The statutory framework
26 Section 422B(1) of the Migration Act provides:
'(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.'
27 However, this section was introduced by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), which commenced operation on 4 July 2002. The application to the Tribunal in this case was received by the Tribunal on 5 June 2002, before the commencement of this section. It therefore has no application to the circumstances of the present case.
28 Sections 425 and 425A of the Migration Act make provision for the Tribunal to invite applicants for review to appear before the Tribunal. Section 425 relevantly provides:
'(1) The Tribunal 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.'
Section 425A relevantly provides:
'(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 441A …'
29 Section 441A of the Migration Act specifies methods by which delivery of documents by the Tribunal may be effected. Subsection (4) provides:
'(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided by the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.'
30 Under s 441C(3) a person is deemed to have received a document sent by the Tribunal seven working days after the date of the document.
31 Section 441G(1) of the Migration Act provides:
'(1) If:
(a) a person (the "applicant") applies for a review of an RRT-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the "authorised recipient") authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.'
32 Section 425 of the Migration Act imposes an obligation on the Tribunal to invite an applicant to appear before it to give evidence and present arguments before the Tribunal makes its decision. Section 426A of the Migration Act provides that if an applicant is invited to attend but fails to appear, then the Tribunal may make its decision without taking any further action to allow an applicant to appear. Section 425A sets out steps which the Tribunal must take in relation to an invitation to an applicant to appear.
33 The question to be determined by the Court is whether compliance with s 425A of the Migration Act exhausts the obligation of the Tribunal to invite an applicant under s 425, or whether additional steps must be taken by the Tribunal to comply with its obligation under s 425. It is of course clear that internal management mechanisms within the Tribunal, such as the checklist in the present case, cannot alter the extent and content of the duty imposed by the statute.
34 The Minister submits that ss 425 and 425A are clearly connected, with s 425 setting out the obligation on the Tribunal and s 425A setting out the methods by which that obligation may be complied with. Accordingly, the Minister says compliance with s 425A constitutes compliance with s 425. The Minister refers to VNAA and Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 ('VNAA'), in which Sundberg and Hely JJ said (at 413):
'The claim put to the primary judge and repeated before us that the methods specified in s 441A by which a document may be given to a person do not apply to an invitation given under s 425 must be rejected. Section 441A applies only when a provision requires or permits the Tribunal to give a document to a person and states that it must do so by one of the methods specified in the section. Section 425A so states. Section 425 does not. It is, however, plain that the sections are to be read together. Section 425 merely requires the Tribunal to invite an applicant to appear. It contains no mechanism by which the invitation is to be extended. That is done in s 425A. If the Tribunal invites the applicant to appear, it must be done in the manner there set out, namely by notice specifying the date, time and place at which the applicant is to appear. That this is the proper construction of the provisions is established by decisions at first instance, with which we agree. See QAAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1220 at [13] per Cooper J, SAAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 101 at [8] per Mansfield J, Mohammad v Minister for Immigration and Multicultural Affairs [2000] FCA 466 at [17] per Katz J and NAOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 820 at [19] per Sackville J. It would be absurd to treat Parliament as intending by s 425 that by some unstated means the Tribunal is to issue an invitation to appear before the Tribunal, and by s 425A that it is to dispatch a notice containing details of the date, time and place for the appearance, but not containing the invitation itself.' (original emphasis)
35 The respondent submits that the obligation imposed on the Tribunal by s 425 extends beyond the method of notification provided in s 425A. He says that following the prescribed method of inviting an applicant to appear does not exhaust the obligation on the Tribunal contained in s 425 to invite an applicant to appear. The respondent submits that the obligation under s 425 is to provide an applicant with a real opportunity to appear before the Tribunal: see Budiyal v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 166 ('Budiyal'); Minister for Immigration and Multicultural Affairs v Capitly (1999)55 ALD 365 ('Capitly'); Haddara v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 401 ('Haddara'). The respondent says that the obligation to provide the applicant with a real opportunity to appear before the Tribunal may require the Tribunal to take further steps in addition to complying with s 425A. The respondent says that s 425A merely sets out the minimum requirement which the Tribunal must comply with when inviting an applicant to appear before it.
36 In support of its submission, the respondent refers to Uddin v Minister for Immigration and Multicultural Affairs (1999) 165 ALR 243 at [30] ('Uddin'), in which Hely J observed:
'If one approaches the matter as a question of principle, one would conclude that s 425 requires the RRT to give the applicant a real opportunity to appear before it and give evidence, and that it is a necessary, but perhaps not a sufficient, step in the performance of that duty, that actual notice (subject, perhaps, to the regulations) of the s 426 entitlements be given to the applicant. Even if the regulations are effective so as to provide for deemed receipt of a document, and even if deemed receipt of a document amounts to performance of the statutory obligation that the RRT "must notify", the s 425 duty is not necessarily performed or discharged by service, or deemed service, of a document.'
37 The respondent also referred to Hely J's comments at [22], where his Honour said:
'The authorities establish that ss 425 and 426 are cumulative requirements in the sense that the giving of a notice under s 426 will not necessarily exhaust the s 425 obligation: Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193.'
38 The respondent says that 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 in 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.
39 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.
40 Our conclusion is reinforced by a closer consideration of the decisions relied upon by the respondent, and in particular Uddin. Section 425 of the Migration Act in its present form has only existed since 1 June 1999, when the amendments effected by Act No 113 of 1998 came into effect. The application under consideration in Uddin was decided under a previous version of s 425, which provided:
'(1) Where s 424 does not apply, the Tribunal:
(a) must give the applicant an opportunity to appear before it to give evidence; and
…'
41 The comments of Hely J in Uddin are relevant to the former s 425 of the Migration Act, which requires the Tribunal to provide an applicant with an opportunity to appear. The current version of s 425 is in different terms. It requires that the Tribunal invite an applicant to appear, and provides a method which the Tribunal must follow to satisfy this requirement.
42 For the above reasons, Scarlett FM erred in finding that the decision of the Tribunal was affected by jurisdictional error because of a failure to comply with s 425A. The orders of the Federal Magistrates Court of 15 September 2005 should be set aside.
43 Since the Federal Magistrates Court has not considered the other claims of jurisdictional error made by the respondent, the matter should be remitted to the Federal Magistrates Court to be considered according to law.
44 The respondent should pay the first-named appellant's costs of this appeal and of the hearing before the Federal Magistrates Court.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, French & Cowdroy.