FEDERAL COURT OF AUSTRALIA

IMMIGRATION – Refugee Review Tribunal – applicant’s entitlement to a reasonable opportunity to give evidence – decision given in his absence owing to illness – reasons of Tribunal referring to his absence but not to the circumstances – error of law in failure to set out reasons and findings on that matter – error of law in failure to give the applicant an opportunity to appear to give evidence – requirement to act according to substantial justice.

Migration Act 1958, ss 420, 425, 430, 476(1)(a)

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, followed

The Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, followed

Budiyal v The Minister for Immigration & Multicultural Affairs (Tamberlin J, unreported, 20 March 1998), followed

Jones v Dunkel (1959) 101 CLR 298, applied

CAPITLY  V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 821 of 1997

Burchett J

Sydney

24 September 1998

THE COURT ORDERS THAT:

1.         The decision under review be set aside;

2.         The matter be remitted to the Refugee Review Tribunal, differently constituted, for decision according to law;

3.         The respondent Minister pay the applicant’s costs.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal.  The initiating document, which the applicant filed in person, named as respondent “Department of Immigration & Multicultural Affairs”.  The Minister for Immigration and Multicultural Affairs appeared, and no objection was taken to the application, as a matter of form, on the basis that it named the wrong respondent.  By s 480 of the Migration Act 1958, of course, the respondent to such an application is the Minister for Immigration and Multicultural Affairs, and it was open to the court to allow any necessary amendment:  Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155.  Accordingly, I have directed that the entitlement of the matter be amended to that which appears at the head of these reasons. 

The point in this appeal is a straightforward one, but no trace of it can be found in the reasons of the Refugee Review Tribunal.  Those reasons, which show the date of the decision as 29 August 1997, commence by noting that Mr Capitly was seeking to review a decision to refuse him a protection visa; that he was a national of the Phillipines who entered Australia on 26 May 1996; that having been refused a protection visa by a delegate of the Minister on 5 April 1997, he had applied, on 29 April 1997, for review of that decision by the tribunal; that the legal foundation of such an application lay in the United Nations Convention, and the decisions interpreting it, referred to in the reasons; that the applicant claimed to have been threatened and attacked by members of the Morro National Liberation Front, or a similar communist organisation, in the Phillipines; and that the general state of affairs with reference to communist insurgency in the Phillipines was as set out in the reasons.  The tribunal then continued:

“The Applicant was invited to attend a hearing of the Tribunal but did not avail himself of the opportunity.  The Tribunal was therefore not in a position to test his claims.”

After this pregnant statement, the reasons contain a brief discussion of those claims, concluding:

“The Applicant has not presented a case that convinces the Tribunal that he has a Convention based fear of persecution or that there is a real chance that harm will befall him on return to the Phillipines.”

Accordingly, the decision not to grant him a protection visa was affirmed.

A different picture altogether of the basis on which the applicant failed in the tribunal emerged, however, from his evidence.  That evidence was uncontradicted.  After hearing him cross-examined upon it, I formed the view that he was a witness who was very much at a disadvantage in English, but was essentially truthful.  He had received, some time after its date, a notice from the tribunal dated 8 July 1997, appointing a date for the hearing of his application on Monday 4 August 1997 at 11 am.  The notification included the statement:

“The Tribunal will not change a hearing date unless it is satisfied that there are very good reasons to do so.”

This statement, of course, implied that if there were very good reasons, a hearing date could be changed.  Mr Capitly responded, indicating that he would attend.  Then, on the Saturday, which would have been 2 August, he became ill with influenza, was very ill at home in bed during the weekend, and, though somewhat better than on the Sunday, was still very ill on the Monday with “a runny nose … severe headache … aching joints” and also “[h]igh fever, my temperature was quite high”.  It was “raining very hard” and there were “strong winds”.  Mr Capitly, who had not seen a doctor but had gone to bed, had been hoping during the weekend that he would be well enough to attend the hearing on the Monday.  However, in the circumstances, he did not feel well enough, and he thought it would endanger his health to go out in the rain, so at about 10 am on the Monday he telephoned the tribunal, attempting to speak to one Shoba Deshikan, who was named as his “contact officer” in the letter advising him of the hearing date.  She was not available - indeed she appears to have been no longer at the tribunal - and he spoke to someone else whose name he does not recall.  He explained about his illness, saying that he was “still sick” and that it was “still raining very hard”.  The person to whom he spoke replied, apparently, that he would find out what could be done, and that Mr Capitly should telephone back shortly.  He did telephone again within about ten minutes, when he was told by the same person that he “could not get a postponement for the hearing because it was too late”.  At that time, it would have been possible to travel from Minto, near Campbelltown, where the applicant was living, to the city in about one hour, if the relative who was going to drive him to the railway station had driven him there straight away and he had caught a train immediately.  But the applicant, having regard to the weather, did not feel well enough to attempt the journey, and he went back to bed.  He said:

“It was not real possible for me to get here at that time your Honour.”

He was “afraid that [he] could get more sick if [he] went outside”.  I accept his evidence, and conclude that he was not reasonably able to attend in Sydney to appear before the tribunal.

Since the applicant had telephoned the tribunal, asking for his contact officer, and had been told to telephone again shortly, the probability is that the person to whom he spoke intended to refer the request for an adjournment to the tribunal member who would be hearing the matter.  When Mr Capitly did telephone again and spoke to the same person, he was not told that the tribunal member was not yet in, or could not be contacted, but that the person he spoke to had been unable to arrange a postponement “because it was too late”.  The inference is that the tribunal member had been spoken to, and had given this response.  In the absence of evidence from anyone at the tribunal to the contrary (and no application was made to me for an adjournment to call any such evidence), I am entitled, if I think it probable, to rely on the inference:  Jones v Dunkel (1959) 101 CLR 298.  In my opinion, it is to be inferred that the tribunal member was advised of the position, and did decide to proceed to deal with the matter in the absence of the applicant.

That conclusion raises several questions.  In the first place, s 430(1) of the Migration Act 1958 provides:

“Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)       sets out the decision of the Tribunal on the review; and

(b)       sets out the reasons for the decision; and

(c)        sets out the findings on any material questions of fact; and

(d)       refers to the evidence or any other material on which the findings of fact were based.”

It is plain that when the tribunal simply referred to its invitation to the applicant to attend a hearing and to his absence, that was a travesty of compliance with s 430(1).  There was no reference to the applicant’s statement that he was ill, or to the distance he would have had to travel in severe weather conditions, or to the fact that his application had been rejected although the tribunal could not possibly have had, and did not suggest that it had, any basis for thinking his statement about his illness was untrue.  After all, that a person hailing from the tropics might be quite seriously ill with influenza in the western suburbs of Sydney in wet and windy weather in early August could not be regarded as inherently unlikely.  However, the vice of the tribunal’s decision is not in its conclusion, but in the fact that there are no reasons and no findings in relation to this matter.  Yet it was clearly central to the decision, since the tribunal relied on the invitation to the applicant and his failure to “avail himself of the opportunity” as a basis for rejecting his claims.  The failure to set out relevant reasons and findings constituted an error of law by virtue of s 430(1).

The applicant’s case in this court, however, does not rest simply upon s 430.  Section 424 allows the tribunal to make the decision that is “most favourable” to an applicant without taking oral evidence, but otherwise, s 425(1) provides that:

“[T]he Tribunal … must give the applicant an opportunity to appear before it to give evidence”.

In Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 at 314, I said of this provision that it “was intended to ensure that the primary rule of natural justice, audi alteram partem, receives a measure of recognition.”  I also pointed out that it was linked with the obligations imposed on the tribunal by s 420, which requires that it “must act according to substantial justice and the merits of the case”.  Of that provision, Kirby J said in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 586-587 that “[t]he tribunal was obliged by the terms of the Act to perform its duties in accordance with the Act”.  Tamberlin J, in Budiyal v The Minister for Immigration & Multicultural Affairs (unreported, 20 March 1998), a case where the tribunal had given unreasonably short notice of the hearing date, said:

“The starting point is that the applicant has a statutory entitlement to be given an opportunity to appear before the RRT to give evidence:  s 425(1).  This provision prescribes a procedural requirement, which must be followed:  Minister for Immigration and Ethnic Affairs v Guo”.

His Honour held that “the imposition of a fixed time period, which deprives the applicant of a hearing under s 425” could not be justified.  “The consequence of the procedure adopted in the present case”, he said, “is that an important statutory right is taken away from an applicant without reasonable notice.  …  The content of the procedural requirement that the applicant be given ‘an opportunity to appear before it to give evidence’ is an objective one which must ultimately be decided by the Court.  …  On a proper construction of the provision there must be an implication that the opportunity provided is a reasonable one.”  I respectfully agree.

The present case involves a more serious departure from the requirements of the Act than that which was involved in Budiyal.  Here, the tribunal was aware of the applicant’s claim that he was prevented by illness from attending the hearing, but ignored that claim without having, or suggesting that it had, any justification whatever for doing so.  It then proceeded to give reasons for denying the application without even mentioning the matter - reasons which misleadingly left it to be understood that the applicant had chosen not to avail himself of an actual opportunity to give evidence, when in reality he had not had any reasonable opportunity to do so.

A case such as this underlines the necessity which Parliament saw for making the provisions made by ss 420 and 425, as well as s 430, and underlines that it is the court’s duty to insist that the terms of these provisions be complied with.  Since s 476(1)(a) makes non-observance of “procedures that were required by this Act … to be observed in connection with the making of the decision” the first ground of appeal provided by the statutory scheme, the requirements I have mentioned can indeed be enforced.  Accordingly, Mr Capitly’s application succeeds; the decision of the tribunal should be set aside; the matter should be remitted to the tribunal, differently constituted, for determination according to law; and the Minister should pay Mr Capitly’s costs.

Associate:

Dated:              24 September 1998