FEDERAL COURT OF AUSTRALIA

NBHP v Minister for Immigration, Multicultural and Indigenous Affairs

[2005] FCA 1857

MIGRATION  - procedural fairness – applicant consent to RRT making decision without hearing – alleged attempt to withdraw consent – whether RRT has power to make decision before appointed hearing date

Migration Act 1958 (Cth) - s 425

NBHP v Minister for Immigration, Multicultural and Indigenous Affairs and Refugee Review Tribunal

nsd 1446 of 2005

jacobson j

5 december 2005

sydney

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs in the proceeding.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Federal Magistrate Smith given on 29 July 2005.  It is concerned principally with the construction of s 425 of the Migration Act 1958 (Cth).  The only substantial issue which arises on the appeal is whether when an appellant consents to the Refugee Review Tribunal (“the RRT”) making a decision without holding a hearing, the RRT may make its decision before the appointed hearing date.

2                     The appellant is a Chinese national who claims to have a well-founded fear of persecution by his government.  By letter dated 19 April 2004, the RRT invited the appellant to attend a hearing to be held on 29 June 2004. 

3                     The appellant sent a facsimile to the RRT on 29 April 2004 indicating that he did not wish to attend the hearing and consenting to the RRT making a decision without further action.  The RRT made a decision affirming an earlier decision of the delegate on 3 May 2004 and it advised the appellant that the decision would be handed down on 27 May 2004.  The RRTs decision was handed down on that date.

4                     In his application for judicial review the appellant claimed that he attended the RRT’s premises on 4 May 2004 and that he attempted to withdraw his consent given on 29 April 2004.  He claimed that he requested a further hearing. 

5                     The appellant gave evidence at the hearing before Federal Magistrate Smith to this effect and he also produced documentation and called a witness to corroborate his claim.  According to the appellant, in proceeding to make a decision before the appointed hearing date, the RRT failed to comply with its obligations under a number of sections of the Act including s 425.

6                     Federal Magistrate Smith found that the appellant was not a credible witness and his Honour did not accept the appellant's evidence of what was said to have occurred on 4 May 2005.  His Honour concluded that the appellant had put together a false account of a request being made for further hearing and he did not accept that at any stage prior to the handing down of the RRT’s decision that the appellant communicated to the RRT that he wanted an opportunity to appear at the hearing. 

7                     Having made this finding the learned Federal Magistrate did not need to consider issues of whether consent pursuant to s 425(2)(b) of the Act could be withdrawn, nor whether the RRT proceeded to hand down its decision without first taking into consideration communications from the appellant indicating a wish to attend a hearing.

8                     The sole issue which therefore fell for consideration before Federal Magistrate Smith was whether the RRT had power under s 425 of the Act to make a decision prior to the appointed hearing date having received the appellant's consent to it deciding the review without the appellant appearing before it.

9                     Section 425 of the Act provides as follows:

“(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.”

10                  In considering the construction of s 425, Federal Magistrate Smith noted the approach of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (“SAAP”) relating to the construction of Division 4 of part 7 of the Act generally and s 424A in particular, but his Honour observed that SAAP did not appear to have direct bearing on the present issue. 

11                  However, his Honour did consider that the majority judgments in SAAP indicated a rejection of an interpretation of the provisions of Division 4 Part 7 of the Act in a sequential manner in favour of an approach which considers:-

“…each provision in its own terms and in the light of division 4's dual objectives of affording measures of procedural fairness and allowing expeditious review proceedings by an inquisitorial administrative review body.”

12                  His Honour also noted a line of Federal Court authority which has construed s 425(1) as imposing continuing obligations of procedural fairness in relation to the holding and conduct of the hearing including its adjournment; see NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 and Minister for Immigration and Multicultural and Indigenous Affairs  v SCAR (2003) 128 FCR 553. 

13                  Federal Magistrate Smith considered s 425(1) to be a provision directed not only to the sending of an invitation to appear at the hearing but also to the subsequent obligations of the RRT in relation to the holding and conduct of the hearing.  Similarly ss 425(2) and (3) govern the RRT’s duty to hold the hearing as well as the duty to invite an applicant to a hearing.  On this basis, his Honour found that the appellant's consent under s 425(2), given after the invitation to attend the hearing was sent, removes the RRT’s obligation to afford the offered hearing. 

14                  His Honour concluded that in such circumstances the RRT could dispense with conducting a hearing and make a decision at any point including prior to the appointed hearing date. 

Discussion

15                  A notice of appeal was filed in this court on 19 August 2005.  The grounds set out in the notice of appeal are twofold.  First, it is said that the Federal Magistrate erred in failing to identify the mistake made by the RRT in making a decision without giving the appellant a hearing.  The appellant states in the notice of appeal that he has "further evidence to prove that I have visited RRT before the appointed hearing date". 

16                  The second ground of appeal states that the RRT failed to give information to the appellant under s 359A of the Act, although it appears that the appellant intends by this to make reference to s 424A of the Act.  No particulars are provided of this ground.

17                  The first ground of appeal addresses the issue of whether by operation of s 425 of the Act, the RRT was bound to wait until the appointed hearing date had passed before handing down its decision.  The appellant did not file any written submissions, but he appeared before me this morning in person.  He told me from the bar table that he went to the RRT on 4 May 2004 and that he asked for an opportunity for a hearing.  What he told me merely addressed some of the evidence which was dealt with comprehensively by the learned Federal Magistrate.  However, the appellant also told me that his boss could be a witness because he asked his boss for leave from work on 4 May 2004. 

18                  Even if the appellant had endeavoured to put this evidence before me in an admissible form in an attempt to adduce fresh evidence pursuant to s 27 of the Federal Court Act 1977 (Cth), it would not have satisfied the ordinary principles which apply.  In part, what I was told does not amount to fresh evidence at all and as to what the appellant told me about his having taken leave from work on 4 May 2004, that could not satisfy the requirements referred to by Dixon J in Greater Wollongong City Council v Cowan (1955)93 CLR 435 (“Cowan”) at 444-445.  Even if s 27 is freed of the narrower common law constraints laid down in Cowan, I do not consider that anything I was told this morning, even if put into proper form, could possibly enliven a discretion to admit fresh evidence; see Cottrell v Wilcox [2002] FCA 232 at [19] – [20].

19                  It seems to me to be plain that the learned Federal Magistrate dealt comprehensively with the documentary and oral evidence of the appellant on the question of whether he endeavoured to withdraw his consent on 4 May 2004 and that his Honour decided this question of fact adversely to the appellant.  No proper issue is or could be raised on appeal to overcome that finding. 

20                  I turn then to consider the question of construction of s 425 which I have said is the first ground of appeal raised by the notice of appeal. 

21                  Section 425 is curiously expressed.  It provides in s 425(2)(b) that the obligation to issue the invitation referred to in s 425(1) does not apply if an applicant consents to the RRT deciding the review without the applicant appearing before it.

22                  As Federal Magistrate Smith observed at [27], this seems to assume that consent could be given before the invitation is sent to an applicant.

23                  The RRT’s ordinary practice of issuing an invitation under s 425(1) only after it has determined that it is unable to decide the review in the applicant's favour on the material before it and of inviting an applicant to give consent to dispensing with the hearing in the same letter which invites the applicant to attend that hearing demonstrate the impracticality of proceeding on the basis contemplated by the literal interpretation of the section. 

24                  The majority judges expressed preference in SAAP for a non sequential approach to Division 4 of Part 7 of the Act provides support for a non-literal construction of s 425.  See SAAP at [60] - [63] per McHugh J, [154] – [159] per Kirby J and [202] per Hayne J. 

25                  It seems to me to be plain that it is open on the proper construction to s 425(1) and 425(2)(b) to extend an invitation to the hearing and then determine from the applicant's response whether he or she consents to the RRT deciding the review without the applicant appearing. 

26                  There is nothing in s 425 or in any provision of Division 4 of Part 7 which required the RRT to await the expiration of the appointed hearing date in circumstances in which the applicant indicates that he or she does not wish to attend the hearing.

27                  As Federal Magistrate Smith correctly concluded at [44] of his decision:

“My reasons for giving s.425 an effect which empowers the Tribunal not to proceed with a hearing if a consent satisfying s.425(2)(b) is received after the hearing invitation was given, would also lead me not to imply an exclusivity into s.426A(1) as to the circumstances in which “the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it” (using the language of s.426A(1)).  The result of my construction of s.425 is that the two sections allow different grounds upon which the Tribunal may dispense with conducting a hearing once an invitation has been sent.  Section 425 allows a discretion to conclude its review without any qualification as to the time, provided that one of the events described in s.425(2) has occurred.  Section 426A(1) allows a discretion to do this only after the appointed hearing has passed, and on the ground of the non‑appearance.  I do not consider that any inconsistency between the two sections arises from my construction.”

28                  See also the decision of Federal Magistrate Smith in SZDOG v Minister for Immigration and Multicultural and Indigenous Affairs  (2004) 213 ALR 439 compared with Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18  at [27] and X v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 319 at [24]; that was not the situation in the present case. Accordingly there was no error in the RRT proceeding to determine the application before the appointed hearing date.

29                  The second ground of appeal asserts that the RRT failed to give information to the appellant that it considers would be the reason, or part of the reason for affirming the decision under review pursuant to s 424A of the Act.

30                  The notice of appeal does not indicate what information is said to be subject to s 424A and ought to have been provided to the appellant.  This ground of review was not expressly put before Federal Magistrate Smith.

31                  Although the appellant's assertion in the original application before Federal Magistrate Smith that the RRT did not follow the procedure prescribed by law and his allegation in the amended application was he was "not given full and natural justice in connection with the hearing for evidence" could be said to encompass an allegation of breach of s 424A, the learned Magistrate was not invited to address this ground of review.  Accordingly, the Federal Magistrate did not address it.  In any event, I accept the Minister's submission that it is clear from the RRT’s reasons for decision, in particular its finding at page 5 that “the applicant's claims are so very vague and general that the Tribunal is unable to establish the relevant facts”.  

32                  The RRT was unable to determine the application in his favour due to the lack of information before it.  This much was made clear to the applicant when the RRT invited the appellant to appear before it at a hearing.  The question was therefore one of a deficiency of material rather than of adverse information. 

33                  It is well established that the proceeding is an inquisitorial one and it is for an applicant to put such material as it wishes before the RRT:  see Abebe v The Commonwealth (1999) 197 CLR 510 per Gummow JJ and Hayne. Accordingly the second ground of appeal is rejected.

Conclusion

34                  It follows from what I have said above that I am unable to find any error on the part of Federal Magistrate Smith or any jurisdictional error on the part of the RRT.  I have taken into account the fact that the appellant is unrepresented.

35                  The orders that I will make are that the appeal be dismissed with costs. 

Associate:

Dated:              15 December 2005