SZFLT v Minister for Immigration - [2006] FMCA 1763

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFLT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1763

MIGRATION – Refugee – multiple adjournments of the Tribunal hearing as a result of medical problems and an inability to attend – whether Tribunal complied with statutory obligations in relation to notice periods – Tribunal’s rescheduling of the hearing an exercise of the adjournment power – statutory obligations complied with when the first invitation inviting the applicant to a hearing was sent – no jurisdictional error – application dismissed.

Migration Act 1958, ss.424A, 425, 425A, 426, 426A, 427, 441, 441A, 441C
Migration Regulations 1994, Regulation 4.35D(b)
Freedom of Information Act 1982 (Cth)

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026
SZBAZ v Minister for Immigration [2004] FMCA 790
SZFKF v Minister for Immigration FMCA [2005] 1152
SZCDH v Minister for Immigration [2006] FMCA 78
SZAZY v Minister for Immigration (No. 2) [2005] FMCA 1635
SZFHC v Minister for Immigration [2005] FMCA 1399
SZFML v Minister for Immigration (No. 2) [2005] FMCA 1947
SZFIH v Minister for Immigration [2005] FMCA 1847
SZGWD v Minister for Immigration [2006] FCA 292
SZGWD v Minister for Immigration [2005] FMCA 1956
SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78
SZCZX v Minister for Immigration [2006] FMCA 786
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZFLT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 87 of 2005

Judgment of:

Nicholls FM

Hearing date:

7 August 2006

Date of Last Submission:

1 August 2006

Delivered at:

Sydney

Delivered on:

11 December 2006

REPRESENTATION

Counsel for the Applicant:

Mr. N. Poynder (Direct Access)

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Mr. G. Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 87 of 2005

SZFLT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

I have before me an application filed on 12 January 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 2 December 2004 and handed down on
22 December 2004 which affirmed the decision of a delegate of the respondent Minister made on 21 January 2003 to refuse a protection visa to the applicant.
The applicant claims to be stateless and formerly resident in Latvia. She arrived in Australia on 18 July 2001. The applicant’s claims to protection in Australia derive from her fears in Latvia as they arose because of harm she claimed she had suffered as an ethnic Russian and as the wife of a former Soviet military officer.

Application to the Court

At the hearing before me, Mr. Johnson appeared for the respondent and Mr. Poynder appeared for the applicant on a direct access basis. Before the Court the applicant's complaint centres around her assertion that the Tribunal failed to comply with the relevant statutory requirements in relation to its invitation to her to attend a hearing. By way of amended application the applicant's ground are:
“The grounds of the application are that the Tribunal exceeded jurisdiction in making the decision to affirm the Respondent's decision to refuse to grant the Applicant a protection visa.
The Tribunal failed to comply with the requirements of s.425, s.425A, and s.426A of the Act and regulation 4.35D(b) of the Migration Regulations 1994.
Particulars:
(a)By its letter to the Applicant dated 24 December 2003 the Tribunal failed to comply with s.425(1) and s.425A(1) and (4) of the Act in that it failed to give the Applicant a statement of the effect of s.426A of the Act.
(b)By its letter to the Applicant dated 4 November 2004 the Tribunal failed to comply with s.425(1) and ss.425A(1) and (3) of the Act in that it failed to give the Applicant the 14 day period of notice prescribed by regulation 4.35D(b).
(c)By its letter to the Applicant dated 4 November 2004 the Tribunal failed to comply with s.425(1) and ss.425A(1) and (4) of the Act in that it failed to give the Applicant a statement of the effect of s.426A of the Act.”

Background

The relevant factual background, against which this complaint needs to be considered, is set out by the Tribunal itself in its decision record, and in particular as reproduced at CB 170.5 to CB 174.2. (For ease of reference I have added numbers to each of the items set out in the Tribunal’s decision record and added the reference to the page of the Court Book to which each of the items refer):
“ADJOURNMENT REQUESTS
1.On 21 January 2003 the delegate of the Department refused the applicant a protection visa (CB 97).
2.On 17 February 2003 the applicant appealed to the Tribunal for review of that decision (CB 106 to CB 109).
3.On 23 December 2003 the Tribunal wrote to the applicant advising the Tribunal had considered the material before it and was unable to make a favourable decision and invited the applicant on 16 February 2004 to the Tribunal to give oral evidence (CB 110). [Note: The letter is actually dated 24 December 2003].
4.On 15 January 2004 the Tribunal received a letter from the applicant and her granddaughter advising that the applicant requested a postponement of the hearing. The grand daughter had been involved in a motor vehicle accident on 6 January 2004 and both the applicant and her granddaughter had been unable to sleep for 5 nights and the applicant was receiving medical help. The applicant also stated that documents belonging to the applicant had been in the granddaughter’s motor vehicle and the police had taken custody of the granddaughter’s motor vehicle (CB 112).
5.On 15 January 2004 the Tribunal wrote to the applicant advising that the Tribunal would not adjourn the scheduled hearing and that at the hearing the applicant would be given the opportunity to explain to the Tribunal the significance of the documents in the motor vehicle taken by the police (CB 114).
6.On 3 February 2004 the applicant forwarded to the Tribunal a ‘Response to Hearing Form’ indicating she would attend the scheduled hearing of 16 February 2004 (CB 115).
7.On 16 February 2004 the Tribunal received a letter from the applicant advising she could not attend the hearing and provided a medical certificate dated 15 February 2004 from Dr Joe Yohendran, general practitioner, stating the applicant ‘is receiving medical treatment for vertigo and for the period 15 February 2004 to 21 February 2004 inclusive she will be unfit to continue her usual occupation’ (CB 117 to CB 118).
8.On 16 February 2004 the Tribunal wrote to the applicant informing the applicant that the Tribunal agreed to the adjournment request and invited the applicant to attend the postponed hearing on 23 February 2004 (CB 119).
9.On 18 February 2004 the applicant’s granddaughter telephoned the Tribunal seeking an adjournment of the scheduled hearing on 23 February 2004 stating that the applicant was not well enough to the attend the Tribunal hearing (CB 120).
10.On 18 February 2004 the Tribunal wrote to the applicant advising that the medical report provided indicated she would be fit after 21 February 2004. In view of the applicant’s medical certificate stating she had suffered vertigo, the Tribunal advised it would conduct the hearing by telephone. The applicant was also advised that the Tribunal would not grant a further adjournment unless a medical practitioner provided a medical report indicating the nature and extent of the applicant’s inability to attend a hearing (CB 121).
11.Medical Report of Dr Joe Yohendran, general practitioner, dated 19 February 2004, was submitted to the Tribunal and stated that the applicant ‘has developed anxiety with depression since her granddaughter’s motor vehicle accident on 6 January 2004 and requested the applicant’s hearing be adjourned for 2 months’ so that he can stabilise her (CB 123).
12.On 3 March 2004 the applicant attended a medical appointment arranged by the Tribunal with Dr Kipling, psychiatrist, requesting the doctor provide a report indicating the applicant’s current medical condition and seeking advice in the event that the applicant would have difficulty attending a hearing as to what provision could be made to facilitate this occurring.
13.On 17 March 2004 Dr Kipling, after discussing his findings with Dr Yohendran, made treatment recommendations. Dr Kipling reported that the applicant’s granddaughter had told him the applicant’s daughter was a medical practitioner in Latvia and the applicant had been treated in Latvia for depression. He also stated that the applicant’s husband had been a psychiatrist in the Russian army and had died 20 years ago. He diagnosed a major depressive disorder and stated the applicant would not be fit to attend a Tribunal hearing for 3 months (CB 133).
14.On 21 June 2004, after 3 months had elapsed, the Tribunal wrote to the applicant inviting the applicant to attend a hearing of the Tribunal on 5 July 2004 (CB 137).
15.By letter of 2 July 2004 the applicant and her granddaughter advised the Tribunal (CB 138).
“my grandmother after my car accident developed depression, she is taking treatment but in fact she still did not recover from strong depression. Also 1.5 months ago she fell and was delivered by ambulance to Kogarah Hospital with head injury. She still has head pains.”
16.By letter of 2 July 2004 the Tribunal agreed to postpone the scheduled hearing on 5 July 2004 and requested the applicant provide the Tribunal with a medical certificate to indicate why she was unable to attend a hearing and indicating when she might be fit to attend the hearing (CB 139).
17.By medical report from Dr Joe Yohendran, general practitioner, dated 11 July 2004, the doctor stated that the applicant (CB 140).
“suffers from anxiety and depression and continues to take her medications religiously. She hasn’t recovered sufficiently to be able to handle any form of interview/interrogation…for at least another 3 months or so.”
18.By letter of 22 July 2004 the Tribunal arranged for the applicant to attend a medical appointment at Health Services Australia on 2 August 2004 with a psychiatrist in order to know how best to progress this review application before the Tribunal (CB 141).
19.On 2 August 2004 the applicant advised the Tribunal she would not attend the medical appointment due to health problems (CB 142).
20.On 12 October 2004 the Tribunal sent to the applicant a letter expressing concern that her application was not being dealt with expeditiously and informed the applicant that the period of 3 months referred to by Dr Yohendran had now elapsed The Tribunal provided independent information to the applicant relevant to her claims and informed her, amongst other things, that her claims of a lack of police protection in Latvia was not supported by the independent evidence. The applicant was invited to comment on this information on or before 3 November 2004 (CB 144).
21.By letter received by the Tribunal on 2 November 2004 the applicant and her granddaughter advised the Tribunal that the applicant (CB 155).
“continued to take medical treatment and she cannot comment on the letter as she has not recovered sufficiently due to her anxiety and depression and needs to be stabilised mentally before she can give a normal adequate response to the letter or attend an interview.”
i.The applicant’s granddaughter further personally stated:
“Back in Latvia my grandmother was getting some medical help from my mother (refer to Dr Kipling Walker report) because it is very very hard for elderly person to leave every day in the fear for the life.
……Dr M Nesterovska’s report was given in support of my grandmother’s application to travel to Australia and was stating that at this point in time my grandmother’s physical health was good enough to travel to Australia.”
22.On 4 November 2004 the Tribunal sent a letter to the applicant informing her of an appointment on 15 November 2004 to see psychiatrist Dr Prior, at Health Services Australia. The Tribunal advised the applicant it would not accept any further medical reports from her general practitioner (CB 158).
23.By letter dated 19 November 2004, 4 days after the scheduled appointment with the psychiatrist, the applicant and her granddaughter informed the Tribunal the applicant continues to suffer depression and take medical treatment. She stated she could not attend the psychiatrist’s appointment on 15 November 2004 (CB 159).
“Because next day after she received your letter she finished at emergency department (St George Hospital Kogarah) with hypertension. She is not feeling 100% and continue to take medication prescribed, and now takes medication for that condition.”
24.The Tribunal also advised the applicant that a further hearing had been scheduled for 25 November 2004 and the Tribunal would only cancel that hearing on the medical advice of Dr Prior (Health Services Australia) (CB 158). [Note: The date of the letter was 4 November 2004]
25.The applicant did not attend the medical appointment scheduled with a psychiatrist at Health Services Australia (CB 162.3).
26.The applicant did not attend the scheduled hearing (CB 162).”
The Tribunal's decision record at CB 174.3 to CB 175.1 reveals that the Tribunal proceeded to make a decision in this matter without taking further action to enable the applicant to appear before it (in context pursuant to s.426A of the Migration Act 1958 (“the Act”)), on the basis that the applicant had refused to attend two medical appointments scheduled with a psychiatrist, and had not provided a satisfactory explanation for this refusal, and because of her lack of response to the Tribunal's request for independent information, and her refusal to attend the “scheduled Tribunal hearing”. The Tribunal was satisfied that it had discharged its obligations to provide the applicant the opportunity to provide written evidence or relevantly to give oral evidence and present arguments before it.

Legislation

Legislation relevant to this matter, being those parts of Division 4 of Part 7 of the Act, and regulation 4.35D(b) of the Migration Regulations 1994 (“the Regulations”) are reproduced below:
“425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
“425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2)The notice must be given to the applicant:
(a)except where paragraph (b) applies–by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4)The notice must contain a statement of the effect of section 426A.”
“426A Failure of applicant to appear before Tribunal
(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.”
“427 Powers of the Refugee Review Tribunal
(1)For the purpose of the review of a decision, the Tribunal may:
(a)…
(b)adjourn the review from time to time; or…”
“4.35DPrescribed periods – notice to appear before Tribunal (Act, s.425A)
For subsection 425A (3) of the Act, the prescribed period:
(a)…
(b)in any other case – starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.
Note 1 If the Tribunal gives a person a document by a method specified in section 441A of the Act, the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method.
Note 2…”
Also relevant are ss.441A and 441C:
“441AMethods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1)For the purposes of provisions of this Part or the regulations that:
(a)require or permit the Tribunal to give a document to a person (the recipient); and
(b)state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows…
Dispatch by prepaid post or by other prepaid means
(4)Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)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.”
“441C When a person other than the Secretary is taken to have received a document from the Tribunal
(1)This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA)...
Dispatch by prepaid post or by other prepaid means
(4)If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia–7 working days (in the place of that address) after the date of the document; or
(b)in any other case–21 days after the date of the document.”

Evidence

At the hearing before me Mr. Poynder sought to tender a bundle of documents which he said the applicant had obtained from the first respondent by way of an application made pursuant to the Freedom of Information Act 1982 (Cth). Mr. Johnson took no objection, and I marked the bundle of documents as Applicant's Exhibit 1 (“AE1”). These were documents which Mr. Poynder submitted were relevant documents to the proceedings that had been omitted from the Court Book. The documents are:
1)A chronological record, printed from what appears to be the Tribunal's electronic record of action taken, in relation to the applicant's case (“the case log”).
2)A Tribunal file note, apparently prepared by a Tribunal employee, dated 20 February 2004.
3)A copy of a letter from the District Registrar of the Tribunal to Health Services Australia (addressed to Ms. Erin Farrell) dated
22 July 2004.
4)A copy of a letter from the District Registrar of the Tribunal to Health Services Australia (addressed to Dr. Michael Prior) dated 22 July 2004.
5)A letter dated 4 November 2004 from the Tribunal's District Registrar to Health Services Australia (addressed to Ms. Erin Farrell).
6)A second letter dated 4 November 2004 from the Tribunal's District Registrar to Health Services Australia (addressed to
Dr. Michael Prior).

Also taken into evidence was the affidavit of the applicant's granddaughter, made on 1 June 2006, however excluding those parts where I upheld Mr. Johnson’s objection on the basis of relevance, and the lack of capacity of the witness to give certain evidence (medical evidence). Following rulings made paragraph by paragraph,
Mr. Johnson did not seek to cross-examine. I should note that the matters asserted in the affidavit primarily, were sought to be put before the Court by Mr. Poynder as relevant to the Court's consideration of whether the relief sought by the applicant should be granted, following consideration of whether the Tribunal's decision is affected by jurisdictional error. As will become evidence below it is not necessary to pursue this further.
Letter of 24 December 2003 (Item 3)
The applicant's first complaint as to why the Tribunal's decision is affected by jurisdictional error, relates to the Tribunal’s letter of
24 December 2003 (item 3 at paragraph 4 above). Mr. Poynder described this complaint as being based on the “first invitation”, and relied on written submissions in this regard. Relevantly, paragraph 38 of the applicant’s written submissions state that “arguably” this letter did not meet the requirements set out in s.425A(4) of the Act in that it did not contain a statement of the effect of s.426A of the Act.
Mr. Poynder’s submission was that s.426A provides that, if an applicant is invited pursuant to s.425 to appear at a hearing and does not 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. He referred to the letter, and the Tribunal’s statement:
“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”
He submitted that this did not strictly comply with the wording of s.426A. I understood this complaint to be based on the non-identical wording compared with what is set out in the Act.
I do not agree with this submission. I cannot see that the wording in s.425A(4) obliges the Tribunal's letter of invitation to a hearing to contain the exact words set out in s.426A. In my view, on any plain reading of s.425A(4), what is required is that the notice of invitation to appear must also contain a statement as to the consequence of the applicant's failure to appear before the Tribunal. I see the word “effect” contained in s.424A(4) as being directed to this consequence.
I refer again to the wording used by the Tribunal in its letter:
“The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend a hearing, you must contact the Tribunal immediately. 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.”
In my view, its second sentence is directly relevant to the “effect” of the matter contained in s.426A(1), and the first sentence is directed to the matter contained in s.426A(2). In all therefore, this complaint does not succeed.
Further, I cannot see that the letter of 24 December 2003 fails to meet any other obligation contained in s.425A of the Act. The Tribunal plainly invited the applicant to appear before it and to give evidence.
A day, time and place were provided. The notice complied with the requirements of s.425A(2), in particular as it applied to s.441A(4), s.441C(4) and regulation 4.35D of the Regulations for the purposes of s.425A(3) of the Act.
Other letters (Items 7 and 14)
To the extent that the applicant makes the same complaint in relation to the effect of s.426A of the Act (as it relates to the letter of 16 February 2004 and the letter of 21 June 2004) then these complaints also fail for the same reasons as set out above.
Letter of 4 November 2004 (Item 24)
The applicant also complains that the letter of 4 November 2004 does not meet the requirements set out in s.425A(4), in that it did not contain a statement to the effect of s.426A (but for a different reason).
The applicant's complaint here is that instead of the required explanation as to what may happen if the applicant did not appear at the hearing, the Tribunal stated that if she did not attend her appointment with the medical practitioner, as organised by the Tribunal (see Item 22), the hearing would proceed on the information currently before the Tribunal.
Mr. Poynder referred to the wording of the Tribunal’s letter:
“Your medical appointment has been scheduled for Monday, 15 November 2004 at 8:00 a.m. If you do not attend this appointment and Dr Prior does not report to this Tribunal that you are medically unable to attend this hearing, the hearing will proceed on the information currently before the Tribunal and the Tribunal will make a decision on your case without further notice” (CB 158.5)
He submitted that this wording had the potential to mislead the applicant into thinking that the primary object of the Tribunal's notice to her was to explain that she must attend the medical appointment, not that she “must attend the Tribunal.” I should just note that I do not agree with Mr. Poynder’s inference that the notice required pursuant to ss.425A(4) and 426A requires the Tribunal to tell the applicant that “she must attend the Tribunal”. The Tribunal's relevant obligation is to notify the applicant of the consequence of the failure to attend, and that this consequence is that it may then proceed to make a decision without taking any further action to enable the applicant to appear before the Tribunal. Having said that however, I do agree with Mr. Poynder, that if the letter is read in isolation, and on its face, it does not contain a statement as to the effect of what is set out in s.426A of the Act.
Nor for that matter, and on the same basis, do the letters of 16 February 2004, 21 June 2004, or 4 November 2004, comply with the relevant period set out in s.425A(3) of the Act and regulation 4.35D(b) of the Regulations when taking the deemed period of receipt set out in s.441C(4)(a) into account.
Omissions and Jurisdictional Error
The issue for the Court therefore, is whether these omissions reveal jurisdictional error on the part of the Tribunal. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, by majority, the High Court held that a failure to comply with the requirements (in that case s.424A of the Act, being part of Division 4 of Part 7) was jurisdictional error.
On their face therefore, the Tribunal’s letters of 16 February 2004, 21 June 2004 and 4 November 2004, appear not to comply with s.425A(3) of the Act and regulation 4.35D(b) of the Regulations, because, from the time the letter is taken to have been given to the applicant until the time of the scheduled hearing, the notice period, as prescribed, was not met.
Meeting Statutory Requirements
Having found that the letter of 24 December 2003 did comply with all the relevant statutory requirements, the issue remains however as to whether the subsequent letters were also required to meet the relevant statutory notice period, and in the case of the letter of 4 November 2004 additionally, the requirement of s.425A(4) of the Act.
The resolution of this issue revolves around how to categorise the Tribunal's action in the subsequent letters that it sent to the applicant concerning her appearance at a hearing before it. Mr. Poynder and
Mr. Johnson agreed that there was no jurisdictional error where a Tribunal sends a “fresh” invitation for a rescheduled hearing (that does not comply with the statutory notice periods), where the statutory requirements were initially met in the “first” invitation and the hearing was rescheduled at the applicant's initiative. In this regard they drew from SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 (“SZDQO”) where Conti J. made reference to what was said by Barnes FM in SZBAZ v Minister for Immigration [2004] FMCA 790 (“SZBAZ”) at [28] to [29]).
Where the parties differ on the relevant authorities, as Mr. Poynder described it, in the applicant’s favour, is in relation to a situation where the rescheduling is at the instigation of the Tribunal. He argues that this “renews” the need for that invitation to meet the relevant statutory requirements. He drew from what was put by Conti J. with reference to SZBAZ in SZDQO and submitted that the s.425A notice requirements may apply to a hearing rescheduled by the Tribunal. Further, that this was the view taken by Barnes FM in SZFKF v Minister for Immigration FMCA [2005] 1152 (“SZFKF”) which was followed on a number of occasions in this Court: see SZCDH v Minister for Immigration [2006] FMCA 78 (“SZCDH”) at [12], SZAZY v Minister for Immigration (No. 2) [2005] FMCA 1635 (“SZAZY”) at [28], SZFHC v Minister for Immigration [2005] FMCA 1399 (“SZFHC”) at [32] and SZFML v Minister for Immigration (No. 2) [2005] FMCA 1947 (“SZFML”) at [52].
I also note that in SZFIH v Minister for Immigration [2005] FMCA 1847 at [57] Smith FM, distinguished the situation in SZFKF on the basis that the applicant in the case before him had “consented” or “acquiesced” to the postponement of the hearing, even though the postponement was at the behest of the Tribunal. In this regard, in SZGWD v Minister for Immigration [2006] FCA 292 (“SZGWD”) Edmonds J. on appeal from this Court (SZGWD v Minister for Immigration [2005] FMCA 1956 at [12]) where a similar view was taken, upheld this proposition.
In SZEFM v Minister for Immigration& Multicultural & Indigenous Affairs [2006] FCA 78 (“SZEFM”) in upholding a Judgement of this Court, Bennett J. provided authority for the proposition that the requirements in s.425A do not need to be complied with where the initial hearing date is adjourned. As Mr. Johnson submitted, the Federal Court Judgement in SZEFM turned on the adjournment power contained in s.427 of the Act, and on the dictionary meaning of “adjourned”. It is clearly binding upon this Court, as indeed was emphasised by Driver FM in SZCZX v Minister for Immigration [2006] FMCA 786 (“SZCZX”) at [7].
In the case before me, how to characterise the letters in the context outlined above, relating to the subsequent hearing dates is also a point of divergence between the parties. Mr. Johnson submitted (in the alternative) that even if at some juncture in the process of the sequence of hearing dates, an act of the Tribunal (that is at the instigation of the Tribunal) resulted in the setting of a date, then SZEFM is binding.
The adjournment power in s.427 of the Act does not depend for its availability on who initiates action causing the adjournment or indeed upon the reason for the adjournment.
Adjournment or Vacation
Mr. Poynder, in the context of what was said in SZEFM, sought to characterise in written submissions the various relevant acts of the Tribunal as not being in the nature of an adjournment, but an abandonment of the earlier hearing date, and new hearing dates being set. In oral submissions he described this as a “vacation” of the earlier hearing date. This was with initial reference to what Bennett J. said in SZEFM at [12], in relation to the meaning of adjourn:
“… ‘Adjourn’ can mean to defer or put off or suspend in respect of something that has already commenced (see Shorter Oxford English Dictionary (fifth edition) and Macquarie Dictionary (revised third edition)). It can also mean to defer or postpone to a future meeting of the same body (Macquarie Dictionary).”
Mr. Poynder referred the Court to the definition of “vacate” (Macquarie Dictionary - Revised Edition) as:
“…to render inoperative; deprive of validity; annul.”
He submitted the Oxford English Dictionary’s (Second Edition) definition was of similar effect.
At paragraph 53 of written submissions Mr. Poynder conceded that if the Court finds that the “first invitation” of 24 December 2003 complied with the statutory requirements, then the original hearing of 16 February 2004, to which this letter referred, was “adjourned at the initiative of the applicant”. This request was made in her letters of
12 January 2004 and 16 February 2004, and was consistent with the Tribunal's reasons (at CB 171.4) where the rescheduling was recorded as an “adjournment”.
He submitted that in applying what Bennett J. said in SZEFM, and as the adjournment of the original hearing was at the applicant's own initiative, there was no requirement for the invitation to the adjourned hearing to comply with the statutory requirements, therefore even though the “second invitation” issued on 16 February 2004 (for a hearing on 23 February 2004) did not comply with the requirements, this did not give rise to jurisdictional error.
Mr. Poynder sought to distinguish this situation, as being an example of the exercise of the adjournment power, with what he said occurred with the “passing” of the “second hearing” date of 23 February 2004. He submitted that even though the hearing did not proceed on
23 February 2004, because of the initiative of the applicant's granddaughter who wrote to the Tribunal on 20 February 2004 (CB 122), the hearing of 23 February 2004 was nonetheless abandoned (“abandonment”) rather than “adjourned”, because:
1)No new hearing date was allocated.
2)The setting down of a “new hearing” went into abeyance up until the “third invitation” issued to the applicant on 21 June 2004 advising of a hearing date on 5 July 2004, a period of more than three months later.
3)With the invitation of “21 July 2004” it was requested that the applicant complete a new “Response to Hearing Invitation” form (CB 137).
4)The Tribunal itself recognised on 23 February 2004 that the proceedings had “lapsed”.
Mr. Poynder’s submission was, in essence, that following the “abandonment” of the hearing on 23 February 2004, and given the factors set out above, that the Tribunal was required with any subsequent invitation, to comply with the statutory requirements.
For this sequence of events to be fully understood, in addition to what appears at what I have numbered items 7 to 22 (see paragraph 4 above) in the extract from the Tribunal's decision record (see CB 171 to CB 173), the sequence of relevant events must also be viewed in context of what appears in “AE1”, being the printout of the Tribunal's electronic record of activity in relation to this application before it.
Mr. Poynder specifically referred to the following from that narrative:
“Hearing rescheduled on 20/02/2004 by PRECSA.
23/2/04 Received medical certificate and request for postponement of hearing by mail. R Saranu
25/204 [sic: 25/2/04] Letter faxed to Health Services Australia confirming the booking of medical assessment for applicant. E. Chiu
25/2/04 Letter (express post) sent to applicant notifying her of the medical assessment the Tribunal has arranged for her to attend. E Chiu
27/2/04 Applicant's grand daughter called to confirm the applicant’s attendance to the medical assessment. I informed her that a hearing would be set down 17th March 04 depending on the result of the medical assessment. E Chiu
15/3/04 Spoke with Margaret McCormack (Health Services Aust) who informed me that the Med assessment confirmed that the applicant was unfit to attend a hearing. She said the Med report would be forthcoming by Wed 17th March 04. Member informed and applicant's grand daughter informed that the hearing intended for 17th March 04 will be postponed. E Chiu
Hearing cancelled on 15/03/2004 by PRECSA.”
Mr. Poynder’s submission was that in all these circumstances, what arises is that no “new hearing date” was allocated. While the Tribunal “internally” reserved 17 March 2004 for this purpose, no invitation was sent to the applicant to notify her of this hearing date, which in any event was “abandoned” following receipt of the doctor’s report. Further, he submitted that the setting down of “a new hearing” went into abeyance, which he described at the hearing before the Court as having the effect of vacating the hearing until the “third invitation” was issued to the applicant three months later on 21 June 2004 - advising of the hearing date of 5 July 2004.
Mr. Poynder’s argument was that this was in “stark contrast” to the relevant periods in SZFIH (one day), SZEFM (14 days), SZGWD (19 days). He argued further, that there was support for his proposition, in that the circumstances outlined above indicated that there was a “vacation” of the hearing invitation. Further, that with the invitation of 21 June 2004 (CB 137) the applicant was requested to complete a new “Response to Hearing Invitation” form. [No new hearing date plus three month gap plus new Response to hearing form equals abandonment of hearing invitation for scheduled hearing on
23 February 2004]. Ultimately, he argued that the Tribunal itself “recognised” that the entire proceedings had “lapsed” when it recorded in its decision record at CB 172 that:
“On 21 June 2004, after 3 months had elapsed, the Tribunal wrote to the applicant inviting the applicant to attend a hearing of the Tribunal on 5 July 2004.”
He emphasised that the use of the word “elapsed” went to the issue that the Tribunal saw the invitation to hearing as having “lapsed”, and that in writing to the applicant on 21 June 2004 the Tribunal stated that it was inviting the applicant to attend “a hearing” not “an adjourned hearing”.
In short, Mr. Poynder’s submission on this point was that as the hearing had been “abandoned” or “vacated” as a result of the factors outlined above, any subsequent invitation to a hearing with the Tribunal required compliance with the relevant statutory requirements.
Further, he submitted that even the hearing, proposed for 17 March 2004 was abandoned, and that it was clear that it was abandoned at the initiative of the Tribunal. This was such as to put the matter outside what was said in SZDQO. The argument was that as it was the Tribunal that made the appointment for the applicant to see the relevant medical practitioner on 3 March 2004, and as it was the Tribunal that “vacated” the hearing date of 17 March 2004 when the doctor advised that the applicant was not fit to attend the hearing, then the abandonment of this hearing (which was done at the instigation and initiative of the Tribunal) meant that any subsequent invitations had to meet and comply with the statutory requirements. The invitation of 21 June 2004 for the hearing scheduled on 5 July 2004 did not comply because it did not provide the prescribed 14 days notice.
Further, that while the hearing on 5 July 2004 did not proceed again at the initiative of the applicant (who requested the postponement by letter of 1 July 2004), in the circumstances this hearing was not adjourned, but abandoned, because no new hearing date was given and the matter went into “abeyance”, again for the reason of awaiting the determination of the applicant's health. Again, any subsequent invitation was required to comply with the statutory requirements and the invitation issued on 4 November 2004, notifying the applicant of a new hearing date on 25 November 2004, did not comply in that it did not contain a statement to the effect of s.426A of the Act, and nor did it provide the prescribed 14 days notice.
In summary, Mr. Poynder’s position was that irrespective of whether or not the “original” invitation of 24 December 2003 met the statutory requirements, this would not “save” the subsequent irregular invitations because the hearings on 20 February 2004, 17 March 2004 and 5 July 2004 were not adjourned, but were in fact vacated or abandoned by the Tribunal so that the subsequent hearing dates were “new hearings”. Further, that the hearing on 17 March 2004 was vacated on the initiative of the Tribunal not the applicant. In part, in support of his argument Mr. Poynder seeks to rely on particular words appearing in the Tribunal's decision record, and in the Tribunal's case log - (“cancelled” and “elapsed”), and on gaps between the provision of new hearing dates, to argue that at certain specific points the Tribunal ceased to exercise its adjournment power, and that subsequent invitations to a hearing required compliance with the statutory obligations.

Mr. Johnson's position was that the Tribunal had complied with the relevant statutory obligations by way of its letter of 24 December 2003. What followed over the next 11 months was an exercise of the Tribunal's adjournment power at the explicit or implicit request of the applicant, such as to bring what occurred within the ambit of SZDQO. In particular, he referred the Court to paragraph [29]:
“…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 submission was that, when read plainly, the material before the Court now shows that the entire process of rescheduling the hearing date occurred as a result of the applicant's “requests”. Further, that even if there was any point in this process where the rescheduling was due to an act of the Tribunal, where it could be said that the Tribunal was the instigator of the rescheduling, then the respondent's position was that SZEFM applies, and binds this Court, and the adjournment power in s.427 does not depend on its availability on who initiates the adjournment, or indeed, upon the reason for the adjournment.

Consideration

First, I should note that in seeking to discern whether the Tribunal's decision is infected with jurisdictional error, it is relevant to note, as Mr. Poynder quite rightly reminded the Court, the majority Judgement in SAAP requires “strict” compliance with the relevant statutory provisions (albeit in SAAP the Court was concerned with s.424A).
The issue therefore is not whether the Tribunal acted reasonably, or with justification, or even explanation for what it did, but simply whether or not there was compliance with the relevant statutory obligations.
With reference to what I have already set out above, in my view the Tribunal did comply with the relevant statutory requirements in its letter of 24 December 2003 (the Tribunal's decision record at CB 172 to CB 175, and taking into account the matters set out in the case log). The question is therefore, on the circumstances before the Court now, with the relevant authorities in mind (that is Federal Court authorities derived from matters on appeal from this Court), whether what happened subsequently can be seen as requiring at some point or points, further compliance with the statutory obligations, and in particular ss.425, 425A and 426A of the Act. The Tribunal complied with the relevant statutory obligations with its letter of 24 December 2003. For the reasons set out below I do not consider that there was any further obligation on the Tribunal to additionally comply with the relevant periods of notice in respect of subsequent letters and additionally in the case of the letter of 4 November 2004, to contain a statement to the effect of s.426A of the Act, such as any failure to do so would reveal jurisdictional error on the part of the Tribunal’s decision. In my view what occurred subsequent to the letter of invitation to a hearing of 24 December 2003, with the series of subsequent communications between the Tribunal and the applicant was, as
Mr. Johnson submits, an exercise in the Tribunal’s adjournment power pursuant to s.427(1)(b) of the Act.
It is important to note, albeit not necessarily ultimately determinative of the issue, that the Tribunal itself saw these events as being, as the heading to this section in its decision record dealing with these events reveals, as “Adjournment Requests”. Its narrative is liberally sprinkled with the words “adjourn”, or “adjournment”. With reference to the item numbers that I have assigned to the matters set out at CB 170 to CB 175 see in particular items 5, 8, 9 and 10 in this regard. I agree with Mr. Johnson's submission that on any reading of all the documents before the Court now, there is nothing to show that the Tribunal abandoned the idea that there would be a hearing to which the applicant had been invited to attend and give evidence.
The applicant's complaint that the use of the word “cancelled” (in the case log) in relation to the hearing scheduled for 15 March 2004, somehow denotes an abandonment of the hearing, in my view, is to both read this word out of context, and to confuse “hearing” and “hearing date”. What was plainly meant by whoever made this entry in the Tribunal's case log (there was no evidence before the Court as to who “PRECSA” referred to) was that the hearing which had been “intended” for 17 March 2004 could no longer go ahead because of the applicant's medical condition as most recently assessed by “Health Services Aust”.
This needs to be seen in context. Importantly, the hearing of
23 February 2004 did not go ahead because the applicant (through her granddaughter) ultimately provided a medical report to the Tribunal, on 23 February 2004 (dated 19 February 2004), advising that she was not able to attend the hearing, either in person, or by telephone, on the scheduled day of 23 February 2004. That is, clearly, that it was the applicant herself (such as to bring the situation squarely within SZDQO) who expressly sought a postponement, or adjournment (such as to bring it within SZEFM) of the hearing. The medical report which was provided by the applicant (CB 123) gives only approximate date of when the applicant may be fit to attend the hearing:
“… It will take some time for the tablets to kick into her and thus kindly post-phone her interview either personally or by phone for at least 2 months so that I can stabilise her.”
Given the medical advice it is not surprising that the Tribunal was unable to set a specific date for the hearing to proceed.
It is important to note that the Tribunal itself saw the granddaughter's request on behalf of the applicant on 18 February 2004 (CB 120 and CB 171.6 - item 9 and see also 18/2/04 and 20/2/04 in the Tribunal’s case log) as a request for “an adjournment of the scheduled hearing” (in context meaning the hearing date of 23 February 2004). The fact that no new hearing date was specifically notified to the applicant (as opposed to “internally allocated”) does not in my view support the proposition that the hearing of 23 February 2004 was “abandoned rather than adjourned”. That the hearing did not go ahead on that date was clearly at the instigation of the applicant, and not the Tribunal. That no “new” hearing date was specifically notified to the applicant, does not detract from the fact that the Tribunal saw itself, and can be seen to be exercising (as it expressly stated), its power to adjourn the hearing date to another date. The case log reveals at “item 20/2/04”:
“… she states that the report gives… an approximate date of when her grandmother may be fit to attend a hearing.”
As outlined above at paragraph [24] and [26], in SZEFM at [12] Bennett J., made reference to the dictionary meaning of adjourned. That no “formal” notification of the “new” hearing date occurred immediately at that time does not, in my view, detract from the Tribunal's exercise of its adjournment power in the plain sense as referred to by Her Honour in SZEFM. In my view, Mr. Poynder with respect, confuses the setting down of a new hearing date with the concept of a completely new hearing by seeking to import some time limitation into the Tribunal's power to do what it expressly said it was doing - which was to adjourn the hearing date pending the resolution of the applicant’s medical condition. I cannot see that any such limitation is contained in s.427 of the Act, nor that the granting of the adjournment requires the contemporaneous setting of a new hearing date. Plainly, in the circumstances before me, this did not occur because of the medical uncertainty as to the applicant's capacity and in particular, as to the timing of when she would be fit to attend the hearing before the Tribunal. Further, there is nothing in the plain dictionary meaning of “adjourned” (Macquarie Dictionary, Revised Edition) that limits the understanding of adjournment to the putting off to a specific date. Also, the Oxford English Dictionary (Second Edition) (parts of which were also referred to the Court) provides:
“Adjourn…(1) To appoint (one) a day for his appearance …(2) To defer or put off (a time, action or state)… to another day; also indefinitely; to postpone, defer, put off.”
And:
“Adjournment… The act of adjourning, or of putting off till another day, or indefinitely.”
Clearly, what is contemplated is that while an adjournment may be to a specified other day, it may also be indefinite. I also note that as sometimes used in a legal, or Court context, adjourned “sine die” is defined in the Macquarie Dictionary Revised Third Edition as:
“…without fixing a day for future action or meeting.”
This is consistent with the Latin meaning of the term, literally “without day”.
The applicant's argument is also that the Tribunal itself recognised, on 23 February 2004, that the entire proceedings “lapsed”. This is said to be supported by what the Tribunal stated in its decision record at CB 172.4 where it said:
“On 21 June 2004, after 3 months had elapsed, the Tribunal wrote to the applicant inviting the applicant to attend a hearing of the Tribunal on 5 July 2004.”
The Court is reminded, with the making of this submission, of the High Court’s direction in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 that a Tribunal decision should not be overly scrutinised with an eye attuned to error. In other words, scouring a Tribunal’s decision looking for one word which may suggest on its own something different to what is plainly intended when read in context. The use of the word “elapsed” in this part of the Tribunal's decision record does not in my view, when properly read in context of what surrounds it, and in particular what preceded it, mean that the Tribunal sought to draw a line between what had occurred previously, and what was to occur in the future with the setting of a new hearing date. The setting of a new hearing date at this time (CB 133 and CB 172.3) was always subject to the medical advice as to the applicant’s availability. The Tribunal’s record reveals that the Health Services Australia doctor, after discussing his findings with the applicant's own doctor, indicated:
“He diagnosed a major depressive disorder and stated the applicant would not be fit to attend a Tribunal hearing for 3 months.” [Paragraph [4] above – item 13]
In the very next line the Tribunal says:
“…[A]fter 3 months had elapsed, the Tribunal wrote to the applicant inviting the applicant to attend a hearing…”
That is, it wrote to the applicant to set a “new” hearing date after the passage of time advised by the relevant medical advisers.
Nor can the fact that the Tribunal said “a hearing”, and not “an adjourned hearing” be said in all of the circumstances, when viewed plainly in context, to be “evidence” that it was no longer considering adjournment of what it had previously started.
Further, the applicant's complaint that there was no “formal” invitation issued to the hearing on 17 March 2004, and thereby no compliance with the statutory requirements, is again in my view a misreading of what has occurred. That there may have been an intention on the part of the Tribunal's employee (and even on the part of the relevant Tribunal member) to schedule a further hearing date for 17 March 2004, was clearly, as stated, dependent on “the result of the medical assessment” (see item “27/2/04” in the case log). I cannot see that such an intention, in the circumstances, denotes an abandonment on the Tribunal's part of what it saw as the exercise of its adjournment power. No “formal” notification of the hearing date occurred because no “new” date was set. It was always subject to the applicant’s medical availability. I cannot see that it can be said that the there was a failure, in the circumstances, to comply with the relevant notice period, (by failing to send a “formal” notice by way of letter) when no firm date had been set for the rescheduling. Nor can I see that this could be said to be indicative of the Tribunal’s abandoning of the earlier date such as to cause the notification of any subsequent dates to be compliant with the relevant statutory obligation as to the notice period.
Further, I do not agree that, in any event, the hearing (and in context it must be emphasised the hearing date) was “also abandoned” at the initiative of the Tribunal because it was the Tribunal that made the appointment for the applicant to see the Health Services Australia doctor on 3 March 2004 (I note that in the applicant’s written submissions the doctor is referred to as “Dr. Walker”, but it appears from other documentation before the Court that it was in fact a
“Dr. Kipling”).
Again, with respect, this is to focus on one detail in isolation, without looking at the total context of how these events unfolded. It is clear that right from 15 January 2004, whether initially as it was said as a result of a car accident, or subsequently as it was said based on the events that had occurred in her home country, the applicant was unable to attend a hearing of the Tribunal because of medical reasons. Throughout most of the entire relevant period it was the applicant's medical condition, that led to the failure to attend at the various scheduled hearing dates.
In all therefore and focusing first specifically, with the events leading to the (at best) intended hearing date of 17 March 2004 (and I note in a written submissions that at paragraph 53 the reference is to “hearing date”). The applicant submitted a medical report from her own medical practitioner dated 19 February 2004 (CB 171 – paragraph [4], item 11, and CB 123) seeking a postponement (which the Tribunal plainly saw as a request for an adjournment) for two months. The Tribunal arranged for the applicant to see a psychiatrist for the purposes of getting proper advice on the applicant's capacity to attend a hearing before it, and this was done in circumstances where the applicant's own medical advice submitted to the Tribunal was from a general practitioner. The subsequent report provided by the psychiatrist was plainly given after having discussions with the applicant's own doctor.
The result of this, incidentally, was that even allowing for the one month that elapsed between the report provided by her own doctor, dated 19 February 2004, and the report of the psychiatrist on 17 March 2004, the medical advice was that the applicant would not be able to attend a Tribunal hearing for a further three months on top of that.
The Tribunal was plainly faced with a situation where medical evidence before it was such that the applicant could not attend the hearing date which had been previously scheduled. The Tribunal’s referral to the psychiatrist cannot be seen as anything else, in my view, than the Tribunal's attempt to ascertain from someone more suitably qualified, given what was said to be the applicant's medical condition (her own doctor, a general practitioner, advised that she had “developed anxiety with depression”) whether it would be possible to schedule a further date for the hearing to take place. The initiation of this chain of events regarding the applicant's medical condition, and unfitness to attend before the Tribunal, was clearly initiated by the applicant herself. In my view, the Tribunal was merely responding to the applicant's continuing (“initiative”) as to why she could not attend. I cannot see that the hearing date of 23 February 2004 was rescheduled other than at the applicant’s initiative. In applying what was said in SZDQO, this does not oblige the Tribunal to meet the relevant statutory obligations with any notification of subsequent hearing dates.
Further, I cannot see that anything done by the Tribunal in this regard can be said, together with all the other matters that I have addressed, to have caused a “break” in what I can only describe as the one and the same transaction. That is, the transaction commenced by the Tribunal's letter of 23 December 2003 to invite the applicant to a hearing. What follows subsequently in my view, is plainly and simply a series of adjournments of the hearing date. On one instance an adjournment without a specific “new” date firmly set, and a consequent series of adjournments due to the applicant’s inability, to attend at the series of appointed dates and ultimately her lack of satisfactory explanation for the failure to attend the last scheduled hearing date. This is such as to bring the rescheduling within the ambit of the Tribunal’s adjournment power and as stated in SZEFM to put it beyond the need for the Tribunal to comply with the statutory requirements on each subsequent occasion.
The same can be said in relation to the applicant's complaint deriving from the relevant fact that the hearing on 5 July 2004 did not proceed. The applicant concedes this was again at her initiative, as she requested that it be postponed in her letter of 2 July 2004. But, I cannot see for similar reasons to those set out above that this hearing can be said to have been abandoned, and not adjourned, simply because no “new” subsequent hearing date had been given by the Tribunal, such as to make subsequent notifications of hearing dates subject to the statutory requirements as to notice periods.
Further, Mr. Poynder’s submission that the Tribunal’s letter of 21 June 2005 (CB 137) which notified the 5 July 2004 hearing date contained as an enclosure a “Response to Hearing Invitation” form (CB 137.7). He argued that this was indicative of the Tribunal having “broken” the sequence of events such that it could no longer be said that it was purporting to exercise its adjournment powers. The form signified that the invitation to hearing process was begun again. The failure to provide the requisite notice period on this and subsequent occasions was therefore in breach of the Tribunal’s relevant obligations as to the relevant notice period.
I do not accept this submission. I note that on the material before the Court now there does not appear that there was any “invitation of
21 July 2004”. In context however this appears to be a reference to the letter of 21 June 2004 (CB 137). This certainly stated that it enclosed a “Response to Hearing Invitation” form. It is not clear however why
Mr. Poynder has picked on this one letter in this regard. All the other letters notifying of the various hearing dates also contain a statement to this effect (see CB 110, CB 119 and CB 158). It is quite plain that by enclosing the “Response to Invitation Hearing” form the Tribunal was seeking to obtain an indication from the applicant as to her availability and intention in relation to each of the scheduled hearing dates.
I cannot see that the inclusion of this form or a reference to it in the relevant letter (whether 21 June 2004 or the others) denotes an intention on the part of the Tribunal, or evidence, that the Tribunal was seeking to issue the invitation to hearing “afresh” on each of the subsequent occasions, or that it was exercising, in the circumstances, anything other than its adjournment power.
Nor do I agree with Mr. Poynder’s submission that the letter of
4 November 2004 (CB 158) sent to the applicant to notify her of the date of 25 November 2004 can again be seen as some separate and distinct action on the part of the Tribunal such as it could be said that it was seeking to commence afresh the obligation contained in s.425 of the Act. The common thread in relation to the applicant's inability to attend the hearing on the dates scheduled (and even proposed) was her medical condition. By November 2004, this amounted to a period of over 10 months since the applicant's first approach to the Tribunal on 15 January 2004 (CB 112 to CB 113). That the Tribunal notified the applicant of “new hearing” dates is plain. But that somehow, in all the circumstances, this denoted some break in the sequence following the Tribunal’s original discharge of its obligation to invite the applicant to hearing pursuant to s.425, and to comply with the requirements of s.425A, is not in my view made out. The whole sequence of events from February 2004 to November 2004 commenced with the applicant's advice to the Tribunal that she was unable to attend the hearing on the scheduled day due to medical reasons. While originally the applicant’s difficulty was as it arose from her grand daughter’s car accident:
“My grandmother took it very badly…” (CB 112.7)
and subsequently included a broader condition, for example:
“… give her time to recover from depression…” (CB 159.7)
it was always her medical condition which was at the heart of her inability to appear (either in person or by telephone) before the Tribunal. This remained unchanged throughout the relevant period, and up to the Tribunal's ultimate exercise of its discretion to proceed without giving any further opportunity to the applicant beyond the many opportunities already given to her to attend. The Tribunal discharged its statutory obligations by its letter of 24 December 2004, and what followed was a sequence of events, in my view, plainly tied to that initial invitation to a hearing. That there was strong medical evidence, at least initially, that the applicant should be given an adjournment of the hearing date, is also plain. But I do not accept arguments put forward by Mr. Poynder, for the reasons set out above, that there was a break in this chain of events such as it could be said that the Tribunal did recommence afresh, on a number of occasions, and turn its mind to commencing from the beginning the process obliged by s.425 of the Act on each of those occasions.

The Tribunal's actions were all geared, in my view, towards the same objective. That was to facilitate the applicant's appearance at a hearing before it. That is, the hearing contemplated by s.425. The mandatory requirement to invite the applicant to such a hearing was in my view clearly complied with, as was the relevant notice period and other relevant statutory requirements on the first occasion (February 2004).
I should also note specifically that the applicant’s complaint about the invitation of 4 November 2004 (CB 158) was not only that it did not comply with the prescribed notice period, but that it did not contain a “statement to the effect of s.426A of the Act” (paragraph 53(i) of the applicant’s written submissions). If what is meant by the applicant’s submissions is that it did not contain a statement as to the possible consequence of not appearing at the hearing being that the Tribunal may proceed to make a decision without further notice, then while not stated in the “usual format” in such letters, this advice is contained in this letter at CB 158.5 where the Tribunal states:
“… the hearing will proceed on the information currently before the Tribunal and the Tribunal will make a decision on your case without further notice.”
As stated above, in my view, the statement as to the effect of s.426A that must be contained in the letter of invitation to the hearing does not require the exact wording of s.426A to be reproduced. Section 425A(4) requires that any notice of an invitation to appear “must contain a statement of the effect of s.426A”. This was plainly contained in the letter of 4 November 2004. In any event, as set out above, and for the reasons given above, both on application of what was said in SZDQO and the authority of SZEFM, it was not necessary for the Tribunal to have done so, given that it had already complied with this statutory requirement.
Although not raised before me, I should just note that in terms of the Tribunal's discretion available pursuant to s.426A, it was in my view open in all circumstances before it, for the Tribunal to have proceeded to make a decision on what had been put before it without taking any further steps to enable the applicant to appear before it. The applicant was invited to a hearing pursuant to s.425 to appear before the Tribunal, and ultimately, following a series of adjournments of the actual hearing date, as set out above, the Tribunal advised the applicant of a “further hearing” (CB 173.9 at item 24 – 158). In context, this is clearly a reference to the further hearing date that had been set for
25 November 2004. The applicant did not attend the hearing on that scheduled occasion (CB 174.2 – item 26 and CB 162). The Tribunal plainly considered the circumstances relevant to the exercise of its discretion pursuant to s.426A (see CB 174.3 to CB 175.1). It took into account, in exercising its discretion, the history of the applicant's inability to attend at earlier occasions due to her medical situation. However, it noted (CB 174.5):
“There is no medical evidence to suggest that between 12 October 2004 and 4 November 2004 there was any medical reason to prevent the applicant responding to the Tribunal's letter of
12 October 2004.”
The applicant continued to assert that her medical condition was such that she could not attend at any hearing date. On 2 November 2004 (CB 155) she advised that she continued to take medical treatment and could not comment on the Tribunal’s letter. She failed to take any action to provide evidence from a medical practitioner, nor to take up the opportunities offered by the Tribunal for this purpose, opportunities which had been successful in the past in getting the applicant an adjournment of the hearing date, and to show, or explain, her inability to attend. The Tribunal was entitled, in all the circumstances, to find that the applicant’s failure to attend scheduled, and relevant, medical appointments plainly linked to whether the Tribunal should further adjourn the hearing and the applicant’s “lack of response” (CB 174.9) to information put to her for comment and her “refusal to attend” (CB 174.10) and actual failure to attend, the hearing scheduled for
25 November 2004, was such as to cause it to exercise the discretion available to it to proceed to a decision without taking any further action to enable the applicant to appear before it. I can see no error in this regard.
In all, the applicant’s complaint before the Court now is not made out and no jurisdictional error is evident as asserted by her application to the Court. The application is dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 11 December 2006