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MIGRATION - Review of Migration Review Tribunal decision affirming a delegate's decision refusing to grant a business visa - whether the MRT erred in refusing to grant an adjournment of the hearing before it following the detention of the applicant - whether the applicant was medically fit to attend the hearing - whether the MRT prejudged the issue of an adjournment - whether the refusal of an adjournment was unfair and indicative of a lack of good faith on the part of the MRT.

Horodynska v Minister for Immigration [2002] FMCA 240 (11 October 2002)

Horodynska v Minister for Immigration [2002] FMCA 240 (11 October 2002)
Last Updated: 30 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HORODYNSKA v MINISTER FOR IMMIGRATION
[2002] FMCA 240



MIGRATION - Review of Migration Review Tribunal decision affirming a delegate's decision refusing to grant a business visa - whether the MRT erred in refusing to grant an adjournment of the hearing before it following the detention of the applicant - whether the applicant was medically fit to attend the hearing - whether the MRT prejudged the issue of an adjournment - whether the refusal of an adjournment was unfair and indicative of a lack of good faith on the part of the MRT.



Migration Act 1958 (Cth), ss.353, 360, 362B, 474

Migration Regulations

Craig v South Australia (1995) 184 CLR

Minister for Immigration v Eshetu (1999) 197 CLR 611

NAAG v Minister for Immigration [2002] FCA 713

NAAV v Minister for Immigration [2002] FCAFC 228

NABN v Minister for Immigration [2002] FCAFC 294

NAIN v Minister for Immigration [2002] FMCA 177

R v Murray; ex parte Proctor (1949) 77 CLR 387

WAAK v Minister for Immigration [2002] FMCA 86

WADK v Minister for Immigration [2002] FMCA 175

Wu v Minister for Immigration [2002] FCA 1242

Zahid v Minister for Immigration [2002] FCA 1108

Applicant:
OKSANA HORODYNSKA



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ594 of 2002



Delivered on:


11 October 2002



Delivered at:


Sydney



Hearing Date:


11 October 2002



Judgment of:


Driver FM


REPRESENTATION

Counsel for the Applicant:


Mr D Burwood



Solicitors for the Applicant:


Ward Maxwell & Co



Counsel for the Respondent:


Mr G Kennett



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The decision of the Migration Review Tribunal, made on 27 May 2002, is declared to be invalid and of no effect.

(2) The respondent is to pay the applicant's costs and disbursements of and incidental to the application, fixed at $4,500.

(3) Parties have liberty to apply for further directions or orders arising out of these orders on three days notice.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ594 of 2002

OKSANA HORODYNSKA


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This ex tempore judgment relates to a decision of the Migration Review Tribunal ("the MRT") made on 27 May 2002 to affirm a decision of a delegate of the Minister not to grant to the applicant a temporary business entry class UC visa. The basic facts are set out in written submissions prepared on behalf of the respondent Minister. I adopt as accurate, for the purposes of this decision, the facts set out in paragraphs 1 to 6 of those written submissions.

2. On 2 October 2001, the applicant applied for a long stay temporary business visa. The application was made on the basis that the applicant was sponsored by Campari Ristorante, which was to be her employer. Campari lodged an application for approval as a business sponsor so that it could nominate the applicant, but that application was refused on 20 November 2001. The decision was reviewable in the MRT but no application for review was lodged. The applicant's visa application was therefore rejected by a delegate of the respondent because she was not nominated by an employer who was an approved sponsor.

3. The applicant applied to the MRT for a review of that decision. On 12 February 2002, the MRT was informed that the applicant was now employed by the Russian Relief Association. However, so far as the MRT was aware, no steps were taken to obtain approval of the Russian Relief Association as a business sponsor.

4. A hearing was arranged for 22 April 2002. This was postponed to 29 April 2002, as the applicant was in immigration detention. The applicant's adviser sought a further postponement on the ground that the applicant was traumatised by her time in detention, but this was refused by the MRT. The applicant did not attend the hearing but did provide, on 29 April, a letter from a psychiatrist expressing the opinion that she was not fit to present her case.

5. The MRT did not consider the certificate to be satisfactory medical evidence that the applicant was unable to attend the hearing and proceeded to make its decision on the papers, pursuant to s.362B of the Migration Act 1958 (Cth) ("the Migration Act"). Since the applicant was not nominated by an employer which was approved as a business sponsor, the MRT took the view that she did not meet one of the criteria for the grant of a subclass 457 visa, in particular, clause 457.223(4)(b) of schedule 2 to the Migration Regulations ("the Migration Regulations"). The MRT considered it was therefore obliged to affirm the decision not to grant the applicant a visa.

6. The applicant has, through her legal representatives, filed written submissions in support of her application and she has been represented before me today by Mr Burwood. The case presented on her behalf by Mr Burwood is put on the basis that the decision of the MRT was not a bona fide attempt to exercise the powers conferred on the MRT in view of the refusal by the presiding member to adjourn the hearing conducted on 29 April 2002 in the face of the medical opinion presented to the MRT. The case is thus put in a relatively narrow compass.

7. There is no dispute, as I understand it, that the applicant did not qualify for the class of business visa that she was seeking and therefore it is not disputed that the MRT came to an appropriate decision on the basis of the migration legislation. Nevertheless, it is put to me that there was a lack of bona fides in the manner in which the MRT conducted itself sufficient to support the grant of prerogative relief, notwithstanding the privative clause in s.474 of the Migration Act.

8. I am, of course, bound by the decision of the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228, where the Full Federal Court set out an explanation of the operation of the privative clause. That decision has itself been further explained by his Honour Sackville J in Zahid v Minister for Immigration [2002] FCA 1108 and his explanation has received the support of the Full Court in NABN of 2001 v Minister for Immigration [2002] FCAFC 294. I have myself considered NAAV in several decisions including in NAIN v Minister for Immigration [2002] FMCA 177. In that case, I ventured the view that, following the decision of NAAV, five and possibly six grounds of review are open to an applicant. These are drawn from the judgment of French J, at paragraph 535 of the judgment. Those grounds of review are:

(1) the decision exceeds the constitutional limits of legislative power imposed by the Commonwealth Constitution;

(2) the decision was not made in good faith;

(3) the decision was not reasonably capable of reference to the power with which it was made;

(4) the decision was not made by reference to the subject matter, scope and objects of the Migration Act;

(5) the decision was made in breach of an express statutory limit or condition upon a power which, as a matter of construction, notwithstanding s.474, must be observed for the effective exercise of the power; and, possibly

(6) the decision is made in breach of a limit or condition on a power which, notwithstanding s.474, is implied from the statute or imposed by the common law, and which must be observed for the effective exercise of the power.

9. A seventh ground of review was put forward by French J, namely, that the decision was made in breach of the requirements of procedural fairness when the circumstances are such that, notwithstanding s.474, procedural fairness is a necessary condition for the valid making of a decision. This ground did not find majority support in NAAV and cannot be taken to be good law in the circumstances.

10. It is clear, following the decision of NAAV, that a simple jurisdictional error of the kind identified by the High Court in Craig v South Australia (1995) 184 CLR 163 will not be sufficient to support judicial review in the face of the privative clause. In NAAV, in relation to the appeal by Turcan at paragraph 30, his Honour Black CJ considered the application of that case in the light of the privative clause. He said:

I take section 474(1) to express Parliament's intention that the Minister's satisfaction is to be taken to exist even if the Minister or the delegate has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material.

11. The same proposition applies when directed to the exercise of discretionary power by the MRT. His Honour went on to say that:

Where, however, the decision under review was subject to an inviolable precondition on the achievement of the degree of satisfaction or where a legal error is committed in arriving at that state of satisfaction, the decision will not be protected by the privative clause.

12. In this case, Mr Burwood has expressly forsworn any proposition that the decision of the MRT is vitiated by a breach of a jurisdictional pre-requisite and has put the claim solely on the basis that the decision was not a bona fide exercise of power. It is apparent, in particular, from the decision of his Honour Allsop J in NAAG v Minister for Immigration [2002] FCA 713, in particular at paragraph 24, that a bona fide attempt to exercise a power involves an honest attempt to deal with the subject matter conferred on the executive:

Bad faith is not just a matter of poor execution or poor decision making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question.

13. Mr Burwood took me to the Macquarie Dictionary definitions of the terms "attempt" and "genuine" and "honest." Relevantly, an "attempt" is to make an effort at; to try; to undertake; or to seek. "Genuine" relevantly means sincere or free from pretence or affectation. "Honest," for present purposes, means showing uprightness and fairness.

14. Mr Kennett, for the Minister, has submitted to me that the decision of the MRT discloses no breach of statutory requirements, that the decision was not procedurally unfair, that, even if it was procedurally unfair, the outcome could not have been any different and that, in any event, procedural unfairness does not provide a ground of review in the face of the decision of the Full Federal Court in NAAV. Further, he submits that the exercise of power by the MRT was a bona fide attempt.

15. In order to determine whether, in this case, the MRT has made a bona fide attempt at the exercise of the power conferred on it, it is necessary to have some regard to relevant provisions of the Migration Act. The first is s.360 which provides that the MRT must invite the applicant to appear before the MRT to give evidence and to present arguments relating to the issues arising in relation to the decision under review. There are some exceptions to that general obligation which are not presently material.

16. It is not disputed that an invitation was given in writing to the applicant in pursuance of s.360. The court book, at page 42, sets out the invitation given on 12 March 2002. A second invitation was issued on 26 March 2002, following a deferral of the initial hearing fixed by the MRT. Obviously, therefore, there has been no breach of s.360. Section 360A provides that the notice must be given by the MRT by a specified method and within the prescribed period or, if no period is prescribed, within a reasonable period. I was advised by Mr Kennett that periods have been prescribed pursuant to regulation 4.2(1) of the Migration Regulations of, respectively, two working days if the applicant is in detention or seven working days otherwise. In these circumstances, it is clear that sufficient notice was given.

17. The other relevant provision is s.353(2)(b), which provides that the MRT in reviewing a decision shall act according to substantial justice and the merits of the case. In the case of WADK v Minister for Immigration [2002] FMCA 175, referring to an earlier decision I made in WAAK v Minister for Immigration [2002] FMCA 86, I held that the equivalent provision in the Migration Act relating to the Refugee Review Tribunal ("the RRT"), namely s.420(2)(b) of the Migration Act, is an inviolable limitation on the jurisdiction of RRT, the breach of which would invalidate a decision of the RRT.

18. That decision is, I understand, subject to appeal, but at this stage it has not been found to be wrong. Mr Burwood does not submit that an inviolable provision of the Act has been breached. Rather, he submits that the non-compliance with that provision provides substance to the allegation of a lack of bona fides.

19. It does seem to me that the circumstances of the decision of the MRT in this case not to grant an adjournment of the hearing are troubling. Mr Burwood has provided a chronology and provided, during the luncheon adjournment, some additional written submissions drawn from that chronology. The facts are that on 12 March 2002 the MRT invited the applicant to a hearing on 22 April 2002. That hearing was adjourned to 29 April 2002 ostensibly, according to the decision of the MRT at paragraph 13, because the applicant was in migration detention. I was told by the solicitors for the applicant today (and it was not disputed) that the applicant was detained because she was mistaken for somebody else

20. It does not seem to me that the MRT was obliged to adjourn the hearing simply because the applicant was in migration detention. I note in this regard that the Migration Regulations prescribe a period of notice for an invitation for persons who are in detention. It seems obvious that the MRT, like the RRT, should be able to continue with proceedings, notwithstanding that a person is in immigration detention. Otherwise, the system of review would be simply unworkable.

21. Nevertheless, based upon whatever consideration was given to the issue at the time, the RRT decided to adjourn the initial hearing. On 26 March 2002, by letter, the MRT invited the applicant to a new hearing to be conducted on 29 April 2002. The sequence of events from that point is evidenced by the documents in the court book commencing at page 44. Document 45 is an MRT minute signed by an officer of the MRT and directed to the presiding member on 24 April 2002. This states that the officer contacted the applicant's representative to see if the applicant would be attending the hearing set down for 29 April 2002.

22. The MRT officer reported to the presiding member that the representative informed the officer that the applicant had just come out of detention and as a result she had been traumatised. Given the apparent circumstances of the detention, that is not surprising. The representative advised that the applicant's husband was taking the applicant to see a medical consultant on Saturday for a medical certificate. The representative advised that when he got the medical certificate he would fax it through to the MRT. The representative stated that he believed the applicant would not be attending the hearing and requested a postponement. He advised that he would put this in writing to the MRT.

23. On 24 April 2002 the MRT was thus put on notice that the applicant was claiming a medical condition which prevented her from attending on 29 April 2002 and that she was seeking an adjournment. In addition, document 46 is a letter from the applicant's representative to the MRT dated 24 April 2002 which confirms the telephone conversation and makes a written request for a postponement. The letter also promises a letter from a consultant psychiatrist to support the request for an adjournment.

24. The next document (CB 47) is a file note of significance. The note is dated 29 April 2002, which was the date set down for the hearing. It is apparent that that conversation took place relatively early in the day on 29 April 2002, and apparently before the time fixed for the commencement of the hearing. The note was made by an officer of the MRT relating to a telephone conversation with the applicant's representative and I quote it in full:

I rang the applicant's representative Mr Nindra to advise that the request for postponement of today's hearing had not been granted. The adviser stated that there would be a fax from the applicant's psychiatrist in the next half-hour. I explained that the Member [meaning the Presiding Member] had already stated that the hearing will go ahead at the original time.

The adviser stated that the applicant was `mentally unfit' for hearing and that a fax was on its way. I reiterated to the representative that the Member had already considered the request and the hearing would be going ahead at the original time.

25. Document 48 in the court book is a further letter from the applicant's representative to the MRT, dated 27 April 2002 but faxed on 29 April 2002 at 10.42am, apparently following the telephone conversation that I have referred to. The letter provided a copy of a medical certificate from Dr G Murugesan, a consulting psychiatrist. That medical certificate is headed "To Whom it May Concern". There is a reference to the applicant. Her name is misspelt, but I am satisfied that it does relate to the applicant. It continues:

I assessed [Ms Horodynska] on 27 April 2002. In my opinion she is unable to present herself before the Migration Review Tribunal on 29 April 2002 due to her current frame of mind. She was detained at the Villawood Centre from 4 April 2002 until 22 April 2002. I will review her condition in two weeks.

26. A further fax was sent from the MRT to the applicant's representative on 29 April 2002 at 12.10pm, stating that the medical report had been received, and that the presiding member was not satisfied that the hearing should be vacated (CB 50). The fax stated that a hearing would go ahead as previously scheduled at 12.00 noon that day. The fax stated that the presiding member advised that the applicant and/or her adviser should attend.

27. The next document (CB 51) is a further letter from the applicant's representative to the MRT, dated 30 April 2002, stating that the earlier fax I have just referred to had been received, and confirming that the applicant was unable to attend because of her mental frame of mind. The representative advised that he had been unable to attend himself but that, in any event, he was not able to obtain instructions from his client because of her state of mind. The representative also advised that his client instructed that she was willing to attend once she was fit enough.

28. The next document(CB 52) is a file note by the same officer who had conducted the earlier telephone conversation on 29 April 2002, stating that the fax from the representative on 30 April 2002 was given to the presiding member for consideration, but that she would not change her position and she would proceed as she had previously advised.

29. These circumstances are dealt with by the MRT at paragraphs 13-16 of its decision. At paragraph 14 the presiding member purports to give a summary of the events between 24 April 2002 and the date of the hearing on 29 April 2002, but that is an incomplete summary.

30. As pointed out by Mr Burwood, the presiding member omits to note that the MRT had been informed that the applicant's husband was taking her to a medical consultant for a medical certificate and that the representative advised on 24 April 2002 that he would fax it through to the MRT. There is no proper discussion at all of the notice given to the MRT on 24 April 2002 of the applicant's medical condition. In relation to the events on 29 April 2002, the presiding member omits to record that the MRT was advised by the adviser that there would be a fax from the applicant's psychiatrist in the next half hour. The presiding member makes no mention of the events on 30 April 2002.

31. At paragraph 15, the presiding member says this:

The Tribunal is satisfied the primary visa applicant has received notice of the scheduled hearing. The Tribunal notes the medical report of Dr G Murugesan. The Tribunal places no weight on this report. The report does not indicate the primary visa applicant suffers from any psychiatric illness or that she is currently receiving any ongoing treatment. The Tribunal is satisfied on balance the primary visa applicant has not provided the Tribunal with satisfactory medical evidence that she suffers from a medical illness rendering her unable to attend the scheduled hearing.

32. I make the following observations about those conclusions of the presiding member. First, the presiding member was incorrect in stating that the medical report from Dr Murugesan did not indicate that the applicant was currently receiving any ongoing treatment. Dr Murugesan's report clearly states that he would review the applicant's condition in two weeks, indicating that she was under ongoing care. Secondly, in the face of the clear terms of Dr Murugeson's opinion, it is hard to imagine what evidence would have satisfied the presiding member that the applicant was suffering from a medical condition rendering her unable to attend the scheduled hearing. The medical opinion given by Mr Murogasan is quite explicit. Unless it was plainly disbelieved by the presiding member, it should have been accepted as a proper medical opinion that the applicant was unfit to attend.

33. It also seems to me that the presiding member asked herself the wrong question. The issue was not whether the applicant suffered from any psychiatric illness. The issue was whether the applicant was fit to attend the hearing before the MRT. The medical opinion from Dr Murugesan stated clearly that she was not.

34. The presiding member does not state that she disbelieved the doctor. She does not state that the exercise of obtaining the certificate was a sham or a part of some scheme to artificially delay the proceedings. She simply states that she was not satisfied with it. In my view, that is an unsatisfactory conclusion which, at the very least, establishes, to my mind, a lack of procedural fairness in the way in which the presiding member conducted the proceedings. More significantly, however, the file note by Miss Annie Felicietti, at page 47 of the court book, establishes clearly, in my view, that the presiding member had decided to proceed with the hearing before seeing the psychiatrist's opinion. Ms Felicietti states that expressly twice in the file note. There is no suggestion that the file note is not an accurate record of the conversation or that Ms Felicietti was mistaken in passing on the view expressed by the presiding member. I find that the presiding member had decided not to defer the hearing on 29 April 2002 prior to seeing the medical opinion from Dr Murugesan. The circumstances evidenced by the documents that I have referred to establish, to my satisfaction, that the presiding member had a closed mind on that issue by the time the medical opinion was received and that it would not have mattered what was contained in the medical opinion.

35. That establishes to my satisfaction procedural unfairness but, as I have already noted, in the face of the privative clause and in the light of the decision of the Full Federal Court in NAAV, that is not sufficient to provide a ground of review of the MRT decision. It is necessary to establish relevantly either that the attitude adopted by the presiding member establishes a lack of good faith or that there was a breach of some jurisdictional prerequisite in the Migration Act with vitiates the decision, notwithstanding the privative clause. As I have already noted, Mr Burwood has not submitted the latter proposition although, on the basis of my decision in WADK, it is at least arguable that s.353(2)(b) is such a jurisdictional pre-requisite and that it has been breached.

36. It is difficult to avoid the conclusion that these proceedings were not conducted according to substantial justice. The opportunity for an applicant to attend a hearing before the MRT is a basic right. If an applicant, being invited to attend, wishes to attend but is unable to attend by reason of a medical condition it is, in my view, unacceptable for the MRT to proceed in the absence of the applicant. Even if I was wrong in the description of s.353(2)(b) as an inviolable requirement or a jurisdictional pre-requisite it is, at least in my view, a provision the non-observance of which can properly support a claim of a lack of bona fides.

37. Yesterday, his Honour Sackville J gave judgment in the matter of Wu v Minister for Immigration [2002] FCA 1242. His Honour dealt with the issue of bona fides, in particular from paragraph 55. At paragraph 57 his Honour referred to the earlier decision of Federal Court in NAAV and the decision of his Honour Allsop J in NAAG. His Honour referred to the decision of his Honour Beaumont J in NAAV, who expressed agreement with the comments of Allsop J in NAAG and also who referred to the decision of his Honour Dixon J in R v Murray; ex parte Proctor (1949) 77 CLR 387 where his Honour said that:

An honest attempt to deal with the subject matter conferred on the Executive can be equated with bad faith and is not just a matter of poor execution or poor decision making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question.

38. At paragraph 58 Sackville J said this:

von Doussa J, with whom Black CJ agreed, gave as an example of a decision that is not a bona fide attempt to exercise the power conferred by the Migration Act one affected by actual bias. Later in the judgment he expressed general agreement with the views of Allsop J in NAAG of 2002 v Minister, presumably including the comments quoted above. Towards the end of his judgment von Doussa J addressed the significance of a failure by a tribunal to follow procedures that have been made merely directory (as distinct from mandatory) by the operation of section 474(1).

39. His Honour then includes the following quote from von Doussa J in NAAV, at paragraph 674:

A failure by a decision maker to follow directory provisions in the Act may in the circumstances of a particular decision be important in determining whether its making was not an honest attempt to deal with a subject matter confided to the Tribunal and to act in pursuance of the powers of the Tribunal... A blatant disregard of statutory directions about a decision making process laid down in the Act is unlikely to meet the Hickman proviso that the decision be one that is a bona fide attempt to exercise the relevant power. Unless that requirement is met s.474(1) cannot validate the decision.

40. It is apparent from the decision of the High Court in Minister for Immigration v Eshetu (1999) 197 CLR 611 that s.353, like s.420, does not establish a procedure to be followed by the MRT. However, the obligation to act in accordance with substantial justice and the merits of the case is more than a mere motherhood statement. It establishes an overarching principle which is, at the very least, in my view, directory in nature, and, as I have found previously, rather more than that. In my view, a failure to act according to substantial justice in conformity with s.353(2)(b) indicates a lack of good faith. In this case the presiding member, by reaching a pre-determined view not to adjourn the hearing before even seeing a medical opinion provided on behalf of the applicant, failed to act in accordance with substantial justice, thereby establishing a lack of good faith.

41. I conclude, therefore, that the decision of the MRT is vitiated by a reviewable legal error, notwithstanding the operation of the privative clause.

42. The provision of prerogative relief is discretionary. It does not necessarily follow that even where reviewable legal error is established the relief should be granted. In this case, if the applicant had attended it would probably not have made any difference to the outcome of proceedings before the MRT, given that it was clear that the applicant could not establish an essential prerequisite to the granting of the class of visa she was seeking. That was because she did not have an approved sponsor. Nevertheless, it was conceded by Mr Kennett, on behalf of the Minister, that if a reviewable error was established, notwithstanding the privative clause, some purpose would be served by returning the matter to the MRT for re-determination. That is because at the time the matter falls to be re-determined the facts may have changed and the MRT can, and should, decide the matter on the basis of the facts as they exist at the relevant time. I am told that the applicant is still employed by the Russian Relief Association and that the Association may seek approval as a sponsor in support of the applicant's application for a business visa. Accordingly, I am satisfied that some purpose would be served by the granting of prerogative relief.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 25 October 2002
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