Natural Justice
31 Section 476(2)(a) of the Act as it stood prior to the amendments to the Act which came into force in October 2001, provided that a breach of the rules of natural justice was not a ground on which a decision of the RRT might be reviewed in the Federal Court. That section was repealed by those amendments. It is unnecessary to consider the effect of the Migration Legislation Amendment (Procedural Fairness) Act 2002, as that Act did not come into effect until after the RRT gave its decision in the present case. Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 decides that a denial of procedural fairness may result in a jurisdictional error in respect of which prohibition will issue under s 75(v) of the Constitution.
32 Two questions arise. First, whether the refusal to grant an adjournment of the hearing as requested by the wife resulted in a denial of procedural fairness to the wife or the husband or to both. Second, whether the effect of the privative clause in s 474 of the Act is to preclude review of the decision of the RRT on that account.
33 There is no universal right to an oral hearing, although there may be occasions when an oral hearing is necessary to accord with natural justice. In Zhang v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 384 and Chen v Minister for Immigration & Ethnic Affairs (1994) 48 FCR 591, it was held that the rules of natural justice did not entitle an applicant for refugee status seeking departmental review of an initially adverse decision to an oral hearing by the decision-maker in every case. In particular cases, for example, where a real issue of credibility is involved or it is otherwise apparent that an applicant is disadvantaged by being limited to written submissions, it may be that observance of the fundamental requirements of natural justice could only be satisfied by a determination made on an oral hearing. Those decisions were given at a time when the Act did not contain any provision equivalent to s 425.
34 The content of the rules of natural justice in the context of a statutory power involves a consideration of all of the circumstances, including the nature of the jurisdiction being exercised and the statutory conditions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546, 553. The statutory framework is of crucial importance in determining what procedural fairness requires: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1964-1965) 113 CLR 475, 503. The statutory framework consists of the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject matter: Mobil Oil (supra) at 504 (per Kitto J).
35 The RRT is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759at [31]. Failure to give the applicant wife an opportunity to attend such a hearing will give rise to a breach of the rules of natural justice, even if the procedural requirements of s 425 have been complied with.
36 To invite the wife to a hearing which she is unable to attend because of ill health would be an empty gesture, and a denial of procedural fairness. Refusal of an adjournment can amount to a denial of procedural fairness, although whether or not to grant an adjournment of proceedings is a matter which is ordinarily within the discretion of the person charged with the conduct of the proceedings.
37 Here the proceedings had been in the RRT for almost two years when the invitation to attend the hearing issued on 15 January 2002. The wife became ill on 22 and 23 January 2002, and on 29 January 2002 the RRT was notified that an adjournment would be sought on the grounds of her ill health. The RRT made the following observations as to the position of the wife:
"The Applicants provided the Tribunal with a GP's certificate citing depression. Although this was far from an expert certification of depression, the Tribunal allowed one postponement and then was forced at the last minute to allow another. Over this period, the quality of the medical evidence for a postponement did not improve, let alone did it argue a long delay in hearing the matter."
38 I make the following comments in relation to the quoted passage. First, there is no evidence of any communication by the RRT to the appellant of any concern in relation to the sufficiency of the medical certificate. Second, the only postponement which the RRT allowed was to a date in the middle of the period during which the wife was certified as requiring bed rest. Third, there is no factual foundation for the assertion that the RRT was "forced at the last minute to allow another" postponement. This did not happen. Fourth, the delay which the medical certificate propounded was of the order of five or six weeks in the context of an application which had been pending for two years.
39 The RRT appears to have formed the view that it did not need to hear oral evidence from the wife, and it would be sufficient if she provided evidence in the form of a dictated submission as the substantive claims came from the husband. The RRT did not address the question as to whether its invitation to the wife to attend on the dates nominated was an empty formality having regard to her medical condition. On the evidence, it was. The wife was an applicant in her own right. She was entitled to receive an invitation under s 425, and her advisers told the RRT that "she is entitled to and does request a hearing". In the particular circumstances of the case, the failure on the part of the RRT to postpone the wife's hearing until a date after 20 March 2002 constituted a denial of natural justice.