FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML and Anor [2006] FCAFC 152
Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 distinguished
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1 followed
B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 cited
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 referred to
Hot Holdings Pty Limited v Creasy and Others (2002) 210 CLR 438 referred to
NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162 distinguished
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 distinguished
SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 cited
SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 cited
SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251 followed
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 followed
Aronson, Dyer and Grove, Judicial Review of Administration Action (3rd edition) Thomson Law Book Co 2004
NSD 141 OF 2006
SPENDER, FRENCH AND COWDROY JJ
27 OCTOBER 2006
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 141 OF 2006 |
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Appellant
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AND: |
SZFML First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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SPENDER, FRENCH AND COWDROY JJ |
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DATE OF ORDER: |
27 OCTOBER 2006 |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 141 OF 2006 |
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Appellant
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AND: |
SZFML First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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JUDGES: |
SPENDER, FRENCH AND COWDROY JJ |
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DATE: |
27 OCTOBER 2006 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
Introduction
1 SZFML is a citizen of Mongolia who arrived in Australia on 21 February 2004. She lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) on 5 April 2004. She claimed to be at risk of persecution on account of her sexual orientation. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the application on 6 May 2004. On 8 June 2004 SZFML applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision. The Tribunal appointed a hearing date of 9 November 2004 then changed it to 25 November 2004 because of difficulties in securing the services of a Mongolian language interpreter. Although SZFML had informed the Tribunal, through her migration agent, that she wished to attend on the first hearing date, the migration agent informed the Tribunal, purportedly on her behalf, that she did not wish to attend the rescheduled hearing. No hearing took place. On 26 November 2004 the Tribunal affirmed the delegate’s decision.
2 On 14 January 2005 SZFML filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court. The grounds of the application were that the Tribunal had applied a wrong legal characterisation of ‘agents of persecution’ and had misinterpreted the ‘principle of State protection’. On 4 May 2005 she filed a document in the Federal Magistrates Court entitled ‘Applicant’s Contentions of Fact and Law’.
3 On 22 July 2005 the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) filed a notice of motion in the Federal Magistrates Court seeking summary dismissal of the application on the basis that no reasonable cause of action had been disclosed and that the proceedings were an abuse of process. An affidavit in support of the motion, sworn on 22 July 2005 by a solicitor acting for the Minister, stated that SZFML had informed the Tribunal that she did not wish to attend a hearing before the Tribunal and consented to it making a decision on review without taking any further action to enable her to appear before it.
4 On the return date of the motion on 11 August 2005 SZFML did not appear in the Federal Magistrates Court. Scarlett FM then made an order dismissing the application for non-appearance pursuant to r 13.03A of the Federal Magistrates Court Rules. On 2 November 2005 SZFML filed an application seeking an order that her previous application for judicial review be reinstated and reheard. In support of that application she said, inter alia, that she had been ill since April 2005. On 10 November 2005 Scarlett FM granted the reinstatement order and set the application down for hearing on 8 December 2005. In making the reinstatement order His Honour directed that the applicant was to file and serve any amended application on which she sought to rely and to serve a copy on the Minister’s solicitor by 25 November 2005.
5 An amended application was filed on 25 November 2005. The principal complaint made in the amended application was that the Tribunal had made its decision without providing SZFML with an opportunity to appear before it.
6 The hearing of the reinstated and amended application took place on 8 December 2005. On 20 December 2005 Scarlett FM found in favour of SZFML and made an order in the nature of certiorari quashing the decision of the Tribunal and an order in the nature of mandamus requiring it to review, according to law, the delegate’s decision refusing a protection visa. The reasons for judgment were published on 9 January 2006. On 31 January 2006 the Minister filed, in this Court, a notice of appeal against the learned Federal Magistrate’s decision.
7 An amended notice of appeal was filed on 11 April 2006. As appears from the following reasons the purported consent to the Tribunal proceeding without a hearing, lodged by SZFML’s agent, was not an effective consent by her. On the findings of fact in the Federal Magistrates Court, which are not in contention on the appeal, the agent acted without express authority to so consent. The general authority apparently conferred upon the agent in the application for review lodged with the Tribunal did not extend to the proffering of such a consent. On that basis the Federal Magistrates Court was right to set aside the Tribunal’s decision and the appeal should be dismissed. There was a subsidiary issue raised on the appeal. The learned Federal Magistrate found that a minimum period prescribed by regulation between delivery of a notice of a Tribunal hearing and the date appointed for the hearing had not been observed. For the reasons that follow the prescribed period does not apply to a rescheduled hearing.
The protection visa claim
8 In her application for a protection visa, SZFML said she had left Mongolia for fear of persecution on account of her bisexuality. She said she had suffered harassment since the time she was a school girl. She and another girl who had been attracted to each other had been expelled from school although later they were allowed to finish their studies. Her parents and her partner’s parents believed that lesbianism was a sickness. She wrote of the difficulty of finding accommodation as she and her partner were students and could not afford accommodation. Once she and her partner had been beaten up by boys in a bar in the city of Ulaan Baatar. Her partner was raped but she managed to escape.
9 SZFML said that if she went back to Mongolia she would be subjected to discrimination and social exclusion. She would not be able to get employment because no one wanted to employ homosexuals. The police maintained a list of members of the homosexual community in Mongolia. It is constantly monitored by them. She said she would have to remain hidden in Mongolia or else face harassment and threats to her life. She said that the only group in Mongolia advocating the protection of homosexuals is known as Talivan and has still not achieved any positive results. It is under the permanent ‘control’ of the police. She cited a notorious murder of a gay person who was stabbed 53 times and which had still not been finalised by the police. She claimed that the police simply did not want to find that person’s killer.
10 SZFML said that, if returned to Mongolia, she would be mistreated by ordinary people such as neighbours, relatives and their friends as well as by almost everyone who had knowledge of her bisexuality. She claimed to be a member of a particular social group facing persecution on account of that membership. In her application to the Tribunal SZFML essentially repeated the claims made in her application for a protection visa.
The procedural steps leading to the Tribunal’s decision
11 On the application form for review in the Tribunal there is a provision in Section C which reads as follows:
‘Where do you want us to send correspondence about your application?
You can nominate someone to receive correspondence and to act on your behalf. This person is known as your Authorised Recipient. If you nominate an Authorised Recipient, all correspondence about your application will be sent to this person.
If you do notnominate an Authorised Recipient we will send all correspondence about your application to you.
If you wish to nominate an Authorised Recipient you must fill in the details below.’
12 SZFML was not an English speaker. She required the assistance of other persons who could communicate with her in Mongolian and complete forms in English. The application form for review by the Tribunal, completed on her behalf, showed the name of her ‘authorised recipient’, to be Yevgen Kyselov of Nesk Immigration Services. Mr Kyselov’s business address and telephone and fax numbers were set out. His signature appeared under the designation ‘Signature of Authorised Recipient’. The section also contained the endorsement ‘Copies of all documents will also be sent to you at your mailing address’. The last sentence in Section C read thus:
‘I also authorise my Authorised Recipient to act on my behalf in relation to this case.’
Next to that sentence a box marked ‘Yes’ was ticked. SZFML’s home address was also set out in the application form in Section B. It was then an address in Potts Point.
13 On 9 June 2004 the Tribunal sent a letter to SZFML (in the English language) explaining the steps that would follow. It explained that when her file had been received from DIMIA the Tribunal would decide if it could consider her review application. A member of the Tribunal would look at the information that SZFML and DIMIA had given it and information about her country of origin. After looking at that information the Tribunal member would either make a decision in her favour or invite her to attend a hearing of the Tribunal. Under the heading ‘What is a hearing and why is it important?’, the following text appeared:
‘A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence can include:
· what you tell the Member at the hearing
· information or documents you give the Tribunal
· information or documents you ask others to give the Tribunal.’
Under the heading ‘When and Where will the hearing take place?’ the letter stated:
‘We will tell you the date and time of the hearing and where the hearing will be held. Hearings can take place in person at the Tribunal’s offices in Sydney or Melbourne, but in some circumstances hearings may be conducted by video or telephone links.’ (AB 157/158)
14 On 6 October 2004 the Tribunal sent a letter to SZFML advising her that it was unable to make a decision in her favour on the basis of the information contained in the material before it. It therefore invited her to come to a hearing before the Tribunal to give oral evidence and to present arguments in support of her claims. She was told that she could also ask the Tribunal to obtain oral evidence from another person or persons. The hearing date was specified as 9 November 2004. The hearing was to be at 9am at the Tribunal’s offices in Elizabeth Street in Sydney. Under the heading ‘Important information about your hearing’, the following appeared:
‘. The Tribunal will only change this hearing date for good reasons. 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.
. If you have a passport you should bring it to the hearing.’
A copy of that letter was sent to SZFML’s migration agent.
15 SZFML (by her agent) responded to the hearing invitation on 20 October 2004. The response indicated that she did want to come to the hearing and would need a Mongolian interpreter. She stated that she wanted her migration agent to attend with her. The response form was signed on her behalf by the agent.
16 On 8 November 2004 the Tribunal postponed the hearing scheduled for 9 November 2004 because of difficulties in engaging the services of an interpreter. An internal Tribunal memorandum contained the following entry:
‘Hearing rescheduled on 08/11/2004 by PRJLNE
8.11.04 (11.45 am) I rang the adviser and told him that tomorrow’s hearing has been postponed. I will be notifying him of the new date in due course.
J Livingstone’ (AB 164)
17 On 9 November 2004 the Tribunal sent to SZFML and to her migration agent a letter in which it stated that due to circumstances beyond its control and relating to interpreter availability it would not be able to have a hearing on that date. A new hearing date was notified. That was Thursday, 25 November 2004 at 3 pm at the same address. A ‘Response to Hearing Invitation’ form was enclosed. A completed Response was received by the Tribunal on 24 November 2004. On this occasion the form indicated that SZFML did not want to come to a hearing. It was again signed on her behalf by the agent.
18 On 26 November 2004 in reliance on the Response form, the Tribunal proceeded to make a decision adverse to SZFML, affirming the delegate’s decision to refuse the grant of a protection visa. There followed the procedural steps already outlined whereby SZFML sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. She did not attend the first hearing because of illness. On proof of her medical condition the application, which was dismissed in her absence on 11 August 2005, was reinstated and determined in her favour by Scarlett FM on 20 December 2005.
19 The Minister filed a notice of appeal against the decision of the Federal Magistrates Court on 31 January 2006. An amended notice of appeal was filed on 11 April 2006.
Statutory Framework
20 The review of protection visa decisions by the Tribunal is dealt with in Part 7 of the Migration Act 1958 (Cth) (‘the Act’). Section 411 sets out the classes of decision reviewable by the Tribunal which include ‘… a decision to refuse to grant a protection visa’ (s 411(1)(c)). Applications may be made for review of an ‘RRT-reviewable decision’ (s 412). The core obligation of the Tribunal to conduct a review upon a valid application having been made is set out in s 414:
‘(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.’
The remaining subsection of s 414 is not material for present purposes.
21 On a review the Tribunal can exercise all the powers and discretions conferred by the Act on the person who made the decision under review. It may affirm or vary the decision or, in certain cases, remit it for reconsideration with directions or recommendations permitted by the Regulations or it may set the decision aside and substitute a new one (s 415).
22 Division 4 of Part 7 of the Act deals with the conduct of reviews by the Tribunal. Section 422B provides that Div 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
23 The Tribunal is authorised to obtain any information which it considers relevant and to invite a person to give additional information (s 424). It is also required to provide to an applicant for review particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision under review (s 424A). It must ensure, as far as reasonably practicable, that the applicant understands why the information is relevant to the review and invite the applicant to comment on it.
24 The Tribunal has an obligation to invite applicants to appear before it under conditions set out in s 425 which provides:
‘(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.’
Section 425A provides:
‘(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.’
25 Section 426A provides:
‘(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.’
26 Section 427 sets out various powers of the Tribunal on a review, including a power to adjourn the review from time to time.
27 Division 7A of the Act provides for the giving and receiving of review documents.
28 Section 441A sets out a number of methods by which the Tribunal can give documents to a person other than the Secretary of the Department. One of those methods involves the Registrar or an officer of the Tribunal dating the document and dispatching it. Section 441A(4) relevantly provides:
‘(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.’
29 Section 441G provides for the nomination by an applicant of an ‘authorised recipient’. It is in the following terms:
‘(1) If:
(a) a person (the applicant) applies for review of an RRT-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.
(4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.
(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.’
The Tribunal’s reasons for decision
30 The Tribunal set out in its reasons for decision what had occurred, from its perspective, in relation to SZFML’s response to the hearing invitations. It referred to its letter to SZFML on 6 October 2004 advising of the proposed hearing on 9 November 2004 and her advice to the Tribunal by her agent on 20 October 2004 that she would attend that hearing. On 8 and 9 November 2004 the hearing was rescheduled to 25 November 2004 because of difficulty engaging the services of an interpreter. The Tribunal’s reasons continued:
‘On 24 November 2004 the adviser informed the Tribunal, orally and then in writing, that the Applicant does not want to come to a hearing, and thereby consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal. The Tribunal has before it the Department’s file, which includes the protection visa application and the delegate’s decision record. The Tribunal also has had regard to the material referred to in the delegate’s decision.’
31 The Tribunal recited that, according to the information provided in her protection visa application, SZFML is a single woman born in 1976 in Ulaan Baatar. Her parents, who are her only family, live in Mongolia. She lived at one address in Ulaan Baatar for at least ten years until she came to Australia. She was at university from 1993 to June 2003 and obtained a tertiary qualification as a political analyst but had never been employed. She left Mongolia legally on a passport issued in early September 2003. She was issued with a temporary business visa for Australia in early February 2004.
32 The Tribunal repeated the claims, set out in the protection visa application, upon which SZFML based her apprehended fear of persecution for a Convention reason. In its findings and reasons the Tribunal accepted that she is a citizen of Mongolia. It referred to her claim to be a lesbian and/or bisexual and to fear persecution for reason of her membership of a particular social group, presumably bisexuals or lesbians. It was not satisfied, however, that she had a well-founded fear of persecution within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (Refugees Convention) if she were to return to Mongolia.
33 The Tribunal found SZFML’s claims to be very general and inconsistent. It noted it had not had the opportunity to test her claims. It said:
‘For example she claims to be bisexual and a lesbian but she only refers to one lesbian relationship which appeared to continue for well over a decade. The Applicant refers to an incident in a bar but there is no useful detail about the incident, or about its circumstances to suggest that it occurred for reasons related to the applicant’s sexual orientation, and there is very little useful information about the Applicant and her partner reporting the incident to Police. The Applicant claimed that she will be mistreated by ordinary people such as neighbours and relatives and their friends but there is nothing to suggest that she has been mistreated by them in the past. The Applicant claimed that everyone knows that she is a lesbian but also that she must remain hidden, and her evidence suggested that she and her partner didn’t live together because they could not afford to do so, rather than for any other reason. The Applicant asserted that she will not be able to find “any” job but there is nothing to suggest that she ever looked for work or to suggest that she was denied employment because of her sexual orientation, and the Tribunal finds it very odd that the Applicant was issued with a temporary business visa to visit Australia when she claimed that she has never been employed and there is nothing to suggest that she was ever in business. The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention if she returns to Mongolia.’
34 It is apparent from these reasons that the Tribunal’s determination adverse to SZFML turned importantly upon the lack of detail supplied in respect of her application for a protection visa and in her application for review of the delegate’s decision. The extent to which SZFML would be able to elaborate upon the detail of the incidents and attitudes underlying her apprehended fear of persecution was not before the Court. It is apparent, however, from the limited material put before the Tribunal that it had little choice but to come to the conclusion that it did. The only thing that could have made a difference to that outcome would have been an oral hearing at which SZFML could have supplied convincing detail of the matters upon which her asserted fear of persecution and want of State protection were based. As SZFML does not speak the English language any communication with the Tribunal was necessarily with the assistance of her agent or English speaking friends who could communicate with her in her own language.
The grounds of review in the Federal Magistrates Court
35 In SZFML’s amended application in the Federal Magistrates Court, the grounds for review were set out discursively. They focused upon the fact that the Tribunal had acted upon the agent’s advice to it that SZFML did not wish to attend the rescheduled hearing. SZFML asserted, in the application, that she had attended for the scheduled hearing on 9 November 2004. Nobody at the Tribunal had told her anything she could understand. She is not an English speaker. There was apparently no intelligible communication between her and Tribunal officers. After an hour, by 4 pm, nothing had happened so she went home. A friend tried to contact the agent but could not. The next thing she heard was that the Tribunal had decided against her. It was only when going through the papers with a friend in relation to her judicial review application that she became aware that the hearing had been rescheduled. The response signed by her migration agent in relation to the hearing of 25 November 2004, she said, was signed without her consent.
36 SZFML made general claims of procedural unfairness on the part of the Tribunal for proceeding to a decision adverse to her without affording her an oral hearing.
The reasons for decision of the Federal Magistrates Court
37 As outlined in the reasons for judgment of Scarlett FM the Minister submitted in the Federal Magistrates Court that ss 425(2)(b) and 425(3) of the Act had the effect that once SZFML consented to the Tribunal deciding the review without appearing before it, s 425(1) no longer applied and she became a person who was ‘not entitled to appear before the Tribunal’. On that basis the Tribunal was entitled to proceed as it did. The Minister also submitted that the operation of the two subsections overrode any deficiency in the notice of invitation to appear.
38 Scarlett FM observed that the first letter notifying SZFML of a hearing date and inviting her to appear complied with both s 425A and reg 4.35D. SZFML and the agent who was her authorised recipient were deemed to have received the letter advising the rescheduling of the hearing on 19 November 2004, seven working days after the date on which it was sent. His Honour referred to ss 441A(4), 441C(4) and 441G of the Act. He observed that if the prescribed period of notice of the hearing date under reg 4.35D applied to the rescheduling letter, the rescheduled hearing date should not have been fixed before 3 December 2004. Counsel for the Minister submitted that the prescribed notice period requirement did not apply to a postponed hearing. In the alternative, the Minister submitted that the consent received by the Tribunal to review the proceeding in the absence of SZFML operated to render any breach of s 425A or reg 4.35D of no consequence.
39 The primary question before his Honour was whether there had been a valid consent to the Tribunal proceeding to hear the review without SZFML. This was also the critical issue on the appeal. SZFML and her migration agent both gave evidence in the Federal Magistrates Court. SZFML told the Court that she had engaged the agent because she did not speak English. She had arranged for a friend who spoke English to contact the agent on her behalf. The friend’s name was Mura. Mura was a Mongolian English speaker. She also received assistance from a man called Tumur who could speak Russian. She denied under cross-examination that she had told her agent that she did not wish to attend the hearing. It was difficult for her to contact the agent as she could not speak English. She relied upon friends who did speak English and all of whom had day jobs. The agent had told her that he would do everything. She maintained that she did not at any time authorise him or tell anyone that she did not want to attend a Tribunal hearing. She wanted to attend the hearing.
40 The migration agent said that SZFML had been introduced to him by a person called Azar. She had been accompanied by two or three friends and he could not remember which was which because it had happened a year earlier. He thought there was a person called Azar who understood Mongolian. The agent said that the original hearing date was fixed for 9 November 2004 and that SZFML signed the form saying she wanted to attend the hearing. When he received the letter from the Tribunal appointing a new date he had contacted one of her three friends, he could not remember which, to pass on the message about the postponement. He said he had received a telephone call back saying that SZFML did not wish to attend the hearing. On that basis he signed the Response to a Hearing Invitation form completing the section that indicated that she did not wish to attend. After the Tribunal decision he sent her a copy. He had no contact with her after that.
41 SZFML cross-examined the agent. She put to him that he had never asked her about the response to the hearing invitation which he had signed. She asked him why he had signed it. He replied in cross-examination that without her instructions he would not have indicated anything on the form.
Federal Magistrates Findings
42 His Honour formed the view that SZFML had given her evidence honestly. Her actions were consistent with those of a person who at all times wanted to attend a hearing of the Tribunal so that she could put her case. She was not shaken in cross-examination. His Honour did not consider that she had given the migration agent carte blanche to act for her in whatever way he felt was necessary. The evidence of both SZFML and the agent showed that neither was of the view that the agent had a general authority to act in that way. Each time the agent had received an invitation to attend a hearing he had made an attempt to obtain instructions from SZFML as to whether she wished to attend or not.
43 The agent’s evidence was at times vague. He could not remember the name of SZFML’s friends and associates. SZFML had not given any evidence about having a friend called Azar although the agent thought that was the name of the person he had spoken to.
44 His Honour found it significant that the agent was unable to give the Court any details of the person who he said had told him that SZFML no longer wished to attend the Tribunal hearing. He could not remember whether it was a man or a woman. The agent’s memory of his instructions about a very important factor in SZFML’s case was so vague as to be unreliable. His Honour also found it significant that the agent did not query why SZFML had so radically changed her mind over the period of about a fortnight. It was surprising that the agent gave no evidence of attempting to advise SZFML that a decision not to attend the Tribunal hearing would have a disastrous effect on the chances of the Tribunal making a decision in her favour. As a migration agent he either knew, or ought to have known, that applicants who decide not to attend Tribunal hearings almost inevitably fail.
45 His Honour was of the view that SZFML’s evidence had the ring of truth to it. He was satisfied and found that SZFML did not consent to the Tribunal proceeding to decide the review without enabling her to appear before it. He was also satisfied that the agent did not have the authority to inform the Tribunal that SZFML did not wish to attend the hearing. On that basis, subs 425(2)(b) of the Act did not apply.
46 His Honour also found that the period of notice given in relation to the rescheduled hearing had not complied with the requirements of s 425A and reg 4.35D. It was less than the period of 14 days prescribed in the regulation. He proceeded to make orders in the nature of certiorari and mandamus.
Grounds of appeal
47 The grounds of appeal filed by the Minister, as set out in the amended notice of appeal dated 11 April 2006 are as follows:
‘1 There was no jurisdictional error vitiating the Refugee Review Tribunal’s decision;
2 The Refugee Review Tribunal was entitled to proceed to decide the matter without taking further steps to hear from the applicant, because of the:
(a) consent given in the “response to hearing invitation” received by the Tribunal on 24 November 2004; and
(b) effect of subsections 425(2) and (3) of the Migration Act 1958.
3 The Federal Magistrate erred by ignoring, or not taking into account, evidence that the agent had the general authority of the applicant which was sufficiently wide to enable him to complete the said “response to hearing invitation” as he did. That evidence was:
(a) the terms of the authority contained in the application to the Refugee Review Tribunal; and
(b) oral evidence from the applicant that she was relying on the agent to decide what she should do and to do it.
4 Contrary to the Federal Magistrate’s findings, the agent had the authority of the applicant to do as he did.
5 Contrary to the Federal Magistrate’s conclusion, section 425A of the Migration Act 1958 and regulation 4.35D of the Migration Regulations 1994 had no application and/or were not breached.’ (AB 62/63)
The principal contentions
48 It was submitted on behalf of the Minister that the ‘Response to Hearing Invitation’ for the rescheduled hearing of 25 November 2004 was effective to bind SZFML. It was not submitted that the agent had any specific authority to respond, as he did, on her behalf. On the findings made by Scarlett FM it was clear that the agent had not received a particular instruction so to act. The Minister however relied upon the general authority created by Section C of the application for review lodged with the Tribunal on 8 June 2004. That was the section in which the agent was identified as her ‘authorised recipient’ and a printed pro forma sentence ticked which read:
‘I also authorise my Authorised Recipient to act on my behalf in relation to this case.’
49 The Minister argued that that general authorisation was effective at the time the agent told the Tribunal that SZFML did ‘not want to come to a hearing’ and consented to the Tribunal ‘proceeding to make a decision on the review without taking any further action to allow or enable [her] to appear before it’. The consent, it was said, was effective and had the consequence that ss 425(2)(b) and 425(3) applied so that SZFML no longer had any entitlement to a hearing.
50 The Minister further argued that although it is not necessarily significant to the disposition of the appeal, there would have been no breach of procedural fairness simply because the agent made an error in assessing whether his client should attend the hearing as the Tribunal was entitled to act upon the consent that he supplied and there was no fault in it proceeding as it did. Reliance was placed upon Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876, SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 (Bennett J) and B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30(Dowsett J).
51 Counsel for SZFML relied upon general principles of agency law to the effect that a general authority given to an agent will be interpreted to permit action that an agent holding that position would, according to ordinary commercial expectations and usage, be entitled to do on behalf of its principal. This would apply subject to any contrary provision in the agency agreement or any express oral restriction imposed by the principal. He pointed out that the learned Federal Magistrate had found that SZFML had not given her agent carte blanche to act for her in whatever way he felt was necessary, and observed that the Minister did not rely upon any doctrine of ostensible authority.
52 Counsel for the Minister, in the course of argument on the appeal, expressly disclaimed reliance on any argument by analogy from the concept of ostensible or apparent authority. It was put to him that the general authority given to the agent according to the application form was not good enough to create an apparent consent where consent was not in fact given. He accepted, by way of example, that if the agent for SZFML was also the agent for some one with a very similar name and accidentally returned a consent form in the wrong case, there would be no effective consent for the purposes of s 425.
53 Counsel for SZFML submitted that SZFML conferred an apparent general authority on her agent to act on her behalf in relation to the application for review in the Tribunal. But that authority did not extend to an authority to respond negatively on her behalf to an invitation to a hearing. The agent sought and acted upon her express instructions in responding positively to the invitation to the first scheduled hearing. He did not say that he had a general authority which encompassed an authority to respond negatively to the second invitation. Indeed, his evidence in the Federal Magistrates Court was antithetical to the existence of such authority.
Whether the Tribunal was authorised to decide the application without a hearing
54 The primary question for decision is whether the Tribunal was authorised to decide the application for review without a hearing on the basis of the consent to that course purportedly given to the Tribunal by SZFML’s agent. The question is one involving the application of the terms of the Act to the facts of the case.
55 The operation of Div 4 of Pt 7 has been considered generally in a few cases which did not specifically focus upon what constitutes a ‘consent’, under s 425(2)(b), to the Tribunal deciding a review without the applicant appearing before it.
56 In Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1 the Tribunal had denied procedural fairness and failed to complete its review process. It foreshadowed at the end of a hearing that it would write to the applicant inviting comment about inconsistencies in his evidence and also provide an opportunity for the tendering of further information. It proceeded to decision without doing those things.
57 In discussing the operation of Div 4 of Pt 7 in their joint judgment McHugh, Gummow, Callinan and Heydon JJ said at 10:
‘The duty of the Tribunal under s 414(1) to review the delegate’s decision (which arose once the appellant had applied for review) continued until one of the outcomes described in s 415(2) was arrived at, for example, the affirming, the varying or the setting aside of the decision.
One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.’
58 It follows that where one of the conditions set out in s 425(2) is satisfied the entitlement to appear before a Tribunal established under s 425(1) either does not come into existence or ceases to exist and the Tribunal’s duty to invite the applicant to appear before it is discharged. The affording to an applicant of an opportunity to attend a hearing and the duty to consider what is put at the hearing are elements of the review mandated by Div 4 of Pt 7. If a hearing is not afforded where it should be provided, then the duty to conduct a review is not fulfilled and the decision in such a case is infected by jurisdictional error. This is not simply a matter of procedural fairness at common law. A necessary condition for the decision-making power, mandated by the statute, will not have been satisfied.
59 In discussing the provisions of Div 4 of Pt 7 in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, Gleeson CJ said (at [6]):
Section 425 requires the tribunal to invite the applicant to appear before the tribunal. That requirement is subject to exceptions. One exception is where the applicant consents to the decision being made without the applicant appearing before the tribunal: s 425(2)(b).’
60 The Tribunal discharged its duty of sending to SZFML and her Authorised Recipient an invitation to attend a hearing pursuant to s 425(1). It was an incident of that obligation or an associated obligation, that unless one of the conditions in s 425(2) was satisfied, the Tribunal not proceed to a decision without first according to the applicant the opportunity to appear before it. The effect of s 426A(1)(b) is that if an applicant, having been invited to appear, does not appear on the appointed day, the Tribunal may then proceed to a decision.
61 The administrative procedure used by the Tribunal combined the invitation under s 425(1) with notification of the date, time and place of the appearance pursuant to s 425A(1).
62 The logical structure of ss 425 and 425A involves the following theoretical sequence:
1. The Tribunal considers whether it should decide the review in the applicant’s favour on the basis of the material before it. If it so finds, it can move directly to decision and that is the end of the review process. If it considers that it cannot decide the review on that basis then an invitation must issue unless one or other of the conditions in s 425(2)(b) or (c) is satisfied.
2. The Tribunal asks the applicant whether he or she consents to the Tribunal deciding the review without the applicant appearing before it. If the applicant so consents then the applicant is not entitled to appear before the Tribunal and no invitation need issue. The Tribunal can then proceed to decide the review.
3. If the applicant does not consent to the Tribunal deciding the review in his or her absence the Tribunal must consider whether subs 424C(1) or (2) applies to the applicant. If neither subsection applies then the invitation must issue.
4. The Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
5. The minimum time between giving the applicant notice of the date, time and place of the hearing and the date must be that prescribed in reg 4.35D.
6. If at the hearing the applicant does not appear then the Tribunal may make a decision on the review without any further steps to allow or enable the applicant to appear before it.
7. Notwithstanding the preceding the Tribunal may reschedule the applicant’s appearance before it.
63 On the findings of the Federal Magistrates Court the relevant invitation was issued to SZFML and her Authorised Recipient. It specified the date, time and place at which she was scheduled to appear. The agent responded to the invitation on her behalf and upon her instructions indicating that she wished to appear at the hearing. That is to say, the Tribunal was given notice that she did not consent to the Tribunal deciding the review without her appearing before it. A notification of a rescheduling of the hearing was sent to SZFML and her Authorised Recipient. The same form was used as that of the initial invitation to which she had responded in the affirmative. The agent then sent a notification to the Tribunal indicating that she consented to it deciding the review without her appearing before it. His Honour found that she did not authorise her agent either generally or specifically to make such a consent and that there was therefore no such consent for the purposes of s 425(2)(b).
64 No question of the application of s 426A arises. That provision only operates where an applicant has been invited to appear before the Tribunal and does not appear at the time and place at which the applicant is scheduled to appear. In this case the Tribunal proceeded on the basis of the apparent consent tendered on behalf of SZFML. It did not proceed on the basis of her non-appearance at a scheduled hearing.
65 The Tribunal determined the application for review without hearing SZFML on the false premise that she had consented to it doing so and therefore on the false premise that she was not entitled to a hearing. That false premise led to a failure of the statutory procedural fairness requirement specified in Div 4. It may be noted that there is nothing in s 441G, relating to authorised recipients, which would have the effect of deeming apparent consent lodged by an authorised recipient without authority, to be a consent for the purposes of s 425(2)(b) of the Act. Moreover the Minister expressly disclaimed any reliance upon principles of ostensible agency. The failure of the statutory requirement of procedural fairness may not have been the Tribunal’s fault. Whether it was or not the Tribunal acted without power and so its decision was amenable to the relief granted by the learned Federal Magistrate.
66 Al-Mehdawi has no relevance to the statutory effect of an agent’s unauthorised consent to a disposition of his client’s case without a hearing. In that case the House of Lords held that a party to a dispute who has lost the opportunity of a hearing through the default of his or her solicitors cannot complain of procedural impropriety or a denial of natural justice. The case was concerned with the common law of procedural fairness (at 898 per Lord Bridge). The present case concerns the non-satisfaction of a condition upon the exercise by the decision-maker of its statutory power.
67 In NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162,the Full Court dismissed an appeal from the decision of a single judge of the Court dismissing an application for judicial review of a decision of the Tribunal in circumstances similar to the present. In that case a form signed by the appellant’s migration agent was sent to the Tribunal stating that she did not wish to attend the hearing. The Tribunal proceeded to make its decision without taking any further steps to invite the appellant to appear before it.
68 The issue in NASF, as identified by the primary judge, was whether the Tribunal had complied with its obligations under s 425(1) of the Act to invite the appellant to appear before it. The primary judge had found that the requirements laid down in ss 425A and 441A for the giving of notice to the appellant had been satisfied. He found, having heard evidence from both the appellant and her agent, that the appellant had appointed the agent and that the agent, as the Full Court put it, ‘… acted in accordance with her actual authority in signing a response to the invitation to attend the hearing’. The Full Court held that it was open to the primary judge to make the findings he made on uncontroverted evidence before him. He found that the appellant in that case had not been denied in any real sense an opportunity to attend the hearing.
69 The Full Court characterised the appellant’s submissions as a claim that ‘… because the Tribunal member conducted the hearing before him in the appellant’s absence this constituted a denial of procedural fairness’ (at [14]). The Court held shortly (at [16]):
‘The Tribunal’s invitation to the appellant was sent in accordance with statutory requirements as identified by the primary Judge. The Tribunal complied with its obligations to give the appellant notice of the hearing, notwithstanding the appellant’s assertions that she did not receive the notice. Accordingly there was no legal error in the primary Judge’s decision which is consistent with the decision of a Full Court in NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184.’
The Court went on to say that if some procedural unfairness had arisen any attendance by the appellant in that case was not likely to have led to a different outcome. Any breach of the obligation to give procedural fairness had not given rise to any injustice.
70 Having regard to the findings of the primary judge in NASF, it does not appear that there was any room in that case for a contention that the apparent consent submitted to the Tribunal was not an effective consent made with the appellant’s authority. That is not this case. The findings of the learned Federal Magistrate are that the purported consent was made without authority.
71 The present case suggests that the Tribunal may not necessarily be able to rely upon the authorisation contained in Section C of its standard application form, to conclude that a migration agent responding to a hearing invitation in the negative is doing so with the authority of the applicant. The terms of s 441G are concerned with the authorisation of the ‘authorised recipient’ to do things on behalf of an applicant ‘that consists of, or include, receiving documents in connection with the review’. The provisions of s 441G that follow allow the Tribunal to communicate with the applicant through the agent. The use of the word ‘recipient’ in the collocation ‘authorised recipient’ reflects the purpose of s 441G. Nothing in the section has the effect of allowing the agent to act for an applicant beyond the scope of the actual authority conferred upon the agent.
72 As a prudential measure the Tribunal might be well advised, where an applicant apparently consents through an agent to a decision being made without a hearing, to require that the applicant’s signature appear on any such written advice together with a verifying statement that the applicant has read the invitation and the proposed response or had it interpreted into the applicant’s own language. In this case there is room for the argument that the Tribunal should have been put upon inquiry by the sudden apparent reversal of the applicant’s attitude to participation in a hearing between the hearing as originally scheduled and the rescheduled hearing.
73 To the extent that there is any analogy to be drawn from the common law of procedural unfairness, the general position in Australia is that it is not necessary to show fault on the part of a decision-maker in order to establish procedural unfairness. That is subject to the qualification that there must be more than unfairness which is purely the fault of the affected party’s own legal advisers – Aronson, Dyer and Grove, Judicial Review of Administration Action (3rd ed, Thomson Law Book Co 2004) (at 461). As Gleeson CJ said in Hot Holdings Pty Limited v Creasy and Others (2002) 210 CLR 438 ‘procedural unfairness can occur without any personal fault on the part of the decision-maker’ (448). And in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28, Gray ACJ and North J said at 38:
‘The fact that the Tribunal is unaware of the absence of notice to the applicant when it made its decision does not negate the denial of procedural fairness. It is not a necessary element of a denial of procedural fairness that it be the result of intentional conduct, or even of negligence. It is enough that it occurred.’
Gyles J agreed with the substance of the joint judgment.
74 In the present case the hearing requirements for procedural fairness are as prescribed in the statute. An effective consent or non-attendance by an applicant at a scheduled hearing are alternative necessary conditions of the Tribunal’s power to determine an application without a hearing. Absent an effective consent, the condition under which the Tribunal may treat the applicant as disentitled from a hearing is not satisfied.
75 Given that this is a case about the exercise of a statutory power absent satisfaction of a necessary condition for its exercise, general considerations relating to the common law of procedural unfairness do not apply. The question, raised in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, whether there has been ‘practical unfairness’ does not arise in the present case. That question goes to whether there has been procedural unfairness constituting jurisdictional error at all. It does not create a discretionary consideration which invites speculation about the strength or weakness of an applicant’s case had the applicant been afforded a hearing before the Tribunal. In any event, it does not arise in this case because the question is one of statutory power and the satisfaction of a statutory condition albeit it reflects a codification of the natural justice hearing rule (see s 422B).
Whether prescribed time from notice to hearing was applicable to the rescheduled hearing
76 In light of the preceding conclusions the second issue concerning the notice requirements for a rescheduled hearing is somewhat moot. Nevertheless it was argued and, in case the conclusion in relation to the first issue is wrong, it should be determined.
77 Section 425A requires that when an applicant is invited to appear before the Tribunal it must give the applicant notice of the day on which and the time and place at which the applicant is scheduled to appear. Section 425A(3) provides that the period of notice given must be ‘at least the prescribed period’ and, in the absence of a prescribed period, a reasonable period. Regulation 4.35D of the Migration Regulations prescribes a period of 14 days for that purpose.
78 The notice of the rescheduled hearing in this case was dated 9 November 2005 and sent by post to both the agent’s address and SZFML’s address. By virtue of s 441C a person sent a document by prepaid post is taken to have received it seven days after dispatch. If the 14 day notice period applies, then the period of notice given for the rescheduled hearing was too short. The question raised by the second issue is whether the period of notice mandated by s 425A(3) applies to notice of a rescheduled hearing?
79 In dealing with an application for review the Tribunal has power, under s 427 of the Act, to ‘adjourn the review from time to time’. The review is a larger process than the oral hearing. The hearing is but a component of the review. Section 426A(2), under which the Tribunal may reschedule a hearing, is not apposite. That subsection is concerned with the case in which an applicant does not appear before the Tribunal on the appointed date and time. Section 426A(1) authorises the Tribunal to proceed to decision without further ado in the case of such non-appearance. What s 426A(2) makes clear is that the Tribunal is not bound to proceed to a decision then. It can reschedule the hearing. If express power to do that is necessary it is to be found, as an application of the general power to adjourn the review for which s 427 provides. Significantly, notification of a rescheduled hearing does not involve a fresh invitation for the purposes of s 425(1). But where the hearing is rescheduled, then it is implicit in the obligation imposed on the Tribunal under s 425A(1) that the Tribunal must give the applicant notice of the amended day on which, and time and place at which, the applicant is scheduled to appear.
80 In SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251, Conti J considered a case in which the Tribunal had rescheduled a hearing as a result of the applicant’s non-attendance at the original hearing, albeit with the support of a doctor’s certificate. His Honour said (at [29])
‘In my opinion, in circumstances where the Tribunal decides to reschedule a contemplated hearing at the behest, explicitly or implicitly of an applicant, s 425A does not apply in relation to the notice of a rescheduled hearing, at least insofar as concerns the period of the reviewed notice. The sanction on the Tribunal in those circumstances would be the operation of the general law as to natural justice, as Hely J indicated in NAHF, albeit in a different factual context, and subject to the operation of the recently enacted s 422B of the Act.’
His Honour went on to consider the mischief that would arise if an applicant were able to set in train an indefinite number of rescheduled hearings with a repetitive requirement for not less than 14 days notice of each hearing.
81 SZDQO was a case in which the rescheduling of the hearings was done at the instigation of the applicant for review. SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 was a case in which the Tribunal notified a hearing date then rescheduled because of telecommunications difficulties. When the applicant in that case was informed of the new hearing date he had not been given 14 days notice. Nicholls FM at first instance held that the hearing had been adjourned and that there was no prescribed time limit in relation to an adjourned hearing. Bennett J on appeal, was not satisfied that Nicholls FM was in error in holding that the Tribunal had adjourned the hearing. She said (at [12]):
‘‘Adjourn’ can mean to defer or put off or suspend in respect of something that has already commenced (see Shorter Oxford English Dictionary (fifth edition) and Macquarie Dictionary (revised third edition)). It can also mean to defer or postpone to a future meeting of the same body (Macquarie Dictionary).’
82 It is implicit in the statutory scheme that the Tribunal’s invitation to a person to appear, where it has been accepted, cannot be compromised by rescheduling the appointed hearing to another date on unreasonably short notice. However it is not suggested that that occurred here. It is open to the Tribunal in the conduct of a hearing to adjourn it from time to time. If express authority were necessary it would be provided by s 427. In any event there is an implied incidental power for the Tribunal to do so in order to give practical effect to its obligation to provide a hearing. The power of the Tribunal to reschedule a hearing of which notice has been given is of the same character. Provided the notice of the rescheduling is reasonable there is no requirement, applicable to that procedure, for the application of the minimum prescribed period applicable to the notice required by s 425A.
83 The approach taken by Conti J and Bennett J in SZDQO and SZEFM respectively was correct. SZDQO cannot be distinguished on the basis that the rescheduling, in that case, was instigated by the applicant. While the Minister succeeds on this issue, the appeal must fail because SZFML did not consent, under s 425(2)(b), to the Tribunal deciding the review without her appearing before it.
Conclusion
84 For the preceding reasons, the appeal should be dismissed with costs.
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I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, French and Cowdroy. |
Associate:
Dated: 27 October 2006
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Counsel for the Appellant: |
G T Johnson |
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Solicitor for the Appellant: |
Phillips Fox |
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Counsel for the Respondent: |
Ben Zipser |
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Date of Hearing: |
15 May 2006 |
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Date of Judgment: |
27 October 2006 |
