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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.

SZCQR v Minister for Immigration [2004] FMCA 685 (15 October 2004)

SZCQR v Minister for Immigration [2004] FMCA 685 (15 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCQR v MINISTER FOR IMMIGRATION
[2004] FMCA 685




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.




Migration Act 1958 (Cth), ss.422B, 424, 425A, 426A, 474

Judiciary Act 1903 (Cth) s.39B

Migration Legislation Amendment (Procedural Fairness) Act 2002, Sch 2, Item 7

Acts Interpretation Act 1901, s.15AA

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1995) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Hossain v Minister for Immigration & Multicultural Affairs [2000] FCA 842

NALQ v Minister for Immigration [2003] FMCA 455

NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52

M172 v Minister for Immigration & Anor [2004] FMCA 23

Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 58 ALD 30

Inderjit Singh v Minister for Immigration & Multicultural Affairs 183 ALR 531

Metal Manufacturers Pty Limited v Lewis (1988) NSWLR 315

Minister for Lands v McPherson (1990) 22 NSWLR 687

Bropho v State of Western Australia (1990) 93 ALR 207

Cole v Director General of Department of Youth and Community Services (1987) 7 NSWLR 541

Balog v Independent Commission against Corruption (1990) 64 ALJR 400

Minister for Immigration and Ethnic Affairs v Teoh (1995) 69 ALJR 423

NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781

Waid v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220

Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1249

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6

NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184

B41 of 2003 [2004] FCA 30

A97 v Minister for Immigration & Ors (No. 2) [2004] FMCA 178

SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779

SZBBL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 834

Applicant:
SZCQR




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ308 of 2004




Delivered on:


15 October 2004




Delivered at:


Sydney




Hearing date:


7 October 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Counsel for the Applicant:


Mr I Archibald




Solicitors for the Applicant:


Ms M Byers




Counsel for the Respondent:


Mr D Jordan




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in the amount of $4,800.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ 308 of 2004

SZCQR



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This judgment relates to a decision of the Refugee Review Tribunal ("the Tribunal") made on 14 December 2003 and handed down on 14 January 2004. The Tribunal affirmed a decision of a delegate of the Minister Immigration & Multicultural & Indigenous Affairs ("the Minister") not to grant the applicant a protection (Class XA) visa.

2. The applicant who claims to be a citizen of the People's Republic of China arrived in Australia on 4 August 2002. On 3 September 2002 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act"). On 8 October 2002 a delegate of the Minister refused to grant a protection visa.

The history

3. The applicant is an unmarried accountant of Han ethnicity, born in 1970 in the Shan Dong Province of the People's Republic of China. She lived at the one address in the city of Qingdao from birth until July 2002. She was educated for twelve years in that city, completing her education at a financial college in July 1988.

4. The applicant then worked as a bookkeeper for an import/export company until July 1999 after which she worked as an accountant for another company from August 1999 to August 2002. Her parents and siblings all reside in China.

5. The applicant left China legally in August 2002 and came to Australia using a passport issued in October 2001 and a visa issued in Beijing in May 2002. She entered Australia on a business visa allowing her to stay in Australia for one month. The applicant claimed she had no difficulty in obtaining her passport or visa. Further the applicant claimed she had never travelled outside of China before journeying to Australia.

6. The applicant stated that she had never been convicted of any crime or offence and to the best of her knowledge had not been subjected to any criminal investigation and had no criminal charges pending against her. The applicant sought protection so that she was not required to return to China. The applicant claimed that she and her family had suffered long-term persecution because they were categorised as rich farmers at the time of the Cultural Revolution. The applicant stated that during the time of the Cultural Revolution, she and her family moved from a big house to a small flat and that her parents worked in a factory in a dirty and difficult work environment.

7. The applicant claimed that because of the categorisation of her family she had experienced discrimination since her childhood. She also claimed that, if she was forced to return to China, she feared she and her family would continue to suffer persecution at the hands of local government, local public security bureaux and other organisations.

The delegate of the Minister's decision and reasoning

8. The delegate of the Minister accepted that the applicant and her family had suffered during the Cultural Revolution. However, the delegate did not consider this ill treatment was continuing today in China. At the delegate's disposal, was recent country information, which indicated that the harsh conditions and mistreatment that had occurred during the Cultural Revolution had ceased. The applicant was unable to provide details of the discrimination that she was being exposed to and the claims were unsubstantiated. The delegate was not satisfied that the applicant's claims of persecution were well founded.

9. On 11 November 2002 the applicant applied for a review of the delegate's decision.

The Tribunal's decision and reasoning

10. When the applicant completed her application for review, she indicated that she would provide a statement to satisfy the requirements under Section D of that application at a later date. However, in the nine months that transpired from the date of lodgment, the Tribunal received nothing until they wrote to the applicant on 8 August 2003, pursuant to s.424 of the Act, inviting her to provide additional information about her claim. The applicant replied to the Tribunal on 7 September 2003, raising two arguments in support of her application. These were firstly, that the delegate did not understand the situation in China and secondly, that since arriving in Australia she had become a pious follower of the Falun Gong. The remainder of the material requested by the Tribunal was not supplied.

11. In a letter dated 1 September 2003, the applicant's migration agent stated that the applicant was having problems providing the other requested information and that she needed more time to obtain it from friends and relations but indicated that it would be provided prior to 16 September 2003. Material was submitted to the Tribunal on 16 September 2003 when the applicant supplied four photographs with a covering letter indicating that these were photographs of the applicant participating in various Falun Gong activities in the Sydney and Parramatta areas.

12. On 19 November 2003 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but was unable to make a favourable decision on the material it had available to it. The Tribunal invited her to give oral evidence and present arguments at a hearing on 17 December 2003. On 10 December 2003 the applicant advised the Tribunal that she wished to give oral evidence but she failed to attend the hearing as scheduled. As a consequence of the applicant's non appearance, the Tribunal made the decision pursuant to s.426A of the Act that it would proceed to make a decision without taking further action to enable the applicant to appear before it.

13. The Tribunal formed the view that the applicant was unlikely to have suffered any discrimination as a result of the Cultural Revolution in recent times. From information it had available to it, the Tribunal found that the impact of the Cultural Revolution would have dissipated through the applicant's childhood. The applicant failed to provide any discrete evidence of any discrimination that she had personally suffered. The Tribunal believed it would be highly unlikely that the applicant would suffer persecution relating to her family background if she were to return to China in the foreseeable future.

14. The claims in relation to membership of the Falun Gong only emerged after the original protection visa application had been lodged. The information the applicant did provide was that she had met Falun Gong practitioners since her arrival in Australia and that she had become a "pious follower". There was no information supplied in the form of witness statements verifying her membership of the organisation, nor was there any other supporting information from the applicant about the movements, operations or goals of the Falun Gong.

15. The Tribunal also formed the view that it was unlikely that the applicant was motivated by a genuine belief in Falun Gong and that it was extremely unlikely that she would follow the practice of that movement on return to China. It was therefore unlikely that the applicant would suffer the risk of persecution because of her allegiance to Falun Gong on her return to China. The Tribunal therefore found that the applicant did not have a well-founded fear of persecution.

The application for review of the Tribunal's decision

16. On 8 February 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) of the Tribunal's decision. An amended application was filed on 6 June 2004 and a further amended application was filed on 1 October 2004.

17. The grounds of the further amended application were as follows:

1. The Decision is void for jurisdictional error in that:

a. On 5 December 2003 the applicant advised the Tribunal in writing that she wished to attend the Tribunal hearing on 17 December 2003.

b. The applicant did not appear at the scheduled Tribunal hearing on 17 December 2003 at 9.30 a.m.

c. Procedural fairness at that point required the Tribunal to contact the agent, or the applicant to ascertain if there was any substantive reason for the non-attendance before proceeding to make its decision.

d. There was a substantive reason for the non-attendance of the applicant not known to the Tribunal.

e. Prior to the handing down of the Tribunal decision the applicant advised the Tribunal of the importance of the Tribunal hearing to her, and requesting a new date.

f. The Tribunal failed to offer an adjournment and proceeded to hand down its Decision.

g. In all the circumstances there has been a breach of the requirements of procedural fairness sufficient to constitute jurisdictional error.

2. The Decision is void for jurisdictional error in that:

a. Section 425A of the Migration Act 1958 ("the Act") required that the notice of the day, time and place at which the applicant is scheduled to appear must contain a statement of the effect of section 426A.

b. Section 426A provided that if the applicant is invited under section 425 to appear before the Tribunal: and 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 and that the 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.

c. The tribunal sent an invitation to the applicant to come to a hearing of the Tribunal on Wednesday 17 December 2003 9:30 a.m. at level 29 Pacific Power Building 201 Elizabeth Street Sydney.

d. The invitation did not contain a statement of the effect of section 426A.

The law

18. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

19. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

20. The applicant was represented by Mr I Archibald of Counsel, who filed written submissions on 1 October 2004. Mr Archibald also indicated that the affidavit of the applicant dated 14 July 2004 would be relied upon.

21. Mr Archibald made detailed oral submissions in support of his written submissions as to the operation of Part 7 Division 4 of the Act and in particular the operation of s.422B to the effect that there are circumstances which fall outside of the exhaustive statement of natural justice to hearing rule. The operation of each section within the Division was examined, focussing on the operation of s.426A(2) which gives the Tribunal the power to reschedule the applicant's appearance before it, or alternatively to delay its decision on review in order to enable the applicant's appearance before it in the case of rescheduling.

22. It was submitted that the applicant was willing to appear and took quick action to notify the Tribunal once the applicant realised that she had not been represented at the hearing. In these circumstances, it was argued that it would be a breach of the fundamental right of procedural fairness if the opportunity to appear was denied. The consequence of this argument was that the operation of s.422B does not provide a comprehensive right to procedural fairness in the operation of Division 4.

23. In written submissions this contention was supported by the case of Hossain v Minister for Immigration & Multicultural Affairs which was a case in which, on the day before the scheduled hearing, the applicant sent by fax a medical certificate and a short note to the Tribunal seeking an adjournment. The medical certificate provided the diagnosis of bronchitis and a mild fever and it stated that the applicant was unfit for work on the day of the hearing as well as on two other days. An officer of the Tribunal had spoken to the applicant the day before the hearing about the applicant's asserted inability to attend. The Tribunal had also spoken to the applicant's doctor. The Tribunal determined it was not satisfied that the applicant was unable to attend the hearing.

24. Mansfield J decided that there had been no breach of either s.425(1) or s.426A(1) of the Act. He decided it was reasonably open to the Tribunal to determine on the facts before it that the explanation offered by the applicant for an inability to attend was insufficient and that, in the circumstances, the applicant was fit to attend and that the Tribunal could proceed in the presence of the applicant. His Honour said at [20]:

"If the applicant had been invited under s.425(1) to appear before the Tribunal to give evidence, as was the case in this instance, and the applicant does not appear before the Tribunal on the day and at the time and place at which the applicant is scheduled to appear, an issue may arise as to whether the Tribunal can proceed whatever the reason for that non appearance. The expression `does not appear' in s.426A(1)(b) may require further judicial exposition in other cases. For instance, it may be that there is clear evidence that a visa applicant is unable to attend although he has expressed a desire to attend. He may be hospitalised. There may be many explanatory circumstances. No doubt the issue has not arisen because the Tribunal responds appropriately to true cases of hardship.

I am not to be taken as accepting that non-appearance, whatever the Tribunal may know about the reason for non-appearance, will suffice to enable the Tribunal to proceed to determine the review without taking further action to allow a visa applicant to appear before it. Whether it may do so under s.426A(1) may depend upon the circumstances."

25. Written submissions also contained reference to NALQ v Minister for Immigration, a decision of Driver FM at [20] referring to Mansfield J said:

"With respect, I agree with His Honour's analysis concerning s.426A(1). In my view, the answer to the question of whether the RRT was entitled to proceed under s.426A(1)(b) of the Act is answered by the answer to the question of whether the decision of the RRT to refuse an adjournment was procedurally fair. If that decision was procedurally unfair the RRT should not have proceeded in the absence of the applicant in reliance upon s.426A(1)(b). On the other hand, if there was no procedural unfairness, the RRT was entitled to proceed in the absence of an applicant."

26. Reference was also made to NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs where Lindgren and Stone JJ suggested that it is necessary to determine the scope and content of the requirements for natural justice in particular factual circumstances of the case and whether those requirements were met. What must be demonstrated is `unfairness' and the concern of the law is to avoid `practical injustice'.

27. It was submitted in the case of M172 v Minister for Immigration & Anor ("M172") the agent sent an e-mail transmission to the Tribunal saying that the applicant would not be attending the hearing. The applicant asserted that his migration agent said he would handle the application and he was to leave everything to him. The applicant told the agent that he wanted to appear before the Tribunal and an appeal was lodged. The applicant said that the agent told him of the letter inviting him to attend the hearing and that he was told by the agent that he would take care of it. The applicant contended that he had never told the agent that he did not want to attend at the hearing and gave the agent no authority to write to the Tribunal and tell them he was not attending. The applicant contended that he was denied natural justice in that he was not able to give an account to the Tribunal of the persecution he suffered at the hands of the corrupt government official.

28. The Court noted at [18] that having received notification from the applicant's agent that he did not intend to appear, subject to s.426A, the Tribunal was entitled to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Alternatively, s.425(2)(b) of the Act, does not require the Tribunal to provide an applicant to appear at a hearing if the applicant consents to the Tribunal deciding the case in the absence of the applicant.

29. In M172 there are a number of passages commencing at [20] through to [28] which discuss the issue and are summarised in [29]:

"See also Re MIMIA: Ex parte "A"(2001) 185 ALR 489 and Sullivan v Department of Transport (1978) 20 ALR 323 at page 343 where Dean J says:

`In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable "opportunity" to present his case. Neither the Act nor the Common Law imposes upon the Tribunal the impossible task of ensuring the party takes the best advantage of the opportunity to which he is entitled.'

30. Counsel for the applicant also submitted to me that it was clear that the Tribunal was required to take into account all relevant circumstances at the time the decision was being handed down. Counsel referred me to a passage in Sellamuthu v Minister for Immigration & Multicultural Affairs per Wilcox and Madgwick JJ at [18]-[19]:

"Firstly, s.414 requires that the RRT must `review' the primary decision. It must in the first place consider, among other things, any `written arguments relating to the issues arising in relation to the decision under review' (ss.423 and 424). It must, if not thereupon favourably inclined toward the applicant, continue the review process with the aid of any additional evidence given by the applicant (s.425(1)(a)) and any other evidence that the RRT considers necessary to obtain (s.425(1)(b)). The Tribunal is given far-reaching powers to obtain such evidence under ss.427 and 428 (see also ss.56, 60 and 415). The Minister's (or his or her delegates) decision under review must itself have been made after having `regard to all of the information in the application' (emphasis added) by the visa applicant (s.54), and after the application of an impressive statutory requirement intended to ensure that an applicant understands and has a chance to deal with the case against him or her (s.57 and especially s.57(1)(b): these go well beyond the requirements of common law or procedural fairness). In a context like this, the ordinary meaning of `review' would be to carefully re-examine the primary decision, with a view to amending or improving it: see the Shorter Oxford English Dictionary definitions of `review' and `revision'.

31. Reference was made to the decision of Merkel J in Inderjit Singh v Minister for Immigration & Multicultural Affairs which considers the whole statutory content, including s.430B(4), in which the powers the functions of the Tribunal are described and continue at [26]-[27]:

"The primary function of the RRT is to review the decision of the delegate refusing the applicant a protection visa (s.414(1)). The RRT has wide powers and discretions as to the manner in which it conducts that review. Although the decision on the review is to be made prior to it being handed down, the handing down of the decision is not to occur until after written notice has been given concerning the time and place at which the decision is to be handed down. However, there is nothing in the statutory scheme that would prevent the RRT from deferring the handing down of its decision until a later date than that notified to the parties if circumstances arose that made it appropriate. Section 430B, which provides for the handing down of the decision, does not contain any requirement that the decision must be handed down on the notified date. Rather, s.430B(4) provides that the date of the decision is the date on which the decision is actually handed down.

It is fairly clear that under the statutory scheme, and in particular s.430B(4), although a decision is to be made and, in the usual course, committed to writing prior to it being handed down, the decision is only intended to be treated as final and operative as from the date on which the decision is handed down, that is, as from the date of the decision. Thus, there is nothing in the statutory scheme that would appear to prevent the RRT from reconsidering, recalling or altering any decision it has made prior to the date on which the decision is handed down."

32. The submission on behalf of the applicant is that, taking into account the factors affecting the context of procedural fairness including the statutory context, the seriousness of the consequences for the affected individual, the lack of a need for an urgent exercise of statutory power, the long delay in economic cost, the width of the discretion given to the decision-maker, the legitimate expectation of the applicant and the inquisitorial nature of the proceedings, on balance, the Tribunal should have offered an adjournment once the applicant's letter dated 5 January 2004 had been received.

33. The applicant's submissions in respect of Ground 2 of the further amended application concern the construction of the notice of invitation to appear before the Tribunal. It was submitted that the invitation letter only said "if you do not attend the hearing and the Tribunal does not postpone the hearing it can make a decision on your case without further notice". This information was contained in part of an important information message, which is set out in the middle of the front page of the standard RRT letter forwarded to applicants inviting them to attend a hearing. The details were set out within a box on the page which contained the date, time and place under a separate heading of Information About Your Hearing and two dot points. The first of those dot points read:

"The Tribunal will only change this hearing date for good reason. If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing it can make a decision on your case without further notice."

34. It was submitted that the contents of this dot point, within the notice, did not satisfy the requirements of s.426A of the Act. This was based on a strict construction argument. The submission was that there are critical differences in the wording of the invitation letter from those words contained within s.426A of the Act. The submission was that the wording of the letter should be in strict compliance with the provisions of the Act. It was submitted that s.426A provided that the Tribunal may make a decision without any further action to "allow or enable the applicant to appear before it" and that the section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision of the review in order to enable the applicant's appearance before it as rescheduled. The argument was that there are differences between the statement in the Tribunal's letter and the effect of the section. It was submitted that these differences were:

a) The section said in effect that the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it. The statement said that the Tribunal can make its decision without further notice.

b) Further notice is not defined. Theoretically, there are steps other than further notice, which a Tribunal can take to allow or enable an applicant to appear before it prior to making its decision.

c) For example, if, without notice, an applicant requests the opportunity to appear before the Tribunal, before it makes a decision, the section would entitle the Tribunal to make its decision without taking "action to enable the applicant to appear before it". This possibility was not communicated to the applicant. In the event, this possibility had in fact occurred in the facts in this case.

d) The section said that it does not prevent the Tribunal from rescheduling the applicant's appearance or from delaying its decision in order to enable the applicant's appearance before it as rescheduled.

e) The statement simply makes reference to a theoretical possibility - "and the Tribunal does not postpone the hearing". The section foreshadowed that the applicant would be advised explicitly as to the possibility of a rescheduling of the appearance, or a delaying of the decision in order to enable the applicant's appearance. The applicant was denied this explicit communication.

35. Counsel then took me to a series of authorities to support his argument based on construction. The starting point was the Acts Interpretation Act 1901 s.15AA:

"Regard to be had to purpose or object of Act

(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."

36. It was argued that this was an explicit requirement and did not give authority to read down the construction of any Act. Authority for this can be found in Metal Manufacturers Pty Limited v Lewis (1988) NSWLR 315. Counsel then took me to a number of authorities which covered the individual elements of the argument of their construction argument. Those authorities included: Minister for Lands v McPherson (1990) 22 NSWLR 687; Bropho v State of Western Australia (1990) 93 ALR 207; Cole v Director General of Department of Youth and Community Services (1987) 7 NSWLR 541; Balog v Independent Commission against Corruption (1990) 64 ALJR 400; Minister for Immigration and Ethnic Affairs v Teoh (1995) 69 ALJR 423.

37. The respondent was represented by Mr Jordan of Counsel who filed written submissions which were supported by oral submissions at the hearing. It was submitted that Ground 1 contends that the Tribunal's election to proceed pursuant to s.426A(1) of the Act to make a decision without taking any further action, following the failure of the applicant to attend the hearing, constituted denial of procedural fairness.

38. The application for review by the Tribunal was lodged after s.422B of the Act came into effect. Consequently, Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of natural justice hearing rule in relation to the matters to be dealt with. Therefore, procedural fairness of common law is not applicable and the applicant cannot demonstrate jurisdictional error unless she can establish that the Tribunal failed to comply with one of the provisions of Division 4 of Part 7 of the Act. Section 422B of the Act came into effect on 4 July 2002 and it applies to applications for review lodged after that date pursuant to the Migration Legislation Amendment (Procedural Fairness) Act 2002, Schedule 2 Item 7. In this case, the application for review was lodged with the Tribunal on 11 November 2002. This is clearly inside of the operation of s.422B.

39. It was submitted that in any event a review of the chronology of this matter does not disclose any defect or unfairness in the decision making process adopted by the Tribunal and demonstrates that the applicant was given proper opportunity to attend the hearing and consequently there was no denial of procedural fairness. The chronology was as follows:

i) On 11 November 2002 the applicant lodged her application for review with the tribunal. The application did not provide any grounds but referred to a statement to be provided later.

ii) On 12 November 2002 the tribunal wrote to the applicant confirming receipt of her application for review and directing her to immediately send further information relevant to her case. The letter referred to the procedures for being invited to a hearing and emphasised the importance of the hearing in the review process.

iii) On 8 August 2003 the tribunal sought additional information from the applicant in relation to her claims. The tribunal was led to this request because the applicant had failed to provide any material in support of her application for review. Pursuant to s424C(1) of the Act, the letter warned that the tribunal may make a decision without further notice if the applicant failed to provide the requested further information within the specified time.

iv) On 9 September 2003 the tribunal received a statement from the applicant addressing only some of the questions raised in the tribunal's request for further information dated 8 August 2003.

v) On 19 November 2003 the tribunal invited the applicant to attend a hearing scheduled for 17 December 2003. The letter warned that the hearing date would not be changed without good reason and that a decision may be made without further notice if the applicant failed to attend the hearing. The letter enclosed explanatory material in relation to the hearing process and a "Response to Hearing Invitation" form. Importantly, the letter identified a specific person to be contacted at the tribunal if the applicant had any questions.

vi) On 10 December 2003 the tribunal received a "Response to Hearing Invitation" form indicating that the applicant would attend the scheduled hearing.

vii) On 17 December 2003 the applicant failed to attend the scheduled hearing.

viii) On 5 January 2004 the tribunal received a facsimile from the applicant apologising for her failure to attend the hearing. The facsimile did not offer any explanation for the applicant's non-attendance. This facsimile was the only correspondence submitted for consideration by the tribunal in relation to whether or not a further hearing should be arranged.

ix) The applicant's apology was taken into account by the tribunal but, in the absence of any explanation for the applicant's failure to attend the hearing, the tribunal elected to proceed to a decision.

40. It was submitted that in the context of this history of the proceedings, it was open to the Tribunal to proceed pursuant to the discretion conferred by s.426A(1) of the Act. Even on the applicant's evidence in this Court as to the advice she received from her migration agent, it was ultimately her decision not to attend the hearing.

41. It was submitted that in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs Lindgren J considered this issue in relation to the similar provisions that apply under the Act for the Migration Review Tribunal and these provisions are contained in Division 4 Part 5 of the Act and are the mirror image of Division 4 Part 7. His Honour in the decision discusses this issue at [83]-[87] and in particular at [86] where it is stated:

"If the presiding member were to state to an applicant that he or she need not give evidence or present arguments relating to an issue, then later, forgetting this, were to give a decision adverse to the applicant turning on this very issue, the applicant's entitlement to relief would depend, not on natural justice hearing rule, but a question of proper construction of sub.360(1) and succeeding provisions, because they deal with the `matter of the applicant's rights to give evidence and to present arguments on' issues arising in relation to the decision under review."

42. See also Waid v Minister for Immigration & Multicultural & Indigenous Affairs at [57] and Wu v Minister for Immigration & Multicultural & Indigenous Affairs at [18]-[24].

43. The principal was further considered in M172 in the judgment of Bryant CFM, particularly at [28]:

"All the Australian authorities require some defect in the decision making process: Re MIMIA; Ex parte Lam (2003) HCA 6 where at paragraph 105 McHugh and Gummow JJ said:

But the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision-making process not the decision, as Lord Brightman put it (98). What is delivered by the requirement of natural justice is the right to a hearing, a technical expression in law, before action is taken."

44. The respondent's submission was that given the applicant's failure to provide any explanation to the Tribunal, the election by the Tribunal to proceed to a decision did not result in any denial of procedural fairness because there was no unfairness caused by the procedures adopted by the Tribunal: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam at [105]; M172 at [27]-[29]. This is particularly so as the applicant had been warned of the importance of the hearing and had been given details of an officer of the Tribunal who could be contacted if she had any questions.

45. The applicant's contention that she was denied procedural fairness arising from advice given by her migration agent is not supported by authority. To the contrary, the same contention was rejected by the Full Federal Court in NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [9], [14] and [16] and also by Dousset J in B41 of 2003 at [22]-[25]. See also A97 v Minister for Immigration & Ors at [11]; SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs at [14]-[15], [25]; SZBBL v Minister for Immigration & Multicultural & Indigenous Affairs at [4]-[5], [9]; and M172 at [27]-[31].

46. The failure to explain non-attendance at a hearing clearly places the burden on the applicant to inform the Tribunal correctly as is held in the decision of NALQ per Ryan, French and R D Nicholson JJ at [36]:

"If, as a matter of fact, the applicant has been unfit to participate in the hearing, the Tribunal's lack of awareness of that fact flows from the applicant's failure to respond to its reasonable request for further support of an adjournment. Such protection as is offered by s.425 and the requirement of procedural fairness was not thereby violated."

47. In respect of ground 2, it was submitted that the Tribunal's failure to comply with s.425A(4) of the Act had no substance because it was based upon an artificially close reading of the terms of s.426A of the Act. It was submitted that the letter of 19 November 2003 complied with the requirements of the Act in that the statement explained in plain language the effect of s.426A. It was submitted any difference between the specific words of the Tribunal's letter and the terms of s.426A is not of sufficient consequence to constitute a jurisdictional error.

Conclusion

48. The applicant filed the original application for review on 8 February 2004 and an amended application on 6 July 2004. However, the applicant filed a further amended application on 1 October 2004 which now raises on only two grounds. The applicant relies on those two grounds which are supported by an affidavit filed on 15 July 2004. The respondent did not object to the applicant being granted leave to proceed upon the further amended application for review dated 1 October 2004. However, the respondent reserved his position in relation to costs thrown away in relation to that previous pleadings.

49. The two grounds of review relate to the applicant's non-attendance at the Tribunal's hearing held on 17 December 2003. The first of the grounds was that there was a breach of procedural fairness. Counsel for both parties made extensive written and oral submissions on the circumstances that led to the applicant's non-attendance at the hearing and the events that occurred as a consequence of that non-attendance.

50. I believe it was open to the Tribunal to proceed pursuant to discretion conferred by s.426A(1) of the Act. I am not convinced of the argument that this action was wrong because the migration agent gave the applicant the wrong advice and I believe this is supported by the authority in NADK v Minister for Immigration & Multicultural Affairs and B41 of 2003.

51. Both parties made substantive submissions on the contravening arguments as to the applicable approach. However, the scheme is clearly articulated in Division 4 of Part 7 of the Act and the Tribunal has complied with these provisions.

52. The second ground raises the issue of the contents of the letter forwarded to the applicant inviting her to attend the Tribunal review meeting. Counsel for the applicant submitted a detailed argument based on statutory construction that the content of the letter issued to the applicant did not contain the operative words required under s.425A(4) of the Act. A detailed examination and comparison of the letter wording compared with the provisions within the Act clearly demonstrates that there is a difference. However, the question is whether the plain language used within the letter differs in intent from the wording of the provisions of the Act. Given the difference, the question is whether there is sufficient consequence in the difference to constitute a jurisdictional error. I do not believe that that argument is sustainable as the clear intention conveyed by the letter has the same effect as the more formal provisions contained within the Act. I am satisfied that the ordinary person reading the letter would be left with the same understanding as is required by the provisions of the Act. I am satisfied that the Tribunal made no legal error going to jurisdiction in the method it adopted to come to decision. In addition, the decision of the Tribunal was a bona fide attempt to exercise the power conferred on it by the Act. In the circumstances I dismiss the application.

53. I am satisfied that an order for costs should be made in the circumstances of this matter. I order that the applicant pay the Minister's costs and disbursements of and incidental to the application.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 15 October 2004
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