Eshetu v Minister for Immigration and Ethnic Affairs

REASONS FOR JUDGMENT Before the Court is an Amended Application to review a decision of the Refugee Review Tribunal ("the RRT"), made on 29 September 1997. The RRT decided that the applicant was not a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol ("the Convention") because he was not a "refugee" as defined in the Convention. The applicant, who is a Nepalese National, arrived in Australia on 21 November 1994. He sought refugee status on 11 October 1996. This was refused on 10 December 1996. He applied for review of that decision by the RRT on 14 January 1997. The RRT was satisfied that the Application for Review was valid and that it had jurisdiction to review the decision. It fixed the Application for hearing on 15 October 1997, but cancelled the hearing in circumstances which are outlined in its discussion of 29 September 1997 as follows: "In a letter dated 8 September 1997, the Applicant was offerded an opportunity to give oral evidence at a hearing before the Tribunal. The letter was collected but the Applicant did not reply to the offer within the reasonable period given, notwithstanding the Tribunal having informed him that it was unable to arrive at a decision favourable to him on the basis of the material in his file alone. The Tribunal, having heard nothing from the Applicant, will proceed to a decision 'on the papers'." (Emphasis added) The "reasonable period" referred to was a period of fourteen days from the date of the letter. As noted below, the Migration Regulations provide for a period of seven days for service of a notification. Effectively then only seven days were allowed for a response to the RRT letter after the deemed service period. The above discussion refers to a letter of 8 September 1997 from the Deputy Registrar. It was addressed to the applicant and states: "Dear Mr Budiyal, RE: APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS) The Tribunal has looked at all the papers relating to your application but it is unable to make a favourable decision on this information alone. Therefore you are entitled to come to a hearing of the Tribunal to give oral evidence if you wish to do so. You may also, no later than 14 days after the date of this letter, tell the Tribunal in writing that you want the Tribunal to take oral evidence from a person or persons you name. You can do this on the enclosed "Request for Hearing" form. If you decide to come to a hearing it will be: Date: Wednesday, 15 October 1997 Time: 11:00 AM (please arrive at least 15 minutes before the start of the hearing) Place: Level 29, Pacific Power Building 201 Elizabeth St Sydney 2000 The Tribunal will not change a hearing date unless it is satisfied that there are very good reasons to do so. We have enclosed a pamphlet called "What is a Hearing?" which will tell you all you need to know about the hearing. We have also enclosed a map showing you how to get to the Tribunal. Access for people with disabilities is available. Please contact Daisy Wong if you require assistance. You must now do two things immediately: 1. TELEPHONE Daisy Wong on (02) 9951 5876 to tell us whether you want a hearing or not. If you live outside the Sydney area, please ring on 1800 814 593. If you need an interpreter to make this call, please ring the Translating and Interpreting Service (TIS) on 131 450. 2. COMPLETE and RETURN the enclosed "Request for Hearing" form to this office. The form must reach this office no later than 14 days after the date on this letter. If you name any person from whom you would like the Tribunal to take evidence, you must also complete on the enclosed form a written statement outlining the evidence which the person intends to give. If you name an 'expert witness', you must attach a complete statement of the proposed evidence that witness will give. The Tribunal will consider your wishes, but it does not have to take evidence from any of the witnesses named by you. If you want to come to a hearing you may also bring an adviser, relative or friend to help you. The Tribunal is not required to allow that person to speak at the hearing, however the Tribunal may let them speak before the close of the hearing. Any new document or written arguments to support your claim should reach the Tribunal no later than 7 days before your hearing. Any documents you send in support of your application that are not in English must be translated into English by an accredited interpreter or recognised translation authority. If you want to withdraw your application, please contact the Tribunal immediately. If we do not hear from you within 14 days, the hearing will not take place and the Tribunal may make a decision on the evidence it already has". (Original emphasis) Enclosed with the letter was a Form of Request for Hearing. It will be noted that a tentative hearing date had been fixed for Wednesday, 15 October 1997. The applicant was given no other notice that he would lose his entitlement to a hearing. The address to which the letter was sent was the latest address held on file by the Department as at 8 September 1997. In the material before me there is a facsimile message of 22 September 1997 seeking a Movement Data Base printout on Mr Budiyal. The Department confirmed that the above address was then current. In fact, however, the applicant did not become aware of the deadline until after 22 September 1997. On 29 September 1997 a Notice of the RRT decision was sent by the RRT to the applicant. The decision was made in his absence. It informed him that the RRT had decided that he was not a refugee and was therefore not entitled to a Protection Visa. The letter enclosed a copy of the decision, which is dated 29 September 1997. A later RRT case note made on 23 October 1997 by Ms Wong, the officer handling the matter, records the following: "29.09.97 Adviser, Mr Sam Issa rang me at 5.05 pm to ask for postponement of hearing which was scheduled for 15 Oct 97, because he had difficulties in contacting the a/n. He also said that the a/n was with him now. I told him that since the Tribunal hadnot(sic) received any reply either from the a/n or himself within the 14 days time limit, which the deadline was 22 Sept 97. This case was finalised today with the evidence available to the Tribunal. Mr Issa repeated that he had difficulties in contacting the a/n before. I told him that if he had contacted the Tribunal before the deadline, the Tribunal might be able to put the case on hold for few more days. As he hadn't done so, therefore, this case was finalised with the available evidence. DWong. 30.09.97 Mr Issa rang again to ask if the a/n could appeal the decision, and talked to the Tribunal Member to put the decision on hold and had another hearing. I told him that the decision was posted yesterday, and the case was finalised. DWong" (Emphasis added) It is clear that the decision was made on 29 September 1997 before the telephone call of the applicant's adviser, Mr Issa. In these circumstances, the applicant's contention is that he was wrongly deprived of a hearing. The applicant had previously been informed of the importance of keeping the Department up to date as to his address. Eleven months earlier, on 18 October 1996, the Onshore Refugee Operations Section of the Department had written to the applicant stating that: "The address given in your application has been recorded as the place to which all correspondence relating to your application will be sent. You can nominate one other person to receive letters and notifications about your application. You will need to tell the Department this person's address ... If you change your address for more than fourteen days, you must tell the Department your new address and how long you intend to be there. You should use Form 929 .... If you do not inform the Department when you change your address, you will be taken to have received letters and notifications about your application sent to the last address you have given the Department." Relevant provisions The relevant provisions of the Act are: "420 (1) The Tribunal, in carrying out its functions under this Act, is to 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) must act according to substantial justice and the merits of the case ... 425 (1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. ... 426 (1) Where section 424 does not apply, the Tribunal must notify the applicant: (a) that he or she is entitled to appear before the Tribunal to give evidence; and (b) of the effect of subsection (2) of this section. ... 476 (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures were required by the Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision ..." Applicant's Submissions The applicant submits that the decision of the RRT should be set aside because it did not give the applicant an opportunity to appear before it to give evidence and present oral argument. Instead, it conducted the review in his absence. The effect of s 425(1) of the Migration Act 1958 (Cth) ("the Act") it is said, is to require the RRT to give the applicant a reasonable opportunity to appear before it to adduce evidence. This includes a requirement that there must be a reasonable period of notice of any cancellation of that entitlement. Section 426 requires the RRT to notify the applicant that he is entitled to appear before the RRT to give evidence and also that the RRT is not required to allow any other person to address it orally on the issues arising in relation to the decision under review. The applicant further submits that the RRT deprived him of his entitlement by imposing, in its letter of 8 September 1997, an arbitrary standard deadline of fourteen days as a condition of his entitlement to a hearing. In particular, counsel emphasises the concluding paragraph of the letter which reads: "If we do not hear from you within 14 days, the hearing will not take place and the Tribunal may make a decision on the evidence it already has." (Original emphasis) There is no provision in the Act or the Migration Regulations which refers to any particular period during which an election must be made as to whether a fixed hearing date is to be preserved. It is said that the decision should be set aside because the RRT did not act according to substantial justice and the merits of the case as required by s 420(2)(b) of the Act. The consequence of the procedure adopted was that the RRT failed to observe requirements of the Act in connection with the making of the decision: see 476(1)(a). See also Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474; Thambythurai v Minister for Immigration and Multicultural Affairs (Unreported, 16 September 1997, Finkelstein J), and; Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 406-407. Eshetu is presently on appeal to the High Court. However, it is a decision of the Full Court of the Federal Court and, as such, binds me as a judge sitting at first instance. Minister's submissions The first submission for the Minister is that all procedures required by the Act have been followed. Counsel for the Minister submits that the RRT has given an opportunity to the applicant to exercise his entitlement to a hearing. He points out that under s 414(1) of the Act the RRT has a duty to review the decision before it. In so doing, the RRT must act in a timely manner. He also refers to the letter of 18 October 1996 quoted earlier, which informed the applicant of the importance and effect of informing the Department of any change of address, albeit in a general way. He submits that the applicant has been given a reasonable opportunity to appear before the RRT. Indeed, he points out that the RRT decision was not made until seven days after expiration of the fourteen day period, stated in the letter of 8 September 1997. Consequently, the period effectively given to the applicant was twenty-one days. The RRT did not act in haste. The letter of 8 September 1997 was duly sent to the last notified address and it must be taken to have been received by 15 September. See Migration Regulations 1994, rr 4.41 and 5.03. The effect of these regulations is that a document may be served by posting it to the address lodged by the person or by posting it to the person at his or her last known place of residence. A document posted in accordance with the Regulations is deemed to have been received seven days after the date of the letter. Accordingly, if one allowed the full seven day period for service, there remained a further seven days for the applicant to notify the RRT that he proposed to accept the opportunity to appear and give evidence under s 425(1)(a). It is said that a seven day period is a sufficient and reasonable opportunity for an applicant to notify that he or she proposes to accept the opportunity. Confirmation that a hearing is required, after all, is a simple matter which would not normally involve any detailed consideration. Support for the reasonableness of the seven day period after service is said to be derived from the provisions of s 426 of the Act. This section is said to indicate that a seven day period from notification is a reasonable time for an applicant to respond after service. It is implicit that, in giving such notice in respect of a witness, the applicant has elected to require a hearing. Counsel for the Minister asks the Court to take into account the fact that the hearing did not, in fact, take place until one week after the specified deadline and suggests that if a request had been made between 22 and 29 September 1997 it is likely that the applicant would have been permitted to retain his entitlement to an oral hearing. The suggestion of an extension being granted if an application is made before 22 September 1997 is somewhat anomalous because, by the making of the application, the RRT is notified that a hearing is required and there is no necessity for a further notification. Moreover, the suggestion of an extended hearing date is speculation and the suggestion does not sit easily with the case note of 29 September 1997 which refers to 22 September as being the deadline. The letter then goes on to state that if the applicant had contacted the RRT before the deadline, it might be able to put the case on hold for a few more days. Ms Wong, who recorded this case note, is the Contact Officer nominated in the letter of 8 September 1997. Reasoning The starting point is that the applicant has a statutory entitlement to be given an opportunity to appear before the RRT to give evidence: s 425(1). This provision proscribes a procedural requirement, which must be followed: Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 587. The way in which the opportunity was afforded to the applicant in this case was to send the letter of 8 September 1997 issuing an ultimatum, that if there was no response by 22 September 1997 the hearing appointed in the letter would not take place. The Court, of course, must recognise that as a practical matter it is desirable to have consistency and certainty in the effective administration of the Act and Regulations. However, this cannot justify the imposition of a fixed time period ,which deprives the applicant of a hearing under s 425. The consequence of the procedure adopted in the present case is that an important statutory right is taken away from an applicant without reasonable notice. An oral hearing can be of considerable importance to an applicant because it affords an opportunity to create a favourable impression and to counter or respond to any doubts which are raised or which may be of concern to RRT members. Denial of this opportunity may cause considerable disadvantage to the applicant. In immigration matters particularly, demeanour and impression as to character often assume significance. This is especially so where the reviewing body has foreshadowed a negative view in declining to make a favourable decision "on the papers" alone. The content of the procedural requirement that the applicant be given "an opportunity to appear before it to give evidence" is an objective one which must ultimately be decided by the Court. However, in order to perform its function, the Tribunal must form a view as to what is a reasonable period within which the opportunity must be availed by the applicant. Obviously, s 425(1)(a) is not open-ended as to the time in which the opportunity may be taken up. On a proper construction of the provision there must be an implication that the opportunity provided is a reasonable one. This view is reflected in the RRT reasons where it is said: "... the Applicant did not reply to the offer within the reasonable period given ..." In the present case, the applicant must be taken to have been duly served with the Notice pursuant to the Regulations by, at the latest, 15 September 1997. Accordingly, he had a period of between seven and fourteen days within which to notify the RRT that he wanted a hearing. There is no legislative prescription as to the period over which the opportunity must be extended, although the Minister accepts that a reasonable opportunity must be given. It is submitted for the Minister that there is some indication as to what is a reasonable time to be found in s 426(2), which gives the applicant seven days within which to give written notice to the RRT that the applicant wants the RRT to obtain oral evidence from another person. If such notice is not given within seven days it cannot be given later. In effect, the applicant loses the opportunity to have the RRT consider whether it will require such evidence. Two observations can be made in relation to this argument. The first is that the consequence which flows from failure to give seven days notice under s 426(2) is that the RRT is not obliged to consider whether it will obtain evidence from the person specified in the applicant's notice. An applicant does not have a right to have the witness called. Failure to give the seven days notice, in respect of a prospective witness, does not terminate the applicant's right to a hearing but only terminates an entitlement to have the RRT consider whether it will accede to the applicant's request. In contrast, the consequence of non-compliance with the fourteen day period allowed in the letter of 8 September 1997 is that the applicant loses a right, namely the entitlement to appear and give evidence to the RRT at a hearing before the decision-maker. In view of the more fundamental nature of a right to a hearing, it does not follow that the seven day requirement specified in s 426(2) is indicative of what is a reasonable period for the purposes of giving a reasonable opportunity to appear and give evidence in accordance with s 425(1). Indeed, it rather indicates the contrary, namely, that where deprivation of a right to a hearing is possible, the period should be longer than seven days in the absence of any contrary intention to be found in the Act or regulations. In relation to the argument that the applicant in this case was effectively given an additional seven days because the decision was not made until 29 September 1997, it is important to keep in mind the diary note of Ms Wong, 29 September 1997. This note records that the deadline was 22 September 1997 but states that if the applicant had contacted the Tribunal before 22 September then the case might have been put on hold. It seems unlikely in view of this note by the Departmental Officer handling the matter that any request after 22 September 1997 would have been favourably considered. I should say, on the material before me, it appears a matter of pure coincidence that the decision was made on 29 September 1997, which was the same day on which Mr Issa, the adviser to the applicant, telephoned Ms Wong seeking details of the hearing originally scheduled for 15 October 1997. Upon receipt of a letter such as that of 8 September 1997, the recipient is required to decide within the limited time given whether: (a) the hearing date fixed is suitable or sufficient; (b) whether to proceed with the hearing date; and (c) what witnesses, if any, he should ask the Tribunal to obtain oral evidence. The applicant must also complete and return the Request for a Hearing form within fourteen days from the date of the letter. The time for returning the Request runs from the date of the letter and not from notification. These decisions have to be made by the applicant in circumstances where, under s 424(1), the RRT has determined that it is not prepared to make a decision "on the papers" favourable to the applicant. This context reinforces the importance of the right to an oral hearing. In addition, although on a careful reading of the letter of 8 September 1997, its meaning eventually emerges, in my view it is confusing to indicate that a hearing date has been fixed, that submissions and documents are required within seven days before the hearing date of 15 October 1997 and then to impose a self-executing deadline to cancel the hearing, which operates three weeks or so before the fixed hearing date. The letter is clearly one which calls for careful consideration and possibly advice by lawyers. The factors discussed above, coupled with the imposition of the peremptory deadline as an administrative constraint without any legislative basis to justify the period, lead me to the conclusion that it was not open to the RRT to find, as it did, that the time provided was reasonable. This is an error of law. It is common ground that the last two lines of the letter of 8 September 1997, imposing the fourteen day cut-off date, were in standard form. There is no indication that any regard was directed, when settling the period, to the individual circumstances of the applicant. It is suggested that the failure to have regard to the particular circumstances in determining whether a reasonable time had been given coupled with the application of a standard period, as a matter of policy, gave rise to an additional error of law. It seems to me that there is force in this argument and, in my view, it would constitute a separate and independent ground for concluding that the RRT had erred. Having regard to the foregoing it cannot be said, in the present case, that the RRT has acted according to substantial justice and the merits of the case within s420(2)(b) of the Act. The merits of the case have not been fully investigated due, in part, to the absence of the applicant. Nor has the RRT acted according to substantial justice because the applicant has been wrongly denied his entitlement to a hearing conferred by s 425. The cancellation of the opportunity to appear at a hearing is, in my view, clearly a procedure within the meaning of s 476(1)(a) of the Act. Because the procedure required by the Act, in both ss 420(2)(b) and 425(1), has not been followed in this case, this Court has the necessary jurisdiction to review the matter. In view of the decision which I have reached, it is not necessary or appropriate for me to express any view on the issue whether the applicant is a refugee within the terms of the Convention. That is a matter to be decided by a merits review body. I therefore grant the Application for Review. I set aside the decision of the RRT of 29 September 1997. I remit the matter to the RRT for consideration in accordance with law. I order the respondent to pay the applicant's costs.