FEDERAL COURT OF AUSTRALIA

SZHSQ v Minister for Immigration & Multicultural Affairs

[2006] FCA 1295

MIGRATION – Refugees – Protection visa – decision of Refugee Review Tribunal – appeal from decision of Federal Magistrates Court of Australia – whether tribunal failed to identify behaviour modification claim – whether tribunal failed to notify applicant in accordance with s 424A of the Migration Act 1958 (Cth) – where applicant did not appear at tribunal hearing – whether applicant denied procedural fairness – consideration of the obligations of the tribunal under s 426A(1) of the Migration Act 1958 (Cth)

Held – no jurisdictional error found and appeal dismissed

Migration Act 1958 (Cth) ss 424, 425, 426A

Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 considered and discussed

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259 followed

Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 considered

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 discussed

NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 followed

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 discussed and applied

SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 followed

SZHSQ v Minister for Immigration [2006] FMCA 538 referred to

The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 applied

SZHSQ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR

NSD 1121 OF 2006

RARES J

19 SEPTEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     This is an appeal from a decision of the Federal Magistrates Court, SZHSQ v Minister for Immigration [2006] FMCA 538. In essence, three principal bases of error were argued before me.

2                     The Chief Federal Magistrate was alleged to have erred in failing to grant constitutional writ relief or prerogative relief on the following bases; first, that the Tribunal had committed a jurisdictional error in failing correctly to identify the appellant’s claims and to apply the decision in Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. Secondly, that in reaching its conclusion the Tribunal failed to give the appellant a notice in writing under s 424A(1) of the Migration Act 1958 (Cth) of information which it took into account which was not information that fell within an exception found in subs (3) of that section.

3                     The information was characterised in two ways; first, that the appellant in her protection visa application had not made clear to the Tribunal how she would practice Falun Gong if she returned to China; and secondly, that while she had said that she had a fear of persecution, on the other hand she had offered very little in support of that. Each type of information was said to be information within the meaning of s 424A(1) in the manner I will explain in more detail shortly. The third ground was that the Tribunal had erred in the exercise of its discretion under s 426A when it failed to consider making contact with or contacting the appellant after she had failed to attend a hearing in circumstances where previously she had advised the Tribunal that she did intend to attend.

BACKGROUND

4                     The appellant had arrived in Australia in February 1997. In August 2000 she had lodged an application for a protection visa with the Minister. A delegate of the Minister refused to grant her a protection visa in September 2000 and she applied for a review of that decision on 3 October 2000. The basis of her claim was set out in a statement which she made in the application for the visa. She said that she had become a practitioner of Falun Gong in May 1998 in Australia.

5                     She pointed to the fact that as far as she knew, all Falun Gong practitioners suffered persecution in China and that many of them had been jailed, many detained and those who might not be detained or arrested could be suffering mentally from discrimination and could have been discriminated against by the Chinese authorities in their employment or through some forms of administrative punishment. In her claims she explained that she attended a Falun Dafa Australian experience sharing convention in May 1998 and thereafter became attracted to the practice of Falun Gong.

6                     She said that she claimed to have gone to Darling Harbour every Saturday and that she had read books by a master of Falun Gong and obeyed the other laws of that set of beliefs. She claimed that by practising Falun Gong her health became better and she had received mental cultivation and enlightenment. She also claimed to have attended another Falun Dafa Australian experience sharing conference in May 1999 and then in May 2000, to have participated in what she said was the world's first Falun Dafa day in Australia. On that occasion she said that with approximately 300 other practitioners she had walked from Hyde Park in Sydney to Darling Harbour and had held up banners with laudatory statements about Falun Dafa.

7                     She claimed that she could not understand why Falun Gong or Falun Dafa was banned in China and feared that she would be subject to persecution if she went back there. She said that because she had survived by Falun Dafa, she did not know if she could survive without it. She then set out in her claim, the following paragraph to which much of the focus of the argument was directed:

‘Those facts about Falun Gong practitioners’ sufferings have shocked the world and also puzzled the world. If the Chinese people are granted human rights, why [sic] those things are still happening? I am not a political dissident. What I need is to live without harming others and without being harmed by others. I love peace. However, if I go back to China, how can I obtain a moment of peace? I would either give up practising Falun Gong or being jailed as many other Falun Gong practitioners. I do not want either of them.’

8                     She then asked for a visa to allow her to stay in Australia until I infer the Chinese government's policies in relation to Falun Gong were revised and bans lifted. On 8 February 2001, the Tribunal wrote to the appellant care of her migration agent, informing her that it had looked at all the material relating to her application but was not prepared to make a favourable decision on that information alone. The letter complied with the requirements of ss 425, 425A and 426 as they were in force at the time. It is not contested that it did so comply, although the appellant says that there was no identification contained in the letter of any basis upon which the Tribunal might make adverse findings to the appellant in rejecting her visa.

9                     On 13 February 2001 the appellant signed and faxed back to the Tribunal a response to the hearing invitation in which she said that she intended to come to the hearing and needed an interpreter for the Mandarin language. However, the appellant did not attend the hearing and on 22 March 2001, the day fixed for hearing, the Tribunal decided to affirm the decision not to grant her a protection visa. The decision and reasons were handed down on 18 April 2001.

10                  The appellant gave unchallenged evidence before his Honour, the trial judge in the court below, that, in effect, she had gone to a migration agent called Shine Business Consultant Centre, whose services involved solving student visa problems. She was a student when she originally arrived in Australia. In essence, the appellant said that she had given money to persons in that office and on various occasions had placed herself in the hands of persons there without having any knowledge of forms and documents that she was asked to sign or why things happened.

11                  Ultimately, in August 2005 she was detained and put in Villawood Detention Centre where she still is. She applied for relief to the Federal Magistrates Court. His Honour held that on each of the substantive three grounds argued before him the appellant's argument failed.

12                  It is to those arguments, which are also argued before me today, I now turn.

THE DILEMMA CLAIM

13                  The first argument was that, in essence, the Tribunal did not properly identify and then decide all of the appellant's claims. The appellant says that the way the Tribunal dealt in its findings and reasons with her claims revealed that it had made a jurisdictional error in failing to identify her claim that she faced a dilemma were she denied a protection visa and returned to China. The dilemma was said to occur out of the substantive paragraph which I have quoted from her application for a visa: namely, that she would either have to give up practising Falun Gong or be jailed if she returned to China.

14                  The first function of the Tribunal in a review of a decision whether to grant a protection visa is to identify the claims made by the applicant for review. Correct identification of a claim is essential to enable the Tribunal effectively to exercise the jurisdiction which the Parliament has confided it to exercise under s 414(1) of the Act: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394-395 [26]-[27] per Gummow and Callinan JJ.

15                  What the Tribunal did was to set out in a section headed, ‘Claims and Evidence’, the fact that it had before it the Department's file. It then referred to the original application and to her claim that she feared she may be persecuted if she returned to China as she now practised Falun Gong and that she had been aware that many Falun Gong practitioners in China had been arrested.

16                  The Tribunal recorded that the appellant had started practising Falun Gong in May 1998 and had attended the Convention at that time. It referred to her insisting on attending Darling Harbour every Saturday to perform exercises and that she read books by the founder of Falun Gong and obeyed Falun Gong's laws. It recorded that she had attended other public outing of the Falun Gong organisation in Australia.

17                  The Tribunal then went on to note some country information from the Department of Foreign Affairs and Trade indicating that the Chinese Government campaign against the Falun Gong movement had targeted the leaders and organisers and those with some degree of influence or recognition. Country information revealed that the Chinese authorities were likely to take particular interest in adherents who are members of the Communist Party, Government employees or workers in State-owned enterprises and could require them to renounce Falun Gong or be subject to further government action.

18                  The Tribunal noted that the country information indicated that ordinary practitioners would reasonably be expected to include rank and file followers who performed Falun Gong practices in the belief that it would improve their health and would embrace low-level political activists who did not hold leadership positions and were not involved in organising protest activities or otherwise engaged in activities which would place them at risk of detention or other forms of serious harm, notwithstanding that they had participated in some form of public protest.

19                  The Tribunal then quoted from some country information indicating that rank and file followers who did come to the attention of the Chinese authorities through their participation in public demonstrations or by being named by others, are likely to be lectured on the error of their ways and the social damage caused by Falun Gong and would be urged to repent their actions and, renounce their beliefs. Penalties were said to be inflicted, dependent on the adherents degree of co-operation with the authorities, compliance leading to quick release, refusal to cooperate most likely leading to a period of detention, usually non judicial, which involved re-education through labour.

20                  The Tribunal then noted that the applicant had been invited to a hearing in the circumstances I have set out above. It said:

‘The Applicant advised that she wished to attend a hearing, which was arranged for her. The Applicant did not attend. No further material was received.’

21                  The Tribunal then set out its findings and reasons. It said the following;

‘I am satisfied that the Applicant is a Chinese citizen.

It may be that she has a genuine fear of persecution but there is insufficient information available to be satisfied that this is so. On the one hand she states that she has such a fear, on the other she has offered very little support for her claims, even in the form of evidence which she herself could give.

In any event I am not satisfied that any such fear of persecution that the Applicant may have is well founded. I note the DFAT material referred to above. It is apparent that not all practitioners of Falun Gong are at risk of persecution in China, and that factors such as the position and status of the practitioner and the way they practice Falun Gong may influence this.

I note that it is not apparent that the Applicant is a Party member or government official or leader or organiser of the Falun Gong. It is not clear how the Applicant would practice Falun Gong if she returns to China.

On the very limited information available, I am not satisfied that the Applicant would be at risk off persecution were she to return to China. I am not satisfied that there is any real chance that the Applicant would be persecuted if she returned to China.

I am not satisfied that any fear of persecution that the Applicant may have is well founded.’

22                  It can be seen in the Tribunal's reasons and recitation of the claims that there is no explicit reference to the appellant facing a dilemma were she to return to China. However, the way in which the Tribunal approached the assessment of her claims was, I think, one in which the substance of her claims was considered by it. The Tribunal really evaluated the way in which the appellant had put forward her claims in light of the fact that there was no further material put to support them before the Tribunal other than the country information. It concluded that it was not satisfied that any of the claims could be established.

23                  The Tribunal noted that the question of how someone might be treated were they returned to China would depend upon the person’s actual way of practising and that the appellant had not put before it, clearly, how she would practice were she returned to China. So that, while it is true that the Tribunal did not separately identify and consider whether the appellant would be placed on one or other of the horns of the dilemma, it does not seem to me that the Tribunal failed to consider her claim. Rather, the Tribunal said it was not in a position to evaluate how she would be treated on return because of the lack of information which she provided about how she practised.

24                  The Tribunal had before it and recorded her claims to have participated openly in the performance of exercises and the attendance at conventions in Australia where she first took up the practice. I do not think that obliged the Tribunal in the circumstances of this case to speculate upon which part of the dilemma, identified by the appellant in argument, she would have moved to, if any. Rather, the Tribunal evaluated the material before it and concluded that it was unable to be satisfied that the appellant was someone who would practice in a way that would attract the attention of the Chinese authorities.

25                  Since that was the critical factor for determining whether it could be satisfied as to the engagement of either horn of the dilemma, that is to say, whether the appellant would give up practising entirely or be gaoled because she practised openly, it seems to me the Tribunal did in substance consider her claim.

26                  It is important in considering the reasons of the Tribunal that the court should not be concerned with the looseness in language or unhappy phrasing. Its reasons are not to be construed minutely and with an eye keenly tuned to a perception of error. As Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, the reality is that the reasons of administrative decision-makers are meant to inform and not to be scrutinised upon over zealous judicial review by seeming to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. Relevantly for seeking the present context, their Honours said:

‘… any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.’

27                  I am of opinion that although the reasons of the Tribunal could have been better expressed, the Chief Federal Magistrate made no error in his conclusion that the Tribunal had made no finding that the appellant was a practitioner of Falun Gong or that she had practised that faith in a particular way. He said that there was no finding that upon her return to China she would practice in a particular way and that it was apparent that the Tribunal was unable to make those findings because of her non attendance before the it and the lack of information in support of her claim (see [2006] FMCA 538 at [16]).

28                  In Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 489 [40] McHugh and Kirby JJ said:

‘Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, a person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.’

29                  The real problem in this case is that the appellant made claims that she was a Falun Gong practitioner, that she wished to practice if she were to return to China and that she would be placed at risk. But she had failed to satisfy the Tribunal on the material she placed before it of the way in which she was proposing to practice if returned, so that it could be apparent whether or not she would be put in a position on either of the two horns of the dilemma which she presented to the Tribunal or of being a person who would be forced to modify the way in which she practised her beliefs to escape coming to the attention of the authorities.

30                  While other decision makers may have viewed her claims differently from the way in which the Tribunal did, it was for the Tribunal to be satisfied of them or not. I see no error in the way in which it exercised its function of review that affected the jurisdictional foundation on which the Tribunal proceeded. I am of opinion that the Tribunal did look at what has been called the dilemma, albeit without expressly identifying it in the passage to which I have referred, in which it ultimately said that it was not clear how the appellant would practice Falun Gong were she returned to China and, therefore, it could not be clear to the Tribunal whether she would be affected at all and, if so, in what manner.

31                  The appellant also referred to the decision of the Full Court in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51. There, Madgwick J, with whom Conti J agreed, had noted that the court could reasonably attribute to the delegate, whose decision was then under challenge, knowledge of the notorious background facts about China, that it was an authoritarian, indeed a politically, though not now economically, totalitarian State (see 147 FCR at 94 [220]). He said that while the delegate in that case had accepted, apparently, that active proponents or leaders of Falun Gong as opposed to ordinary practitioners would be more likely to come to the attention of the authorities, in the circumstances of that case the appellant's claims as to events in Australia indicated that she in fact had been an active proponent of Falun Gong. In those circumstance the delegate's express lack of satisfaction that she had been identified by Chinese authorities could hardly have betokened any confident and complete rejection of that proposition. This led to a finding that the decision maker in that case had misunderstood the task which he was required to undertake (see 147 FCR 94-95 [221]-[222]).

32                  I do not think that the facts of that case are sufficiently analogous or in point on the present facts to lead to a conclusion in support of the first ground.

33                  For these reasons, I therefore reject the first ground.

DID THE TRIBUNAL COMPLY WITH S 424A OF THE ACT?

34                  Turning to the second ground, it was said that the provisions of s 424A(1) were engaged so as to require the Tribunal to give the appellant notice in writing that it intended to use as the reason, or part of the reason, for affirming the decision under review parts of its reasoning or fact finding as to how the appellant may or may not practice Falun Gong and the Tribunal's lack of satisfaction about that were she to return to China. Further, and alternatively, it was argued that the Tribunal should have given her notice that it would use the fact or reasoning that she had offered very little support for those claims even in the form of evidence which she herself could give.

35                  Whether or not something is information of the kind which is within the definition in section 424A has been the subject of considerable debate in the authorities. Relevantly, the Full Court has held in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 259 [205] per Allsop J; Weinberg J agreeing at 150 FCR at 252 [155] and see too at 259-260 [200]-[210] that:

‘Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event.’

Allsop J went on to say:

‘Information does not encompass the Tribunal's subjective appraisals, thought processes or determinations.’

36                  There he acknowledged the distinction between those matters and information could be fine, but obviously it is critical. And he identified that the word ‘information’ has been said not to encompass or extend to identified gaps, defects or lack of detail of specificity in evidence or conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps. However, that process was somewhat limited by a proper construction of the legislation (see 150 FCR 259-260 [206]-[207]).

37                  The way in which the Tribunal expressed its reasons, subject to one qualification to which I will come, appears to me to display an evaluative process of the claims and the lack of material put before the Tribunal in support of those claims. The Tribunal expressed itself as not being satisfied about a number of matters. It did make a positive finding based on the country information, as it was entitled to do under s 424A(3)(a), that there was differential attention by the Chinese authorities to practitioners of Falun Gong and that various factors could influence whether or not someone was persecuted and how they were persecuted.

38                  The Tribunal then evaluated, it seems to me, the applicant's claims on the basis of that country information. It concluded that it was not clear from the applicant's claims how, having regard to the country information, she would be treated were she to practise Falun Gong on return to China. Therefore it was not satisfied that she faced a real risk of persecution.

39                  It seems to me that on either basis upon which it is said that the Tribunal should have put that material to the appellant under 424A(1), she must fail. That is because I am of opinion that, fairly read in accordance with the way in which an administrative decision-maker's reasons should be read, the Tribunal was simply evaluating the material before it having regard to the appellant's claims and expressing a state of satisfaction or non-satisfaction based on those claims.

40                  However, the Tribunal said that the appellant had offered very little support for her claims ‘…even in the form of evidence of which she herself could give’. The information that the Tribunal was taking into account when it referred to her ‘offer[ing] very little support for her claims, even in the form of the evidence which she herself could give’, appears to me to be information which was a reason for the rejection of her claims, or part of the reason, and it was not information directly provided by the appellant.

41                  From time to time decisions of the Tribunal refer to questions which it might have been able to ask of persons had they attended hearings. The courts have held that that speculation does not amount to a jurisdictional error or a failure to comply with s 424A(1). I am mindful that in this case the requirements of the Act for according natural justice are not exhaustive because what came later to be enacted in s 422B was not in force at the time the Tribunal made its decision. Thus the common law requirements of procedural fairness to the extent that they are consistent with the Act had to be observed by the Tribunal in addition to those mandated in the statute. I am of opinion that the Tribunal did take into account the fact that the appellant had not given evidence in support of her claims, and the fact that she did not attend the hearing, as information to why it would find against her. The Chief Federal Magistrate thought this ground in totality was misconceived (see [2006] FMCA 538 at [19]).

42                  In one sense in every case where an applicant for review does not attend a hearing part of the material before the Tribunal is the failure to attend and to give evidence in support of the claim. But here the Tribunal gave as a reason that the appellant had, in effect, not only given little support to her claims, she had not given evidence to support them. At no time did the Tribunal give notice to the appellant that her failure to give evidence in support of her claims would be a reason for rejecting them. Rather it had sent a notice saying that it was not satisfied on the material before it that it could make a decision in her favour and invited her to a hearing, as it was required under the Act to do before it could proceed along that course.

43                  To employ the appellant's failure to give evidence in support of her claims as a part of the reason why her claim should not be accepted seems to me to be using that information against her in a way that she was not advised of beforehand. Albeit she was on notice that the Tribunal was not going to make a decision in her favour, it was not because she had not given evidence. It was because the Tribunal was not satisfied on the material that she had presented to it. The distinction is fine and difficult and I am not entirely sure that it is satisfactory given that the Act envisages that the very purpose of inviting someone to a hearing is to enable them to persuade by what they can say and provide at the hearing, the Tribunal against upholding the decision to refuse a visa.

44                  In SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 Allsop J referred to the reasons a Tribunal had given in that case that the appellant had not provided the level of detail necessary satisfactorily to establish the relevant facts in his case. The Tribunal there noted that questions remained unanswered as to how and when the homosexuality which he there alleged had come about, and become known and the like. At the end the Tribunal concluded it was not satisfied that the appellant's claims were true. His Honour said ([2005] FCA 1195 at [29]):

‘The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than that) the evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.’

45                  Accordingly, his Honour found that in that case there was no failure to comply with s 424A. Although my mind has wavered on the point, I am of opinion that the better view is that the Tribunal's use of the failure of the appellant to give evidence is to be viewed in a similar fashion. At the end of the day the Tribunal concluded that on the very limited information available it was not satisfied that the appellant would be at risk of persecution were she to return to China or that there was any real chance that she would be persecuted if she did. Notwithstanding my doubts, I find that the Tribunal was not obliged to give a notice under s 424A(1) and that I should dismiss this ground of appeal.

SHOULD THE TRIBUNAL HAVE TRIED TO CONTACT THE APPELLANT WHEN SHE DID NOT APPEAR AT THE HEARING?

46                  Last, it is said that the Tribunal failed to exercise a discretion under s 426A(1) in accordance with the Act and thereby committed a jurisdictional error. The appellant argues that the Tribunal ought to have had regard to the fact that she had indicated she wished to attend a hearing but, because she did not arrive, it ought to have taken the simple step of telephoning her on the telephone number which the Tribunal had to ascertain whether or not there was some reason for her non-attendance.

47                  I am asked to infer from material in the appellant's affidavit which was unchallenged before his Honour that had she been telephoned on the day of the hearing she would have attended the hearing and/or made arrangements to seek an adjournment with the Tribunal. The appellant did not state that explicitly in her affidavit of 16 March 2006. I infer that she had considerable concerns about her immigration status and continued to liaise and speak with people at the Shine Business Consultant Centre at all relevant times. While I might be prepared to infer in her favour that she would in fact have communicated to the Tribunal that she wanted a hearing and sought to arrange a convenient time either on the day fixed for the hearing or at some other time, the first question is what was the scope of the discretionary power in s 426A?

48                  The Minister submits that considerations which the Tribunal was bound to take into account are those specified in s 426A(1)(a) and (b), namely, that a proper invitation had been given to the appellant to appear at a hearing before the Tribunal under s 425 and the appellant had not appeared before the Tribunal on the day on which, or at the time and place at which, she was scheduled to appear. The Minister argues that s 426A(2) is, in effect, facultative in allowing the Tribunal to re-schedule the time of an appellant's appearance to enable him or her to appear at a later or an alternate time but that subs (2) does not, in effect, create some consideration which the Tribunal is bound to take into account in exercising its discretion.

49                  It is well known that a statutory provision which confers a discretion upon a decision-maker in terms unconfined allows the decision-maker to have regard to a range of factors that are similarly unconfined in the exercise of a discretion, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Limited (1979) 144 CLR 45 at 49-50; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24 at 40 per Mason J). Mason J went on to say that:

‘By analogy where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.’

50                  The appellant says that the whole purpose of the scheme in the Act of notifying applicants for review of a hearing before the Tribunal is to enable them to be heard. So much may be taken for granted. But the Act also sets out a, albeit at the time not an exhaustive, statutory regime for notification and specifies circumstances in which the Tribunal may move to come to a decision where a person, having been notified, does not appear. There can be no doubt that the Tribunal was obliged to act judicially and that the principles of natural justice or, as they are now called, procedural fairness applied, to the extent that they were not otherwise qualified or truncated by the terms of the Act, to the exercise of the discretion under s 426A(1).

51                  In The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553 the High Court held that:

‘…when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances.’

52                  The court applied the famous dictum of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 where he said:

‘The requirements for natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.’

53                  Their Honours went on to approve what Kitto J said in Mobil Oil Australia Pty Limited v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504, namely:

‘What the law requires in the discharge of a quasi-judicial function is judicial fairness …. What is fair in a given situation depends upon the circumstances.’

54                  The Tribunal here was faced with a situation in which the statutory requirements for notification of the appellant that her hearing was to take place on 22 March 2001 had been observed. Those requirements included a requirement that the appellant be told, as she was in accordance with s 425A(4), the effect of s 426A. The appellant was told in the letter notifying her of the appointment of the hearing in a large marked box in block letters:

‘If you do not attend the hearing and a postponement has not been granted the Tribunal may make a decision on your case without further notice.’

55                  A decision-maker who takes one of a number of available courses does not commit an error in the exercise of jurisdiction because one course, rather than when another more favourable to the person claiming to be affected by the decision, was followed. Section 426A(1) gave the Tribunal power to make a decision once the two requirements in the section had been met, namely that a valid invitation had been issued and the applicant for review did not appear at the time of the appointed hearing.

56                  Obviously decisions concerning whether or not a person had established his or her claim to the entitlement of a protection visa are of the utmost importance to the individual concerned. In a very real sense the decision can mean the difference between life and death. If the decision to refuse a visa be wrong, but not affected by jurisdictional error, its consequence can be the return of the applicant for review to the place where persecution is feared and, because of the error, the realisation of the very fear, which can be, in some cases, death.

57                  The seriousness of the possibility that a consequence of a decision to proceed to affirm a decision under s 426A(1) that the persecution feared could be suffered is in my opinion part of the subject matter, scope and purpose of the legislation and conditions the way in which the discretion in s 426A(1) falls to be exercised. It is therefore a serious step for the Tribunal to decide, when the applicant has been asked to appear and, as in this case, has said that she wanted to appear, simply to rely on her non-attendance without more.

58                  But the question is whether the Tribunal was bound to take into account that the appellant had provided a telephone number and was therefore potentially contactable. The evidence in the appeal papers reveals that no attempt was made to contact the appellant after she had failed to appear. So the Tribunal must have been aware of her indication that she wished to be there, her non-attendance and the fact that her non-attendance may have had very serious consequences for her. Indeed, in the passage to which I referred earlier in my judgment, the Tribunal referred to her failure to give evidence in support of her claims as a matter which it was taking into account in the way in which I had described.

59                  An administrative decision which involves jurisdictional error is regarded in law as no decision at all: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506 [76] citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51] per Gaudron and Gummow JJ at 618 [63] McHugh and at 646-647 [152] per Hayne J. In the latter case the Tribunal had failed to have drawn to its attention at the time it made its decision a communication from the applicant for review that he was unable to attend because of illness. It later embarked on a further review of his case and the court upheld that exercise on the ground that the Tribunal initially had not performed a review at all because it failed to have regard to the applicant for review's communication to it and had not decided in accordance with the Act.

60                  Here the Act gave the Tribunal the discretion to proceed or not once the appellant did not appear on 22 March 2001. The Tribunal did not have to give reasons for its exercise of discretion under s 426A because s 430 of the Act did not require it to do so. In Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [27], the full court held that where the Tribunal had sent to an applicant for a review, at his address for service, a letter inviting him to a hearing in accordance with ss 425 and 425A in circumstances where s 422B was not then in force, the mere fact that the Tribunal received the letter back with a return to sender endorsement did not oblige the Tribunal to do anything further to search in its files to see other addresses at which the applicant may be contacted. Their Honours said ([2006] FCAFC 73 [38]-[39]):

‘The respondent says the Tribunal was on notice that he may not have received the letter because the “Response to Hearing Invitation” form was not returned, because the letter to his residential address was returned unclaimed, and because he did not appear at the hearing. The respondent says that in these circumstances, the Tribunal was obliged under s 425 to search both its own and the Department file to attempt to find another method of contacting the respondent. He says that in this case, the Tribunal had an obligation to contact the migration agent listed if the respondent's Department file to find more recent contact details, and possibly also to ring the residential telephone number contained in the respondent's protection visa application.

The submissions of the respondent in this respect are rejected. In view of the decision in VNAA it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s 425A (in fact, two) was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.’

61                  The appellant distinguishes that decision on the basis that this matter had proceeded one stage further in that the appellant had been contacted, and had indicated she wished to attend the hearing. The obligation under s 425, at the time at which the appellant's claim came to be considered by the Tribunal, was to invite the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That was complied with. Whether the appellant took up the invitation seems to me to be a matter for the appellant at the end of the day. The Tribunal's obligation had been discharged.

62                  Section 426A permitted the Tribunal to make a decision without taking any further action to allow or enable the appellant to appear before it, once it had discharged what the uncontested position is in this case - its obligation to invite the appellant to appear in a way that conformed with the Act. She did not appear at the time and place and on the day which she was invited to do so. While it may have been preferable, and while most decision-makers possibly would have decided, to attempt to make contact with the appellant to see whether some mistake had occurred, the Act in express terms authorised the Tribunal to do as it did.

63                  I think that a construction of s 426A(1) that obliged the Tribunal to accord natural justice to an applicant for review if they did not appear in accordance with s 426A(1)(b), was at odds with the express words of the discretion in the section. Those words are that:

‘[It] may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.’

64                  It seems to me to be quite inconsistent with those words to construe the obligations of procedural fairness to require the decision maker to give the applicant an opportunity to retrieve his or her position after a failure to appear in that situation.

65                  I cannot see that it could be implied under s 426A(1) that the Tribunal had to consider whether or not to contact the applicant. The Tribunal is authorised to decide not to do so. For all the evidence reveals, the Tribunal may have considered whether or not to contact the appellant and decided against it. Again, it seems to me that if it did that no possible jurisdictional error could be established. While it seems to me that the course that the Tribunal took in the present case has produced a very unfortunate and, I think, unduly harsh result for the appellant, I do not think that the Tribunal committed a jurisdictional error in doing what it did.

66                  I am fortified in this construction of s 426A by a decision of Greenwood J in NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045, especially at [24]. The matter may also be tested by considering whether, if the Tribunal had decided to make attempts to contact the appellant on her failure to attend on 21 March 2001, the Minister could have attacked that conduct on the ground that a jurisdictional error occurred. In my opinion it could not.

67                  It was plain that the Tribunal had a discretion one way or the other to decide whether or not to take further action. I do not think that it could be inferred or implied that the requirements of procedural fairness necessitated the Tribunal, in arriving at a decision under s 426A(1) to consider contacting the appellant, and, if it failed to do so, the whole of the exercise of its jurisdiction would be thrown into doubt. The very terms of the section seem to me to negate such an approach.

68                  I do not see any error in the way in which the Chief Federal Magistrate approached this issue. For these reasons I reject this ground.

OTHER MATTERS

69                  I think this is a very hard case on the appellant and may be one in which the Minister would wish anxiously to consider whether, in the light of the evidence of her misadventure through the migration agents not really informing her of the progress and status of her application for review and the fact that because of that she was unable to attend before the Tribunal, some discretion may be enlivened in the proper consideration of her case. But those are matters which I do not think I, as a judge, can assist the appellant with, though I think her case does call for some recognition of the potential that some substantial injustice may be done to her through no fault of her own.

CONCLUSION

70                  Accordingly, with some considerable reluctance I feel I must dismiss the appeal. I am indebted to counsel for all their preparation and care in addressing this difficult case and in particular to Mr Prince for having acted pro bono for the appellant and taking such care in the presentation of her appeal. I order that the appeal be dismissed with costs.

Associate:

Dated: 29 September 2006