SZFIH v Minister for Immigration & Anor - [2005] FMCA 1847

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIH v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1847

MIGRATION – RRT decision – Stateless Russian resident of Estonia – fears of persecution for ethnicity – Tribunal found adequate protection available – no error found – Tribunal rescheduled hearing with consent of applicant – failure to give new invitation with prescribed period of notice – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 91R, 91R(2), 414, 415, 420, 424A, 425, 425(1), 425A, 425A(3), 426, 426A, 426A(1), 427, 441A(4), 441C(4), 474(1), 483A, Pt.7 Div.4, Pt.8
Migration Regulations 1994 (Cth), reg.4.35D(b)

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Magistrate’s Court at Lilydale; Ex parte Ciccone [1973] VR 122
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZBAZ v Minister for Immigration [2004] FMCA 790
SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026
SZDQO v Minister for Immigration [2005] FMCA 326
SZFKF v Minister for Immigration [2005] FMCA 1152
Vakauta v Kelly (1989) 167 CLR 568

Aronson, M., Dyer, B. & Groves, M. (2004), Judicial Review of Administrative Action, 3rd edition, Lawbook Co, Sydney.

Applicant:

SZFIH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3754 of 2004

Judgment of:

Smith FM

Hearing date:

28 November 2005

Delivered at:

Sydney

Delivered on:

28 November 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J A C Potts

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,300.
These orders shall not take effect for 28 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3754 of 2004

SZFIH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 May 2004 and handed down on 15 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. The limitations have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant qualifies for a refugee visa.
The present applicant arrived in Australia in September 2001 on a three month visitor’s visa contained in an Estonian passport, which indicated that he was a permanent resident of Estonia but had the status of an alien. It appears that he arrived with his wife and one of his children, but that she subsequently returned to Estonia where a second child had been left.
On 31 October 2001 the applicant made an application for a protection visa, employing the services of a migration agent, Yevgen Kyselov. A short statement attached to the application claimed that he was of Russian origin and stateless as a result of the break‑up of the USSR. He claimed to have been persecuted by Estonian nationalist groups, including by being beaten on “many occasions”, and that the Estonian law enforcement agencies “were not willing to protect me because the government aim is to encourage departure of the Russian population from Estonia”.
The applicant’s claims as subsequently elaborated to the Tribunal were summarised by the Tribunal in its statement of reasons. In my opinion, its summary is an accurate and sufficient summary of the claims made to the Tribunal:
The Tribunal summarised the applicant’s claims as follows. He was born in the former USSR in an area now part of the Russian Federation and of ethnic Russian parents. After his military service he went to Estonia in 1984/5 at the age of 22 to attend the Maritime College in Tallinn, with a view to working with the fishing fleet based there. His USSR passport expired and did not renew it. He married an Ethnic Russian, now with Estonian citizenship, in 1994. He has two children, both Estonian born citizens. He has not applied to become an Estonian citizen, or to claim Russian nationality. However he is a permanent resident of Estonia. He country [sic] and is travelling under an Estonian Alien’s passport. One child remained in Estonia while he and his wife and the younger child came to Australia in September 2001. They have both since returned to Estonia.
He claims that he cannot remain in Estonia, a country where he has made his home, because of fears for his safety. The applicant’s fears are based firstly of harassment and assault and denial of overseas consular protection, because he carries a ‘Wolf’s grey passport’; that is an Estonian Alien’s Passport, and, secondly of harassment and assault, and general discrimination because he is an Ethnic Russian and a Russian speaker, in terms of voting rights, participation, employment and the pursuit of a normal life in security in Estonia.
Specifically, he describes beatings and being warned to leave the country or be killed, as he returned home from work. Instanced were incidents in December 1999 and May 2000. He describes being abused, punched and rejected by the police, when he went to lay a complaint about the 1999 incident, and was advised by the police not to proceed with a complaint after the May 2000 incident. In February 2001 too, he was beaten up by extremists. Again the police advised him against complaining. In May 2001, he was taken into a car by police who said he was drunk. After seeing his passport, they robbed him of his pay. When he complained at the station, he was told that there was no police car of that number. The last incident described was the treatment and abuse received by his wife and child from customs at the airport, which treatment included reference to ‘non‑people’ in a nearby cemetery.
He believes that the government of Estonia will not adequately protect him and his family because it tolerates hostile actions against him and others like him, by the extremist Estonian Nationalist groups, Eest and Kaitsellit.
A delegate refused the application on 11 June 2002, after receiving extensive country information concerning the human rights situation of Russian speakers in Estonia which was submitted by the applicant’s agent.
The applicant appealed to the Tribunal on 4 July 2002 with the assistance of his agent. He authorised his agent to act on his behalf in relation to the case. Although the application referred to further material in support on “a separate sheet”, it does not appear from the material before me that further submissions of any sort were made in writing by or on behalf of the applicant to the Tribunal.
The applicant attended a rescheduled hearing accompanied by his advisor on 3 September 2003. It is necessary for me to consider the circumstances of the rescheduling of that hearing further below.
The Tribunal handed down its decision on 15 June 2004. There is no explanation in the material before me of the delay. However, the Tribunal referred to having prepared its summary of the hearing “from its hearing notes and after a review of the tape”, and there is nothing in its reasons that suggest to me that it did not adequately review all the material before it.

The Tribunal’s assessment of the applicant’s claims

Under the heading “Findings and Reasons”, the Tribunal said:
The applicant travelled to Australia as the holder of an Alien’s passport issued on 21 December 1999 by the government of Estonia which is valid until December 2004. The applicant’s evidence is that he has had permanent residence in Estonia since 1985 and is free to exit and enter. …
The Tribunal finds that the applicant is Stateless and that prior to his departure from Estonia was habitually resident in that country.
… [summarising the applicant’s claims]
On the basis of these claims, the Tribunal has assessed the applicant against the Convention grounds of first (his Russian) ethnicity and secondly membership of a particular social group, namely, Stateless persons in Estonia who speak Russian.
… [referring to information about Stateless people in Estonia]
After considering this information, the Tribunal accepts that there is the particular social group, Stateless persons who speak Russian, in Estonia. To a large extent the issues of Russian ethnicity, statelessness and language spoken, overlap, as far as consideration of potential Convention claims is concerned.
In my opinion, these paragraphs reflected a proper approach to an assessment of the applicant’s claims for protection from Australia under s.36(2) of the Migration Act and its adoption of the Convention definition.
The Tribunal in its decision identified some restrictions on stateless persons in Estonia in relation to some species of employment, but said:
Broadly, otherwise citizens or non‑citizens have generally equal rights and access to services. Those rights and services limitation do not, the Tribunal finds, amount to serious harm as described in s.91R.
The Tribunal referred to evidence from independent information of “some discrimination against ethnic Russians in Estonia, indeed against all non‑citizens, in certain areas, for example citizenship law and language”, but held:
there is no evidence of any pattern of human rights abuses against the Russian population, either from the authorities or tolerated by the authorities.
It accepted that Russian speakers and stateless persons may have experienced some harassment and discrimination as a result of their characteristics, but said:
The Tribunal however is unable to accept, that such harassment or discrimination are sufficiently severe to constitute serious harm, as described in s.91R(2).
The Tribunal referred to the applicant’s own employment history, and considered that a loss of employment which he had suffered was a product of “economic change” and “not his Russian ethnicity, his Statelessness or his language”.
Although it would have been desirable for the Tribunal to have explained some of these conclusions more extensively, I consider that they were open to the Tribunal on the material that was before it and do not reveal jurisdictional error.
In relation to the applicant’s claim to have suffered from assaults, the Tribunal made a clear finding that:
the protection of the Estonian State is available to him, from aberrant acts by its agents (the police) and the extremist nationalist groups. …
there is adequate State protection available to him, should such non‑state agents threaten or harm him in the future.
The Tribunal did not accept the applicant’s claims that his wife and daughter had been abused, harassed and threatened when they arrived back in Estonia. In a passage at the end of its reasons, which has markings which suggest to me that they were late insertions in the Tribunal’s reasons, the Tribunal concluded:
The Tribunal notes that the applicant has been in stable and remunerative employments since 1985 and that further education, should he require it, might be more difficult for him because of his language deficiency, and that some employments may be denied to him for that same reason. However, the Tribunal finds that those limitations are not again sufficiently severe to constitute serious harm to him, as described in s.91R.
To summarise, the Tribunal finds that the harm which the applicant fears by reason of his Russian ethnicity or his membership of the particular social group, Stateless Estonians who are Russian speakers, or for any other Convention reason is not serious enough to amount to persecution within the meaning of the Convention and the Act. The Tribunal finds that the applicant does not, therefore, have a well‑founded fear of persecution for a Convention reason if he were to return to Estonia.
The Tribunal is required to make its decision in light of the circumstances now, and in the reasonably foreseeable future. The last of the experiences cited by the applicant for him personally, was on 28/29 May 2001. The Tribunal had already found that it does not accept those claims. The experiences of his wife were towards the end of that year. The Tribunal has found that those experiences too, do not establish a well‑founded fear for him.
It is now 2004, the independent information, which the Tribunal accepts, is that Estonia has been accepted into the European Union and has satisfactorily met its Human Rights standards, after a process of improvement for ten or more years. The law in Estonia provides, the Tribunal finds, adequate protection for him. Further, the Tribunal finds that the Estonian authorities have shown that they can and will provide adequate Convention protection to residents of Estonia, from non state agents.
I have considered the Tribunal’s reasoning and, although some aspects of it are not fully persuasive at a factual level, I consider that it does not reveal any jurisdictional error. It addressed the claims made by the applicant. It made findings in relation to adequate protection which, in my opinion, were open to it on country information that was before it. It was not obliged to accept the submissions made to it based on passages in other information suggesting that there was state toleration of human rights abuses against Russian speakers, nor that this information established that the applicant’s fears of persecution were well‑founded.
The applicant’s application to this Court filed on 23 December 2004 said:
The Tribunal erred in law by not accepting that harassment and discrimination of Ethnic Russians in Estonia and stateless persons are sufficient to constitute serious harm as described in s.91R(2).
This has not been particularised in the application, nor in written submissions, nor in oral argument today, although the applicant has made clear to me today that he maintains a disagreement with the Tribunal’s factual assessments. However, I have not been able to identify in the Tribunal’s reasoning any misconception of the effect of s.91R(2).
An amended application filed by the applicant on 5 April 2005 said:
The Tribunal misunderstood the nature of its jurisdiction and applied a wrong test accepting that my Statelessness, Russian citizenship provisions and requirements for Estonian nationality by naturalisation applied to my case. The Tribunal fails to apply itself to the real question to be decided particularly whether I will be persecuted in Estonia by nationalist groups for reason of my ethnicity.
There are aspects of this that I do not understand, but I reject the contention that the Tribunal failed to address issues required to be addressed that were raised by the applicant’s claims. As I have indicated above, in my opinion it did so.
The applicant did not file a written submission but attended today where he has had the assistance of a Russian interpreter. He made a submission that in his view the Tribunal had not “digested the information which his agent had provided to the Tribunal properly”, and referred to some information from a Dutch human rights reporter. It does not appear to me that such a report was in fact before the Tribunal. So far as I have been able to tell from the Tribunal’s reasons, it did take into account the material that had been presented by the applicant’s agent. It said that it did, and I would not infer that it did not by reason of the absence of a more extensive discussion of country information.
The applicant’s second contention was that, in fact, his permission to return to Estonia has expired because he has been outside the country for a certain period of time. However, this does not appear to be a contention that was made to the Tribunal, and as I have indicated, it proceeded on the apparently conceded basis that at the time of its decision he retained a right of exit and re‑entry to Estonia. I am not persuaded that that finding was not open to the Tribunal on the material that was before it.
The applicant’s other contentions repeated his claims that there is discrimination against people in his position in Estonia generally, and that this is tolerated by the state authorities. However, in my opinion these were addressed by the Tribunal.

The rescheduled hearing

No other ground of jurisdictional error was raised by the applicant. However, counsel for the Minister in his written submissions raised an issue for the consideration of the Court going to the validity of the Tribunal’s decision. I consider it appropriate that I should address this issue, notwithstanding that it has never been raised by the applicant, and that he has been unable to make any submissions concerning it. It concerns the circumstances of the rescheduled hearing by the Tribunal.
The Tribunal wrote to the applicant and his agent by letter dated 23 July 2003 appointing a hearing for 2 pm on Thursday, 4 September 2003. It is clear that the invitation complied with the requirements of s.425A and the service provisions of the Act and Regulations. Indeed, it gave a period of notice for the hearing which significantly exceeded the prescribed period which was required under s.425A(3).
On 4 August 2003 a “Response to Hearing” form was filed by the applicant’s agent which indicated that he did wish to attend with his agent.
On 19 August 2003 a second letter was sent by the Tribunal, which said:
Your Application for Review
We sent you a letter dated 23/7/2003 inviting you to attend a hearing at the Tribunal on Thursday 4 September 2003.
Due to circumstances beyond our control, we will not be able to have a hearing on that date. We regret any inconvenience caused.
Your new hearing is:
Date:        Wednesday, 3 September 2003
Time:    14.00 PM
Please arrive at least 15 minutes before the start of the hearing
Place:     Level 29, Pacific Power Building, 201 Elizabeth Street, Sydney
Important information about your hearing
·If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.
·If you have a passport you should bring it to the hearing.
Please immediately telephone MC on (02) 9xxx xxxx and tell us whether you will attend the hearing.
If you have any questions, you can also contact MC on the above number. If you are calling from outside Sydney phone 1800 xxx xxx. If you don’t speak English, please contact the Translating and Interpreting Service (TIS) on 131 xxx.
In its statement of reasons, the Tribunal referred to the following circumstances attending this rescheduling of the hearing to a date which was one day earlier than had previously been appointed:
On 19 August 2003 the Tribunal wrote to the applicant amending the hearing date to 3 September, having first confirmed with the applicant and his advisor that the new hearing date was convenient.
The applicant gave oral evidence to the hearing at the arranged time. The Tribunal was assisted at the hearing by an interpreter in the Russian language in Melbourne by conference telephone. The advisor attended.

There is no evidence before me that this does not accurately summarise the background to the rescheduling. In particular, I am prepared to find that the new hearing was appointed only after consultation with the applicant and his advisor, and with their consent. They then attended on that hearing, and made no complaint nor request for any further hearing. In these circumstances, it is difficult to see why this rescheduling should result in the invalidity of the Tribunal’s decision.
However, counsel for the Minister drew my attention to the fact that the letter of 19 August 2003 did not provide a period of notice for the rescheduled hearing which was “at least the prescribed period” within s.425A(3) and the relevant Regulation and sections (see s.441A(4), reg.4.35D(b), and s.441C(4)). Counsel raised the issue whether the Tribunal was bound to issue a second notice complying with s.425A and in particular with subsection (3), as a precondition to its making a valid decision.
It could be argued that the Tribunal’s decision was invalid due to a failure to comply with conditions attaching to the requirement in s.425(1) 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”. Invalidity would occur if in the present circumstances the procedural formalities for an invitation prescribed under s.425A are construed so as to raise strict preconditions to performance of the Tribunal’s s.425(1) duty, and hence to its power to complete its review under s.414 by making a decision under s.415. This argument raises points of construction which have been addressed in several cases in this Court and at least once in the Federal Court.
Some of the cases concern whether a Tribunal, after adjourning or rescheduling a hearing without giving a notice containing a period of at least the prescribed period of notice, has the power to proceed under s.426A(1) if the applicant does not appear at the rescheduled hearing. Section 426A allows the Tribunal to “make a decision on the review without taking any further action to allow or enable the applicant to appear before it”. I can see that in such circumstances strict compliance with the notice requirement may be intended by the Migration Act. An intention that there be strict compliance before the Tribunal has the default power in s.426A might be implicit in its expressed conditioning upon the applicant having been “invited under section 425 to appear before the Tribunal”.
However, where an applicant has responded to an invitation by attending a hearing which has been rescheduled by consent, I find it very difficult to find an intention in the scheme of ss.425, 425A, 426, 426A and 427 not to allow the Tribunal to make a valid decision even if the rescheduling was not attended by the giving of the prescribed period of notice.
To construe these provisions as having that effect would mean that a Tribunal would never be able to reschedule a hearing without allowing at least a 23‑day period. For example, if a Tribunal found that it could not start at the appointed time on a particular day due to some accident, it would not be able to delay a start on the same day nor to adjourn to another day earlier than 23 days. As in the present case, it would not be able to reschedule to an earlier date or time, even if this were desired by both the applicant and the Tribunal. It would have no power to expedite its hearings to meet the most pressing demands of justice.
These are highly inconvenient results of adopting a strict interpretation of the notice of invitation provisions, and I have difficulty reconciling such an interpretation with the general direction to the Tribunal in s.420 that the Tribunal “is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”. It also has an effect that might appear inconsistent with the opinions of the majority in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (“SAAP”) that the provisions of Div.4 of Pt.7 should be construed to allow flexibility as well as fairness in the procedures of the Tribunal (c.f. McHugh J at [55]‑[57], Kirby J at [156]‑[158], and Hayne J at [197]‑[202]).
The general law as to when a procedural provision should be construed as intended to provide a precondition on the valid exercise of a substantive power accepts that this is a matter of construction of the particular provision in its statutory context. There are many examples where procedural requirements are construed as not intended to give rise to invalidity, at least in circumstances where the person for whose benefit they have been provided has consented to or waived a departure from the procedure. In Judicial Review of Administrative Action by Aronson, Dyer and Groves (“Aronson, Dyer and Groves”) 3^rd Ed. at 322, the learned authors say:
It is in the nature of procedural rules that they are frequently broken. Procedure being the servant of substance, invalidity is the least common of the possible consequences of such breaches. Breach of procedure can usually be overlooked by all concerned, “waived” by those affected, or rectified by the parties or the decision‑maker, all without risk to the validity of the final outcome. Indeed, the very concept of procedural requirements implies that they are usually of a lesser order of importance than substantive requirements, and one frequently sees the term qualified by the adjectival “mere”. (citations omitted)
The authors then proceed to point out that “the distinction between procedure and substance is notoriously one only of degree”.
To decide when compliance with the provisions of s.425A(3) in relation to notice of a rescheduled hearing is a matter of procedure or of substance affecting the validity of a Tribunal’s decision, it is necessary to bear in mind the current approach of the High Court as explained in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. McHugh, Gummow, Kirby and Hayne JJ said:
[91]An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[92]Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice (1834) 2 Ad & E 84 at 96 [111 ER 32 at 87], Taunton J said “a clause is directory where the provisions contain mere matter of direction and nothing more”. In R v Loxdale (1758) I Burr 445 at 447 [97 ER 394 at 395], Lord Mansfield CJ said “[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory”. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non‑compliance unless there has been “substantial compliance” with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 249 when discussing the statutory provision in that case: “substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not”.
[93]In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood [1978] 1 NSWLR 20 at 23‑24 in criticising the continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
This authority requires me to address the issue of validity of the Tribunal’s ultimate decision by asking whether it was a purpose of the Migration Act that the giving of a notice of a rescheduled hearing providing less that the prescribed period of notice should in all cases result in the invalidity of a Tribunal’s decision.
In my opinion it is not, at least in circumstances where the applicant has consented to or acquiesced in the giving of shorter notice. I have pointed out above the inconvenient results of giving s.425A(3) a mandatory effect in all circumstances. These point to a strong likelihood that the legislature intended that invalidity should not result where the appropriateness of allowing shorter notice is indisputable. Moreover, in my opinion the correct construction of the notice of invitation provisions is that they intend that an applicant may waive a right to a full period of notice or may acquiesce in a lesser period of notice being given.
I think this is a more direct and preferable analysis of the legislation, than construing the notice requirement as mandatory in all circumstances, but holding that an applicant may waive his right to challenge the validity of the subsequent decision of the Tribunal on the ground of non‑compliance with s.425A(3) (but c.f. the reasoning in R v Magistrate’s Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 131‑135). The outcome would, however, be the same in most cases.
Allowing waiver of strict compliance with this notice provision, has similarities with the established law that, under the rules of natural justice implied into a statutory scheme, a party may waive his right to challenge a subsequent decision on grounds of ostensible bias (see Vakauta v Kelly (1989) 167 CLR 568 at pages 573, 579 and 587), and, albeit less clearly, to waive procedural entitlements under the hearing rule (see the discussion of Aronson, Dyer and Groves (supra) at page 553).
The nature of the procedural requirement of a period of notice under s.425(3) is, in my opinion, clearly distinguishable from the requirement of a written invitation to comment about adverse information under s.424A which was given a mandatory effect in SAAP (supra). Moreover, the High Court in that case did not address a situation where the applicant had consented to a departure from a statutory procedure, nor with a situation where the departure related to a minor aspect of procedure and did not diminish the applicant’s enjoyment of his procedural rights.
Unaided by authority, I would therefore rule in the present case that the Tribunal’s decision was not invalidated by reason of the Tribunal’s rescheduling of the hearing one day earlier with the consent of the applicant and his agent, notwithstanding that the Tribunal’s letter confirming that rescheduling did not allow the period of notice provided for under s.425A(3).
However, counsel for the Minister has drawn my attention to a recent decision of Barnes FM in SZFKF v Minister for Immigration [2005] FMCA 1152 (“SZFKF”). After a careful examination of the statutory provisions and previous authorities, her Honour said:
[48]There is nothing in the language of s.425A or elsewhere in the Division or Act to require the general words of s.425A(3) to be read down or given anything other than their ordinary meaning consistent with the purpose and language of the Act. Section 425A is expressed in terms which would apply to any invitation to appear given by the Tribunal. It is in mandatory terms and is not qualified. (See SAAP at [71] and [165] and cf ss.423, 424 and 426A). Where the Tribunal postpones a hearing the initial invitation does not remain open. To meet its s.425 obligations the Tribunal must issue a fresh invitation if the hearing is rescheduled at the behest of the Tribunal. In such a case s.425A will apply to the fresh invitation extended to the applicant. As McHugh, Kirby and Hayne JJ pointed out in SAAP in relation to s.424A, s.425A falls within Division 4 of Part 7 of the Act and is part of the statutory regime of procedural fairness (McHugh J at [77], Kirby J at [161] and Hayne J at [197]) and as Kirby J observed in SAAP at [162], the provisions of Division 4 of Part 7 are “unusually detailed, specific and particular” and while some may see them as “inflexible” they are dealing with “unusually important decisions”. His Honour stated at [162]:
A measure of inflexibility is the will of the Parliament so as to protect the rights to due process of those affected.
In that case, the Tribunal postponed one of its hearings for three days in the course of a series of hearings appointed by the Tribunal. Barnes FM held that this was in breach of s.425A(3), that it resulted in the invalidity of the Tribunal’s subsequent substantive decision, and that the applicant was entitled to have the decision quashed. She rejected a submission that there were discretionary reasons for withholding that relief on the ground that the breach of s.425A(3) was “technical”.
Barnes FM distinguished her conclusion in SZFKF from her earlier decision in SZBAZ v Minister for Immigration [2004] FMCA 790 (“SZBAZ”). In SZBAZ, she accepted that a rescheduling without the prescribed notice could occur without invalidating the Tribunal’s eventual decision, in circumstances where the adjournment was requested by the applicant.
Her Honour’s reasoning in SZBAZ gained the support of Conti J in SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026. His Honour addressed a rescheduling similar to that which occurred in SZBAZ, and distinguished another case, SZBNS, where a rescheduling occurred without consulting the applicant. His Honour said:
[29]In my opinion, the Minister’s approach is correct. The circumstances in SZBNS are distinguishable from those of the present appellant. Here the Tribunal rescheduled the hearing as a result of the appellant’s non‑attendance at the original hearing at the applicant’s own initiative, albeit with the support of a doctor’s certificate. In my opinion, in circumstances where the Tribunal decides to reschedule a contemplated hearing at the behest, explicitly or implicitly, of an applicant, s 425A does not apply in relation to the notice of a rescheduled hearing, at least in so far as concerns the period of the reviewed notice. The sanction on the Tribunal in those circumstances would be the operation of the general law as to natural justice, as Hely J indicated in NAHF, albeit in a different factual context, and subject to the operation of the recently enacted s 422B of the Act. As Barnes FM reasoned in SZBAZ, in my opinion rightly, ‘[w]ere it otherwise, any delay, even of minutes or hours, at the request of the applicant, would give rise to a failure to comply with s 425A’. Other examples of circumstances where the conduct of a review by the Tribunal could be unreasonably thwarted readily come to mind. It is conceivable moreover that an applicant could set in train an indefinite number of re‑scheduled hearings in a repetitive context of a requirement for not less than 14 days’ notice. It was I think soundly submitted by the Minister that Scarlett FM’s finding in the present case was correct to the effect that the period of notification given for the rescheduled hearing was reasonable and according to law, albeit involving less than 14 days’ notice. I would dismiss the appeal, which, aside from this controversial issue as to notice, was in any event devoid of any apparency of merit.
In my opinion, the points which his Honour makes in relation to the inconvenience of a construction of the Act which does not allow a valid rescheduling of a hearing requested by an applicant, apply equally to any other cause for a rescheduling which received the consent or acquiescence of an applicant. As I have indicated above, the conclusion that such a rescheduling is not invalidated by the lack of a prescribed period does not necessarily mean that the Tribunal would acquire the procedural power to make a default decision under s.426A in the event of the applicant not appearing at such a rescheduled hearing. That, in my opinion, is a separate issue.
I have not been referred to any Federal Court authority which prevents my adopting my preferred construction. It was, however, submitted that the decision of Barnes FM in SZFKF was directly on point, and should be followed by me unless I thought it to be clearly wrong. Counsel for the Minister also informed me that an appeal was pending.
I do not consider that SZFKF is indistinguishable from the present case. In particular, this is because Barnes FM did not address the situation where, although the rescheduling was not at the request of the applicant, it occurred with the consent of the applicant. At [27] her Honour found that the adjournment occurred “as a result of a decision by the Tribunal” and not “as a consequence of a request by the applicant”. She did not make a finding that there was prior consent by the applicant, or conduct amounting to subsequent acquiescence or waiver of the allowing of the prescribed period of notice.
Moreover, the reasoning of Barnes FM in SZFKF does not maintain a strict requirement of observance with s.425A(3) in all situations of rescheduling. She accepted the correctness of her decision in SZBAZ that “s.425A was not applicable to the postponement” in that case (see SZFKF at [27]), thereby accepting that the statutory intent is not that invalidity should occur in all situations. In my opinion, it would be consistent with the outcomes reached by Barnes FM in these two cases, to accept a further situation where invalidity would not occur: where an applicant consents or acquiesces in a rescheduling.

However, I accept that at [48] of her reasons in SZFKF Barnes FM expresses the propositions that “the Tribunal must issue a fresh invitation if the hearing is rescheduled at the behest of the Tribunal” and must comply with s.425A, in terms which would not appear to allow for any exception, in particular for consensual or acquiesced departures from the giving of the prescribed period of notice. For the reasons which I have indicated above, I consider that such an absolute construction is unnecessary, highly inconvenient, and inconsistent with the objectives of the relevant provisions in Div.4. I therefore would respectfully decline to apply her Honour’s propositions to the present case without further qualification.
Counsel for the Minister also took me to the decision of Scarlett FM which was upheld on appeal by Conti J. In SZDQO v Minister for Immigration [2005] FMCA 326, Scarlett FM said at [22]:
I am satisfied that the period of notice referred to in s.425A(3) only applies to giving notice of the originally scheduled application. An adjournment or a rescheduling may take place at any reasonable time, provided of course that the applicant is given reasonable notice.
On appeal, Conti J preferred to adopt different reasoning by following Barnes FM in SZBAZ, without approving the construction taken by Scarlett FM. On my opinions above I also do not need to address the correctness of that construction. I consider that, at least, a failure to observe s.425A(3) in relation to the rescheduling or adjournment of a hearing is not intended by the legislature to result in invalidity of the Tribunal’s substantive decision, where this occurs at the request, or with the consent or acquiescence of an applicant.
For all the above reasons I have not been able to identify jurisdictional error affecting the decision of this Tribunal to affirm the delegate’s decision. It is therefore a privative clause decision for which relief is barred by s.474(1), and I must dismiss the application.

I certify that the preceding fifty‑eight (58) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 19 December 2005