SZIMG v Minister for Immigration and Citizenship
[2008] FCA 368
•20 March 2008
FEDERAL COURT OF AUSTRALIA
SZIMG v Minister for Immigration and Citizenship
[2008] FCA 368MIGRATION – Refugee Review Tribunal invited applicant for review to hearing pursuant to s 425(1) Migration Act 1958 (Cth) – applicant for review responded by signing ‘response to invitation for hearing form’ saying that he did not want to attend hearing and that he consented to tribunal deciding review without taking any further action to allow or enable him to appear before it – whether signing form indicated that ‘applicant consent[ed] to the Tribunal deciding the review without the applicant appearing before it’ pursuant to s 425(2)(b)
MIGRATION – whether tribunal’s statement that its decision was made on a date before it was handed down had any legal effect – whether s 430B(4) operated to make date of decision date on which it was handed down
MIGRATION – discretion of Court to withhold relief – no evidence that useful result would ensue from grant of relief
Held: dismissing appeal; by signing response to invitation for hearing form, applicant for review consented to tribunal deciding review without him appearing before it under s 425(2)(b) – once that occurred, applicant for review had no entitlement to appear by reason of s 425(3)
By force of s 430B(4), date of decision is date on which it is handed down – tribunal’s internal actions prior to handing down decision did not have legal effect as a decision
Relief withheld because no useful result could ensue
WORDS AND PHRASES: ‘applicant consents to the Tribunal deciding the review without the applicant appearing before it’, ‘date of the decision’, ‘date on which the decision is handed down’
Migration Act 1958 (Cth), ss 415(2), 420, 422B(1), 425, 425A, 430, 430A, 430B
Applicant NAFF 2002 v Minister for Immigration (2004) 221 CLR 1 cited
ASIC v DB Management Pty Ltd (2000) 199 CLR 321 cited
Minister for Immigration v SZFML (2006) 154 FCR 572 applied
Minister for Immigration v Bhardwaj (2002) 209 CLR 597 cited
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 cited
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 followed
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 cited
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 followed
Zimpel v Allard (1904) 2 CLR 117 appliedSZIMG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2226 OF 2007RARES J
20 MARCH 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2226 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIMG
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
20 MARCH 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2226 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIMG
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
20 MARCH 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Refugee Review Tribunal invited the appellant to a hearing pursuant to s 425(1) of the Migration Act 1958 (Cth) because it was unable to reach a decision in his favour on the materials then before it. The hearing was to take place on 9 February 2006. In response to the invitation the appellant wrote back saying that he did not wish to attend the hearing and consented to the tribunal proceeding to determine the review without it. The tribunal then made a decision to affirm the decision of a delegate of the Minister refusing the appellant a protection visa. The tribunal’s decision was said by it to have been made on 6 February 2006, some three days before the scheduled hearing.
On 7 February 2006 the tribunal sent a letter to the appellant notifying him that it would hand down its decision on 16 February 2006. There is no evidence as to when, if at all, the appellant received the letter of 7 February 2006, but no complaint is taken that he was not notified of the decision when it was actually handed down on 16 February 2006. The tribunal’s written decision handed down on 16 February 2006 recorded that the decision itself had been made on 6 February 2006. The appellant says that the tribunal had no statutory authority under the Act to make a decision prior to his failure to attend the scheduled hearing on 9 February 2006.
The trial judge dismissed the appellant’s application for constitutional writ relief which had raised a number of other grounds. The only ground argued on the appeal was the one I have described above.
THE LEGISLATIVE SCHEME
Under s 415(2) of the Act, the tribunal is authorised to affirm, vary or set aside a decision and to substitute a new decision, as well as to remit the matter for reconsideration in accordance with its directions or recommendations. In carrying out its functions the tribunal is required to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420(1)). And, in reviewing a decision, the tribunal is not bound by technicalities, legal forms or rules of evidence. It is required to act according to the substantial justice and the merits of the case (s 420(2)). Division 4 of Pt 7 of the Act contains an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with, as provided in s 422B(1). Critically, the Act provides in Div 4 of Pt 7 (in the form of the sections in February 2006):
‘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.
…
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.
…
430 Refugee Review Tribunal to record its decisions etc.
(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
…
430A Tribunal must invite parties to handing down of decision
(1)This section applies to any decision on a review by the Tribunal other than the following decisions:
(a) a decision that is given orally;
(b)a decision on the application of a person who is in immigration detention.
(2)The Tribunal must invite the applicant and the Secretary to be present when the decision is handed down.
(3)The Tribunal must give the applicant and the Secretary written notice of the day on which, and the time and place at which, the decision is to be handed down. The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
…
430B Tribunal decision to be handed down
(1)This section applies to any decision on a review by the Tribunal other than the following decisions:
(a) a decision that is given orally;
(b)a decision on the application of a person who is in immigration detention.
…
(4)The date of the decision is the date on which the decision is handed down.’ (emphasis added)
THE FACTUAL CONTEXT
The tribunal wrote a letter to the authorised representative of the appellant on 10 January 2006 informing it that the tribunal had considered the material before it but was unable to make a decision in his favour on that information alone. The letter invited the appellant to a hearing to give oral evidence and present arguments in support of his claims. He was also told that he could ask the tribunal to obtain oral evidence from other persons. (I should note that there was no argument concerning the question whether the tribunal’s invitation to attend the hearing of 10 January 2006 contained a statement of the effect of s 426A as required by s 425A(4). Accordingly, I need not deal with that issue.)
The letter appointed a hearing for Thursday 9 February 2006 at 1.00pm at the tribunal’s offices in Sydney. Accompanying the letter was a response to hearing invitation form. (No such form is contemplated in Div 4 of Pt 7 of the Act.) That form included the following:
‘DO YOU WANT TO COME TO A HEARING? Please Tick BOX 1 OR BOX 2
1. R NO, I/We do not want to come to a hearing
I/We consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.’
The appellant signed the form (which included the tick in the box) and dated it 31 January 2006. He caused it to be returned by facsimile to the tribunal. The next step was that the tribunal wrote to his migration agent on 7 February 2006 informing it that the tribunal had considered all the material relating to his case and had made its decision. This letter said that the decision would be handed down on 16 February 2006. The decision record of the tribunal notes that the date the decision was signed was 6 February 2006 and that it was handed down on 16 February 2006.
The appellant gave no evidence that he changed his mind after signing the consent form. There was no evidence that the appellant attended, at the nominated time and place for the hearing on 9 February 2006, or that he decided not to do so in consequence of any communication from the tribunal to him that it had already made a decision prior to that date.
THE TRIAL JUDGE’S DECISION
The appellant originally had argued before his Honour (SZIMG v Minister for Immigration [2007] FMCA 1724) among other things that, in substance, his migration agent had told him to sign a response to hearing invitation form issued by the tribunal indicating that he did not want to come to the hearing and that he consented to the tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. The appellant gave evidence before his Honour.
His Honour found that by signing the form, the appellant had given his consent to the tribunal deciding the review without him appearing before it within the meaning of s 425(2)(b) of the Act. That finding has not been challenged.
THE APPELLANT’S ARGUMENT
The appellant does not suggest that he was in any way prejudiced by the tribunal having made a decision on 6 February, rather than on 9 February coming to exactly the same decision. No doubt this was because he had communicated he did not wish to attend a hearing and had consented to the tribunal proceeding. His only contention was that the tribunal had no power to make a decision prior to 9 February. This is because s 426A was, the appellant argued, the tribunal’s only source of power to make a decision once the appellant had been invited to a hearing under s 425.
The appellant argued that the proper construction of the Act raised issues of importance beyond the facts of his own case. He pointed to the possibility that even if an applicant for review responded to the invitation from the tribunal by saying that he or she did not wish to attend a hearing, there was no statutory authority for the response to the invitation for hearing form to be framed in the way it was. He argued that an applicant for review could change his or her mind and still arrive at the tribunal at the time appointed in the invitation. He contended that this possibility showed that the tribunal could not make a decision on 6 February, rather than on 9 February even if it came to exactly the same decision because s 426A did not authorise the tribunal to make a decision earlier than the time specified in the invitation.
The appellant also responded to the Minister’s argument that the trial judge’s finding of consent to the tribunal deciding the review without him appearing before it did not authorise the tribunal to make a decision prior to the day, time and place at which he had been invited under ss 425(1) and 425A(1) to appear because s 426A did not permit such a course to occur. He contended that even if an applicant for review lost an entitlement to appear before the tribunal under s 425(3) by consenting to the tribunal deciding the review without that applicant appearing before it in accordance with s 425A(2)(b), the tribunal still had authority to permit the applicant to appear before it at the hearing. He contended the statutory scheme left a discretion in the tribunal to permit an applicant to appear although he or she was not entitled to do so provided he or she turned up on the day at the time and place at which the hearing had been scheduled and to which he or she had been invited. Thus, he argued, the tribunal could not make a decision before the date and time it had fixed for the hearing.
CONSIDERATION
(1) DOES THE APPLICANT FOR REVIEW’S CONSENT FOR THE TRIBUNAL TO DECIDE THE REVIEW WITHOUT A HEARING ALLOW THE TRIBUNAL TO MAKE THE DECISION BEFORE THE SCHEDULED HEARING DATE?
Neither counsel was able to refer to any decision directly on point. However, in Minister for Immigration v SZFML (2006) 154 FCR 572 at 585-587 [54]-[64] Spender, French and Cowdroy JJ considered the operation of Div 4 of Pt 7 of the Act in the context where an applicant for review had instructed her migration agent that she wished to attend a hearing of the tribunal in response to its invitation under s 425(1), but the agent, purportedly on her behalf informed the tribunal that she did not wish to appear.
Their Honours referred to the fact that the tribunal had followed a similar administrative procedure to that used here. It had combined the invitation under s 425(1) with a notification of the date, time and place of the appearance pursuant to s 425A(1) (SZFML 154 FCR at 586 [61]). They went on to consider what they identified as the ‘logical structure of ss 425 and 425A’. They held that this involved the following theoretical sequence (SZFML 154 FCR at 586 [62]).
(1)The tribunal considers whether it should decide the review in the applicant’s favour on the basis of the material before it. If it so finds, it can make the decision immediately and end the review. Otherwise it has to issue an invitation unless one or other of the conditions in ss 425(2)(b) or (c) is satisfied.
(2)The tribunal asks the applicant for review whether he or she consents to it deciding a review without him or her appearing before it. If that consent is given, the applicant is not entitled to appear and the tribunal can then proceed to decide the review.
(3)However, if the applicant does not give that consent, the tribunal must consider whether ss 424C(1) of (2) applies to him or her, and if not, then the invitation must be issued.
(4)The tribunal must give the applicant notice of the day on which, and the time and place at which he or she is scheduled to appear. A minimum time between the giving of that notice and the actual hearing is prescribed in Reg 4.35D.
(5)If the applicant does not appear at the hearing, then the tribunal is authorised to make a decision on the review without any further steps to allow or enable the applicant to appear before it.
(6)Notwithstanding the above, the tribunal has a discretion to reschedule an applicant’s appearance before it.
In SZFML 154 FCR at 586-587 [63]-[64], the applicant’s migration agent had notified the tribunal that the applicant for review had consented to it deciding the review without her appearing before it, in circumstances where she had not authorised the agent to do so. Their Honour’s said (SZFML 154 FCR at 587 [64]):
‘No question of the application of s 426A arises. That provision only operates where an applicant has been invited to appear before the Tribunal and does not appear at the time and place at which the applicant is scheduled to appear. In this case the Tribunal proceeded on the basis of the apparent consent tendered on behalf of SZFML. It did not proceed on the basis of her non-appearance at a scheduled hearing.’
Thus, Spender, French and Cowdroy JJ analysed the situation as one in which the tribunal had proceeded on the basis of the apparent consent pursuant to s 425(2)(b) rather than on the basis that the applicant for review had not appeared at the hearing (see also SZFML 154 FCR at 587 [65]). Earlier their Honours had referred to Applicant NAFF 2002 v Minister for Immigration (2004) 221 CLR 1 at 10 where McHugh, Gummow, Callinan and Heydon JJ said at 10 [26]-[27]:
‘[26] Although the Tribunal was obliged to provide an informal mechanism of review (s 420(1)), and although the Tribunal was not bound by “technicalities, legal forms or rules of evidence” (s 420(2)(a)), the Act established important requirements of a substantive kind, several of which were designed to ensure that applicants for review received procedural fairness. The duty of the Tribunal under s 414(1) to review the delegate's decision (which arose once the appellant had applied for review) continued until one of the outcomes described in s 415(2) was arrived at, for example, the affirming, the varying or the setting aside of the decision.
[27]One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.’
The Minister argued that the response to the invitation to hearing form and his Honour’s finding demonstrated that the appellant had consented under s 425(2)(b) to the tribunal deciding the review without him appearing before it. He pointed to what Spender, French and Cowdroy JJ had said in SZFML 154 FCR at 585 [58], namely that where one of the conditions set out in s 425(2) is satisfied, the entitlement to appear before a tribunal established under s 425(1) either did not come into existence or ceased to exist and the tribunal’s duty to invite the applicant for review to appear before it was thus discharged. The appellant riposted that the structure of s 425 implied that the consent referred to in s 425(2)(b) had to antedate the issue of the invitation and that once issued the invitation could not be withdrawn.
I do not accept the appellant’s argument. After issuing an invitation but before the date of the hearing, the tribunal could decide the review in favour of the applicant for review. If it did that, further conduct of the review would be otiose. Not only would there be no need for a hearing but there would be nothing for the applicant for review to put to the tribunal, since the decision already made by it would have granted the applicant what he or she had applied to get in the first place. A reconsideration by the tribunal after issuing an invitation to a hearing under s 425(1) resulting in a decision to grant the applicant for review a protection visa would enable the tribunal to pursue the objective in s 420(1) of providing a mechanism of review that, among other things, was quick. There would be no purpose in continuing to a hearing or suspending the notification to the applicant for review of the favourable decision until some future time simply because, the earlier review of the tribunal was that a hearing ought to take place. A saving of the tribunal’s time, public expense, and, possibly, expense for the applicant would ensue from the immediate notification of a favourable decision prior to the scheduled hearing date.
The appellant did not advance any reason why the Parliament would have intended the Act to be construed in a way which prevented the tribunal from coming to a decision in an applicant for review’s favour before a hearing either on reconsideration of the original material before it or on subsequently becoming aware, say, of country information, perhaps recent or up to date or from conducting another review, which supported a result favourable to that applicant. This beneficial construction is open. There is no reason to reject it: ASIC v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35].
Again, it is difficult to see any purpose in the legislative scheme to require the tribunal to go through the empty form of holding a hearing when it had been informed by the applicant for review that he or she consented to the tribunal deciding the review without him or her appearing before it, even after the invitation to attend the review had been issued. Such a consent, if given after the applicant for review has been informed that the tribunal did not consider that it should decide the review in the applicant’s favour on the material before it and thus wished to invite him or her to a hearing so as to persuade it to the contrary, would be an informed consent to a decision being made against the interests of the applicant. Such a consent engages the operation of s 425(3) so that after it has been given the applicant is no longer entitled to appear before the tribunal. As Spender, French and Cowdroy JJ considered, once the applicant for review consents to the tribunal deciding the review without him or her appearing before it, the tribunal can proceed under ss 425(2)(b) and (3) to determine the application for review on the basis of the consent: SZFML 154 FCR at 587 [64]. Their Honours distinguished that mode of the tribunal proceeding from its acting on the basis of the power to decide the review under s 426A(1) following the non-appearance of an applicant. The applicant for review by rejecting an invitation to appear under s 425(1), can waive his or her right to a hearing. That has the effect of an applicant for review consenting to the tribunal deciding the matter without him or her appearing before it.
For these reasons, the tribunal was entitled to proceed on the basis that the applicant had consented to it determining the review pursuant to s 425(2)(b).
(2) WHAT WAS THE DATE OF THE DECISION?
The appellant also argued that by dint of s 430B(4), if a decision is not made orally or the applicant is not in immigration detention (s 430B(1)), the date of any decision of the tribunal is the date on which it is handed down. He argued that this provision had the effect of deeming the decision to have been made on a date different to that which it actually records as being the date on which it was made. The appellant argued that until a decision to which s 430B(1) applied was handed down, the tribunal could change its mind on the course or decision it had previously decided to adopt.
Similarly, as Minister for Immigration v Bhardwaj (2002) 209 CLR 597 held, a decision affected by jurisdictional error is treated as being no decision at all (see also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ). There, the tribunal had made a decision in ignorance of a medical certificate provided by the applicant for review to the registrar of the tribunal notifying it that he was unable to attend at the hearing. The Court held that in law no decision had been made and the tribunal was free to exercise its powers on the review, as it had done, once it became apprised of the true position that it had not afforded the applicant for a review hearing in accordance with the Act.
The appellant here argued that because the tribunal’s decision recorded that it was made 10 days before it was handed down, the deeming in s 430B(4) that it was in fact made when it was handed down cannot overcome what the decision record actually states.
I am of opinion that this argument ought be rejected. The tribunal was authorised to make a decision on the review without the applicant for review appearing before it once his consent was given under s 425A. By force of s 430B(4) the date of the decision is the date on which it was handed down, not i.e. 16, not 6, February 2006. Whatever the tribunal had done internally prior to its handing down the decision did not have the legal effect of finalising the review, because a necessary step in that process was the handing down of the decision in accordance with s 430B. That only occurred on 16 February 2006 and s 430B(4) provided that that was the date of the tribunal’s decision. The tribunal had no statutory authority to make a written decision having legal effect where, as here, the applicant for review is not in immigration detention, earlier than the date of handing down its decision under 430B(4).
DISCRETION
His Honour rejected both limbs of the appellant’s argument. The appellant has not shown him to have erred. However, I prefer to base my decision on his Honour’s finding of consent to the tribunal deciding the review without the appellant appearing before it. I am of opinion that the absence of any evidence that the appellant acted or intended to act inconsistently with that consent at any time prior to the decision being handed down on 16 February 2006, demonstrates that the outcome of the review was not affected by the tribunal making up its mind on 6 February 2006, three days before the scheduled hearing. There was nothing unfair about the tribunal doing so in the circumstances that the appellant had said that he did not want a hearing and consented to the course being followed, which the tribunal adopted, of proceeding to make up its mind. Even so, until the decision was handed down on 16 February 2006, it was not made because s 430B(4) so provided.
The Court has a discretion to refuse to grant a writ of prohibition where an applicant unjustifiably allows an inferior court to proceed to judgment in excess of its jurisdiction without having set up the objection. The conduct of a party seeking the remedy of prohibition is relevant to the exercise of the discretion to grant it: see Zimpel v Allard (1904) 2 CLR 117 at 120 per Griffith CJ, Barton and O’Connor JJ applying Willes J’s advice to the House of Lords in Mayor of London v Cox (1866) LR 2 HL 239 at 283. I am of opinion that the principle applies equally to an administrative body exceeding its jurisdiction when a party before it unjustifiably (in the context of his, her or its subsequent challenge) allows it to do so.
In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [28] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said that the grant of a constitutional writ is a matter of discretion. They said that the discretion is exercised by the Federal Magistrates Court and this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) on the same principles as are applicable by the High Court. They approved what Gordon and Gummow JJ had said in Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at 108 [56] that some, though not exhaustive, guidance as to the circumstances which may attract an exercise of the discretion to refuse relief to an applicant could be found in the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400. They held that the writ of mandamus could be withheld if a more convenient and satisfactory remedy existed, if no useful result could ensue, if the applicant had been guilty of unwarrantable delay, or if there had been bad faith on his or her part, either in the transaction out of which the duty to be enforced arose, or towards the Court to which the application was made. They concluded that (Ozone Theatres 78 CLR at 400):
‘The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’
Here, because of s 430B(4) the appellant was only adversely affected by the decision of the tribunal when it was handed down on 16 February 2006. He consented to the tribunal deciding the matter without affording him a hearing. He cannot point to any consequence, amounting to an unfairness, in the procedure which the tribunal adopted of making a decision three days before the hearing date it had indicated he could have, but which he consented not to use. On the evidence, he lost no opportunity to appear before the tribunal, give evidence or present arguments. This is because he did not want to do so and had told the tribunal that.
As Gaudron and Gummow JJ went on to say in Aala 204 CLR at 109 [59]:
‘The concern is with observance of fair decision making procedures rather than with the character of the decision which emerges from the observance of those procedures.’
Here, the tribunal did not do anything to depart from a fair decision-making procedure in light of the notification by the appellant that he consented to the tribunal deciding the review without affording him a hearing. I am of opinion that no useful result could ensue from granting constitutional writ relief to the appellant.
For these reasons I would dismiss the appeal with costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 20 March 2008
Counsel for the Appellant: T Owen (pro bono) Counsel for the First Respondent: MP Cleary Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 5 March 2008 Date of Judgment: 20 March 2008
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