Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate dismissing an application made under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal ("the RRT") which affirmed the respondent's decision not to grant protection visas to the appellants. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice directed that the appellate jurisdiction of the Court in relation to the appeal be exercised by a single judge. 2 The first and second appellants are husband and wife. The third appellant is their child. On 27 April 2000 the husband lodged an application for a protection visa. The wife and the child are listed as persons included in the application. In addition, on 27 April 2000 the wife submitted her own application to be a refugee.

The proceedings before the RRT 3 On 15 January 2002 the RRT wrote to the husband inviting him to come to a hearing of the RRT on 8 February 2002. The letter advised that the husband must tell "all persons named above about this letter and, if they wish, reply to the Tribunal for them". The "persons named above" were the husband, the wife and the child. No point was taken by counsel for the appellants in relation to this notification. Counsel accepted that the letter was an invitation to each of the appellants to attend a hearing of the RRT as required by s 425 of the Migration Act 1958 (Cth) ("the Act"). 4 On 29 January 2002 the husband rang the RRT and asked for a postponement of the hearing due to his wife's medical condition. He was advised to put his request in writing, along with a medical certificate. On 1 February 2002 the appellants' migration agent forwarded to the RRT a "Response to Hearing Invitation", and a letter advising that the wife would not be able to attend the hearing on 8 February as she had just suffered a miscarriage, and had been told to stay in bed for the next two months. The letter also advised that the husband needs to look after his son as his wife is not able to do anything at present. It was requested that the hearing be delayed until husband and wife could attend. 5 On 4 February 2002 the migration agent forwarded a medical certificate to the RRT in relation to the wife, and repeated his request that the hearing be delayed until husband and wife could attend. The medical certificate was given by Dr L Kodsi of Mt Druitt. It certified that the wife is receiving medical treatment "and for the period 31/01/02 to 20/3/02 inclusive … as she needs bed rest, due to reactive depression after having her 4th miscarriage that made huge implication[s] on her health." There is a space on the form at the point indicated by "…" above, for stating what the patient is not fit to do in the period covered by the certificate, but the space was left blank. Nevertheless, it is clear that the migration agent was seeking an adjournment of the hearing on the ground of the wife's ill health. 6 On 5 February 2002 the migration agent was informed that the RRT member considered that a postponement of the hearing was not necessary, as the member only required the attendance of the husband. The wife could send in a written statement. The husband rang the RRT and asserted that he could not leave his wife alone even for a brief period. He stated that there was no one else who could stay with her as her relatives had moved to Melbourne. A postponement until the following week was discussed, but the husband felt this was too soon, and he himself was suffering stress and depression because of his situation and his wife's medical condition. 7 On 6 February 2002 the migration agent wrote to the RRT. The letter stated that evidence has been submitted that the wife is unable to attend a hearing for the next two months. The letter also stated that the wife is "entitled to and does request a hearing", and that the hearing should be delayed until she is fit to attend. 8 On 7 February 2002 a medical certificate from Dr Kodsi was submitted to the RRT in relation to the husband. It certified that the husband will be unfit to attend an interview in the period 6/02/02 to 9/02/02 as he is suffering from reactive depression after having his wife miscarry for the fourth time, and he needs to look after his family. 9 By letter dated 8 February 2002, the "persons named above" were notified by the RRT that the member reviewing the case had agreed to the request made on 6 February 2002 to postpone the hearing. A new hearing was fixed for 18 February 2002. It will be recalled that the certificate in relation to the wife covered the period 31/01/02 to 20/3/02. 10 By letter dated 15 February 2002 the adviser submitted a letter to the RRT member and medical certificates in relation to the husband. Again a delay in the hearing was requested. No further medical certificate in relation to the wife was tendered. 11 On 15 February 2002 the RRT notified the migration agent the hearing was to proceed as scheduled. The letter stated that "the [husband] must attend, for up to two hours, to give oral evidence in support of his claims". 12 The hearing proceeded on 18 February 2002. The husband attended with his migration agent, but the wife did not. 13 On 25 February 2002 the migration agent complained that the husband had not been given a fair hearing and believed that the member had already decided the case. Further submissions were put to the RRT. On 4 March 2002 the RRT made its decision affirming the respondent's decision not to grant the three appellants protection visas. The wife did not submit a statutory declaration or written statement to the RRT. 14 In the course of its reasons, the RRT described the hearing before the RRT on 18 February 2002 as the third the RRT attempted to set. Counsel for the Minister accepts that this is an error. Only two hearing dates were fixed, namely 8 February 2002 and 18 February 2002. But the appellants' counsel did not contend that this error is of any legal significance.

The RRT's decision 15 The husband claimed to be a national of India, who fears persecution in India by reason of the fact that he is Muslim. The husband claimed that he fled to Pakistan in 1993, and resided there until June 1998 when he moved to Thailand. The husband claimed that he has no right to reside in Pakistan, and that the Pakistani passport with which he entered Australia is a fake. As an "outsider" (a person with no right to reside in Pakistan) he claims that he will not be protected by the Pakistani police. He also claimed not to be able to return to Pakistan and reside there due to a personal inheritance dispute with the sons of a person who had been his foster father. 16 The RRT accepted that the husband was once an Indian national, but found that he is now a national of Pakistan. The RRT did not accept that his Pakistani passport was a false one. His only Convention-related claim in relation to Pakistan was that he might be left to face mistreatment as an "outsider". This claim was rejected on the ground that he is not an outsider, but a Kashmiri migrant, millions of whom have been welcomed into Pakistan. 17 The RRT also found that the husband's dispute with his foster brothers is a personal or financial one that may well have spilled over into unreasonable and uncivil threats, but it is not a Convention-related matter. 18 The RRT found that the wife's claims were dependent on those of the husband. Her claim was that if she had to return to Pakistan without her husband, she would be scorned for traditional reasons linked to the religious and moral codes of the country. She said that her disadvantage would be manifested in a lack of support from her own family. In the view of the RRT, such treatment does not amount to persecution. Nor does it arise for reason of her religion: she is a Muslim and claims to face no harm in Pakistan for reasons of her adherence to Islam, or for any other Convention-related reason. In the RRT's judgment, the wife's evidence indicates that she claims fear of a kind of localised mistreatment, itself something short of persecution, for reasons that are not Convention-related.

The application to the Federal Magistrate 19 Three grounds were relied upon before the Federal Magistrate: (i) the wife was not given an opportunity to appear before the RRT; (ii) the RRT came to the matter with a closed mind, and its decision was not made bona fide; and (iii) errors in fact finding. 20 All grounds failed. As to the first, the Federal Magistrate found that s 425 of the Act was complied with, and the proposal put by the RRT to allow the wife to make her own submissions in writing was reasonable in all the circumstances, and there was no breach of any obligation of procedural fairness in relation to the "hearings rule" in that regard. The second ground failed for want of evidence. The third ground failed as the proceedings before the Federal Magistrate did not involve a merits review. 21 Records from the Nepean Hospital were tendered at the hearing before the Federal Magistrate. The records, which were not before the RRT, showed that on 22 January 2002 the wife complained of dizziness and bleeding. On 2 March 2002 the wife was still bleeding after her miscarriage on 23 January 2002.

22 The Notice of Appeal asserts a breach of the rules of natural justice arising by reason of the failure of the RRT to take oral evidence from the wife. Alternatively, the appellants assert that the failure on the part of the RRT to consider using its powers pursuant to s 427 and s 428 of the Act to permit evidence to be taken from the wife resulted in the failure to give the appellants a fair hearing. 23 Over opposition from Counsel for the Minister, I allowed an Amended Notice of Appeal to be filed which alleged error on the part of the Federal Magistrate in failing to find that the RRT's decision was not a bona fide attempt to exercise its power, in that the RRT wilfully ignored its duty pursuant to s 425 of the Act to give the wife a real opportunity to appear before it (which could have been exercised in a manner permitted by s 428). 24 The appellants submitted that the RRT did not give the wife a real and genuine opportunity to attend the hearing. In consequence, there was a denial of natural justice, and a failure to take into account a relevant consideration, namely s 428. In the circumstances, the RRT's decision was not a bona fide exercise of its powers.

25 Prior to the amendments effected by the Migration Legislation Amendment Act (No 1) 1998 (Cth) with effect from 1 June 1999, s 425(1) of the Act provided that where the RRT was unable to determine an application for review favourably to an applicant "on the papers", the RRT: "… must give the applicant an opportunity to appear before it to give evidence". The section in this form was regarded as imposing a continuing obligation on the part of the RRT. In Minister for Immigration & Multicultural Affairs v Capitly [1999] FCA 193 a Full Court held that an applicant who is sick and cannot attend a hearing is not relevantly afforded an opportunity to appear to give evidence where the RRT refuses to grant an adjournment. 26 In its current form, s 425(1) of the Act provides that the RRT: "… 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". The significance of this change in the statutory language was addressed by Branson J as a member of the Full Court in Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275 (in a context in which the RRT's invitation was returned unclaimed to the RRT before the date of the hearing) at par [43]: "This change from the substantive requirement of giving the Applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the Applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement, which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement." Burchett J did not regard the change in statutory language as detracting from the decision in Capitly, but Branson J's contrary view was approved in Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 (Wilcox J) and in Sreeram v Minister for Immigration & Multicultural Affairs [2001] FCA 53 (Beaumont J). 27 In Xiao the applicant sent a letter to the RRT requesting an adjournment of the hearing which was not received by the Tribunal member. At par [37] Wilcox J said: "The [RRT] issued an invitation that complied with the requirements of s 425A. That invitation remained open. Notwithstanding my finding that [the migration agent] sent the fax requesting a postponement, it cannot be said that [the RRT] was wrong in finding that [the applicant] did not appear at the hearing. If, as I believe, s 425 imposes on the Tribunal only an obligation to issue an invitation, without any continuing obligation in relation to a reasonable opportunity to appear, that is the end of the matter; at least so far as this Court is concerned." 28 The evident purpose of s 425 of the Act is to ensure that the applicant has an opportunity to appear before the RRT to give evidence and present arguments in cases where the RRT cannot decide in favour of the applicant "on the papers": De Silva v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 364 at 368. But, for the reasons given by Branson, Wilcox and Beaumont JJ there was no contravention of s 425 in the circumstances of the present case. The refusal to adjourn the hearing does not lead to the conclusion that the RRT failed to invite the applicant to appear before the RRT. 29 Section 426A(1) enables the RRT to make a decision on the review without taking any further action to allow or enable the applicant to appear before it where the applicant is invited to attend the hearing but "does not appear" before the RRT at the appointed time and place. In Xiao, Wilcox J indicated that he did not subscribe to the view that the condition of non-appearance is necessarily satisfied by the applicant's failure to present personally (see pars [28] and [36]). 30 However, it was not argued on the hearing of this appeal that the provisions of s 426A of the Act were of any relevance to the disposition of the appeal. It is thus unnecessary to pursue this aspect of the matter any further.

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.

Privative clause 40 The appellants accept that if NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 correctly states the law, a decision given in breach of the rules of natural justice will be "protected" by the privative clause as the rules of procedural fairness have been excluded by s 474 (at [648]), unless (relevantly) the decision was given in bad faith. The appellants seek to make out their case that the decision of the RRT was not a bona fide attempt to exercise its power by reason of the breach of the hearing rule, and the failure on the part of the RRT to invoke the procedures for which s 428 and s 429A of the Act provide. 41 I accept that there may be cases where a flagrant disregard by the RRT of obligations to which it is subject may lead to an inference that the RRT is merely "going through the motions", rather than making a real, genuine or honest attempt to exercise its statutory powers. Thus in SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377 von Doussa J held on the facts of that case, that in refusing an adjournment there was a reckless disregard by the RRT of the provisions of s 425A. In his Honour's view, the decision to refuse the adjournment was arbitrary and capricious, hence the decision under review could not be characterised as a bona fide attempt to exercise the review power. 42 This is not such a case. The course which the RRT adopted might be regarded as a practical one, even though, in the view which I take, it paid insufficient regard to the wife's entitlement to attend a hearing. No factual foundation has been laid for a finding that the RRT acted in bad faith. The RRT made an honest attempt to exercise the power entrusted to it: Applicant WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16 at [52] - [53] per French J.

The decision of the High Court in S157/2002 v The Commonwealth of Australia [2003] HCA 2

43 The High Court delivered its decision in Plaintiff S157/2002 after the conclusion of the present case, and after preparation of the above reasons. The High Court there decided that if a decision is taken in breach of the rules of natural justice, then it is not within the scope of the protection afforded by the privative clause. "A decision flawed for reason of a failure to comply with the principles of natural justice is not a 'privative clause decision' within s 474(2) of the Act" (par 83).

44 It follows that the wife is entitled to relief under s 39B of the Judiciary Act. Although the wife was denied natural justice because she was not afforded a meaningful opportunity to attend a hearing on her own application, it does not necessarily follow that the husband is also entitled to relief. On one view the wife was no more than a "witness" in relation to that application, as there is no statutory implication or general law rule that the applicant's "witnesses" should be heard orally: cf the Act s 426. 45 Little (if any) attention was directed to this aspect of the matter in argument. In my view, there was a real practical interdependency between the two applications. Denial of procedural fairness in relation to the wife's application also infected the decision in relation to the husband's application. Had the husband's application gone the other way, the wife would have been a beneficiary of it. 46 The appeal from the judgment of Raphael FM is allowed.

• The orders made by Raphael FM on 2 September 2002 are set aside.
• In lieu thereof the decision of the Refugee Review Tribunal be quashed and that the matter be remitted to the Refugee Review Tribunal, differently constituted, to be determined according to law.
• The respondent should pay the appellants' costs of this appeal. As the appellants were not legally represented before Raphael FM, it is not appropriate to make any order for payment of costs of the proceedings before the Federal Magistrate. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Counsel for the Respondent: Ms V Hartstein

Date of Hearing: 13 December 2002