SZQCO v Minister for Immigration - [2011] FMCA 613

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQCO v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 613

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – Tribunal finding that the applicant’s fear was not well-founded – applicant represented by a migration agent who was unable to attend the Tribunal hearing because of an injury – Tribunal rejected the agent’s request for a later hearing date but undertook to decide at the hearing whether further submissions were required and, if so, time for submissions would be given – applicant’s agent requesting an opportunity to make further submissions the day after the Tribunal hearing – Tribunal making its decision the same day – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) considered.

Migration Act 1958 (Cth), ss.366A, 414, 422B, 424A, 424AA, 425, 425A, 426A, 427, 441A
Migration Regulations 1994 (Cth)

NAFF v Minister for Immigration [2004] HCA 62
Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1
SZLJD v Minister for Immigration [2008] FCA 1094
SZMCD v Minister for Immigration & Anor [2009] FCAFC 46; (2009) 174 FCR 415
SZOVP v Minister for Immigration & Anor [2011] FMCA 442

Applicant:

SZQCO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 611 of 2011

Judgment of:

Driver FM

Hearing date:

8 August 2011

Date of Last Submission:

7 September 2011

Delivered at:

Sydney

Delivered on:

21 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr R Chia, pro bono publico

Counsel for the Respondents:

Mr P Knowles

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed on 1 April 2011 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 611 of 2011

SZQCO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 9 March 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Nepal and had made claims of political persecution at the hands of the Maoists. The following statement of background facts relating to the applicant’s claims and the Tribunal’s decision on them is derived from the submissions of the parties.
The applicant is a citizen of Nepal.[1] He arrived in Australia on

2 March 2010 on an entertainment visa (Subclass 420)[2] and lodged an application for a protection visa on 19 March 2010.[3]
[1] Court Book (CB) 107, [43].
[2] CB 13.
[3] CB 1-24.
In support of his protection visa application, the applicant claimed to fear harm by Maoists in Nepal because he does not support the Maoists.[4] He claimed that he was mistreated by Maoists during the civil war in Nepal between 1996 and 2006 and that if he returns to Nepal they will attempt to extort money from him. He further claimed that the authorities in Nepal will not protect him.
[4] CB 104-105, [36]-[37].
The applicant attended an interview with the delegate on 20 August 2010.[5]
[5] CB 103, [26].
On 16 December 2010, the delegate rejected the applicant's protection visa application as the delegate found that the applicant did not have a genuine fear of harm, there was not a real chance of the applicant suffering persecution and the applicant's claimed fear of persecution was not well founded.[6]
[6] CB 57.
On 10 January 2011, the applicant lodged an application for review with the Tribunal.[7]
[7] CB 59-62.
The applicant attended a hearing before the Tribunal on 8 March 2011.[8]
[8] CB 102, [20].
By letter dated 10 March 2011, the Tribunal notified the applicant of its decision to affirm the decision under review.[9]
[9] CB 97-109.

Tribunal's decision

The Tribunal had regard to the Department's file relating to the applicant,[10] independent country information,[11] supporting documents submitted to the Tribunal on the applicant's behalf[12] and the applicant's oral evidence.[13]
[10] CB 102, [19].
[11] CB 105, [38].
[12] CB 104, [34].
[13] CB 104-107, [35]-[42].
The Tribunal found that, whilst the applicant may have been harassed and intimidated during the civil war, it was not satisfied that those difficulties have made the applicant a person of particular or ongoing interest to the Maoists either in his village or in wider Nepal.[14] This finding was supported by external sources which indicated that, since the end of the civil war in 2006, violence has been commonly restricted to the politically active.[15] It was further reinforced by the significant time period between the last alleged attack on the applicant in 2005 and his departure from Nepal in 2010.[16]
[14] CB 107, [45].
[15] CB 107, [46].
[16] CB 107-8, [47]
The Tribunal also found that, while the Maoists in Nepal have been implicated in extortion and other criminal activity, such activity is not now prevalent and those still at risk are successful and wealthy business persons.[17] The Tribunal was of the view that the applicant does not have the economic profile of a person who might be targeted by the Maoists for financial gain.[18] Nor did it accept that the applicant would be targeted because he has lived overseas.[19]
[17] CB 108, [49].
[18] CB 108, [50].
[19] CB 108, [51].
Accordingly, the Tribunal found the applicant's fears that he would be targeted by Maoists for reasons of political opinion or that Maoists would attempt to extort money from him were not well-founded.[20]
[20] CB 108, [48] and [52].
The Tribunal nevertheless went on to consider the applicant's claim that the Nepalese authorities would be unwilling or unable to protect him from the harm he anticipates. The Tribunal was satisfied that if the applicant requires state protection in Nepal in the reasonably foreseeable future it will be available.[21]
[21] CB 108, [53].
Overall, the Tribunal was not satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention.[22]
[22] CB 109, [55].

The judicial review application

These proceedings began with a show cause application filed on

1 April 2011. That application, on which the applicant formally still relies, contains the following grounds:
1. The Tribunal failed to comply with a mandatory procedure prescribed by the Act, in failing to comply with section 424AA(b)(iv) & Section 425 of the Act.
2. The Tribunal has wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution.
3. The Tribunal applied the wrong test in relation to whether or not a Convention reason was an essential and significant reason for the persecution being harassed by the Maoists.
At the hearing of this matter on 29 June 2011, I explored with the parties the issues in relation to those grounds, in particular the asserted breach of s.425 of the Migration Act 1958 (Cth) (“the Migration Act”). I drew attention, in particular, to the Tribunal’s refusal to delay the hearing before it in circumstances where the applicant’s migration agent (authorised representative) had notified the Tribunal that he was unable to attend, due to an accident. I also drew attention to statements made by the Tribunal in correspondence to the agent and to the applicant concerning the matter of the agent’s attendance and the consequence of his unavailability. I queried whether the correspondence from the Tribunal amounted to an undertaking which would have had to have been adhered to before the Tribunal completed the review. I made orders for the provision by the Minister of a transcript of the hearing conducted by the Tribunal on 8 March 2011 and adjourned the hearing so that the parties could present further evidence and written submissions. I completed the hearing on

8 August 2011 and invited any further written submissions from the parties by 7 September 2011. Further submissions on behalf of both parties were filed by that date.

The evidence and submissions

I received as evidence the court book filed on 10 May 2011. I also received the following exhibits:
·A1 Refugee Review Tribunal publication – “Information about Tribunal hearings”;
·R1 Transcript of Tribunal hearing.
The applicant filed written submissions on 4 August 2011 which address the asserted breach of s.424AA of the Migration Act in relation to country information. In oral submissions counsel for the applicant conceded that it would be difficult for the applicant to succeed on that ground in the face of authority relied upon by the Minister. In oral submissions counsel for the applicant contended that the Tribunal had breached s.425 of the Migration Act by falling into the error identified by the High Court in NAFF v Minister for Immigration [2004] HCA 62. The error is said to arise from the failure by the Tribunal to provide an opportunity for the applicant’s migration agent to make a submission after the hearing, consistently with an undertaking given by the Tribunal in correspondence to the agent before the hearing.
Grounds 2 and 3 in the application were not pressed.
The Minister contends that there could be no breach of s.424AA because s.424A was not engaged. The Minister further contends that there was no breach of s.425 as the Tribunal did not make any undertaking to invite written submissions after the hearing and merely advised that it would decide at the hearing if anything further was required from the applicant or his agent. The Minister submits that it cannot be inferred that the Tribunal did not make a decision on that issue.

Consideration

I accept the Minister’s submission that there was no breach of s.424AA. In SZMCD v Minister for Immigration & Anor [2009] FCAFC 46; (2009) 174 FCR 415 the Full Federal Court stated at [90]-[93]:
Section 424A(1) prescribes what must be done. What must be done is subject to the exceptions in subs (2A) and subs (3). Section 424AA is thus facultative--it is one way by which the Tribunal can satisfy the substance of what is required of it under s 424A(1). If it elects to invoke s 424AA, it may do so expediently and by way of oral communication rather than by written communication. Given the primacy of s 424A(1) and the exceptions to it, it would be absurd to interpret the section in a way which exempted country information from the s 424A(1) requirements but did not do so in respect of the s 424AA requirements.
In our view, the information covered by each section must be the same. Under s 424AA, country information simply need not be mentioned at all either because it is not information within the meaning of that term in s 424AA or because, if it is information within s 424AA, it:
(1) Will be the subject of appropriate particulars as contemplated by s 424AA(a) and the Tribunal will comply with s 424AA(b)(i) to (iv); or
(2) The Tribunal will not comply with some part of s 424AA.
Compliance with s 424AA will lead to the benefit afforded to the Tribunal by s 424A(2A). Non-compliance will cast the Tribunal back into s 424A. Upon being forced back into the s 424A requirements as a result of non-compliance with one or more of the requirements of s 424AA, the Tribunal will get the benefit of s 424A(3)(a) in respect of country information.
Thus, one way or another, in respect of country information, failure to comply with all of the conditions laid down in s 424AA will not constitute jurisdictional error.
The combined effect of ss.424A and 424AA of the Migration Act and SZBYR v Minister for Immigration [2007] HCA 26 is that a Tribunal must give an applicant either written or oral notice of information which forms the reason, or part of the reason, for its decision, except where that information falls within the exceptions specified in s.424A(3) of the Migration Act. Where that requirement is not fulfilled, the Tribunal will commit jurisdictional error giving rise to a right to relief.
It is clear from the Tribunal's record of decision that it reached its decision on the basis of the Department's file relating to the applicant,[23] independent country information,[24] supporting documents submitted to the Tribunal on the applicant's behalf[25] and the applicant's oral evidence.[26]
[23] CB 102, [19].
[24] CB 105, [38].
[25] CB 104, [34].
[26] CB 104-107, [35]-[42].
This information falls squarely within the exceptions specified in subsection 424A(3) and the Tribunal was not required to put it to the applicant in accordance with ss.424A or 424AA. It is made up only of information that is not specifically about the applicant and is just about a class of persons of which the applicant is a member,[27] that the applicant gave for the purpose of his application for review,[28] and that the applicant gave to the Department in support of his application for protection.[29]
[27] Section 424A(3)(a).
[28] Section 424A(3)(b).
[29] Section 424A(3)(ba).
The Minister concedes that the Tribunal referred to the applicant's interview with the delegate, which is specifically excluded from the exceptions contained in s.424A(3). However, the Tribunal notes at [27][30] of its reasons that the applicant essentially repeated his claims made during his interview with the delegate. There was no information arising from the applicant's interview with the delegate that formed the reason or part of the reason for the Tribunal's decision to affirm the decision under review that was not otherwise before the Tribunal and excluded by ss.424A(3)(b) and 424A(3)(ab). It follows that the Tribunal was not required to put that information to the applicant in accordance with ss.424A or 424AA.
[30] CB 103.

Did the Tribunal breach s.425?

Section 425 requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. This must be read in conjunction with s.425A, which specifies the form that the Tribunal's notice of invitation to appear must take.
The Tribunal invited the applicant to appear before it on 8 March 2011 at 1.00pm by letter dated 4 February 2011.[31] The invitation complied with the notice requirements set out in s.425A, as it:
a)clearly stated the date, time and place for the hearing in accordance with s.425A(1);
b)was dated 4 February 2011 and despatched the same day by fax to the last address for service provided to the Tribunal in the applicant's Tribunal application for review dated 10 January 2011, being one of the methods specified in s.441A in accordance with s.425A(2);
c)provided 32 days notice, which is in excess of the prescribed minimum period of notice set out in regulation 4.35D(b) of the Migration Regulations 1994 (Cth) in accordance with s.425A(3); and
d)contained a statement to the effect of s.426A, informing the applicant that if he failed to attend the scheduled hearing, a decision may be made by the Tribunal without it taking any further action to allow or enable her to appear before it.
[31] CB 67-69.
The Tribunal's letter of 4 February 2011 also stated:
The Tribunal will only change this hearing date for good reason. Please contact the Tribunal immediately if you are unable to attend the hearing on this date.[32]
[32] CB 68.
By letter dated 28 February 2011, the applicant's representative requested that the Tribunal defer the hearing for a period of two months because the representative had fractured his leg on 25 December 2010 and had been unable to work since that time.[33] Relevantly, the letter stated:
[33] CB 70.
I got nasty leg fractured on 25^th December 2010. I am currently recovering at home. I can not walk and have not gone to work since then. According to the treating specialist, I will not be able to walk for at least the next 4 months. However, I am expecting to go to office, at least part time, after two months with the help of [crutches].
The above applicant is not well educated and my presence at the hearing is very important for him.
For this reason, I would like to request you to defer the hearing for about two months from today’s date. I expect your co-operation in this matter.
It appears that the representative was orally notified on the same day that the presiding member would not defer the hearing. He wrote again on the same day:[34]
[34] CB 71-72.
I would like to refer to my letter lodged to your office this morning requesting deferral of the hearing for the above client. Tribunal member notified me that the presiding member decided not to defer the hearing.
…
My client is not well educated and he is intellectually poor. Based on my past experience, many misunderstanding may occur during the hearing between the applicant and presiding member because of the misinterpretation and / or cultural issues and / or intellectual capacity of the applicant. This may occur even in presence of an interpreter.
I have duty of care to my client to provide full professional support until the case is finally decided as per the agreement signed between him and me. To fulfil my duty to my client, to ensure the hearing runs without any misunderstanding, to ensure that the applicant’s cultural and intellectual aspects are considered during the hearing and to ensure that the [T]ribunal makes correct decision, my attendance is important. For this reason I have requested extension of hearing based on the circumstances not in my control. I have not been allowed to work by my doctor and I do not think that Tribunal expect me to attend the hearing putting my health at risk.
I again would like to request to extend the hearing for two months. If two months is not reasonably allowable time for extension please consider to defer the hearing for one month only. Risk of coming for hearing after a month is less than risk at present.
I request to consider my request based on the merit of my request.
I have attached evidence of my claimed leg fracture for your reference.
By letters dated 1 March 2011, the Tribunal declined this request and informed the applicant and the representative that the hearing would proceed as scheduled.[35] The letters initially sent to the applicant and his representative were withdrawn because of what was described as a “formatting error”. The replacement letter to the applicant’s representative relevantly stated[36]:
As you are aware, the adviser has a limited role to play at the hearing, and the hearing is essentially an opportunity for the applicant to discuss his claims with the Tribunal. In this regard, the Tribunal is confident that with or without an adviser, the applicant will not be disadvantaged in presenting his claims orally. The Tribunal will determine at the hearing whether further submissions are required and, if that is determined to be the case, then the applicant will be given time to provide further submissions. If that situation arises, the applicant may require your assistance.
[35] CB 74.
[36] CB 79.
By letter dated 7 March 2011, the representative provided a written submission and further supporting documents on the applicant's behalf.[37] The applicant attended the hearing alone on 8 March 2011 and gave oral evidence.[38]
[37] CB 84-95.
[38] CB 104, [35].
On 9 March 2011, the representative requested an opportunity to listen to the sound recording of the hearing and provide further written submissions.[39] As the Tribunal had given its decision on the same day[40] it did not consider the representative's request.
[39] CB 96.
[40] CB 99.
In NAFF, the Tribunal told the applicant at the conclusion of the hearing:
Given that there are some inconsistencies with regard to the dates of the detentions and the number of detentions, I will have to write to you about those.
So what I will do is to write to you in the next couple of days and you will have 21 days in which to respond to my questions and to put any more information that you wish to the Tribunal – see NAFF at [11].

Contrary to its statement set out in the previous paragraph, the Tribunal in NAFF did not write to the applicant. Instead, the Tribunal proceeded to hand down its decision to affirm the decision of the delegate.
McHugh, Gummow, Callinan and Heydon JJ considered the Tribunal’s obligation under the Migration Act to review the decision of the Delegate. Their Honours said at [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 (emphasis added).
The plurality, at [32], went on to consider whether the Tribunal had complied this obligation:
It is possible that the reason why the Tribunal member failed to send the promised questions was that, on reflection, she thought that everything she required had in fact already been put before her, or that a resolution of the perceived inconsistencies in the appellant's statements was not crucial in deciding the review against him. If either of these explanations, or any other explanation, existed, it is to be expected that the Tribunal member would have advanced it, either by a letter to the appellant or in her detailed reasons for decision. She did not do so. It is probable, when the workload under which the Tribunal labours is borne in mind, that the Tribunal member did not send the promised questions because she had forgotten or overlooked the fact that she had made the promise to send them. Her failure to give any indication otherwise suggested that her original impression that the review process was incomplete had not altered on reflection, and was soundly based. It would not be complete until the steps which she had thought could remedy its defects had been carried out. The failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant. (emphasis added)
The plurality went on to characterise the jurisdictional error committed by the Tribunal as a failure to afford the applicant procedural fairness: at [43] per McHugh, Gummow, Callinan and Heydon JJ.
The Minister submits that the jurisdictional error identified in NAFF is limited to a very specific context. Crucially, the High Court found that, at the conclusion of the hearing, the Tribunal had reached the view that it needed to ask the applicant further questions. As a result, at that stage, the review was incomplete. On the legislation applicable at the time, the Court held that the Tribunal could not proceed to make its decision until such time as:
a)the steps required to complete the review (i.e. giving the applicant the opportunity to respond to further questions) were complete; or
b)the Tribunal withdrew its request for the applicant to respond to further questions because it had come to the view that it could complete the review without the need for further questioning.
The issue arising in this case from the High Court decision in NAFF is whether, having regard to the letter sent to the applicant’s representative on 1 March 2011 and the statements made to the applicant at the hearing, the Tribunal committed jurisdictional error by reaching its decision without either:
a)inviting the applicant to make further written submissions; or
b)expressly advising the applicant that the Tribunal did not require further written submissions.
The transcript of the Tribunal hearing on 8 March 2011 indicates that towards the end of the hearing, the Tribunal member said:
Now what your adviser and you have done is you, you’ve emphasised this threat from the Maoists in Nepal. But the information from external sources and your own individual experience doesn’t indicate to me, doesn’t seem to indicate to me, that you would be a person who would be of any particular interest to the Maoists in Nepal. So these are the things that I’ll have to think about after we finish the hearing. Is there anything else you want to tell me or anything you want to ask me because I don’t have any more questions for you (emphasis added).
At the conclusion of the hearing, the Tribunal member said:
So I’ll make a decision some time this week and then I’ll send a copy to you and a copy to the Immigration Department.
When both you and the Immigration Department have been notified of the outcome of the review then our job here at the RRT is done.
We won’t have any further contact with you or involvement in your case (emphasis added).
The Minister contends that, for a number of reasons, in this case the Tribunal did not commit an error of the type identified in NAFF.
First, the Minister submits that on any view, this was not a case where the Tribunal was of the view that the review could not be completed on account of the applicant’s inability to put his case: c.f. NAFF at [27]. Indeed, at the conclusion of the hearing the Tribunal stated that it did not have any more questions for the applicant and that it would make a decision within a week: see transcript quoted at paragraphs 41 and 42 above. This acknowledgement by the Tribunal that it was in a position to reach a decision may be contrasted with the position in NAFF. The Minister submits that once the Tribunal had arrived at the position that the hearing was complete, it does not matter whether or not the Tribunal actually turned its mind to the letter of 1 March 2011. Rather, it was sufficient for the Tribunal to determine that it was in a position to reach a decision without receiving any more information from the applicant.
The Minister submits that the Tribunal’s comment that there were matters which it “would have to think about after the hearing” does not cast doubt upon the question of whether, at the end of the hearing, the Tribunal was in a position to complete its review. Viewed in its proper context, this statement is said to be simply a reference to the post-hearing contemplation which the Tribunal would undertake in any case prior to, and in the course of, preparing its reasons.
Secondly, unlike the position in NAFF, the Tribunal in this case did not make an unequivocal representation that further steps would be taken after the hearing. Rather, the representation in the Tribunal’s letter of

1 March 2011 was to the effect that the applicant would be asked to provide further submissions if the Tribunal was of the view that such submissions were required. In light of the conditional nature of the representation, procedural fairness did not require the Tribunal to delay handing down its reasons until the applicant made further written submissions: see SZLJD v Minister for Immigration [2008] FCA 1094 per Reeves J at [26].
Thirdly, the Minister submits that no error arises because the Tribunal did not expressly refer to its letter of 1 March 2011 at the hearing or in its reasons. This is said to be because the Tribunal by its letter did not specifically undertake to tell the applicant at the hearing whether or not it had determined if further submissions were required. Rather, the letter represented only that the applicant would be informed if further submissions were required. As a consequence, it was sufficient for the Tribunal to inform the applicant at the end of the hearing that it had no further questions of him and that it would make its decision “some time this week”.
Fourthly, the Minister contends that no jurisdictional error is demonstrated in this case even if the Tribunal’s letter of 1 March 2011 amounted to an undertaking to expressly inform the applicant at the hearing whether or not further submissions would be required. This is because a departure by the Tribunal from a previous representation does not amount to a failure to afford procedural fairness unless that departure caused substantive unfairness: see Re Minister for Immigration; Ex parte Lam(2003) 214 CLR 1 at [34] per Gleeson CJ.
The Minister submits that in this case, the fact that the Tribunal did not inform the applicant that further written submissions were not required did not, and indeed could not, create unfairness. This is because, by the end of the hearing, the applicant was on notice that the Tribunal had no further questions and that a decision would be made within a week. In contrast to the position in NAFF, the Tribunal’s statement at the conclusion of the hearing was not capable of causing the applicant to be mislead into thinking that the Tribunal would defer its decision until such time as the applicant had the opportunity to raise any additional issues in written correspondence.
The Minister further submits that there is no evidence that the applicant in this case has been prejudiced by the conduct of the Tribunal. The applicant has not led evidence of what additional written submissions he would have made if given the opportunity. It may be accepted that the applicant in NAFF was able to demonstrate jurisdictional error without leading evidence of this nature. However, the factual circumstances in NAFF were such that the applicant could not be expected to say how he would have answered questions that were never put to him: see NAFF at [34] per McHugh, Gummow, Callinan and Heydon JJ and at [75] per Kirby J.
This case is said to be quite different. It would have been open to the applicant to lead evidence of what additional submission he would have made if given the opportunity. He has not done so. Without such evidence it is said to be impossible to conclude that the applicant has been prejudiced by the Tribunal’s conduct. That is, it is impossible to say whether any additional submissions could potentially have caused the Tribunal to reach a different decision.
Finally, the Minister submits that the decision in NAFF was based on the Migration Act as it stood prior to the introduction of s.422B: see NAFF at [52] and [53]. The breach of procedural fairness identified in NAFF is not an obligation dealt with in Division 4 of Part 7 of the Migration Act. As a result, by reason of s.422B(1), even if the Tribunal in this case erred in the manner identified in NAFF, that conduct does not amount to jurisdictional error (if there was no breach of s.425).
The applicant contends that the circumstances of this case establish a breach of s.425.
The applicant submits that, at the hearing on 8 March 2011, it became clear that the applicant was in fact disadvantaged by not having his representative present. The Tribunal proceeded to read to the applicant a long list of reports, apparently without pausing for interpretation or for the applicant to take stock of what was being said. It is doubtful that the applicant understood what was being put to him and this is reflected in the non-responsive answers he provided.
The applicant contends that the issues were at that stage clearly unresolved in the mind of the Tribunal member. This is said to be reflected in his choice of words: “doesn’t seem to indicate to me…” and “these are things I’ll have to think about”. However the Tribunal member proceeded to make his decision on 9 March 2011 (the following day).
The applicant submits that the question was not whether the Tribunal thought that the review was complete at the end of the hearing but whether, when the Tribunal made its decision, the review had been properly completed and the statutory duty to review had been discharged. The question was not whether, at the end of the hearing, the Tribunal had more questions to ask but whether, when it made its decision, it can be taken to have been satisfied that the applicant had been given a an opportunity to provide proper answers consistent with him being afforded a real hearing opportunity.
The undertaking in the present case was a conditional undertaking; namely it was an undertaking that, if it became clear that the applicant was disadvantaged by not having his representative present, he would be given an opportunity to make further submissions. That condition was satisfied according to the applicant, who submits that it is clear from the transcript of the hearing that, particularly in the context of the details of third party reports that were put to him, he was not able to adequately present his case. The Tribunal member could not reasonably have thought otherwise and it can be inferred from his words at the end of the hearing that so much had been determined.
The applicant concedes that the facts of NAFF were different to the present case in that the former concerned an undertaking given at the end of the hearing while the latter concerns an undertaking given prior to, but enlivened by the events of, the hearing. In the former, the Tribunal member said that she would put further questions to the applicant in writing after the hearing; and, in the latter, the Tribunal said that if at the hearing it became clear the representative’s input was needed, an opportunity would be provided for him to provide further submissions. However this difference does not mean that the principle in NAFF has no application to the present case. In both cases, there is said to have been an acknowledgment by the Tribunal member that the process of review was not complete until a further step had been taken and, by making a decision without taking that step, the Tribunal has not afforded the applicant procedural fairness, as required by s.425.
In NAFF, the plurality said (at [31]):
The case, then, is an unusual one. In her closing remarks on 5 February 2002, the Tribunal member was herself acknowledging that the purposes of the review had not been completely fulfilled by the documents supplied before 5 February 2002 or by the events of 5 February 2002. She was indicating that she had not yet finished receiving the presentation of arguments by the appellant which he had been invited to make, pursuant to s 425(1) of the Act…. She was saying that procedural fairness required some further steps to be taken, so that the matters indicated could be ironed out one way or the other. It is clear that the Tribunal member was in the best position to judge whether the review process was incomplete. Her conduct is only consistent with the formation of a firm impression that it was.
It is possible that the reason why the Tribunal member failed to send the promised questions was that, on reflection, she thought that everything she required had in fact already been put before her, or that a resolution of the perceived inconsistencies in the appellant's statements was not crucial in deciding the review against him. If either of these explanations, or any other explanation, existed, it is to be expected that the Tribunal member would have advanced it, either by a letter to the appellant or in her detailed reasons for decision. She did not do so. It is probable, when the workload under which the Tribunal labours is borne in mind, that the Tribunal member did not send the promised questions because she had forgotten or overlooked the fact that she had made the promise to send them. Her failure to give any indication otherwise suggested that her original impression that the review process was incomplete had not altered on reflection, and was soundly based. It would not be complete until the steps which she had thought could remedy its defects had been carried out. The failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant.
In the present case, it is also possible that the reason the Tribunal member failed to allow the applicant the opportunity to provide further submissions after the hearing was that he thought everything that could be said had been said by the applicant or that the inadequacy with which the applicant had put his case at the hearing was not crucial to deciding the case against him. However, if such an explanation existed, the Tribunal member could have said so at the hearing, by letter or in his reasons for decision; and, as in NAFF, the failure of the Tribunal member to give any indication to the contrary, in the applicant’s submission, indicates that the original impression, that further submissions would be needed if the applicant was disadvantaged by his representative not being present at the hearing, had not altered on reflection and was soundly based.
Further, the applicant contends that, in the present case it is also probable that, as in NAFF, the Tribunal member forgot or overlooked the fact that an undertaking had been given in the 1 March 2011 letter. Counsel for the Minister referred to the fact that the Tribunal member said that he had “no further questions” and would “make a decision some time this week”. However these words are no less consistent with the Tribunal member having overlooked or forgotten the undertaking given in the 1 March 2011 letter as they are with him deciding that no further steps needed to have been taken and that the review was complete. The fact that a decision was made necessarily means that the Tribunal member at some point thought he was in a position to make that decision. If the Tribunal member’s proposal to “make a decision some time this week” is a negation of any prior indication that further steps would be needed to complete the review, the High Court could not have decided NAFF as it did: by making her decision without putting further questions to the applicant, the Tribunal member in NAFF would necessarily have had to have arrived at a position where she thought no further questioning was needed.
The applicant invites the Court to conclude that, in the present case, the Tribunal member did not advert to the 1 March 2011 letter and, in the absence of any contrary indication, invites the Court to conclude that, in circumstances where the applicant was disadvantaged by the representative not being present at the hearing, further submissions would be needed before the review was complete.
In the terminology of s.425, the 1 March 2011 letter had the effect of modifying the original 4 February 2011 invitation. Whereas the original invitation had accommodated the representative’s presence at the hearing as an advisor to the applicant, the decision of the Tribunal to proceed with the hearing in circumstances where it was aware the representative was not able to attend meant that he was effectively excluded from attending the hearing. To this extent, the invitation was retracted with the undertaking that, should it be determined that his input was needed, there would be a further invitation for further submissions to be made. The applicant contends that it can be inferred that the representative’s input at the hearing was determined to have been necessary; however the Tribunal on 9 March 2011 proceeded to decide the application without inviting further submissions to be made.
The applicant submits that, whether viewed as a breach of ss.414(1) or 425(1), there was unfairness in the fact that detailed information, which would ultimately form the basis for refusal of his application, was put to the applicant in circumstances where the Tribunal was put on notice of the applicant’s lack of education and intellectual ability and was also aware of the inability of his representative to attend, but nonetheless chose to proceed. Further, the applicant contends that that detailed information appears to have been put to the applicant in the form of what counsel for the applicant described as a “lengthy monologue focused more on slavish compliance with procedure” than on ensuring as far as was practicable the applicant understood what was being put to him. The Tribunal recognised in its 1 March 2011 letter that there would be circumstances where procedural fairness required that the applicant be given an opportunity after the hearing to make further submissions. At the 8 March 2011 hearing, those circumstances allegedly arose, yet the Tribunal proceeded the following day to make its decision and, in doing so, so the applicant contends, committed a jurisdictional error.

Relevance of the distinction between applicant and his representative and SZOVP

I invited the parties to consider the impact on this case of my decision in SZOVP v Minister for Immigration & Anor [2011] FMCA 442, which concerned the mirror image of the circumstances in this case: namely the failure of the applicant’s representative to attend the Tribunal hearing when the Tribunal considered that the representative should have attended.
The applicant submits that, in the present case, it was not lack of representation per se which is said to have given rise to jurisdictional error: it was the intimation by the Tribunal member that, in circumstances where the applicant’s presentation of his case was inadequate, further steps needed to be taken for the review process to be complete. In the present case, it so happened that this inadequacy was occasioned by the applicant’s lack of representation. In NAFF, however, what procedural fairness required was not advice or representation but rather that written questions be formulated by the Tribunal member and “calmly answered by the appellant in less stressful conditions” (at [30]).
This is in stark contrast to SZOVP where the question before the Court was whether the Tribunal’s invitation under s.425 was vitiated by the applicant’s serious mental impairment or whether the review process was subverted by the failure of the applicant’s migration agent to attend the hearing. In SZOVP there was no acknowledgment by the Tribunal member that further steps were required to be taken before the review process was complete and there was no failure of the Tribunal to take those steps. The Tribunal formed the view that, notwithstanding her schizophrenia, the applicant was capable of giving evidence and that, although it was not appropriate for the applicant to attend the hearing without the support of her representative, the Tribunal could not have compelled the representative to attend. In SZOVP, it was the effect of the applicant’s disability and the conduct of her representative on the review process that was in issue, whereas in NAFF the issue was the failure of the Tribunal to take all the steps it had itself perceived procedural fairness to require.
In my view, the arguments in this case are finely balanced on the issue of whether the Tribunal fell into jurisdictional error in dealing with the hearing in the absence of the applicant’s representative. In SZOVP at [70] I drew attention to what appeared to me to be a discriminatory approach in the Migration Act towards protection visa applicants as compared to other visa applicants by reference to the different entitlements provided to the two classes of applicants in s.427(6) and s.366A. Be that as it may, there is no entitlement for an applicant before the Tribunal to be represented at a hearing. Nevertheless, the Tribunal is empowered to invite a representative, as well as an applicant, to attend pursuant to s.425 and generally does so. Such an invitation was issued in this case, but the invitation to the applicant’s representative was withdrawn by the Tribunal’s letter dated 1 March 2011. That letter recognised the possibility that the applicant might require the services of his agent to make a post hearing submission and undertook to the representative that the Tribunal would decide at the hearing whether anything further was required. I do not accept the applicant’s submission that the Tribunal recognised that the applicant might be disadvantaged at the hearing. On the contrary, the Tribunal implied in its letter of 1 March 2011 that it did not anticipate that the applicant would be disadvantaged.
As a general principle, in my view, applicants who have taken the trouble to engage the services of a registered migration agent should be able to have their agent attend a tribunal hearing to which they are invited. In SZOVP I found that there may be circumstances where a failure by an agent to attend a tribunal hearing may be a breach of duty by the agent. It is unfortunate in this case that the applicant’s representative, who clearly saw that his professional responsibilities pointed to the need for him to attend the Tribunal hearing, was not given that opportunity. The denial of an opportunity to an applicant’s representative to attend a hearing in circumstances where the representative is, for good reason, unable to attend does nothing to encourage migration agents to make themselves available for tribunal hearings.
Further, the Tribunal needs to be cautious in refusing to conduct a hearing at a time when the applicant’s representative can attend, because it may give rise to an apprehension of bias. That was not alleged in this case but one can envisage circumstances where the Tribunal may demonstrate a view before a hearing that the outcome of the review is so obvious that there will be no point in the representative attending. Such an indication of pre-judgement would point to jurisdictional error.
This case falls to be determined on the basis of the principle identified by the High Court in NAFF. I do not accept the Minister’s submission that that principle is limited to the obligation to afford procedural fairness under the general law. The better view is that s.425 is a statutory expression of the need for a hearing opportunity and that the issuing of a hearing invitation pursuant to that section presupposes that the hearing opportunity will be a fair one. Where the Tribunal fails to accord a fair hearing opportunity or where the Tribunal fails to complete its review in accordance with necessary hearing arrangements put in place for a particular review, in my view, the Tribunal will fall into jurisdictional error by failing to comply with s.425.
In the present case, the Tribunal, in deciding that the hearing would be conducted in the absence of the applicant’s representative undertook to decide at the hearing whether further submissions were required and, if so, the applicant would be given further time to provide further submissions with his representative’s assistance if necessary. In my view, that undertaking having been given, the Tribunal should have expressly decided at the hearing whether or not the circumstances referred to in the Tribunal’s letter had arisen. I accept the applicant’s submission that the Tribunal’s silence, both at the Tribunal hearing and in its reasons for decision in relation to the correspondence between the Tribunal and the applicant’s representative, and the undertaken given by the Tribunal in its letter of 1 March 2011, means that the presiding member must have overlooked that correspondence and the undertaking. It does not follow, however, that the Tribunal thereby fell into error. The Court must do its best in the circumstances to determine whether or not the Tribunal’s undertaking in its letter of

1 March 2011 had been enlivened by the circumstances of the hearing.
The extract from the transcript of the Tribunal hearing reproduced at [41] above indicates both that the presiding member had not made up his mind at the Tribunal hearing but that he would shortly do so. It also indicates that the Tribunal had nothing further to seek from the applicant (or by extension, his adviser) but was giving the applicant the opportunity to put anything further he might wish to the Tribunal before the hearing concluded. It is unfortunate that the Tribunal decision was made the following day, which denied the applicant’s representative the opportunity to listen to the sound recording of the Tribunal hearing and to make any further submission that he might have considered necessary or desirable. It may be accepted that an applicant whose first language is not English and who is participating in an unfamiliar process will be at a disadvantage at a tribunal hearing when compared to an applicant who is assisted by an experienced legal practitioner or other experienced migration agent. However, I do not accept that the applicant was unable to participate alone in the Tribunal hearing. The transcript satisfies me that the applicant did participate and that he was able to present his claims and answer the presiding member’s questions. No doubt he would have been better off if his representative had been present, but I am not persuaded that, on an objective view, the circumstances of the hearing enlivened the undertaking given by the Tribunal in its letter of 1 March 2011.

I accept the Minister’s submission that it can be inferred from the transcript, and the circumstances of the making of the Tribunal decision the day after the hearing, that the presiding member did not consider that anything further was required from the applicant. Further, the evidence does not persuade me that the Tribunal was wrong in reaching that view. It follows that, while it would have been better if the Tribunal had accommodated the representative’s request to attend the hearing or, alternatively, had provided the opportunity sought by the representative after the hearing to listen to the hearing tape and prepare a post hearing submission, in the absence of the undertaking given by the Tribunal having been enlivened, the Tribunal was entitled to complete its review in the way it did and the Tribunal did not fall into jurisdictional error in doing so.
I conclude that the Tribunal decision is free from jurisdictional error. The Tribunal decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 21 October 2011