FEDERAL COURT OF AUSTRALIA

Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, awarded in a lump sum of $4,630.00 pursuant to r 40.02(b) of the Federal Court Rules 2011.

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

REASONS FOR JUDGMENT

1    On 30 March 2009 a decision was made not to grant the present Appellant, Ms Megumi Ogawa, a Student (Class TU) Subclass 574 Postgraduate Research Sector Visa. At the time of her application for the visa, she was a Ph.D student at the University of Queensland. That degree was conferred in December 2008. The delegate concluded that Ms Ogawa did not meet the criteria of the visa.

2    That decision was affirmed by a decision of the Migration Review Tribunal on 25 August 2009.

3    Ms Ogawa then sought judicial review of the Tribunal’s decision. The hearing of that application concluded in February 2010. But the decision of the Federal Magistrate was not delivered until April 2011. The Federal Magistrate dismissed the application: Ogawa v Minister for Immigration and Citizenship [2011] FMCA 262.

4    She now appeals to this Court. She was represented before this Court by Counsel on 18 November 2011.

5    The appeal is to be dismissed.

The Grounds of Appeal

6    The Notice of Appeal as filed in this Court on 18 May 2011 provides the Grounds of Appeal as follows:

1.    The Federal Magistrate erred in finding the Second Respondent provided reasonable notice to the Appellant.

2.    And or in the alternative, the Federal Magistrate erred in failing to find the Second Respondent should have provided notice to the Appellant under s.425A of Migration Act 1958 (Cth).

The reference to s 425A was a mistake. Ground 2 should be understood as referring to s 360A. But Ground 2 was abandoned before the Federal Magistrate. Leave to rely upon that Ground for the first time in this Court was, accordingly, sought.

Notice of the Hearing

7    Ms Ogawa was first given notice on 7 May 2009 of the intention on the part of the Tribunal to hold a hearing in respect to her application on 4 June 2009. An application was made for the hearing to be rescheduled. On 13 May 2009 a request to postpone the hearing was made but was declined by the Tribunal.

8    On 29 May 2009 a further request was made to postpone the hearing on grounds including the fitness of Ms Ogawa to attend. Directions were made for the filing of medical evidence in respect to her condition.

9    On 2 June 2009 she was informed that the 4 June 2009 hearing had been cancelled. It was on 23 June 2009 that notification was given that the hearing had been rescheduled to 2 July 2009. Two reports as to her condition were provided – one from Dr Heffernan (a consultant psychiatrist) and one from Dr Vockler (a general practitioner).

10    On 30 June 2009 Ms Ogawa was advised that the hearing would proceed on 2 July 2009. She was to participate by way of telephone. She indeed communicated with the Tribunal on that date – albeit, apparently, for a “short time” before “ringing off”. The Tribunal member and the Appellant’s representative were left in a hearing room in Brisbane. The hearing proceeded.

11    A further report from Dr Vockler dated 6 July 2009 was thereafter received.

The Migration Review Tribunal — Notice and Procedures

12    Any consideration of an allegation that Ms Ogawa has not been provided with “reasonable notice” of a hearing must necessarily recognise at the outset the legislative directions to the Migration Review Tribunal as to the manner in which it is to “operate”, and the constraints imposed upon the ability of the Court to undertake judicial review of decisions of the Tribunal.

13    Part 5 of the Migration Act 1958 (Cth) provides for the review of decisions by the Migration Review Tribunal. Within that Part, Division 4 sets forth the manner in which the Tribunal is to “operate”. In particular, within Division 4, s 353 provides as follows:

Tribunal’s way of operating

(1)    The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)    The Tribunal, in reviewing a decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)    shall act according to substantial justice and the merits of the case.

Section 353 is in the same terms as s 420 which is directed to the manner in which the Refugee Review Tribunal is to operate. It is also in the same terms as s 2A of the Administrative Appeals Tribunal Act 1975 (Cth). The phrase “fair, just, economical, informal and quick” is, however, a phrase which employs terms which may involve a tension one with the other: cf. Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436 at [160] to [164], 171 FCR 174 at 208 to 209 per Lindgren J.

14    Whatever may be the tension between the potentially conflicting directions given by the Legislature as to how the Tribunal is to carry out its functions, s 353 is a provision intended to be “facultative, not restrictive”. When addressing the terms of s 420, Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, 197 CLR 611 at 628 thus said:

[49] … The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins [(1992) 28 NSWLR 26]. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.

Provisions such as ss 353 and 420 direct attention – not only to the merits of a party’s case – but also to the wider public interest in ensuring the efficient resolution of claims made. In Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153 at [61], 180 FCR 510 at 524, Jagot and Foster JJ thus recognised that “[f]airness and justice are only meaningful when considered in the context of the interests of all parties and the public at large”. Such provisions will not be permitted to allow a claimant to “re-argue the merits” of a case: Antipova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 584 at [66], 151 FCR 480 at 498 per Gray J.

15    Sections 353 and 420 should be construed in a like manner.

16    Division 5 within Part 5 provides for the manner in which the Migration Review Tribunal is to conduct the review of decisions entrusted to its jurisdiction and the constraints upon the ability to supplement the procedural regime there set forth by recourse to the common law principles of natural justice. Section 357A, in particular, provides as follows:

Exhaustive statement of natural justice hearing rule

(1)    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)    Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

The express constraint imposed by s 357A(2) makes it “unarguable” that some additional requirements of “fairness” are otherwise to be implied by recourse to s 353 or s 357A(3): Khan v Minister for Immigration and Citizenship [2011] FCAFC 21 at [41] to [43], 192 FCR 173 at 185 to 186 per Buchanan J. Sections 353 and 357A(3) “are not a source of rights for an applicant, but comprise only ‘facultative’ … or ‘exhortative’… provisions”: Khant v Minister for Immigration and Citizenship [2009] FCA 1247 at [31], 112 ALD 241 at 248 per Cowdroy J.

17    Within Division 5, two further sections of present relevance – ss 360A and 362B – also appear.

18    Section 360A of the Migration Act provides as follows:

Notice of invitation to appear

(1)    If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2)    The notice must be given to the applicant:

(a)    except where paragraph (b) applies–by one of the methods specified in section 379A; or

(b)    if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.

(4)    The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(5)    The notice must contain a statement of the effect of section 362B.

The “prescribed period” is 7 working days: Migration Regulations 1994 (Cth), reg. 4.21.

19    Section 360A(4), it will be noted, provides that the period of notice is to be “at least the prescribed period”.

20    Section 362B of the Act deals with those circumstances where an applicant fails to appear before the Tribunal. Section 363 deals with the powers of the Tribunal and s 363(1) provides in relevant part as follows:

Powers of the Tribunal etc.

(1)    For the purpose of the review of a decision, the Tribunal may:

(a)    take evidence on oath or affirmation;

(b)    adjourn the review from time to time;

(c)    …; or

(d)    …

Section 363(1)(b) is in the same terms as s 427(1)(b). See also: Administrative Appeals Tribunal Act, s 40(1)(c).

Notice of the Rescheduled Hearing

21    Both the first Ground of Appeal and the proposed further Ground of Appeal direct attention to the requirement that an applicant for review be given notice of the date of any hearing before the Migration Review Tribunal.

22    Why Ms Ogawa should not be bound by the manner in which she conducted her proceeding before the Federal Magistrate, and why she should now be permitted to raise an argument that had previously been abandoned, was not fully explained. But the absence of any such explanation perhaps ultimately matters little. The Respondent Minister does not oppose leave being granted.

23    It is a common feature of both the common law and the present statutory scheme that “notice” of a hearing is to be given.

24    The common law rules of natural justice require that “reasonable” notice be given of an administrative hearing: Lee v Department of Education and Science (1967) 66 LGR 211; R v Thames Magistrates Court; Ex parte Polemis [1974] 1 WLR 1371. The common law rules may, of course, be modified by statute. And, in the present statutory regime the Legislature has “prescribed” that the “period of notice” to be given in those circumstances where an “applicant is invited to appear before the Tribunal” is 7 days.

25    Ground 2 of the Notice of Appeal seizes on the fact that there was not a 7 day period between 23 June 2009 and 2 July 2009. It was common ground that the notice that was given fell one day short of that “prescribed”. If leave were to be given to now raise this argument, it is then submitted on the Appellant’s behalf that there has been non-compliance with s 360A(4).

26    Any such argument, however, would be rejected.

27    Section 360A(4), it is concluded, does not require the “prescribed period” of notice to be given in respect to the hearing which was rescheduled from initially 4 June 2009 to 2 July 2009. The “prescribed period” of notice was given in respect to the hearing initially scheduled to take place on 4 June 2009. But the “prescribed period” of notice does not need to be again given in respect to the notice given on 23 June 2009 advising Ms Ogawa of the rescheduled hearing which finally took place on 2 July 2009.

28    That conclusion is supported by the decision of Spender, French and Cowdroy JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152, 154 FCR 572. That decision concerned (inter alia) a hearing before the Refugee Review Tribunal and the “prescribed period” of notice required by s 425A of the Migration Act. It was there concluded that the applicant had to be given notice of the rescheduled date for a hearing but that the “prescribed period” of notice need not be given. In so concluding, their Honours said in part:

[79] … Significantly, notification of a rescheduled hearing does not involve a fresh invitation for the purposes of s 425(1). But where the hearing is rescheduled, then it is implicit in the obligation imposed on the Tribunal under s 425A(1) that the Tribunal must give the applicant notice of the amended day on which, and time and place at which, the applicant is scheduled to appear.

[80] In SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251, Conti J considered a case in which the Tribunal had rescheduled a hearing as a result of the applicant’s non-attendance at the original hearing, albeit with the support of a doctor’s certificate. His Honour said (at [29]):

[29] In my opinion, in circumstances where the Tribunal decides to reschedule a contemplated hearing at the behest, explicitly or implicitly, of an applicant, s 425A does not apply in relation to the notice of a rescheduled hearing, at least insofar as concerns the period of the reviewed notice. The sanction on the Tribunal in those circumstances would be the operation of the general law as to natural justice, as Hely J indicated in NAHF [NAHF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 303], albeit in a different factual context, and subject to the operation of the recently enacted s 422B of the Act.

His Honour went on to consider the mischief that would arise if an applicant were able to set in train an indefinite number of rescheduled hearings with a repetitive requirement for not less than 14 days notice of each hearing.

[81] SZDQO was a case in which the rescheduling of the hearings was done at the instigation of the applicant for review. SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 was a case in which the Tribunal notified a hearing date then rescheduled because of telecommunications difficulties. When the applicant in that case was informed of the new hearing date he had not been given 14 days notice. Nicholls FM, at first instance, held that the hearing had been adjourned and that there was no prescribed time limit in relation to an adjourned hearing. Bennett J on appeal, was not satisfied that Nicholls FM was in error in holding that the Tribunal had adjourned the hearing. She said (at [12]):

[12] “Adjourn” can mean to defer or put off or suspend in respect of something that has already commenced (see Shorter Oxford English Dictionary (fifth edition) and Macquarie Dictionary (revised third edition)). It can also mean to defer or postpone to a future meeting of the same body (Macquarie Dictionary).

[82] It is implicit in the statutory scheme that the Tribunal’s invitation to a person to appear, where it has been accepted, cannot be compromised by rescheduling the appointed hearing to another date on unreasonably short notice. However, it is not suggested that that occurred here. It is open to the Tribunal in the conduct of a hearing to adjourn it from time to time. If express authority were necessary it would be provided by s 427. In any event, there is an implied incidental power for the Tribunal to do so in order to give practical effect to its obligation to provide a hearing. The power of the Tribunal to reschedule a hearing of which notice has been given is of the same character. Provided the notice of the rescheduling is reasonable there is no requirement, applicable to that procedure, for the application of the minimum prescribed period applicable to the notice required by s 425A.

[83] The approach taken by Conti J and Bennett J in SZDQO and SZEFM respectively was correct. SZDQO cannot be distinguished on the basis that the rescheduling, in that case, was instigated by the applicant. …

See also: SZJXG v Minister for Immigration and Citizenship [2007] FCA 1120 at [10] per Ryan J; BZAAA v Minister for Immigration and Citizenship [2011] FCA 447 at [20] per Collier J.

29    There is no reason to reach any contrary conclusion in respect to the construction and application of s 360A.

30    Nor is it considered that the decision in SZFML, and the two decisions to which their Honours there referred, can be distinguished in the manner submitted by Counsel for Ms Ogawa. Thus, for example, in SZFML the original hearing date before the Refugee Review Tribunal was rescheduled on the eve of the hearing due to the unavailability of an interpreter. In SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251 and SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 the rescheduling of the hearing occurred on the day of the initial hearing. By way of contrast, the rescheduling which took place in the current appeal occurred on 23 June 2009 – some considerable time after the initial hearing which was scheduled for 4 June 2009.

31    But such distinctions fail to address the focus of the Full Court in SZFML upon the conclusion that “a rescheduled hearing does not involve a fresh invitation for the purposes of s 425(1)”. The same language is employed in s 360(1). Nor do the distinctions address the concern of the Full Court as to the potential for any contrary conclusion “to set in train an indefinite number of rescheduled hearings with a repetitive requirement for not less than 14 days notice of each hearing”. It may also be noted that neither SZDQO nor SZEFM led the Full Court to reach any contrary conclusion.

32    A conclusion that s 360A(4) does not require that the “prescribed period” expire as between the giving of the notice on 23 June 2009 and the rescheduled hearing on 2 July 2009 does not, however, necessarily result in Ms Ogawa’s challenge to the period of notice in fact given being unsuccessful. This was the issue raised by the first Ground of Appeal.

33    As recognised in SZFML, “unreasonably short notice” will not suffice.

34    The source of any requirement to provide notice which is not “unreasonably short”, however, attracted some limited attention. Given the terms of s 357A, Counsel for the Respondent Minister contended that the source of any such requirement could not be found in the common law rules of procedural fairness. On the Minister’s approach, the source of the requirement was to be found in an implied constraint precluding an “abuse of power”.

35    Whatever may be the source of the requirement, it was common ground that notice of a rescheduled hearing was not to be “unreasonably short”. Although s 360A does not itself expressly impose any requirement as to the amount of time that is to be given in respect to a rescheduled hearing, it is implicit that “reasonable” notice is required. Where an applicant is invited to appear before the Tribunal, the Legislature in s 360A – and in like provisions such as s 425A – recognised that any hearing before the Tribunal would not be meaningful if an applicant were not given reasonable notice. For the period between the initial notice and the first scheduled hearing, the “prescribed period” of notice “must” be given. Thereafter, it may readily be assumed that “unreasonably short notice” of a rescheduled hearing would not be countenanced. Even in the absence of any further period of time being “prescribed” in respect to any rescheduled hearing, it may readily be inferred that a “reasonable” period of time must be given. No conclusion would be open whereby the Legislature insisted upon the giving of such notice in respect to the initial hearing but contemplated that an “unreasonably short” period of notice could be given in respect to any rescheduled hearing. Such a conclusion could destroy the utility of the very hearing provided for.

36    The determination of what constitutes “reasonable” notice involves an objective determination: cf. Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal Torres Strait Islander Corporations [2011] FCAFC 88 at [85] to [88], 279 ALR 468 at 514 per Keane CJ, Lander and Foster JJ.

37    In determining whether “reasonable” notice was in fact given of any rescheduled hearing, reference may be made to (inter alia):

    the period “prescribed” for the giving of notice in respect to any initial proposed hearing date;

    the complexity of any legal and factual issues to be canvassed at the rescheduled hearing;

    any opportunity previously extended to an applicant to assemble factual materials in support of any claims made and any opportunity to marshall such legal arguments in support of those claims;

    any need to obtain further materials or evidence that may not have been available in time for the initial scheduled hearing;

    whether the opportunity previously extended to an applicant to prepare any claim to be advanced was prejudiced or rendered nugatory for reasons peculiar to an applicant or by reason of changed circumstances;

    whether any request was made for a rescheduled hearing to be further postponed or adjourned and, if so, the basis upon which the applicant sought to support that request; and

    any assessment by the Tribunal member as to the adequacy of the period of notice given.

This list of considerations relevant to an assessment as to whether the period of notice that has been given is “reasonable” is, obviously enough, not exhaustive. Any assessment must necessarily be made by reference to the facts and circumstances of each individual case. And no one of these considerations may be determinative – but cumulatively they assist in reaching an objective conclusion.

38    The difficulty confronting Ms Ogawa, however, is the absence of any basis upon which it can be concluded that the period of notice given on 23 June 2009 as to the rescheduled hearing on 2 July 2009 was anything other than “reasonable”. In determining that amount of time which would constitute “reasonable” notice, there was considerable uncertainty in the present proceeding as to whether it was any part of the task entrusted to the Migration Review Tribunal when undertaking the review of the delegate’s decision to consider any course of study other than the one the subject of the delegate’s decision. The more wide-ranging the scope of the “review” function to be undertaken by the Tribunal, the greater may be the time required to prepare for such a hearing.

39    Although it was again common ground that Ms Ogawa completed her course of study in December 2008, she subsequently applied to undertake a different course of study.

40    In some circumstances it may be necessary to resolve the scope of the Tribunal’s “review” functions. But it matters not for the present appeal. Whether the hearing before the Tribunal was to be confined to that material relevant to the course of study considered by the delegate or some proposed new course of study, the period of notice given was in any event “reasonable”. The only two pieces of correspondence identified by Counsel on the Appellant’s behalf that bore upon an assessment of the amount of time that should have been extended were communications from the migration agent acting on her behalf. In one communication dated 29 May 2009 it was said:

My client requires further time to obtain evidence of her acceptance into this course and evidence that the course is an acceptable course for the purpose of satisfying schedule 2 criteria 572.222. My client may be deprived of that opportunity to put materially relevant evidence before the Tribunal for its consideration, because of the improper decision to assign her review application as priority one.

That request was made at a point of time when the hearing remained scheduled to take place on 4 June 2009. That hearing date was “cancelled” on 2 June 2009 and it was on 23 June 2009 that Ms Ogawa was notified that the rescheduled hearing date would be 2 July 2009. After the 23 June 2009 letter and before the rescheduled hearing date, the second of the two relevant communications from Ms Ogawa’s migration agent was forwarded to the Tribunal on 30 June 2009. That communication stated in part as follows:

Additionally, if the Tribunal insists on proceeding with the hearing on 2 July, my client hereby gives notice under s.361 that she requests the Tribunal to hear oral evidence from Dr Veckler and Mr Malcolm McKenzie. In addition, my client requests the Tribunal obtain written evidence from the Queensland Government Department of Corrective Services and the Brisbane Women’s Correctional Centre as to the status of her enrolment in the Certificate III Course in Business in which she applied for enrolment in while serving her prison sentence. A copy of that enrolment application has already been supplied to the Tribunal.

Having identified the additional materials upon which she wished to rely, there was no basis for concluding that such materials could not have been obtained before the rescheduled hearing to take place on 2 July 2009. There was no submission advanced on her behalf by the migration agent that the period of notice was inadequate. Nor was there any submission advanced on 2 July 2009 that the period of notice given was inadequate.

41    That conclusion is even more inevitable if time was to run from (for example) 7 May 2009 as opposed to 23 June 2009. From the moment Ms Ogawa sought to have the delegate’s 30 March 2009 decision reviewed, she should have given consideration to collating all of the evidence upon which reliance was to be placed. It is apparent that Ms Ogawa was giving consideration to the materials upon which she wished to place reliance from at least 29 May 2009.

42    In the present proceeding, Counsel on behalf of Ms Ogawa further sought to contrast those considerations relevant to a decision to adjourn a proceeding, as opposed to an assessment as to whether a period of notice of a forthcoming hearing was objectively “reasonable”. The written submissions contended as follows:

The Second Respondent had evidence before it of the Appellant’s attempt to enroll in a course for “Certificate III in Business Administration”. There was no evidence to suggest that she would not be accepted and no basis for the “inference” drawn that if her appeal was unsuccessful and, therefore, only a short time to serve on her sentence, that she would not be accepted into the course. Although His Honour’s conclusion that the Second Respondent’s decision not to grant an adjournment on this basis may be arguably justified as being within the bounds of the discretion to be exercised. However, it is a different legal test to be applied when deciding whether the notice period was reasonable. The Second Respondent has no discretion as to whether it should give reasonable notice or not. Objectively, it should. It is no answer to assert that the Appellant failed to provide certain evidence in circumstances where there was no realistic opportunity to do so within the time allowed.

The difficulty confronting the Appellant, however, is the absence of any basis upon which it can be concluded that the period of notice given on 23 June 2009 as to the rescheduled hearing on 2 July 2009 was anything other than “reasonable”.

43    It is thus concluded that “reasonable” notice was given on 23 June 2009 for the rescheduled hearing that was to take place on 2 July 2009. Moreover, and in the absence of any further and discrete basis upon which an adjournment may have been requested, other than the complaint made as to the shortness of time, no question arises as to a denial of procedural fairness being occasioned by the Tribunal proceeding to hear the application on 2 July 2009.

Conclusions

44    If leave is required to rely upon the ground that was abandoned before the Federal Magistrate, namely Ground 2 of the Notice of Appeal, leave is refused. It is a Ground without substance.

45    The first Ground of Appeal is dismissed.

46    Counsel appearing for Ms Ogawa appeared pro bono. The Court expresses its appreciation for his assistance. It is a credit to the profession that Counsel continue to appear pro bono for those litigants who otherwise would appear unrepresented.

47    The appeal is to be dismissed with costs. The Respondent Minister seeks an order pursuant to r 40.02(b) of the Federal Court Rules 2011 that costs be awarded in a “lump sum” of $4,630.00. An affidavit verifies the appropriateness of such an amount. Such an order should be made.

ORDERS

The Orders of the Court are:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, awarded in a lump sum of $4,630.00 pursuant to r 40.02(b) of the Federal Court Rules 2011.

Associate:

Dated:    30 November 2011