Federal Court of Australia

DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 75

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant, a citizen of Thailand, applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on 7 November 2018. A delegate of the first respondent (the Minister) refused the application on 20 January 2020, on the basis that the appellant did not satisfy the criteria for the grant of the visa contained in s 36(2) of the Act. The appellant applied for review of that decision by the second respondent (the Tribunal).

2    On 14 October 2021 the Tribunal sent the appellant an invitation to attend a hearing on 1 November 2021. It sent the invitation to the email address that the appellant had nominated in his review application. However, the invitation did not reach the appellant. He was in the custody of Corrective Services New South Wales (Corrective Services NSW), having been arrested on 23 October 2020 and remanded in custody.

3    As a result, the appellant was unaware of the hearing. He did not attend.

4    The Tribunal exercised its power under s 426A(1A)(b) of the Act to dismiss the review application without further consideration of the application or the information before the Tribunal (the dismissal decision). It sent a record of its decision to the appellant at the same email address. Unsurprisingly, he did not apply for reinstatement of his review application within the time allowed by s 426A(1B) of the Act. On 17 November 2021, the Tribunal confirmed its decision under s 426A(1E) (the confirmation decision).

5    The appellant sought judicial review of the confirmation decision in the Federal Circuit and Family Court (the Circuit Court). He later amended his application to include the dismissal decision as well. His application was dismissed. He appeals from that judgment.

6    The issues in the Circuit Court, and in this appeal, arise from the fact that the Department of Home Affairs (the Department) had been notified of the appellant’s arrest by a communication from Corrective Services NSW on 2 November 2020. It is common ground that the receipt of that communication triggered an obligation imposed on the Secretary to the Department (the Secretary) by s 418(3) of the Act to form an opinion about whether the information in the communication was relevant to the Tribunal’s review and that that duty was not performed. The issues are:

(a)    whether the Secretary’s failure to perform the duty under s 418(3) vitiated the Tribunal’s decision; and

(b)    whether the Tribunal fell into error by failing to make an inquiry of the Department as to how the appellant could be contacted (where such inquiry, it is said, would have revealed that the appellant was in custody and therefore could not have received the Tribunal’s email).

Relevant legislative provisions

7    The decision to refuse to grant the appellant a protection visa was a “Part 7-reviewable decision” as defined by s 411 of the Act and the appellant was entitled to apply for review under s 412. With his application having been made, the Tribunal came under a duty to “review the decision”: s 414.

8    The review application also brought s 418 into play. Section 418(1) requires the Registrar of the Tribunal to notify the Secretary of the making of the application. Section 418(2) then requires the Secretary to provide the Tribunal with a statement of the reasons for the decision under review. Section 418(3), which is important here, provides as follows.

(3)     The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

9    The conduct of the Tribunal’s review is governed by Division 4 of Part 7. Relevantly here, s 425(1) requires the Tribunal (with some presently irrelevant exceptions) to:

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.

10    The invitation to appear must be given by a written notice (s 425A(1)). Section 425A(2) provides, for an applicant who is not in immigration detention, that the notice must be given by “one of the methods specified in section 441A”. Those methods include delivery by hand, sending by prepaid post and (relevantly here):

(5)     Another method consists of a member or an officer of the Tribunal transmitting the document by:

(a)     fax; or

(b)     email; or

(c)     other electronic means;

to:

(d)     the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or

(e)     if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.

11    Section 426A applies where the review applicant is invited to a hearing but does not appear at the appointed time. The relevant provisions for present purposes are as follows.

Tribunal may make a decision on the review or dismiss proceedings

(1A)     The Tribunal may:

(a)     by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

(b)     by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1:     Under section 430A, the Tribunal must notify the applicant of a decision on the review

Reinstatement of application or confirmation of dismissal

(1B)     If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.

Note:     Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

(1C)     On application for reinstatement in accordance with subsection (1B), the Tribunal must:

(a)     if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or

(b)     confirm the decision to dismiss the application, by written statement under section 430.

Note 1:     Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2:     Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1D)     If the Tribunal reinstates the application:

(a)     the application is taken never to have been dismissed; and

(b)     the Tribunal must conduct (or continue to conduct) the review accordingly.

(1E)     If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.

Note:     Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

(1F)     If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

12    Section 426B applies to the notice that must be given if the Tribunal decides to dismiss the application under s 426A(1A)(b). The notice must be in writing and must also be given to the review applicant by one of the methods in s 441A (s 426B(5)).

The facts

13    The facts were largely uncontentious in the Circuit Court. The important dates have been noted above.

14    When the appellant lodged his review application, he received a standard letter from the Tribunal which said (among other things):

It is important that you:

tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice;

15    As noted earlier, the appellant was taken into custody on 23 October 2020. It appears to be common ground that he was unable to gain access to his email address while in custody. It also appears that he was still in custody at least up to the time the Tribunal decided to dismiss his application and to confirm that decision. However, it is not in doubt that the appellant’s email address, which he had provided in his review application, was one of the modes of communication available to the Tribunal under s 441A of the Act. Correspondingly, it is not suggested that the Tribunal breached any provision of s 425 or s 425A in sending the hearing invitation to the appellant’s email address.

16    On or before 2 November 2020, Corrective Services NSW sent to the Department a document (referred to below as the spreadsheet) which was in the nature of a list of persons in custody who were known to be non-citizens. Information of this kind is obtained from Corrective Services NSW in order to enable consideration of whether the visas of persons who have been sentenced to terms of imprisonment should be cancelled under s 501 of the Act. The appellant’s name was on that list, together with his date of birth and remand location. The Department amended the appellant’s contact details in its own records at some time before 1 March 2021.

17    It was conceded that the spreadsheet was capable of being considered to be “relevant to the review of the decision”, within the meaning of s 418(3), on the footing that the fact that the appellant was in custody might have affected the Tribunal’s procedural decision making (eg as to what was the appropriate method of sending notifications to him). It was also conceded that the Secretary did not at any relevant time up to 17 November 2021 form an opinion as to whether the spreadsheet was “relevant to the review of the decision”. She therefore failed to comply with the obligation in s 418(3) (which is ongoing: SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; 191 FCR 123 at [57]-[58] (Bennett and McKerracher JJ) (SZOIN)). The Minister did not concede, however, that the spreadsheet was “objectively” relevant to the Tribunal’s review or that an opinion that it was not relevant would have been legally unreasonable.

18    There is no evidence that the appellant took any step after being arrested to notify the Tribunal that his contact details had changed.

19    The appellant gave unchallenged evidence that he did not receive the hearing invitation. His solicitor gave unchallenged evidence that prisoners do not have general access to the internet. Argument in the Circuit Court thus proceeded on the basis that he did not receive notifications from the Tribunal because he was in custody and did not have access to the email address that the Tribunal was using to contact him.

The appeal

20    The single ground of appeal is as follows.

The primary judge erred in failing to find that the decisions of the Administrative Appeals Tribunal were affected by reason of jurisdictional error in that:

a.     the decisions were made in circumstances where the Secretary breached his duty in s 418(3) of the Act to form an opinion on the relevance to the Tribunal’s review of a document in his possession which indicated the Appellant had been taken into the custody of Corrective Services NSW (CSNSW);

b.     the failure of the Secretary to form an opinion on the relevance of the document disclosing the Appellant’s whereabouts affected the way in which the Tribunal contacted the Appellant under ss 425A(2) and 426B(5)-(6) of the Act prior to each decision, and but for the failure, the Tribunal would not have contacted the Appellant by unanswerable email;

c.     further or alternatively, the Tribunal failed to make an obvious enquiry of the Secretary as to the Appellant’s whereabouts, which enquiry if made would have revealed that the Appellant had been taken into the custody of CSNSW and therefore could not be contacted by email.

21    This ground repeats the grounds of review advanced in the Circuit Court word for word, under cover of an overall contention that the primary judge erred by not upholding those grounds. Thus, the case is effectively being argued again from scratch rather than by identifying error in the reasoning below. This is not ideal (cf, eg, NBDY v Minister for Immigration and Multicultural Affairs [2006] FCAFC 145 at [26]-[27] (Branson and Stone JJ)), although the appellant’s written submissions did highlight some passages of the primary judge’s reasons that were said to be erroneous.

22    In circumstances where the primary facts are largely uncontested and the questions of law are relatively confined, we have found it convenient to address the issues from first principles and state our conclusions on them, rather than commencing with a summary of the primary judge’s reasons. We intend no disrespect by doing so. We endeavour to indicate points of agreement and (relatively minor) disagreement with his Honour’s reasoning.

Ground 1(a)-(b): Non performance of the Secretary’s duty under s 418(3)

23    It is not suggested that the Tribunal failed to perform any requirement imposed on it by the Act. However, it is clear that in some circumstances performance of a statutory obligation by a person other than the decision maker can constitute an indispensable requirement for a valid decision: see, eg, Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 (Wei).

24    In the case of s 418 of the Act, there is a line of authority holding that failure to perform the Secretary’s duty does not invalidate a subsequent decision by the Tribunal.

(a)    In Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 (Muin), Gaudron J observed at [46] that there was nothing in the Act to suggest that compliance by the Secretary with s 418(3) was a precondition to the Tribunal’s conduct of review proceedings or the making of a decision.

(b)    The issue arose squarely in WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103; 151 FCR 413 (Moore, North and Mansfield JJ) (WAGP). The Court framed the essential question as “whether the failure by the Secretary to comply with s 418(3) will result in the Tribunal — even though it has conducted its review in accordance with Div 4 of Pt 7 and has provided the visa applicant with procedural fairness … — committing jurisdictional error, or in some way being disempowered from making a valid review” and answered that question in the negative: at [62]-[64].

(c)    In SZNZK v Minister for Immigration and Citizenship [2010] FCA 651 at [20], dealing with a subtle argument concerning the relationship between s 418(2) and s 425, Perram J said: “I do not see that an error in the performance of a function under s 418 by the Secretary can result, at least without something more, in a jurisdictional error by the tribunal”. (His Honour does not appear to have been taken to Muin or WAGP.)

(d)    SZOIN was similar to the present case in that it involved a breach of s 418(3) arising from the Secretary’s failure to form an opinion about whether a document was relevant to the Tribunal’s review. Bennett and McKerracher JJ said (at [60]-[65]):

The circumstances in which a third party breach not known to the Tribunal may result in jurisdictional error would be extremely limited. One example is SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 [(SZFDE)], in which a third party represented himself to the then appellants to be a solicitor and migration agent duly licensed and received a substantial fee for acting for the family with respect to the Tribunal proceeding. The appellants followed the advice given by the third party, in particular, not to attend the Tribunal hearing. The High Court upheld the dissenting judgment of French J, as his Honour then was, in the Full Court. His Honour was of the view that the Tribunal had fallen into jurisdictional error because whilst it had made its decision blamelessly, its decision-making process was compromised by “third party fraud”.

The High Court (at [53]) emphasised that the consequences of its finding of jurisdictional error was limited and that bad or negligent advice to an appellant “or some other mishap” that applies to the appellant’s detriment does not vitiate the decision made. The High Court referred to French J’s decision at [125] and following. His Honour emphasised at [128] that it was not about unfairness but about the effect of fraud on the Tribunal’s decision-making process.

There is no assertion in the present case that any part of the process has been tainted by fraud or that the action of the Secretary was other than inadvertent.

In Applicant S1693 of 2003 v Refugee Review Tribunal [2004] FCA 1512 French J (at [41]) rejected a submission that there was support in Muin for a proposition that failure to comply with s 418(3) could amount to jurisdictional error. On appeal, the decision was upheld although this ground was not expressly considered (Applicant S1693 of 2003 v Refugee Review Tribunal [2005] FCAFC 151).

More recently in SZNZK v Minister for Immigration and Citizenship (2010) 115 ALD 332 at [20] Perram J followed French J in Applicant S1693 of 2003 [2004] FCA 1512, noting that an error in the performance of a function under s 418 by the Secretary cannot result, at least without something more, in a jurisdictional error by the Tribunal. His Honour observed that this follows from the fact that it has been held that a breach of s 418 does not constitute jurisdictional error.

We cannot agree that WAGP was clearly wrong. It is not only directly in point insofar as the crucial question is concerned but is also based on sound reasoning which is consistent with the approach taken by members of the High Court in Muin and also with S487 and SZNZK.

25    These statements are not limited to final decisions by the Tribunal, on the merits, under s 415 of the Act. They are directed more generally to the conduct of the Tribunal’s review. Nor is there any reason in principle why the conclusion expressed as to the effect of non-compliance with s 418(3) on decisions of the Tribunal should be regarded as limited to decisions of a particular kind. The reasoning in the cases to which we have referred should be regarded as extending to all dispositive decisions by the Tribunal, including a decision disposing of a review under s 426A(1A). The concession that the Secretary failed to carry out her duty under s 418(3) is therefore not sufficient for the appellant to succeed.

26    Gageler and Keane JJ observed in Wei at [26] that “[to] label a particular statutory duty either ‘imperative’ or ‘directory’ is to express the conclusion of a process of statutory construction”. That observation applies to the question whether non-performance by the Secretary of her duty under s 418(3) goes to the jurisdiction of the Tribunal. The conclusion reached on that point in WAGP and in SZOIN is thus a conclusion concerning the construction of the Act; ie, the intention of the legislature as to the relationship between s 418(3) and the provisions conferring decision-making power on the Tribunal. It does not depend on the seriousness of the non-performance or its materiality in individual cases. The “something more” referred to by Perram J in SZNZK must therefore be something other than an especially egregious or significant breach of s 418(3).

27    There is a degree of affinity between these cases and the cases concerning the effect of third-party fraud on a decision of the Tribunal, of which SZFDE (referred to in SZOIN) was one. In SZFDE, the appellants’ adviser had fraudulently persuaded them not to attend the Tribunal hearing. The consequence was that the Tribunal dealt with their review under s 426A. The unanimous High Court described the effect of this conduct as “stultifying the operation of the legislative scheme to afford natural justice to the appellants” (at [49]) and, for that reason, rendering the Tribunal’s purported decision invalid (at [52]).

28    SZFDE was distinguished in Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550, another case involving a fraudulent agent. The agent’s misconduct in that case (lodging recycled submissions which did not address her clients’ cases) let her clients down but did not prevent the Immigration Assessment Authority performing its statutory functions. The Court (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) said at [18]:

In this Court, the Minister correctly submitted that, as a ground of judicial review, fraud must affect a particular duty, function or power of the Authority. It is not sufficient to assert that fraud might be said to affect the process of decision-making in some abstract sense.

29    The same approach must in our view apply to failures by the Secretary to perform her duty under s 418(3). The cases establish that such a failure does not in itself vitiate an exercise of decision-making power by the Tribunal. It may do so if it “stultifies” the performance of a particular duty or function, or the exercise of a particular power, by the Tribunal. Attention must therefore focus on the particular duties, functions and powers of the Tribunal and how, it is said, their proper performance or exercise was affected.

30    What we have said in the previous paragraph aligns with the approach of the Full Court in BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61; 248 FCR 159 (Griffiths, Kerr and Farrell JJ) (BBS15). There, the Department had accidentally failed to include a supportive letter from the appellant’s pastor in the material that it sent to the Tribunal under s 418(3). The appellant did not submit the letter to the Tribunal, because the Tribunal had caused him to understand that it would receive all the documents he had submitted to the Department. The Tribunal went on to find that the appellant was not a genuine Christian and affirmed the refusal of a protection visa. Thus, the omission of the letter caused the Tribunal to mislead the appellant as to the material it had before it, leading to him not receiving the procedural fairness for which the Act provided. The Full Court, having analysed the line of cases to which we have referred above, said (at [106]):

None of the cases purports to narrow the principle established by the High Court in Muin and Aala. That is, it is a failure of s 425 of the Act if the failure to provide information causes the Tribunal (even innocently) to mislead an applicant to mistakenly believe that a state of affairs exists and that in turn affects the manner in which the case is conducted to the applicant’s detriment. In any event we would be bound by the hierarchy of precedent to apply the reasoning of the High Court.

31    What occurred in the present case has some similarity with the course of events in SZFDE. Through a series of unfortunate events, the review of the delegate’s decision was diverted from what might be regarded as the normal course (an oral hearing under s 425, where the appellant would have a chance to develop his case, followed by a decision on the merits), on to the pathway provided for in s 426A (which inevitably resulted in the delegate’s decision being affirmed). If that diversion could be sheeted home to the Secretary’s failure to comply with s 418(3), the failure could be regarded as having stultified the operation of the scheme of procedural fairness for which the Act provides.

32    However, that conclusion would not be reached merely on the basis that proper performance of the Secretary’s duty under s 418(3) might have led to the review being determined differently. A conclusion that the Secretary had stultified the Tribunal’s review process by her misconduct would require a finding that such misconduct had set the review on an inevitable pathway to failure (as in SZFDE) or directly affected the way the hearing was conducted to the appellant’s detriment (as in BBS15), or at least that such adverse consequences would not have occurred but for the Secretary’s misconduct. The evidence does not warrant findings of that kind, for three reasons.

33    First, contrary to a submission made by the appellant, it is not apparent that compliance with s 418(3) by the Secretary would necessarily have led the spreadsheet to be provided to the Tribunal. Compliance required the Secretary to form a view as to whether the spreadsheet was “relevant to the review of the decision”. Assuming (as was conceded) that that formulation captures a document which is relevant only to the conduct of the review (not to the substantive issues), it would nevertheless have been open to the Secretary to come to the view that the spreadsheet was not “relevant”. The Secretary cannot be assumed to have had any knowledge of what contact details the appellant had provided to the Tribunal, how the Tribunal’s ability to contact the appellant (by email or any other means) would be affected by him being in custody, whether he had notified the Tribunal of his situation or was going to do so, or how long he was likely to be held on remand.

34    Secondly, even if compliance with s 418(3) did require provision of the spreadsheet to the Tribunal, non-compliance was not fatal to the provision of a proper hearing under s 425 or to the appellant’s ultimate prospects of success. That is because it was open to him, at any time between 23 October 2020 and 14 October 2021, to inform the Tribunal that he no longer had access to email and provide it with an address where he could be contacted. There is no evidence that being in custody made this especially difficult and no reason to make an inference to that effect (as the primary judge noted at [70]). It is not necessary to go so far as to assert that it was the duty of the appellant to keep the Tribunal informed of his up to date contact details. The point of significance is that nobody else was charged by statute with that responsibility. On the contrary, the terms of ss 441A(5)(d) and 425A(2) make clear that the Tribunal gives sufficient notice of a hearing if it sends the notice to the last email address provided for that purpose by the review applicant. Section 441A(3), (4) and (6), which permit other modes of communication, contain language similar to s 441A(5)(d). The clear intention embodied in those provisions is that, if relevant contact details are not kept up to date by the review applicant, that applicant cannot complain when notifications are not received. It was clearly in the appellant’s interests to make sure that he received communications such as the invitation to attend a hearing.

35    It was obliquely suggested in submissions that the appellant would have been informed, upon being taken into custody, that the fact of his custody would be communicated to the Australian Border Force (ABF). The source of this suggestion was a procedural document of Corrective Services NSW which instructed officers to inform an inmate “that the ABF will be informed of the inmate’s incarceration”. The appellant, who gave evidence by way of an affidavit in the Circuit Court, did not refer to having been given this information (let alone having relied on it). There is also the difficulty that the notification of the delegate’s decision was on the letterhead of the Department and did not mention the ABF; and the Tribunal is a separate entity from both. Nothing in the evidence indicates that the appellant was given any reason to think that the Tribunal would find out he was in custody (let alone where he was being held or how to contact him) without him doing anything.

36    The case can therefore be properly seen as one where the review applicant did not appear at the hearing because he had neglected to update the contact details supplied to the Tribunal. Provision of the spreadsheet to the Tribunal could have provided an impetus for that situation to be remedied. Even then, however, the Tribunal would have had to find the appellant and elicit a new address for service from him in order for that address to be available for use under s 441A. The Act does not place any onus on the Tribunal to find a review applicant and prompt them to update their contact details.

37    Thirdly, it was not inevitable that the Tribunal would use the email address to which the appellant no longer had access when it tried to send the hearing invitation to him. The applicant’s review application also listed a residential address in Haymarket, NSW as a place to which correspondence could be sent. There was no evidence as to whether a notification sent to him at that address would have been forwarded to him. The appellant therefore has not established that the failure of the hearing invitation to reach him was an inevitable consequence of his contact details not being updated. (While it may seem intuitively unlikely that a letter sent to the appellant’s old address roughly a year after his arrest would reach him, the true position depends on a host of factors and would not be an appropriate matter for judicial notice. Evidence could have been led on this point.)

38    For similar reasons, it cannot be said that by reason of the Secretary’s failure to consider whether the spreadsheet was relevant to the Tribunal’s review, the Tribunal was disabled from exercising its discretion under s 426A(2) to consider other measures to deal with the appellant’s failure to appear. That discretion was not conditioned on the Tribunal forming any view about whether the appellant had received notice of the hearing.

39    For these reasons, we conclude that the Secretary’s failure to comply with s 418(3) did not undermine or stultify the performance by the Tribunal of any of its statutory functions or duties. It therefore did not result in the breach of any condition on the validity of the dismissal decision or the confirmation decision. We therefore agree with the conclusion reached by the primary judge at [71]. We should add two further observations.

40    It will be apparent that we have reached our conclusion by a somewhat different route from the primary judge. To the extent that his Honour’s reasoning at [63]-[69] focuses on the reasonableness of the Tribunal’s conduct, we consider (with respect) that this does not answer the question posed by ground 1(a) and (b). These paragraphs did not accuse the Tribunal of any wrongdoing.

41    It will also be noted that we have said nothing above concerning the concept of materiality (as explored in, eg, MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 (MZAPC)).

42    Questions as to materiality arise when “non-compliance with an express or implied statutory condition of a conferral of a statutory decision-making authority” has been found; materiality is (usually) determinative of whether that non-compliance “results in a decision that exceeds the limits of the decision-making authority” (MZAPC at [30]-[32] (Kiefel CJ, Gageler, Keane and Gleeson JJ)). The cases to which we have referred above establish that compliance by the Secretary with s 418 is not an “express or implied statutory condition” of the conferral of “statutory decision-making authority” on the Tribunal by s 426A. The question whether lack of such compliance results in a decision that exceeds that authority is, therefore, not a question of materiality in the sense discussed in MZAPC. Instead, the question that arises (in the light of SZFDE and BBS15) is whether the Secretary’s non-compliance has had the effect of stultifying or derailing the performance by the Tribunal of any functions or duties the performance of which condition the valid exercise of its power. If that were found to have occurred, questions of materiality would arise.

Ground 1(c): Failure to make an inquiry

43    Ground 1(c) in the notice of appeal (which repeats the equivalent ground in the Circuit Court) appears to invoke the suggestion in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (SZIAI), although that case is not cited by the appellant. The primary judge also appears to have understood the argument as one invoking SZIAI (at [72]-[74]).

44    In SZIAI at [25] the High Court left open the possibility that a failure to make an obvious inquiry about a critical fact, the existence of which could be easily obtained, would amount to jurisdictional error. Their Honours said:

The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.

45    There are two points to note about this formulation.

46    First, the reference to “constructive failure to exercise jurisdiction” (which was accompanied by a reference to Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [189], n 214) and “failure to review” connotes a purported decision on the review in which the nature of the statutory task or the correct legal test is misunderstood. Thus, the possibility being suggested in SZIAI was that the Tribunal might be regarded as not having performed its statutory function of review if it refrained from finding out a “critical fact”. This indicates that the critical facts with which SZIAI was concerned were facts going to the substantive issues in the review. It is not clear how this analysis applies to a discretionary decision as to whether to dismiss a review under s 426A(1A)(b) or whether to confirm such a decision under s 426A(1E).

47    Secondly, we were not referred to a case in which a decision has actually been set aside on the basis of a failure to make an inquiry. Rather, since the decision in SZIAI it has been emphasised that any such cases must be rare and exceptional (Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151 at [60] (Kenny J)) and the fact that it is reasonable to make an inquiry does not mean that a failure to do so constitutes jurisdictional error (SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J); Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; 256 FCR 235 at [33] (the Court)).

48    As to the first point, whether a failure to inquire involves a constructive failure to exercise jurisdiction must depend on the construction of the relevant statutory provisions (here, s 426A(1A) and (1E)). While there is an express power to get any “information” the Tribunal considers relevant in conducting a review (s 424), no such express power attaches to a decision under s 426A. That provision appears as part of a fairly detailed regime setting out what the Tribunal needs to do in order to give proper notice of a hearing and the consequences that arise if, with proper notice having been given, the review applicant does not attend. An aspect of that regime, as noted earlier, is that proper notice is given if the relevant documentation is sent to the last address provided by the review applicant for that purpose. Another aspect of the regime is that notice of a decision to dismiss the review is to be sent to the review applicant by one of the methods in s 441A and the decision must be confirmed if no application for reinstatement is made within 14 days. These features make it difficult to accept that there are circumstances in which the Act implicitly requires, as a condition of a valid exercise of s 426A(1A) or (1E), inquiries to be made by the Tribunal about the review applicant’s whereabouts.

49    Without expressing a final view on that issue, we observe that the circumstances in which such inquiries are necessary (as a condition for a valid exercise of power) must indeed be exceptional. If non-appearance at a hearing were sufficient to require inquiries to be made, that requirement would arise in every case to which s 426A applies.

50    SZIAI at [25] referred to an “obvious” inquiry about a critical fact, “the existence of which is easily ascertained”. Obviousness and ease of ascertainment must be assessed on the basis of the information known to the decision maker at the time of the decision, not with hindsight. Here, at the time of the cancellation decision the Tribunal did not know what the Department knew about the appellant’s circumstances. It also had no reason to assume that the Department (or anybody else) would have information to hand as to why the appellant had not attended the scheduled hearing or where he could be contacted. Asking the Department what it knew was clearly a reasonable (indeed, desirable) step to take, but it does not follow that the Tribunal fell into error by not taking that step. The same would be true of most if not all cases where a review applicant does not respond to a hearing invitation and does not attend the hearing.

51    We therefore discern no error in the reasoning of the primary judge at [72]-[74].

Disposition

52    The appeal must be dismissed with costs.

Associate:

Dated:    7 June 2024