SZLYR v Minister for Immigration
[2008] FMCA 1322
•28 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1322 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – where Tribunal officer telephoned applicant’s doctor about his fitness to attend a hearing – postponement of hearing granted – whether Tribunal failed to comply with s.424 of the Migration Act – if so whether the Court in the exercise of its discretion should decline relief. |
| Migration Act 1958 (Cth), ss.65, 422B, 424, 424A, 425, 426A, 441A, 441G |
| Abedi v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 186 Minister for Immigration and Citizenship v SZLFX [2008] FCAFC 125 Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389 Re McBain; Ex parte Australian Catholic Bishops Conference and Another (2002) 209 CLR 372 Re Minister of Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 Stead v State Government Insurance Commission (1986) 161 CLR 141 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 SZGBI v Minister for Immigration and Citizenship [2008] FCA 599 SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 SZJSP v Minister for Immigration and Citizenship [2007] FCA 1925 SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 SZKTI v Minister for Immigration and Citizenship and Another (2008) 168 FCR 256 |
| Applicant: | SZLYR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 320 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 28 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr J Mitchell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 320 of 2008
| SZLYR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 22 January 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australia in April 2007 and applied for a protection visa. His application was refused and he sought review by the Tribunal on 20 July 2007.
The applicant claimed to have practised Falun Gong in China. He claimed that in April 2004 he had been arrested, beaten and sentenced to one year’s detention. He also claimed that he subsequently lost his job and was forced to report to the local residential committee. He left China and eventually came to Australia.
In its findings and reasons the Tribunal detailed at some length the fact that it had invited the applicant to attend a Tribunal hearing and what occurred thereafter. It described the circumstances in which the applicant did not attend a Tribunal hearing.
In its findings and reasons the Tribunal accepted that the applicant was a citizen of the People’s Republic of China, but based on the insufficient detail he had provided, it was not satisfied that he invoked refugee protection obligations in Australia. It had regard to the fact that the applicant did not provide much, if any, detail on matters such as how he practised Falun Gong; why he did not remain in countries he had travelled to such as Singapore, Malaysia and Thailand if he feared persecution in China; how he “developed another five colleagues to practice together”; how he was detained; why he was considered an organiser; how on his release he managed to travel to the countryside to spread Falun Dafa; why he feared persecution from the authorities, including the residential committee and; why he would continue to “spread Falun Gong” in the PRC.
Based on the claims made by the applicant, the Tribunal was not satisfied that all the statutory elements for the grant of a protection visa were made out. It was not satisfied that the applicant's claimed fear was well-founded, that the harm he feared was sufficiently serious to constitute persecution for the purposes of the Convention, or that an essential and significant reason the applicant feared harm was for at least one of the reasons in the Refugees Convention. Accordingly it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in the People’s Republic of China. It was not satisfied he was a person to whom Australia had protection obligations.
The applicant sought review of the Tribunal decision by application filed in this Court on 12 February 2008. The only ground in the application is that:
1. Jurisdictional error has been made.
2. Procedural Fairness has been denied. I was sick and I couldn't attend hearing.
In an accompanying affidavit the applicant claimed to be a Falun Gong practitioner.
In addition, counsel for the first respondent raised the possibility that the Tribunal may have breached s.424 of the Migration Act 1958 (Cth) because a Tribunal officer made a telephone oral inquiry of a doctor who had given a certificate of sickness for the applicant that had been provided to the Tribunal in connection with a request for his postponement of the Tribunal hearing.
It was submitted for the first respondent that to the extent the Tribunal inquiries breached the obligations in s.424 any such breach was of no consequence to the Tribunal’s decision, that no useful result would be achieved by the grant of the relief sought and that the Court should exercise its discretion to refuse relief.
In the course of the hearing I raised with counsel for the first respondent recent decisions of the Full Court of the Federal Court in relation to the principles applicable to the exercise of the Court's discretion to refuse relief, notwithstanding the fact of a jurisdictional error. The hearing was adjourned to enable that issue to be addressed by both parties and to give the applicant (who is self-represented) the opportunity to respond to further submissions from the first respondent in relation to that issue.
It is necessary to outline what occurred in relation to the Tribunal's invitations to the applicant to attend a hearing in light of the ground in the application and the possible application of s.424 of the Migration Act.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 20 July 2007. The Tribunal acknowledged receipt on 23 July 2007. On 21 August 2007 the Tribunal wrote to the applicant under s.424A of the Act care of his authorised recipient inviting comment on information set out in an attachment to the letter in relation to aspects of the applicant's claims. The Tribunal also wrote to the applicant by letter dated 22 August 2007 addressed to his authorised recipient inviting him to attend a hearing on 16 October 2007. It advised him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone and that it may make a decision without further notice if the applicant failed to attend the scheduled hearing. In a response to hearing invitation form dated 6 September 2007 it was indicated that the applicant wished to attend the Tribunal hearing. The applicant also responded to the s.424A letter by letter dated 12 September 2007.
However by letter dated 11 October 2007 the applicant's migration agent advised the Tribunal that the applicant had a doctor's certificate and back pain and could not come to the hearing scheduled for 16 October 2007. A medical certificate dated 7 October 2007 in the Court Book states that the applicant was suffering from “back pain – L leg pain” and “rest 08/10 à 22/10/07”.
A Tribunal case note dated 15 October 2007 records that the Tribunal had received a request for postponement of the hearing with a medical certificate and that the presiding member had asked the writer “to phone the doctor and get his opinion on whether or not [the applicant] would be able to attend a hearing at the Tribunal”.
The Tribunal officer recorded: “At the instruction of the presiding Member I phoned [the named doctor] and asked his opinion whether or not [the applicant] would be able to attend a hearing at the Tribunal on 16 October 2007. [The doctor] said without his patient's permission he will not release any information”. The Tribunal officer recorded that he also asked the doctor whether he had issued a medical certificate and that the doctor confirmed that he had issued a medical certificate for the applicant and that his opinion was that the applicant was unfit for his work from 8 October to 22 October 2007. The doctor was also recorded as having said that he could not make any comment without review of the applicant's medical condition because he was not sure about his current medical condition.
It is this telephone conversation between the Tribunal and the applicant’s doctor that raises the s.424 issue as the Tribunal did not request the information by one of the methods specified in s.441A of the Act (see s.424(3)) and the requirements of s.424B were not met.
It is apparent from the material before the Court that on 15 October 2007 the Tribunal agreed to postpone the hearing. By letter of that date the Tribunal wrote to the applicant care of his authorised recipient indicating that the hearing would be rescheduled and that when a new hearing date was available it would write to the applicant again.
A further invitation to a hearing of 20 November 2007 was sent to the applicant (by facsimile to the authorised recipient) dated 17 October 2007. It again advised that the Tribunal had considered the material before it and indicated that the Tribunal may make a decision without further notice if the applicant failed to attend.
A Tribunal case note records that a Tribunal officer phoned the authorised recipient on 15 November 2007 inquiring whether the invitation had been received and whether the applicant would be attending the hearing on 20 November 2007 and that the authorised recipient apologised for not replying, but said that the applicant still had back pain and a doctor's certificate for another month and that she would fax documents to the Tribunal. Documents were provided by facsimile dated 15 November 2007. A further medical certificate for the applicant indicated "rest" from 6 November 2007 to 6 December 2007 on the basis that the applicant was suffering from “discogenic back pain L4/5 disc protrusion”.
On 15 November 2007 the Tribunal acknowledged this further request for postponement and rescheduled the hearing for 11 December 2007. It again indicated that the Tribunal may make a decision without further notice if the applicant failed to attend the scheduled hearing.
However on 27 November 2007 a response to hearing invitation form was received by the Tribunal dated 26 November 2007 on which the applicant ticked the box marked:
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 to appear before it.
Added to the printed form were the words: “I am sick and in bed.”
The Tribunal then wrote to the authorised recipient on 27 November 2007 referring to the invitation of 17 October 2007, its agreement to the postponement and the rescheduling of the hearing from 20 November to 11 December 2007. It acknowledged that on 27 November it had received a response to the hearing invitation stating that the applicant had declined the invitation and continued:
Please note that [the applicant] has 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.
That letter is marked as having been sent to the authorised recipient with a copy to the applicant’s home address. It appears from the Tribunal decision and the Court Book that the copy sent to the applicant's home address was returned to sender. It is also apparent that the Tribunal endeavoured to hold the hearing on 11 December 2007 but that the applicant did not attend.
On 13 December 2007 the Tribunal wrote again to the applicant care of his authorised recipient setting out the history of invitations to a Tribunal hearing, including the fact that a Tribunal officer had telephoned the applicant’s treating doctor to investigate the extent of his illness, but that the doctor, who agreed he had provided the certificate, declined to release any information without the patient's permission. The Tribunal recorded that it had agreed to reschedule the hearing of 16 October 2007. The letter went on to describe what had occurred thereafter (as set out above) and the fact that the Tribunal had scheduled a third hearing to which the applicant had responded that he did not want to attend, although he had also put on the form that he was sick and in bed. The Tribunal acknowledged that a protruding disc could cause great discomfort, but stated that there was no corroborating evidence that the applicant was still sick and in bed. The Tribunal referred to its letter of 27 November 2007 and to the fact that the applicant did not appear at the hearing on 11 December 2007. It advised that pursuant to s.426A of the Act it had decided to make a decision on the review without taking any further action to enable the applicant to appear before it.
However notwithstanding all of this, the Tribunal also advised:
… the Tribunal will consider any further evidence or submissions lodged with it prior to its decision being handed down. Depending on that further evidence or submissions, the Tribunal may consider rescheduling a fourth hearing. If the applicant continues to be unwell, the Tribunal could arrange a telephone hearing with him.
Otherwise the letter went onto invite the applicant to a handing down scheduled for 20 December 2007. That letter was sent by fax on 13 December 2007. There is no indication in the material before the Court of any response to that letter. The Tribunal wrote again on 18 December 2007 with the same information and invitation to provide further evidence or submissions and again referring to the possibility of a rescheduled hearing or telephone hearing and rescheduled the handing down to 22 January 2008. No response was received. The Tribunal handed down its decision on 22 January 2008.
In its reasons for decision the Tribunal set out these circumstances and the fact that pursuant to s.426A it had decided to make a decision on the review without taking any further action to enable the applicant to appear before it. It referred to the fact that it had indicated in December 2007 that it would consider a further hearing or a telephone hearing, but that it was not aware of any further information or submissions being lodged prior to the decision being handed down.
As set out above, on the limited information before it the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations.
The general assertion in the application of 12 February 2008 of a lack of procedural fairness because the applicant was sick and could not attend the Tribunal hearing is not made out. I note that these are proceedings to which s.422B of the Act applies (see Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214). Insofar as this involves a contention that the Tribunal's exercise of its discretion pursuant to s.426A of the Act miscarried, that is not established on the material before the Court. The Tribunal considered the circumstances as set out above. There is no evidence that it ignored or failed to have regard to any material before it relevant to the exercise of its discretion in that regard or that it otherwise fell into jurisdictional error in the exercise of its discretion. Nor is there anything to suggest that it failed to meet its obligations under the Act to invite the applicant to a Tribunal hearing under s.425 or otherwise failed to accord procedural fairness to the applicant.
In written submissions counsel for the first respondent raised and addressed the possibility that the fact that the Tribunal, through a Tribunal officer, made a telephone inquiry of the applicant's doctor (who had provided a medical certificate to the Tribunal) constituted a failure to comply with s.424 of the Migration Act. Section 424 is as follows:
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) The invitation must be given to the person:
(a) except where paragraph (b) applies -- by one of the methods specified in section 441A; or
(b) if the person is in immigration detention -- by a method prescribed for the purposes of giving documents to such a person.
Section 441A requires delivery by hand, dispatch by prepaid post, fax, email or other electronic means. The communication with the medical practitioner was not in that form and it appears from the file note that it did not address the requirements of s.424B.
The applicant who is self-represented did not address this issue. It was submitted for the first respondent that the circumstances were not within s.424(2) as an invitation to a “person to give additional information”, on the basis that the initial information did not come from a particular person as the medical certificate appeared on a printed form bearing the name of two doctors.
However the doctor in question had provided a medical certificate that the applicant gave to the Tribunal. Contrary to the suggestion of counsel for the first respondent I do not regard the fact that the medical certificate appears on a printed form which bears the names of two doctors as meaning that it did not come from a particular person (the applicant’s treating doctor).
The medical certificate had one of the doctor's names crossed out. The Tribunal contacted the other named doctor who confirmed that he provided the certificate which emanated from a surgery in which those two doctors apparently practised. The Tribunal invited one of those persons to give additional information.
In SZKTI v Minister for Immigration and Citizenship and Another (2008) 168 FCR 256 the Full Court of the Federal Court considered circumstances in which a Tribunal telephoned a person whose name had been provided to it as one of the signatories to a letter provided by the applicant in support of his claim. That letter invited the Tribunal “to contact [the named person] on [a mobile telephone number] should you have any further enquiry”. The letter of support was signed by both the person in question and another person. Subsequently the Tribunal telephoned the named person to make certain inquiries. The information obtained was part of the reason for rejecting the applicant's claim for a protection visa. The Court considered whether the Tribunal could simply telephone that person and ask him questions without following the procedures in ss.424(2) and (3).
The Full Court in SZKTI found (at [43] – [45]) that the telephone call to the named person amounted to an invitation to that person to give additional information to the Tribunal, that he was being asked to volunteer information, that the Tribunal was not asking under s.427(3)(a), that s.424(2) applied and that the Parliament did not authorise the Tribunal to get additional information from a person pursuant to its general power under s.424(1) without complying with the code of procedure set out in ss.424(2) and (3).
In those circumstances the Full Court found that there had been a jurisdictional error as the Tribunal had failed to follow the procedure specified in the Act for the provision by a person invited to give additional information of that information. (Also see the discussion in SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 per Buchanan J with whom Stone and Tracey JJ agreed and Minister for Immigration & Citizenship v SZLFX [2008] FCAFC 125).
In this case, the fact that the original medical certificate was provided to the Tribunal by the applicant (not by the doctor) is not such as to mean that the Tribunal’s request of the doctor was not an invitation to give “additional” information within s.424(2) and subject to the requirements of s.424(3) (see SZKTI).
Hence when the Tribunal went back to the doctor that could be seen as an invitation to a person to give “additional” information in s.424(2) as in SZKTI at [43] rather than simply the Tribunal obtaining information from a third party on its own initiative (cf Abedi v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 186 at [20] – [21]).
However, in contrast to the position in SZKTI and SZKCQ, the “information” requested in this case was not information in relation to the substance of the applicant's claims to fear persecution. If s.424 is limited to information the Tribunal considers would be relevant to the applicant’s substantive claims, the section would not apply to the oral request made to the doctor and would not be breached in this case. However I note that unlike ss.424AA and 424A, s.424 is not limited to information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. There is nothing in the language of s.424, in particular sub-s.(2), to indicate that the section is limited to information of substantive relevance to the Refugee Convention grounds relied on by an applicant.
In the absence of any authority cited on this issue and given the approach take in SZKTI (see in particular [52] – [53] and SZKCQ per Buchanan at [59] – [72]) I have proceeded on the basis that the section is applicable in the circumstances of this case.
Thus, on the basis that s.424 extends to any information relevant to the conduct of the review (including information relevant to any decision about postponing a hearing or exercising a discretion under s.426A) it was not complied with in this case because the Tribunal failed to comply with s.424(3) and s.424B.
In SZKCQ at ([53] – [58]) Buchanan J rejected the suggestion that there was a distinction between mandatory requirements such as in s.424A and what had been submitted to be permissive requirements in s.424. His Honour held that whether or not it may seem necessary to do so, the failure to comply with a mandatory requirement meant that the Tribunal had not discharged its statutory function (as McHugh J said in relation to s.424A in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 at [77]). On this basis the Tribunal fell into jurisdictional error by failing to comply with s.424.
However the first respondent submitted that if there was a breach of s.424, in the particular circumstances of this case the Court should exercise its discretion to refuse to grant relief. Counsel for the first respondent prepared written submissions addressing recent authorities, in particular concerns that I raised in relation to the discussion of that issue in SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122.
Reliance was placed by the first respondent on general principles in relation to the exercise of discretion. As submitted, it is well established that relief in the nature of the constitutional writs is not as of right and there is authority to the effect that the court may refuse relief where no useful result would ensue from the granting of relief, notwithstanding that a breach of natural justice may be proven (R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389 at 400 and Re McBain; Ex parte Australian Catholic Bishops Conference and Another (2002) 209 CLR 372 at [80], [82], [114], [116], [125], [233], [282], [285] and [293]).
A variety of matters have been said to be relevant to the exercise of the discretion, including whether the result could not have been different based on the materials as they were before the decision-maker even if the applicant had been afforded procedural fairness (Stead v State Government Insurance Commission (1986) 161 CLR 141). If the result was inevitable, even if procedural fairness was not afforded, relief should be refused: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [29], [88] – [89] and [91]. On the other hand, where it cannot be said that compliance with requirements of procedural fairness could have made no difference, relief should follow: Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82.
It was acknowledged for the first respondent that where it was difficult to disentangle relevant breaches of natural justice from their impact on the relevant decision the courts have granted relief (see Aala).
The approach taken in relation to failures to comply with s.424A and other procedural fairness obligations in Part 4, Division 7 of the Migration Act is of assistance. In that respect, the first respondent referred to the decision of Middleton J in SZGBI v Minister for Immigration and Citizenship [2008] FCA 599. In that case it was contended that there was a failure by a Tribunal to comply with s.441A of the Act because the Tribunal did not invite witnesses who attended the Tribunal hearing to give evidence in the prescribed manner. The Tribunal had decided to take written evidence from the witnesses rather than oral evidence. This was held not to be an invitation to give additional information within s.424(2). It was also unsuccessfully argued that there was a breach of s.424 on the basis that the Tribunal failed to have regard to evidence obtained.
Middleton J found that there was no jurisdictional error and on that basis that he did not have to consider whether he should exercise his discretion to refuse relief in the event that jurisdictional error was found. However his Honour indicated at ([53] – [54]) that it would have been an appropriate case to refuse relief if the only jurisdictional error had been a failure to comply with s.441A on the basis that the asserted jurisdictional error could have made no difference to the outcome of the application for review.
The appellants in SZGBI had contented that in granting relief a useful result could ensue in that they could put their claims for protection before the Tribunal, including the evidence of the witnesses. However Middleton J observed that the witnesses had provided evidence and observed that even if the Tribunal had been obliged to give the invitations in writing (instead of orally as it had done) it could still have specified the scope and manner of giving evidence as it did. His Honour saw no reason to conclude that the evidence provided would have been any different to what was in fact provided. Moreover the appellants themselves had had ample opportunity to put their case which had been considered and rejected (at [55]). While those remarks were obiter, the decision does indicate that in some circumstances relief should be refused notwithstanding that a jurisdictional error in relation to the manner in which information is obtained may have occurred if the asserted jurisdictional error could have made no difference to the outcome of the review (and see SZBYR).
Similarly, in SZKGFv Minister for Immigration and Citizenship [2008] FCAFC 84 the Full Court of the Federal Court considered a failure by the Tribunal to address an invitation to an applicant to attend a Tribunal hearing correctly. The wrong postcode had been inserted on the letter sent to the applicant pursuant to s.424A of the Migration Act and on the invitation to a hearing. The applicant in fact received the invitation to the hearing, attended the hearing and it was said to be plain that he had lost no opportunity to present his case (see Re Minister of Immigration and Multicultural and Indigenous Affairs; Ex parte (2003) 214 CLR 1).
Their Honours indicated that were they to find there had been a jurisdictional error they would in the exercise of their discretion decline to grant relief given the clear absence of any practical injustice or even inconvenience to the appellant (at [13]). The Court referred to a lack of practical injustice as the basis for the exercise of the discretion to refuse relief. As Madgwick J stated in SZJSP v Minister for Immigration and Citizenship [2007] FCA 1925 at [29], to set aside the Tribunal's decision and require the reconsideration of the appellant's claims de novo in such a case would be “to allow the triumph of mere technicality over substance”.
The Full Court in SZKGF referred to the fact that their attention had been drawn to an appeal in SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 in which a differently constituted Full Court had at that time reserved its decision and which was said to raise similar questions as to whether there was a jurisdictional error and if so whether relief should be refused where a jurisdictional error had no material consequence. Relevantly, their Honours said (at [16]): “Despite the similar questions in the two appeals the factual differences are such that we do not consider that the decision in either of these appeals would necessarily determine the outcome of the other”.
In SZIZO one of the appellants had nominated an authorised recipient whose address was the same as the appellant. An invitation to a hearing had been sent to that address, but not addressed to the authorised recipient. The appellants attended the Tribunal hearing. The Court stated that there was no suggestion of unfairness or prejudice suffered by the appellants.
The Full Court found that there was a failure to comply with one of the mandatory procedures under the Migration Act and hence a jurisdictional error. It considered whether notwithstanding this relief should be refused.
Lander J (with whom Moore and Middleton JJ agreed) discussed (at [88] – [90]) the fact that there was good reason why the Tribunal should be required to give notice to the authorised recipient instead of or in addition to the applicant (having regard to matters such as some applicant’s lack of English-speaking ability, lack of access to translating services and social structures and the purpose of nomination of an authorised recipient by an applicant). In light of those factors the Court found that any failure by the Tribunal to comply with s.441G if uncorrected before the hearing took place or the decision was made meant that the Tribunal would have committed jurisdictional error. It was acknowledged (at [91]) that this led to the “rather absurd” conclusion that, while the appellant husband was aware of the invitation and all the appellants had attended the hearing and given evidence if they wished to do so and no unfairness or prejudice was visited upon them by reason of the failure to comply with the statutory obligation, there was nonetheless a jurisdictional error because of the Tribunal’s failure to comply with s.441G.
The Full Court in SZIZO did not exercise its discretion to refuse relief. While it referred (at [93]) to the suggestion for the first respondent that the Court should follow the approach of Madgwick J in SZJSP, reference was also made (at [93] – [95]) to the principles in SZBYR, SAAP and Aala in relation to the circumstances in which relief should be refused and the distinction between a breach of a procedural fairness provision and some other kind of jurisdictional error. Lander J referred at [95] to what McHugh J said in SAAP at [83] – [84] in relation to the fact that where the relevant breach “is the failure to observe fair decision-making procedures, the bearing of the breach upon the ultimate decision should not itself determine whether the constitutional writs of certiorari and mandamus should be granted.”
In SZIZO Lander J went on to state (at [97]):
It should be only in exceptional circumstances that a Court should refuse to issue the constitutional writs once the Court has determined that the Tribunal has failed to comply with its imperative statutory obligations to an applicant seeking a review of a decision of the delegate refusing the applicant a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligation to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted.
His Honour also indicated there was no suggestion the appellant husband knew of the breach, so that it was unsurprising that there was no complaint. However he observed that the Court did not know if the authorised recipient had learned of the invitation or suffered any prejudice.
Reference was made (at [99]) to SZKGF, as a case in which the Full Court in the exercise of its discretion refused to issue the constitutional writs where a s.424A notice omitted the appellant's postcode. However Lander J accepted that, as the differently constituted Full Court had observed in SZKGF, the “factual differences” between that case and the case in SZIZO were “such that the decision on either appeal could not determine the result in the other appeal” (at [99]).
Faced with these authorities the issue is whether or not I should exercise my discretion to refuse relief in the circumstances of this case. Having considered all the circumstances I am satisfied that the telephone contact with the doctor cannot be said to have had any impact whatsoever on the Tribunal’s review or decision-making procedures, let alone to have occasioned “any practical injustice or even inconvenience” to the applicant similar to the circumstances in SZKGF at [13]). In that sense it could have made no difference to the outcome of the review.
Importantly, it is clear that the applicant lost no opportunity to present his case as a result of this conduct. Whatever the Tribunal made of what the doctor is recorded as saying, it granted the applicant the adjournment of the hearing that he sought. It endeavoured on several occasions thereafter to afford him the opportunity to attend a hearing. The hearing was not “missed” or denied as a result of the breach of s.424. Ultimately the Tribunal not only held the hearing notwithstanding that the applicant had indicted that he did not want to attend, it also offered him a further opportunity thereafter to contact it if he wanted a telephone hearing or to put written submissions before it. No prejudice was suffered. Any breach of s.424 did not deprive the applicant of the possibility of a hearing or of a successful outcome to his review application (cf Aala at [56] – [57]).
There was clearly a lack of any practical injustice in the sense considered in SZKGF (and also see VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [56] – [57]). I am also satisfied that the breach could have had no effect on the Tribunal’s decision, which was clearly based on the fact that on the scant evidence before it the Tribunal was not able to be satisfied that the applicant met the criteria for the protection visa. That lack of satisfaction meant that it was bound to refuse the application consistent with the provisions of s.65 of the Migration Act. Whilst not directly analogous those cases in which with relief has been refused because a Tribunal decision affected by jurisdictional error is sustainable on reasoning unaffected by the breach, in this case, as in such cases, the breach could have had no effect on the decision.
Insofar as the Full Court in SZIZO may be said to have eschewed any consideration of practical injustice to an applicant as a consideration relevant to the exercise of the Court's discretion in relation to a jurisdictional error consisting of a breach of the provisions in Division 4 of Part 7 of the Migration (contrary to what seems to have been the approach taken in SZKGF), the Court in SZIZO did leave open at the very least that in “exceptional circumstances” relief should be refused, notwithstanding that there had been a jurisdictional error consisting of a failure by the Tribunal to comply with its imperative statutory obligations (at [97]). Insofar as it is necessary to establish exceptional circumstances, I am satisfied that the particular circumstances of this case are exceptional such that relief should be refused. The limited and non-responsive information obtained orally from the doctor was little more than confirmation as to the source and contents of the medical certificate. It did not address the issue of whether the applicant would have been able to attend a hearing, (which was the information sought by the Tribunal). The breach had no impact on the Tribunal’s subsequent procedure or on the decision. The Tribunal granted the postponement of the hearing sought by the applicant and went on to make what can only be described as every endeavour to give the applicant an opportunity to appear before it. The applicant was afforded an opportunity to attend another hearing. It is also relevant that the Tribunal had advised the applicant in the hearing invitation letters that it was unable to make a favourable decision on the information before it and an inference could be drawn from the reply to the invitation to hearing of 26 November 2007 and the absence of any response to the ultimate offer of the Tribunal that the applicant decided not to attend the hearing and was content (in the sense that he recognised) that the Tribunal would make a decision on the review without taking any further action to allow or enable him to appear before it.
I have also borne in mind that had the inquiry been made of the doctor in writing and otherwise in accordance with the statutory requirements, it would have made no difference because, despite the absence of a response to the information sought, the Tribunal exercised its discretion to grant the postponement of the hearing and the applicant's ultimate non-attendance at a hearing made it inevitable that the Tribunal would decide the matter in the manner that it had already foreshadowed in its invitations to the applicant, both before and after the inquiry it made of his doctor. In no way can it be said that the inquiry or the breach had any impact on the decision or the Tribunal’s decision-making procedures.
Finally, I note that the first respondent raised as a possible analogy the approach taken in cases such as Calvin v Carr [1980] AC 574 in relation to the circumstances in which a re-hearing de novo could cure a denial of procedural fairness at the first stage. This is not such a case. While one may draw a very loose analogy, in the sense that any failure by the Tribunal might on one view be said to have been overcome by the exhaustive steps that it took in order to afford the applicant the opportunity to attend a hearing and the fact that it granted the postponement sought, I do not consider that such cases are directly in point. However what such an approach does illustrate is the need to have regard to all of the facts and circumstances of a particular case.
On that basis even if there is a breach of s.424 of the Act, I am satisfied that the particular circumstances of this case are “exceptional” and that relief should be refused. Hence the application should be dismissed. Hence the application should be dismissed.
RECORDED: NOT TRANSCRIBED
The applicant has been unsuccessful and the respondent seeks that he pay the costs of these proceedings in the sum of $5,000. The applicant indicates that he does not have the funds available to meet costs of that order. However the applicant's present lack of funds is not a reason for departing from the general principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the first respondent in determining when and how to seek to recover such costs. I consider the amount is appropriate in the circumstances of this case, in light of the nature of this and other similar cases.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 22 September 2008
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