in matters to which s.422B does not apply, the statutory provisions do not exclude the power of the Court to consider the objective circumstances under which a hearing was denied to an applicant, and to consider whether this was in breach of a general requirement of procedural fairness (see NALQ (supra) at [30]). A departure from such requirements may occur even if the statutory requirements of s.425 and related provisions have been complied with (see Applicant NAHF (supra) at [36]).
I consider that the propositions in the last paragraph are established by the authorities I have cited. I also consider that a failure by the Tribunal to follow a statutory procedure in relation to the invitation to the hearing will, if it might have materially deprived the applicant of an opportunity to appear, vitiate the Tribunal’s purported substantive decision (see SCAR (supra) at [38‑39], and c.f. NANF v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 134 FCR 141 at [52-54] and cases cited). Further, if the decision of the Tribunal to make a decision in the absence of the applicant was attended by a failure of procedural fairness, then it is undoubted that this would amount to jurisdictional error (see Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [149] and Plaintiff S157 (supra)).
The formalities required in relation to service of an invitation to attend a hearing are identified in s.425A. Relevant to the present matter, they included the giving of notice by a method specified in s.441A which allows a period of notice which is at least the period prescribed in the regulations. In the context of the present matter, this required a posted invitation to be sent within 3 days of the date of the invitation, and to allow at least 14 days notice commencing 7 days after the date of the invitation (see ss.441A(4), 441C(4) and reg.4.35D).
Section 441A(4)(c) required a posted invitation to be dispatched to:
(i)the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii)the last residential or business address provided to the Tribunal by the recipient in connection with the review.
Where an applicant appoints an agent to receive communications, then s.441G provided:
(1)If:
(a)a person (the applicant) applies for review of an RRT-reviewable decision; and
(b)the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.
(2)If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3)The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.
(4)The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.
(5)This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.
If an invitation was served in accordance with these provisions and the applicant did not attend, then the Tribunal acquired the discretionary power to make a decision without taking further action. This was conferred by s.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.
The effect of the direction to the Tribunal in s.441G(1) that it “must give the authorised recipient [its communications] instead of the applicant” on the direction in s.425A that an invitation to a hearing must be “given to the applicant … by one of the methods specified in section 441A” is not as clear as it might appear. On one view, s.441G(1) is a more specific provision concerning service of, inter alia, an invitation to a hearing on an applicant who has nominated an agent, so that valid service of an invitation would not be completed without service on the agent, and it would be insufficient to post it only to the applicant at his residential or mailing address. The Tribunal would have to be satisfied that the agent was duly served with the invitation. If this is the correct interpretation, then the invitation in the present case never was validly served, and the Tribunal had no power to proceed under s.426A in the absence of the applicant. The Tribunal’s decision would be vitiated by jurisdictional error due to the failure of the Tribunal to comply with its mandatory obligation under s.425(1).
The respondent submitted that Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221 provides authority to the contrary of the above interpretation. The case concerned procedures followed by the Migration Review Tribunal under provisions which mirror those of the present Tribunal. A letter was sent addressed to an applicant at his residential address and also to him at his mailing address, which was also his migration agent’s address. However, a copy of the letter was not sent addressed to the agent by name at the agent’s address, notwithstanding that the applicant had nominated him under the equivalent of s.441G. Mansfield J held that the letter had been sent to the applicant in accordance with a method prescribed by the equivalent of s.441A(4)(c), and that the applicant was taken to have received it even if he did not. He held that, because the applicant did not respond to the letter, the Tribunal acquired a power to dispense with inviting the applicant to a hearing. As to the effect of the failure to address a letter to the agent by name, his Honour said:
18.I do not accept that by nomination of his migration agent as an authorised recipient, under s.379G of the Act, the notice under s.359A must only be given to the applicant by being addressed to and sent to the migration agent.
[His Honour then set out s.379G(2), which is in the same terms as s.441G(2) set out above]
19.As noted, the letter of 6 February 2003 was addressed to the applicant care of the migration agent at the migration agent’s address and to the applicant at his residential address. Section 379G(1) applies where the Tribunal has given to the authorised recipient, instead of the applicant, the document. Section 379G(2) provides, firstly, that giving the document to the authorised recipient means that the Tribunal is taken to have given the document to the applicant. However, it also expressly preserves the right of the Tribunal to give to the applicant a copy of the document. That it did.
Mansfield J distinguished the Full Court judgment in VEAN of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 133 FCR 570, in which the Court held that a document could not be deemed to have been duly notified. It had been sent to an applicant who had nominated his sister as his authorised recipient under a provision in the same terms as s.441G. The letter was addressed to the applicant himself “c/o” the sister at her address, but not to the sister. The Full Court held that notice had not been validly given, since the addressee of the letter was not the authorised recipient (supra at [42]). They considered that this was “one of the two critical elements of the means of notification prescribed by” the equivalents of ss.441A(1), 441A(4)(c) and 441G(2), and that this was not a situation where compliance was not mandatory under the principle discussed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]).
I respectfully agree with Mansfield J that the present situation is not addressed by VEAN (supra), since in that case the letter had only been sent to the applicant at his sister’s address and not to his residential or business address last known to the Department. I have some doubt as to his Honour’s construction of the provisions as having the effect that, if deemed service was effected on the applicant at one of his personal addresses, a power to proceed summarily which is dependent upon valid deemed service will arise, even if a Tribunal has ignored its statutory duty under s.441G to notify the authorised recipient. However, I am bound by his Honour’s judgment in this respect, and I am unable to distinguish the provisions which he applied from those arising in the present case. I must therefore hold that the Tribunal in the present case acquired the power to act under s.426A(1) due to its dispatch of the invitation to the applicant’s last known Stanmore address within the times required. Due to the deemed service provision in s.441C(4), the power was not lost by reason of the fact, which I find, that the letter did not come to the attention of the applicant (see VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14-15]).
However, the power in s.426A(1) not to take further steps to bring an invitation to a hearing to the attention of an applicant is discretionary, as is indicated by the word “may”. In my opinion, a decision by a Tribunal to exercise that power to complete its review of the delegate’s decision will be vitiated if the discretion can be shown to have been invalid due to a failure to address considerations relevant to the exercise of the discretion which the Tribunal was bound to consider.

I am unaware of authority which has held to the contrary, and I have previously applied this analysis to a similar power (see SZDOG (supra) at [23-35]).
To determine what considerations a Tribunal might be bound to consider requires attention to the principle that “the court will not find that the decision‑maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject‑matter, scope and purpose of the Act” (see Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40, and c.f. Gleeson CJ and McHugh J in Samad v District Court of NSW (2002) 209 CLR 140 at [32]).
In the present legislation, it is inherent in the scheme for deemed service of notices that the Tribunal is not obliged in all cases to examine and be satisfied that in fact the applicant has received notice either personally or by his agent or both. As Sundberg and Hely JJ said in VNAA (supra) at [16] after referring to ss.425A, 426A, 441A and 441C: “The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence”. Clearly, the legislation intends to allow the Tribunal to decide to proceed in an applicant’s absence upon being satisfied as to no more than that the deemed service provisions have been complied with.
However, in particular cases where the Tribunal has additional knowledge bearing on the fairness of whether to proceed in the manner authorised by s.426A, I consider that further considerations may arise which it is bound to consider. As with its other procedural discretions, the legislative scheme must intend the Tribunal to weigh the circumstances known to the Tribunal so as to balance considerations of procedural fairness to an applicant against other considerations arising from its general duties under s.420. These include providing a “mechanism of review that is fair, just, economical, informal and quick”. Obviously, a broad area of considerations can be addressed, and the Court should be slow to identify any particular matter as having obligatory relevance.
In SZDOG (supra) I considered that one such matter was a duty to take account of up‑to‑date information on the Tribunal’s file showing the true situation in relation to service of a critical notice, at least in a case where the Tribunal proposed to draw adverse inferences from the applicant’s failure to respond. In that case, the Tribunal inferred that an applicant had actually received a notice and had consciously decided not to respond, overlooking information on the file showing that the notice had been returned to the Tribunal unclaimed. In the present situation, in my opinion, another clearly relevant matter is whether the Tribunal had complied with its statutory duty under s.441G(1) to notify an authorised recipient at the time required.
I consider that if the present Tribunal has made its decision based on a mistaken appreciation of either of these two matters, it would not have properly exercised its power to proceed summarily based on the deemed giving of notice of a hearing. The decision could not at all be seen to be a “just” exercise of the procedural discretion. I consider that it would be contrary to the objects and nature of the statutory appeal procedure to allow the Tribunal to ignore or overlook these two matters.

I must therefore examine the evidence as to the Tribunal’s reasons in the present case for proceeding under s.426A(1). As to this it said:
On 15 April 2002 the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on Tuesday 14 May 2002. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. A copy of that letter was also forwarded to the applicant’s adviser. No response was received. On 9 May 2002 the Tribunal contacted the applicant’s adviser to ascertain whether the applicant would be attending the hearing. The applicant’s adviser indicated that he would ascertain this and then inform the Tribunal. On 10 May 2002 the Tribunal contacted the applicant’s adviser again and was informed that the applicant had moved without notifying his adviser of his new contact details. On 10 May 2002 the Tribunal also attempted to contact the applicant by telephone, but the applicant’s telephone was disconnected.
The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
I accept that this passage does not purport to give a full and complete description of the Tribunal’s reasons for exercising its discretion to proceed in the absence of the applicant. However, I consider that it provides some evidence of the considerations which were taken into account. In particular, the Tribunal’s reference to “in these circumstances” is a clear reference back to its narration in the previous paragraph, and an identification that it was those circumstances which the Tribunal accepted and acted upon as justifying its summary disposal of the matter.
Two aspects of its discussion raise concerns. The first is the absence of reference to the fact that the letter sent to the applicant’s last known residential address had been returned unclaimed to the Tribunal before it handed down its decision. In SZDOG (supra), I concluded that the Tribunal’s decision to proceed summarily miscarried because it had overlooked such an event. However, in that case the Tribunal’s reasons showed that it had drawn a mistaken positive conclusion that the absence of the return of its letter showed a deliberate lack of interest by the applicant in his application. In the present reasons, the Tribunal makes no mention of the possible significance of the return of an invitation. Its reference to “no response was received” is equivocal as to whether the Tribunal proceeded on the mistaken belief that the applicant had actual notice of the proposed hearing. Its file notes show that it was aware that the applicant had moved from the Stanmore address. I am not prepared to draw an inference that it overlooked the possible significance of the return of the invitation addressed to the applicant at Stanmore.
However, I am prepared to infer that the Tribunal mistakenly considered that the applicant’s agent had been duly notified under s.441G(1) no later than the prescribed period before the hearing. I consider that this is the clear reading of its statement: “A copy of that letter was also forwarded to the applicant’s adviser. No response was received”. Since the Tribunal then goes on to narrate its contacts with the agent immediately before the hearing, I do not consider that this can be read as a reference to the facsimile sent to the agent on 9 May 2002. I consider that the Tribunal exercised its discretion under s.426A without taking into account that it had failed to give the notice of hearing required to be given to an authorised agent, and that it decided to proceed to make a final decision upon the mistaken belief that the agent had been notified within sufficient time for him to make significant efforts to contact his client over a period of at least two weeks. In the circumstances which I have narrated above, I consider that this gave rise to a material jurisdictional error affecting the Tribunal’s decision.
I also consider that on all the circumstances shown in the evidence before me, the Tribunal denied the applicant procedural fairness when proceeding without taking further steps to allow actual notice of a hearing to reach the applicant. It is established that, where a merits appeal system expects that an applicant should enjoy a “real” opportunity to attend a hearing, a denial of procedural fairness can occur when this is denied even where the Tribunal itself is unaware of the circumstances making this unfair (see Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [32-35]).
In the present case, the applicant had an expectation that sufficient notice of a hearing would be sent to his agent as well as to his residential address. This did not happen due to a failure by the Tribunal to comply with its obligations under s.441G. Through unfortunate circumstances in which I do not consider that he should be criticised, he had moved from his residential address and his attempts to notify the Tribunal did not come to its attention. I consider that the applicant was unfairly denied a reasonable opportunity to present his case to the Tribunal, and for this reason also the Tribunal’s decision is affected by jurisdictional error.
For the above reasons, I consider that the applicant is entitled to orders for the issue of writs of certiorari and mandamus. I am prepared to order this relief without the formal joinder of the Tribunal, in circumstances where the applicant has been unable to obtain legal assistance, and where s.479 of the Migration Act might allow or require the Court to dispense with this (c.f. NAAA v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 287 and SZEEM v Minister for Immigration [2005] FMCA 27 at [51]). I shall, however, grant liberty to apply in the event that any difficulty is thought to arise in the implementation of my orders, and also to allow the applicant to seek reimbursement of any legal costs.

I certify that the preceding fifty‑three (53) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 21 April 2005