SZVFW v Minister for Immigration
[2016] FCCA 2083
•19 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVFW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2083 |
| Catchwords: MIGRATION – Application to review the decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) – whether the Tribunal’s exercise of its power to make a decision on the review in circumstances where Applicants did not attend the Tribunal hearing was legally unreasonable. |
| Legislation: Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A, 441C |
| Cases cited: Hossain v Minister for Immigration and Multicultural Affairs [2000] FCA 842 Kaur v Ministerfor Immigration and Border Protection (2014) 236 FCR 393; [2014] FCA 915 Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437; [2009] FCA 963 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 47 SZBHU v Ministerfor Immigration and Citizenship & Anor [2007] FMCA 212 |
| First Applicant: | SZVFW |
| Second Applicant: | SZVFX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2786 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 20 August 2015 1 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2016 |
REPRESENTATION
| The First Applicant: | In Person |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent made on 12 September 2014 in Tribunal case number 1408436.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 16 April 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2786 of 2014
| SZVFW |
First Applicant
| SZVFX |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the former Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 12 September 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicants protection visas.
The Applicants, who claimed to be husband and wife and citizens of the People’s Republic of China, applied for protection visas in December 2013. In a statement accompanying the protection visa application, the First Applicant claimed that after his land was acquired by the local government, he and his wife were involved in protests and petitioned the district government about the amount of compensation offered. He claimed that he was detained by the PSB, intimidated, persecuted and beaten, and that after he was released he and his wife were under surveillance. They decided to leave China.
In the application the Applicants provided a Roselands, NSW, residential and postal address and a contact mobile telephone number.
By letter dated 3 March 2014, sent to the Roselands address provided by the Applicants in the protection visa application, a delegate of the First Respondent invited the First Applicant to attend an interview on 26 March 2014.
It is not clear from the copy of the delegate’s letter in the Courtbook whether this invitation was sent by ordinary mail or registered post. However in its reasons for decision the delegate recorded that the interview invitation was sent by registered mail and that Australia Post records indicated that it was delivered on 19 March 2014. Included in the Courtbook is a screenshot for Australia Post’s “track your item” service which tracked an item sent by registered post on Friday 7 March 2014. It was recorded as “awaiting collection” at the Roselands Post Shop from 7 March 2014 and as delivered on 19 March 2014.
According to the delegate, an officer who spoke Mandarin subsequently contacted the Applicant on two occasions to advise that the interview had been rescheduled to 9 April 2014.
In reasons for decision dated 16 April 2014 the delegate recorded that the First Applicant had failed to attend the scheduled interview on 9 April 2014 and had not contacted the Department to explain the non-appearance. The application was refused.
The copy of the refusal letter of 16 April 2014 in the Courtbook was addressed to the Roselands address and bears a registered post sticker.
The Applicants sought review by the Tribunal by application lodged online on 12 May 2014. In that application form, the Applicants acknowledged that they had been notified of the departmental decision by post. They provided personal details for both Applicants.
In the section of the Form headed “Details of person applying for review 1”, the Applicants provided the Roselands address, the mobile telephone number and an email address for the First Applicant.
In addition, under the heading “Correspondence details” the following appeared:
Correspondence type To me
Title Mr
Family Name [given]
Given Name [given]
Address line 1 [unit and street number given]
King Georges Road
…
Suburb Roselands
State NSW
Postcode 2196
Fax [left blank]
Email [a ten digit number]@qq.com
On 12 May 2014 the Tribunal wrote to the Applicants c/- of the First Applicant at the Roselands street address acknowledging receipt of the application. There is no indication that this letter was sent other than by ordinary prepaid post.
By letter dated 15 August 2014 the Tribunal wrote to the Applicants at the Roselands address inviting them to attend a Tribunal hearing on 10 September 2014. As discussed below, the solicitor for the First Respondent ultimately conceded that this hearing invitation was sent by ordinary post, not by registered mail. The Applicants did not attend the Tribunal hearing.
The Tribunal Decision
In its decision of 12 September 2014 the Tribunal recorded that the Applicants had been invited to a hearing on a date that was (incorrectly) said to be 18 March 2014 to give evidence and present arguments, but that they had provided no response to that invitation, did not appear before the Tribunal at the time and place scheduled and did not make contact with the Tribunal to inform it of any change in their contact details or of any reason why they were unable to attend.
Despite the initial incorrect reference to the date of the scheduled Tribunal hearing, in its consideration of claims and evidence the Tribunal correctly referred to its hearing invitation letter dated 15 August 2014 which invited the Applicants to a hearing scheduled for 10 September 2014. The Tribunal recorded that this letter was sent to the Applicants’ “last identified address for correspondence” and that it advised them that if they did not attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable them to appear. The Tribunal recorded that the Applicants did not respond to that invitation or make any contact with the Tribunal in respect of their scheduled appearance or the review application more generally.
The Tribunal summarised the Applicants’ claims. It observed that they had not attended a departmental interview or provided further documents to the Tribunal.
The Tribunal continued:
Based on the evidence before it the Tribunal finds that the hearing invitation was sent to the last address for service provided in connection with the review and in the circumstances, pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.
The Tribunal did not address the date of dispatch of the hearing invitation letter.
On the evidence before it the Tribunal was not satisfied about significant aspects of the Applicants’ circumstances, including further details of: the land resumption and compensation offer process; the claimed protests, including whether they were lawful or unlawful; the detention of the First Applicant, including whether he was charged with an offence; the claimed surveillance; and as to the harm feared by the Applicants on return to China. On the information before it the Tribunal was not satisfied that the Applicants met the Refugees Convention criterion or the complementary protection criterion and hence was not satisfied that either Applicant met the criterion for a member of a family unit. The Tribunal affirmed the delegate’s decision.
This Application
The Applicants sought review by application filed in this court on 7 October 2014. There are three grounds in the application. The third ground simply asks the court to review the Applicants’ situation and does not assert or establish jurisdictional error.
Ground 1
The first ground in the application is as follows:
One of the reasons why RRT rejected my application is because I did not provide more information and evidence to prove that my wife and I were under persecution in China. When we prepared to leave China the time was pretty short and hasty, so we did not have enough time to collect our evidences. During that time, we were also under great scare and pressure and all we knew was to stay away from China, so we did not realize that we had to collect evidence. Now we seldom contact our family in China as we worried that if Chinese government knows we contact each other, our family would get involved, and not even mention let them send us written evidence. I think tribunal members should consider our situation.
The Applicants did not file written submissions and had nothing to add when given the opportunity to address this ground in oral submissions.
The explanation now provided for the failure of the Applicants to provide “more information and evidence” does not establish jurisdictional error on the part of the Tribunal. It is well-established that it is for an applicant to make his or her case and to provide evidence to the Tribunal (see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 47 at 169-170). The Tribunal is not required to have rebutting evidence before it finds that a factual assertion is not made out. In this case, the Tribunal considered the Applicants’ claims on the material before it, but found that there was insufficient evidence for it to be satisfied about significant aspects of the Applicants’ circumstances. In other words, on the information before it the Tribunal was not satisfied that the Applicants met the Refugees Convention or the complementary protection criteria. It gave reasons for those findings that were open to it on the material before it. There was no jurisdictional error on the part of the Tribunal in finding that it was unable to be satisfied on the evidence before it that the Applicants had a well-founded fear of serious harm or a real risk of significant harm. This ground is not made out.
Ground 2
Ground 2 in the application is as follows:
Another reason why RRT rejected my application is because we did not attend the interview. My wife and I were not in Sydney at that time, so we did not receive any letter about the interview date. I hope that the Federal Circuit Court could give me another chance to defend myself and treat my application with justice.
Again, the Applicants had nothing to say in relation to this ground. It is apparent, however, that they raise a concern about their failure to receive the invitation to the Tribunal hearing.
The First Respondent submitted that even if the Applicants did not receive the hearing invitation, that in itself would not be indicative of jurisdictional error, provided the applicable statutory requirements were met. As discussed further below, in such circumstances they may be taken to have received the invitation, whether or not they actually received it (see s.441C(4) of the Migration Act 1958 (Cth) (the Act) and Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437; [2009] FCA 963 at [21]).
In the First Respondent’s written submissions it was suggested that the invitation to the Tribunal hearing had been dispatched by registered post to the Applicants’ address for service. However, it was not apparent on the material before the court that the hearing invitation letter was sent by registered post as distinct from ordinary post. The solicitor for the First Respondent subsequently conceded that the hearing invitation letter was not sent by registered post.
The First Respondent relied on an affidavit of Hailey Rae Musgrove, a solicitor employed by the solicitors for the First Respondent, which annexed a Tribunal “Postal Dispatch Register” form dated 15 August 2014 (as discussed further below).
I raised the issue of whether the Tribunal had exercised its discretion under s.426A(1) of the Act (to make a decision without taking any further action to allow or enable the Applicants to appear before it) reasonably in the particular circumstances of this case, having regard to the failure of the Tribunal to make any further attempt to contact the Applicants (for example on the mobile phone number or email address provided) when there was no reply to the hearing invitation.
The hearing was adjourned to enable the First Respondent to file further submissions addressing this issue. The Applicants did not make any submissions in this respect.
The First Respondent submitted that the Tribunal had not fallen into jurisdictional error, whether by failing to comply with the provisions of the Migration Act or by failing to exercise its discretion under s.426A of the Act reasonably.
Statutory Requirements
It is convenient to consider the Tribunal’s compliance with the statutory requirements before turning to the issue of whether it exercised its discretion under s.426A of the Act reasonably.
As the First Respondent submitted, the Tribunal was obliged under s.425 of the Act to invite the Applicants to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425A of the Act contains requirements in relation to the notice of invitation to appear. In this case, the notice of invitation to appear was the Tribunal’s letter dated 15 August 2014. No issue has been raised, and nor is any apparent, in relation to the content of that letter. It states the day, time and place at which the Applicants were scheduled to appear. It gave the requisite period of notice in accordance with s.425A(3) of the Act and, as required by s.425A(4), contained a statement of the effect of s.426A of the Act, insofar as it advised that if the Applicants did not attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable them to appear before it.
Under s.425A(2) of the Act, the hearing invitation notice had to be given to the Applicants by one of the methods specified in s.441A of the Act. In this case, the method said to have been complied with by the Tribunal was the method provided for in s.441A(4) of the Act which, as it stood at the relevant time, provided:
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar or other officer.
If all the requirements of s.441A(4) were met, the Applicants would be taken to have received the document in question under s.441C(4) of the Act which was as follows:
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or
(b) in any other case – 21 days after the date of the document.
It is not in dispute that the last (and, indeed, the only) residential address and postal address for correspondence provided to the Tribunal by the Applicants was the Roselands street address provided in the review application. The copy of the hearing invitation letter dated 15 August 2014 in the Courtbook was addressed to the Applicants c/- the First Applicant at the Roselands street address. What is in issue is whether there is satisfactory evidence of the letter having been “dispatched” within 3 working days “by prepaid post or by other prepaid means” within s.441A(4) of the Act.
The First Respondent relied on the affidavit of Ms Musgrove which attested to the fact that she had received an email from an officer of the Department of Immigration and Border Protection on 21 November 2014 attaching a copy of a document described as the “Postal Dispatch Register” form for the Refugee Review Tribunal for 15 August 2014 (from which information said to be in relation to persons other than the Applicants had been redacted) and a copy of the RRT hearing record in relation to the scheduled Tribunal hearing on 10 September 2014. Copies of these documents were annexed to Ms Musgrove’s affidavit. The hearing record was marked “no show”. It is not in dispute that the Applicants did not attend the scheduled Tribunal hearing.
Ms Musgrove expressed the view that the Postal Dispatch Register indicated that a letter was dispatched by post by the Tribunal to the Applicant at the nominated postal address on 15 August 2014. There was, however, no evidence before the court from any Tribunal officer in relation to the postal practices of the Tribunal or as to the use and meaning of the “Postal Dispatch Register”.
The First Respondent submitted that, nonetheless, the court could be satisfied on the basis of the “Postal Dispatch Register” that the hearing invitation letter was sent by ordinary prepaid post and dispatched by post by the Tribunal to the Applicant on 15 August 2014. It was also submitted that it could be inferred that the postal item sent to the Applicant on 15 August 2014 was the hearing invitation letter of that date.
As indicated, the solicitor for the First Respondent conceded that the hearing invitation letter was not sent by registered post. However the First Respondent relied on SZBHU v Ministerfor Immigration and Citizenship & Anor [2007] FMCA 212 in which Emmett FM (as her Honour then was) was said to have considered (at [29]) whether the Tribunal had properly exercised its discretion pursuant to s.426A of the Act in circumstances where the invitation had been sent by ordinary post. However at [19] of her decision Emmett FM referred to the “Registered Post Records for the Tribunal”. Relevantly, her Honour found (at [20]) that the Tribunal’s letter was sent in accordance with s.441A of the Act, albeit that at [29] of the decision her Honour addressed a “complaint” by the Applicant that “the letter was not a registered letter”. Her Honour remarked that “[t]here is no statutory requirement that the letter be a registered letter”, which view Gilmour J agreed with on appeal (see SZBHU v Minister for Immigration and Citizenship [2007] FCA 1614 at [12]).
The First Respondent submitted that sending the hearing invitation notice by ordinary post met the requirements of s.441A(4) of the Act that the Applicant was therefore deemed to have received it seven working days after its date pursuant to s.441C(4) of the Act and that hence the court should be satisfied that the Tribunal had complied with its obligations under the Migration Act to invite the Applicants to appear before it to give evidence and present arguments as required by s.425, in accordance with s.425A of the Act.
It was contended that in these circumstances it was open to the Tribunal to exercise its discretion under s.426A of the Act, which at the relevant time was as follows:
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.
The First Respondent pointed out that in MZZSK v Minister for Immigration and Border Protection & Anor [2014] FCCA 883, the court considered that there were two conditions to be met for the Tribunal to exercise its discretion under s.426A of the Act. First, the applicant had to be invited to appear at a hearing pursuant to s.425 of the Act and secondly the applicant had to fail to appear at the hearing (see Hossain v Minister for Immigration and Multicultural Affairs [2000] FCA 842 at [19]). It was submitted that the fact that an applicant did not in fact become aware of an invitation to a hearing would not displace the effect of the s.441C provision (see VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134 at [15]).
It was also submitted that as the Tribunal had fulfilled its statutory obligation to invite the Applicants to appear before it, when the Applicants failed to appear it was open to the Tribunal to make a decision on the review pursuant to s.426A of the Act without taking any further action to allow or enable them to appear before it.
On its face s.441A(4) only required dispatch “by prepaid post or by other prepaid means”. As Emmett FM and Gilmour J each indicated in SZBHU at first instance and on appeal, the Migration Act does not require that the hearing invitation letter be sent by registered post. There is no statutory requirement that a hearing invitation letter be sent by registered post and the language of s.441A(4) is more broadly expressed to encompass “prepaid post”.
However, although there is no statutory requirement that a hearing invitation be sent by registered post, if the hearing invitation (or any other Tribunal or departmental correspondence) has been sent by registered post and the copy of that particular item of correspondence in the Courtbook bore an individual registered post mail number, it could have been matched to any registered post number for an item referred to on a document such as a Tribunal postal register. Moreover if the hearing invitation had been sent by registered post, Australia Post records such as the “track your item” screen shot in the Courtbook (which recorded the delivery of the invitation to the departmental interview) could have been checked by the Tribunal in deciding whether to take further steps to contact the Applicants before exercising its discretion under s.426A of the Act. These issues are considered further below.
I have some concern as to whether I can be satisfied as to compliance with the other requirements of s.441A(4) on the evidence of the Postal Dispatch Register before the court. I note that there is no evidence from an appropriate Tribunal officer as to the practice of the Tribunal and use and meaning of the Postal Dispatch Register form. Ms Musgrove’s view that this form indicates that a letter was dispatched by post by the Tribunal to the Applicant at the nominated postal address on 15 August 2014 does not establish this to my satisfaction.
I have considered what is apparent on the face of the Tribunal form headed “Postal Dispatch Register” for the Sydney Registry (NSW RRT Team), dated 15 August 2014. It makes no provision for registered post numbers in relation to items described therein. Rather, it contains columns headed “Case #”, “CaseMate Doc ID (if applicable)”, “Recipient Name”, “Recipient Address”, “Sent to mail room (tick if applicable)”, “Size/Weight (if non-standard)” and “Placed in mail bag (tick)”. It contains printed instructions that the “Dispatching team” is to complete the first five items, but to “only complete Document ID if multiple letters sent to same recipient on the same day”.
The case and recipient name and address details entered on the form (and not redacted) correspond to the details for the Applicants, including the First Applicant’s name and the Roselands postal address they provided. There is nothing entered in the Document ID column. There is also nothing entered in the column “Sent to mail room (tick)”. What appears to be “S/L” appears under the “Size/Weight” heading. A tick appears under the heading “Placed in mail bag (tick)”. There is an unexplained signature over the columns to be completed by mail officer.
However, the “Postal Dispatch Register” form also contains a space for a person to “certify that the mail bag contains the letters listed above”. It bears a name and signature. Beneath this is a printed part of the form providing for a person to “certify that the mail bag containing the letters above was [collected by/delivered to] Australia Post” at a time and date to be inserted. The form bears an instruction to cross out the incorrect option out of “collected by” and “delivered to”. While a name, signature and time of “4:39” appear, the instruction to cross out either “collected by” or “delivered to” was not followed. Further, rather than insertion of a collection or delivery date, the Form bears a stamp for the Migration Review Tribunal/Refugee Review Tribunal containing the words “received (sic) 15 Aug 2014 Sydney”. In other words, the Form has not been completed in accordance with the printed instructions. Also, while there is provision on the “Postal Dispatch Register” form for Document ID where multiple letters are sent to the same recipient on the same day, I have some concern about the extent to which such a postal dispatch register ought to be taken as evidence of the dispatch of a particular letter (such as the hearing invitation letter) in circumstances where the Tribunal file (at least for the day in question) is not in evidence before the court.
Insofar as this evidence is relied on in support of the proposition that the hearing invitation was “dispatched” within three working days of its date by prepaid post to the last address for service provided to the Tribunal by the Applicant in connection with the review (s.441A(4)), and hence that the Applicants were deemed to have received the invitation under s.441C(4) of the Act, it is not entirely satisfactory.
However as I am satisfied, for the reasons that follow, that the Tribunal did not, in the particular circumstances of this case, exercise its discretion under s.426A of the Act reasonably, it is not necessary to consider further whether I can be satisfied on the basis of this evidence that the hearing invitation letter to the Applicants was in fact “dispatched” on 15 August 2014 despite the absence of evidence from an appropriate Tribunal officer and having regard to the manner in which the form was completed.
The consequences for an applicant of a finding that the Tribunal has given them a document such as a hearing invitation notice in accordance with s.441A of the Act are significant, because if the deeming provision in s.441C of the Act applies the Tribunal would be empowered to make a decision on the review without taking any further action to allow or enable the applicant to appear before it (subject to the requirement that the discretion under s.426A be exercised reasonably).
In that respect it is also notable that, as it stood at the relevant time, s.426A contained no provision for an applicant to apply for reinstatement after receiving notice of a Tribunal decision as is now provided for under s.426B(1)(b).
The s.426A discretion
The First Respondent referred to the fact that in SZBHU Emmett FM stated (at [29]):
Where the Tribunal has complied with the statutory regime, then it cannot be jurisdictional error for the Tribunal to proceed to make its decision in the absence of an applicant where the applicant asserts that he did not receive any letter to attend the hearing. The applicant complains that the letter was not a registered letter. There is no statutory requirement that the letter be a registered letter and indeed s 441A of the Act provides various methods of delivery, including despatch by pre-paid post to the applicant (emphasis added).
As submitted, this view was endorsed on appeal by Gilmour J in SZBHU at [12]. However, the First Respondent does not dispute that even if the statutory requirements of s.441A(4) were met and the deeming provision in s.441C(4) applies, the power conferred by s.426A must be exercised reasonably and could not be exercised capriciously, consistent with the principles discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1.
It was contended that the election to make a decision on the review was not in itself the expression of an unreasonable exercise of the power (see NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 at [21]-[22]).
Further, the First Respondent submitted that the Tribunal, having sent the invitation to the Applicants in accordance with s.441A of the Act, was under no further obligation to “chase up” the Applicants to attend the hearing (Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 at [39] and SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211; [2008] FCA 600 at [59]). It was pointed out that in SZFCH at [39] the Full Court had expressed the view that there was no obligation on the Tribunal in that case to “search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant”. It was also said to be relevant that, in contrast to the situation in Kaur v Ministerfor Immigration and Border Protection (2014) 236 FCR 393; [2014] FCA 915, this was not a case in which there had been other relevant communication or correspondence between the Applicant and the Tribunal about the review such that it could be said to be “inexplicable” that there was no further attempt to contact the Applicants (cf Kaur at [96]).
In particular, the First Respondent submitted that there was nothing on the face of the Tribunal’s decision record to indicate that the Tribunal’s decision to exercise its discretion under s.426A of the Act was arbitrary, capricious, without common sense or plainly unjust (see Li at [28] and Singh at [44]). It was said that in circumstances where the Applicants had not responded to the hearing invitation or made any other contact with the Tribunal, beyond the initiating application, it was not “inexplicable” why there was no attempt to contact them (cf Kaur at [96]) and that it was open to the Tribunal to proceed in the manner in which it did. It was acknowledged that “reasonable minds may reach different conclusions about the correct and preferable decision” (see Li at [28]) but submitted that the Tribunal’s decision in this instance was within the “area of decisional freedom” (see Li at [28]) conferred by the discretion in s.426A of the Act.
The First Respondent observed that the Tribunal was not required to give reasons for the exercise of its discretion under s.426A of the Act, as s.430 did not require the Tribunal to do so (see SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159; [2006] FCA 1295 at [60] per Rares J), but acknowledged that this case was not one in which the Tribunal gave “no reason” for the exercise of the discretion (see Singh at [45]). Rather, the reasons the Tribunal gave for exercising its discretion were said to give an evident, transparent and intelligible justification for the Tribunal proceeding to exercise its discretion pursuant to s.426A of the Act, particularly having regard to the lack of communication by the Applicants and their failure to appear at the hearing.
It is the case that sending a notice of an invitation to a hearing under s.425 of the Act by ordinary post rather than by registered post meets the statutory requirement of dispatch “by prepaid post” in s.441A(4) of the Act (see SZBHU). Subject to what I have said in relation to the evidence in relation to “dispatch” of the hearing invitation letter, if the requirements of s.441A(4) were satisfied, the Applicants would be deemed to have received the invitation under s.441C(4) and the discretion under s.426A would be enlivened.
However, the discretion under s.426A of the Act (at [11]) must be exercised reasonably. Notwithstanding the fact that the Applicants in this case had not corresponded with the Tribunal after the application was lodged, having regard to the evidence before the court, in the particular circumstances of this case I am satisfied that the Tribunal failed to exercise its discretion unreasonably.
In Kaur Mortimer J was considering whether the Migration Review Tribunal’s exercise of its discretion under s.362B (the equivalent of s.426A) to proceed to make a decision on a review in circumstances where the Tribunal had invited the appellants to attend a hearing and they had not attended had been exercised reasonably. Her Honour pointed to that fact that in Singh the Full Court of the Federal Court had stated at [42]:
Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence.
Thus, while the facts in Kaur are not on all fours with the facts in this case, that is not determinative. In Kaur the review application had been before the Tribunal for a considerable period. The pattern of communication between the appellants and the Tribunal in that time was such that the manner in which it invited them to a second hearing, but failed to follow up when no response was received, amounted to “unusual behaviour” (at [50]). There was no previous pattern of communication in this case, but Kaur makes it clear that the bare fulfilment of statutory obligations in sending an invitation to a hearing in a manner provided for in s.441A of the Act (or its equivalent) does not negate the need to have regard to the context and circumstances of the particular case in determining whether further steps should have been taken for the Tribunal to have exercised its discretion to proceed to make a decision reasonably. I also note that in Kaur the hearing invitation was sent by registered post. Nonetheless, her Honour was satisfied in the particular circumstances of that case that the Tribunal should have taken further steps to contact the appellants before proceeding to make its decision.
The general discussion in Kaur of the application of principles of legal unreasonableness in relation to the exercise of a discretion under s.362B of the Act is relevant and of direct assistance in relation to the exercise of the comparable discretion by the Refugee Review Tribunal under s.426A of the Act (see Kaur at [108] to [137]). Mortimer J made it clear that the mere fact of compliance with the prerequisites for the exercise of the Tribunal’s power under such a provision is not, in itself, an intelligible justification for the Tribunal’s exercise of its discretion under a provision such as s.426A of the Act. In other words, the fact that, by reason of the operation of a deeming provision (in this case s.441C), an applicant may be deemed to have received a hearing invitation, provides the occasion for the exercise of a discretion under s.426A, but does not determine how the discretion should be exercised (Kaur at [123]). As Mortimer J stated at [123]:
How the discretion should be exercised will fall to be decided by the Tribunal, in accordance with its functions under [the relevant part] and taking into account matters such as the facts and circumstances of the individual review applicant, the course of the particular review and what is at stake for the review Applicant.
Further, while it is clear that there is no “obligation” on the Tribunal to search for other avenues of communication with an applicant (SZFCH at [39]) Mortimer J suggested in Kaur that SZFHC did not go so far as to support the proposition that the Tribunal’s exercise of its discretion could not be characterised as legally unreasonable in circumstances where it was under no “obligation” to make inquiries (see Kaur at [125] and [130]-[136]). As her Honour stated at [131], the central issue on appeal in SZFHC was the content and scope of the Tribunal’s obligation under s.425 as it stood at the relevant time and the role that the provisions in s.425A played in determining that scope and content. However, as Mortimer J also stated in Kaur at [132], “some care must be taken… not to overreach the propositions for which SZFHC can be taken to stand”. I also note that SZFHC considered the issue of whether the Tribunal had satisfied its obligation under s.425 of the Act 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, rather than the reasonableness of the exercise of the discretion under s.426A.
It is however relevant to bear in mind that both ss.360 and 425 of the Act impose an obligation on the Tribunal to give an applicant a “meaningful opportunity” to appear and present evidence and arguments in support of his or her review application (see, for example, Li at [61] and other cases cited in Kaur at [132]). As Mortimer J observed in Kaur in relation to s.360 and Part 5 of the Act (at [132]):
As the plurality in the High Court pointed out in Li … there is a connection between the content of the obligation in s 360 and the reasonable exercise of discretions conferred by Pt 5 of the Act on the Tribunal. The manner in which the Tribunal exercises the discretions conferred upon it (such as those in s 362B and s 363(1)(b)) must not frustrate the purpose of the obligation in s 360.
These remarks are equally applicable to the provisions in Part 7 of the Act in issue in this case. The manner in which the Tribunal exercises the discretion in s.426A of the Act must not frustrate the purpose of the obligation in s.425.
It is clear that there is no obligation on the Tribunal in every case where there has been a failure to respond to an invitation to appear at a hearing to “search its records, or those of the Department, to discover if there might be another way of communicating with the applicant” (Kaur at [133]). As Mortimer J recognised, to imply such an obligation would constrain the relevant discretion in a way that the legislative scheme does not suggest is justified (at [133]). However, as her Honour went on to state (at [134]):
The reconciliation of that proposition with the proposition that the discretions in s362B (and s426A) must be exercised reasonably is, as both Li and Singh recognise, not found in some checklist approach, but in a consideration of the factual circumstances in which the particular discretion was exercised in respect of a particular review and particular review applicant.
Moreover as her Honour stated at [137]:
The question is whether a Tribunal acting reasonably, in the particular factual context of [the] review, could have proceeded to determine the review without any attempt to contact the [applicant].
I have borne in mind that the court is not determining whether to substitute its view of the merits of the Tribunal’s exercise of its discretion under s.426A of the Act, but rather whether the decision of the Tribunal to proceed to make a decision on the review without taking any further steps to enable the Applicants to appear before it was unreasonable in the sense considered in Li and Singh.
Kaur makes clear the need for “objective consideration” of all the circumstances (Kaur at [95]) including the course of the review, the nature of the Applicant’s communications with the Tribunal and what is at stake for the Applicants.
In this case, that calls for consideration first of the content of the online application to the Tribunal. That form sought alternative contact details under the heading “Correspondence details”. Further, in this case it would not have been necessary for the Tribunal to engage in a complicated “search” of papers lodged with it to discover if there might be some other avenue of communicating with the Applicants (cf SZFHC at [39]). That is because under the heading “Correspondence details”, the Applicants had provided two forms of address for correspondence, first the Roselands residential address and secondly a specified email address.
In addition, the First Applicant provided a mobile telephone number in the review application form. As Mortimer J indicated in Kaur the provisions in Part 5 of the Act (the equivalent of Part 7 in relation to the Migration Review Tribunal) do not deal with how the Tribunal may use the telephone as a means to inform an applicant of matters or to communicate with him or her. The same may be said in relation to Part 7 of the Act. In Kaur the point was also made that the Tribunal did in fact employ telephone communications on a regular basis. Her Honour suggested at [92] that telephone communications were “a necessary and integral aspect of communication methods in a tribunal such as [the Migration Review Tribunal]”. Again, the same may be said of the Refugee Review Tribunal. Further, the Tribunal review form also specifically contemplated correspondence with an applicant by email in asking applicants to provide an email address under the heading “Correspondence details”. The Applicants provided an email address in that part of the form.
This was not a case in which the Tribunal was able on the evidence before it to be satisfied not only that the Applicants had been formally advised of the hearing, but also that they were, in a practical sense, aware of the hearing date and time. There was no evidence of delivery of the hearing invitation or of any attempted subsequent email or telephone communication with the Applicants, despite the contact details provided. This is relevant as part of all the circumstances.
In contrast to the situation in many other cases involving Tribunal hearing invitations (including Kaur and SZTHQ v Minister for Immigration and Border Protection [2014] FCA 1231) the hearing invitation was sent by ordinary post to the Applicants’ residential address. The Tribunal could not track the hearing invitation letter. It had no evidence as to whether or not the hearing invitation letter had in fact been delivered. This is also relevant as part of all the circumstances, given that the bare fulfilment of statutory obligations in s.441A (and the consequential operation of the deeming provision in s.441C) does not, on the reasoning in Kaur, negate the need to have regard to the particular context and circumstances of the case to determine whether further steps should have been taken for the Tribunal to have exercised its discretion under s.426A reasonably (see Kaur at [123]). It is interesting to compare the “tracking” that the Tribunal apparently conducted in relation to earlier correspondence from the Department which was sent to the Applicants by registered post. The Tribunal in such circumstances could (and did) track the item and could, for example, discover whether it had been delivered to or collected by the addressee. In such circumstances the Tribunal could also inform itself as to whether an applicant given notice of a registered post item held at a Post Office had failed to collect it (cf SZTHQ). In contrast, the Tribunal in this case was unable to determine the fate of the hearing invitation dispatched (assuming it was properly dispatched) to the Applicants by ordinary post.
It is also relevant to have regard to the (relatively) short period of time the matter was before the Tribunal. The application was lodged on 12 May 2014. The hearing invitation in question was sent on 15 August 2014. While the Tribunal had sent the Applicants an acknowledgement of their application dated 12 May 2014, suggesting they provide material or written arguments as soon as possible, it cannot be said that there was a lengthy period of time in which the Applicants did “nothing”. Also, while the Applicants did not respond to the Tribunal’s invitation of 12 May 2014 (apparently also sent by ordinary post) to provide material or written arguments as soon as possible, their failure to do so occurred in circumstances where they did not have a migration agent or solicitor acting for them as authorised recipient. This is in contrast to the situation in SZFHC. The hearing invitation in this case was sent only to the Applicants’ home address and not to any migration agent or other authorised recipient, because the Applicants did not have an authorised recipient.
Having regard to the relatively short time between the lodgement of the review application and the invitation to the Tribunal hearing (in contrast to the situation in Kaur) and the fact that this was the first hearing invitation sent to the Applicants, the absence of a pattern of communication between the Applicants and the Tribunal is not determinative.
In considering the reasonableness of the exercise of the Tribunal’s discretion in this case, I have also borne in mind the significance of the hearing invitation to the Applicants. They were Applicants for protection visas. As in Kaur, the Applicants’ attendance at a hearing could have made a difference to the outcome of the review. It is clear that evidence from the Applicants at a hearing would have been capable of affecting the Tribunal’s decision on the review, consistent with the Tribunal’s acknowledgment in its reasons for decision that there were significant aspects of the Applicants’ circumstances about which it was unable to be satisfied in the absence of a hearing (including further details of: the process by which the land was resumed and compensation offered; protests the Applicants participated in, including whether they were lawful or unlawful; as to the detention of the First Applicant, including whether he was charged with an offence; the surveillance claimed; and as to the harm feared by the Applicants on their return to China).
I recognise that dispatch by ordinary post suffices under s.441A(4) of the Act and that it is not necessary for the purposes of considering whether there has been compliance with the statutory requirements for the Tribunal to determine whether an invitation has actually been received by an applicant in circumstances where the deemed receipt provisions in s.441C apply. However, in the particular circumstances of this case, where the hearing invitation in issue was sent only by ordinary post and where there was no follow-up in the absence of any response, despite the fact that the Applicants had provided details of an alternative method of communication by email as well as a telephone number in the review application form, I am of the view that it was unreasonable for the Tribunal to exercise its discretion under s.426A of the Act without attempting to communicate by using another of the methods of communication that had been provided to them by the Applicants. The Tribunal had no knowledge as to the fate of the hearing invitation and there was nothing in the material before it (insofar as that material is before the court) to indicate that the hearing invitation had come to the attention of the Applicants. The fact that the Tribunal provided reasons for its action does not, in these circumstances, demonstrate that the exercise of the discretion was reasonable.
The Tribunal chose to send the hearing invitation by ordinary post rather than by registered post. It did so where the Applicants had provided details of readily accessible alternate methods of communication in the part of the review form which requested various methods of communication. The Applicants did not respond or attend the hearing, but any suggestion that a failure to contact the Tribunal about the scheduled hearing was relevant assumes that the Applicants had in fact received the notification of the hearing. There was no evidence to that effect before the Tribunal.
In my view, an objective consideration of the course of conduct and the nature of the Applicants’ review application leads to the conclusion that acting reasonably, let alone fairly and according to substantial justice and having regard to the merits of the Applicants’ case (given the difficulties of ascertaining such merit in the absence of a hearing), the Tribunal ought to have taken steps to email or telephone the Applicants when there was no response at all to the Tribunal’s hearing invitation. I am satisfied that the Tribunal’s exercise of its power under s.426A of the Act was legally unreasonable and therefore that the Tribunal exceeded its jurisdiction.
I note that in Kaur, Mortimer J expressed the view that even if the Tribunal’s exercise of power under the provision equivalent to s.426A was not legally unreasonable, it may amount to a denial of procedural fairness. The same may be said in this case. It is clear from the Tribunal’s reasons for decision that the Tribunal recognised that the Applicants may have been able to explain matters which were unclear to the Tribunal on the limited material before it and on that basis that they may have been able to provide evidence to persuade it that they met a criterion for the grant of a protection visa. In this sense, for the Tribunal to make its decision on the review without making any attempt to contact the Applicants by email or telephone, when there was no response to the hearing invitation sent by ordinary post, could be seen as a failure to give them a reasonable opportunity to present their case (see Li at [19] to [21] per French CJ and see Kaur at [142]). The Tribunal could also (arguably) be seen as having failed to fulfil its obligations under s.425 of the Act by issuing a hearing invitation and not following up at all when there was no response and no appearance by the Applicants in the particular circumstances of this case (see the discussion in Kaur at [143]-[148]). However, as I am satisfied that the decision of the Tribunal to proceed in the absence of the Applicants was legally unreasonable, it is not necessary to determine such issues.
In short, in the particular circumstances of this case, where the hearing invitation was sent by regular mail three months after the application was lodged; there was no response; the Applicants had provided an alternative methods of communication by email as provided for in the review form and also a contact telephone number; and having regard to the serious consequences for an applicant for a protection visa who failed to attend a Tribunal hearing, the Tribunal acted unreasonably in exercising its discretion to finalise the review under s.426A of the Act without taking any further steps to allow or enable the Applicants to appear before it. The matter should be remitted to the Tribunal for reconsideration according to law.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 19 August 2016
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