Minister for Immigration & Multicultural & Indigenous Affairs v SCAR

Judicial Review by the Primary Judge 11 The respondent instituted judicial review proceedings in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth). The respondent sought writs of certiorari and prohibition directed to the Minister so that the Tribunal's decision might be quashed and the Minister be prohibited from giving effect to it. The grounds of review set out in the application give no hint of the reasons why the respondent was seeking judicial review. However it is clear from the reasons of the primary judge that the major argument put by the respondent was that he was unable properly to take part in the hearing before the Tribunal. 12 The respondent put material before the primary judge to show that he had been informed that his father had died some four days before the Tribunal hearing. He also put material before the primary judge which showed that in the period between his receiving notification of his father's death and the hearing he was so affected by the news as to require significant medical treatment. In particular, he put before the Court a letter from the psychologist at the Woomera Detention Centre. That letter told of the psychologist's observations of the respondent on the day of the hearing and then stated: 'In my professional opinion, he was in no condition to handle this interview. Not only was he totally unable to think clearly, but he was quite unprepared as he did not even know what day it was, and he had no support during the interview.' 13 There was some dispute as to the timing of the psychologist's observations. However, as it was put by the primary judge: 'The matter of importance is that it is common ground that on the day of his Tribunal hearing, the [respondent] was so distressed, because of his father's death, that he required medical treatment.' 14 The evidence put before the primary judge suggested that a possible explanation of why the respondent's evidence to the Tribunal had been 'vague' and 'confused' was because of his distress at the news of his father's death and because of the medical treatment, including drugs, that he had received in respect of that distress. Clearly if the Tribunal had been aware of the respondent's distress it may have proceeded differently. At the very least it may not have made the credibility findings it did make in light of the alternative explanation for the inadequacy of that evidence. 15 The primary judge concluded: 'The [respondent] heard of his father's death on the Friday and over the weekend and the following Monday he sought medical treatment; Ms Rolfe, the psychologist, regarded him as being "in no condition" to handle the interview by the Tribunal. However, in fairness to the Tribunal member, it must be emphasised that there was nothing before me to suggest that the Tribunal knew of the father's death or of the way in which it affected the [respondent]. Bearing in mind that the Tribunal was unaware of the emotional crisis that the [respondent] was suffering during the time of the hearing, the conclusion at which the Tribunal arrived was one that was open to it. It would be difficult, if not impossible, for this Court to intervene and reject its findings on credit.' 16 The primary judge proceeded on the basis that his jurisdiction was limited by s 474 of the Act as explained in the case of NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 ('NAAV'). This meant that the primary judge proceeded on the basis that his jurisdiction had been significantly limited to quite narrow grounds that the decision-maker had not acted in good faith. In that regard the primary judge concluded: 'The material in the Appeal Book to which I was referred contained unchallenged evidence that the [respondent] was not in a fit state to represent himself when the Tribunal considered his application. Because of his emotional and medical condition, he was treated (albeit innocently) unfairly. When an applicant is treated unfairly by a decision-maker, I do not think that it could be said that the decision was a bona fide attempt to exercise the Tribunal's power. For this reason, I am of the opinion that the application should succeed.'

Appeal from the Primary judge 17 The Minister instituted an appeal from the decision of the primary judge on the basis that the unfairness to which his Honour referred did not mean that the Tribunal member had not made a bona fide attempt to exercise his power. 18 It is not apparent, either in principle or on the authorities, that an unfair hearing conducted without any fault by the Tribunal is sufficient to establish a lack of bona fides by the Tribunal. The authorities generally support the proposition that before a decision can be set aside on the ground of a lack of bona fides it is necessary to establish something in the nature of actual bias in the decision-maker or circumstances which indicate a lack of an honest attempt to perform the relevant statutory function for the relevant statutory purpose by the decision-maker: see, for example NAML v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1190 at [27]-[33] and the authorities cited therein. 19 Of course, in an appropriate case it may be that the knowledge of the Minister or of his officers, employees or agents may need to be considered in determining if there had been a lack of bona fides. However, that was not the way this case has been put. Mr Barrett QC, who appeared pro bono for the respondent, did not seek to put any argument that the knowledge of the respondent's condition by the employees at the Woomera Detention Centre, or anyone else, provided a basis for a finding of lack of bona fides. 20 Whatever might be said about whether the primary judge was correct in finding that there had been a lack of bona fides by the Tribunal, the argument in relation to lack of bona fides has been overtaken by events. The limitation upon this Court's jurisdiction by s 474 of the Act now has to be understood in light of the High Court's decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 ('S134') and Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 ('S157'). It is now clear that a 'privative clause decision' does not include a decision which is invalid by reason of a jurisdictional error (see S157 at [76]), although in determining whether or not there is a jurisdictional error, the context of the Act, including s 474, is to be taken into account (see S157 at [77]-[78]). 21 Plainly the reasoning in NAAV is no longer good law. So much is established by the decision of the Full Court in SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003]FCAFC 121. 22 It is clear that the primary judge proceeded upon an understanding of his jurisdiction which has been revealed subsequently as erroneous. However, that does not necessarily conclude the appeal. The question still remains whether the result reached by the primary judge was in error. This depends upon whether the Tribunal made a jurisdictional error in proceeding (albeit innocently) in circumstances where the respondent 'was not in a fit state to represent himself when the Tribunal considered his application'. 23 Following the decisions of the High Court, the Minister has amended his notice of appeal to argue that there was no jurisdictional error. The respondent has filed a notice of contention to support the judgment on the basis that there is a jurisdictional error. That is the issue with which this Court must now deal. 24 Ms Maharaj, who appeared for the Minister, invited us to go to the transcript of the Tribunal hearing. She submitted that the transcript shows that the answers the respondent made to the Tribunal are responsive and cogent and, at least in some cases, complex. The trouble with this is that that evidence was assessed by the Tribunal member who found that in important respects it was vague and confused. The evidence before the primary judge gave at least a possible explanation for why the respondent's evidence was vague and confused. 25 The reality is that the facts relevant to the issue of whether or not there was a jurisdictional error by the Tribunal have been determined by the primary judge. They are: (a) The respondent was not in a fit state to represent himself before the Tribunal; (b) The Tribunal did not know that he was not in a fit state to represent himself; (c) There was nothing before the Tribunal that should have alerted it to the respondent's condition. 26 The primary judge described the result of the Tribunal's decision as 'unfair'. This is probably an apt description. But is 'unfairness' to be equated with jurisdictional error? 27 In this context some care has to be taken in the use of cases from other jurisdictions. For example, and putting to one side the question of certiorari on the face of the record, since the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 the English courts have not limited judicial review to jurisdictional error. An example is the decision of the House of Lords in R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330. In that case the administrative tribunal made a decision which was correct on the information before it. However, unbeknown to it, and to those appearing before it, there was a report in existence which, if it had been put before the tribunal may well have led to a different result. The House of Lords held that judicial review was available because, objectively, the result was unfair (see at 345E). 28 The Australian courts have taken a different approach. Again putting to one side the question of certiorari on the face of the record, the principle of separation of powers in the Commonwealth Constitution has the necessary consequence that in federal jurisdiction judicial review is limited to jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 517-520 at [65]-[77]. The Australian common law also requires jurisdictional error: see Craig v South Australia (1995) 184 CLR 163 at 178-180; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141. 29 The High Court has also been clear that in order to determine whether a particular error, whether of law or fact, is a jurisdictional error,it is essential to consider the relevant statutory context:see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 374, 389-391; S157 at [25]-[26], [37], [69] and [76]-[78]. At the very least such consideration involves determining whether there is an obligation under the relevant statute which was not complied with by the decision-maker and whether that failure by the decision-maker constitutes a jurisdictional error. 30 It is clear from S134 and S157 that failure to afford 'natural justice' to the respondent is a jurisdictional error under the Act. This was not disputed by either party before us, and properly so. 31 It is also clear that the requirements of natural justice in any particular instance are to be determined in the relevant statutory context: see Kioa v West (1985) 159 CLR 550 at 584-585, 611. This means that it may be misleading, at least in Australia, to discuss 'natural justice' as if that term always has a fixed meaning in every statutory context. So, for example, the fact that an obligation to afford natural justice does not normally imply a duty upon the decision-maker to make inquiries (see Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 at 213-214) does not mean that there may not be a duty to inquire in relation to a particular issue under a particular statute. Inquiries in relation to 'fitness to plead' may be an obvious example: see Eastman v The Queen (2000) 203 CLR 1. 32 In order to determine whether there was any breach of the obligation to afford the respondent a fair hearing it is necessary to look to the Act in order to ascertain what those obligations are. Section 420(1) and s 425 of the Act provide: 'S 420 Refugee Review Tribunal's way of operating (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. S 425 Tribunal must invite applicant to appear (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. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.' 33 Pursuant to s 425 of the Act the Tribunal 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 for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31]. 34 In Liu v Minister for Immigration and Multicultural Affairs (2001) 187 ALR 348 the Full Court of this Court considered the nature of the obligation imposed on the Tribunal by s 425 of the Act. The question before the Court in that case was whether, if the Tribunal constituted for a particular review had been reconstituted after an oral hearing, the second member was required by s 425 to invite the applicant to appear again and give evidence and present arguments to that new member. Their Honours held that no such requirement was imposed by s 425 and went on to make the following observations, at [44]: 'The right to a hearing is clearly an important and central right in the merits review system established by Pt 7 of the Act. This has been acknowledged in other contexts: see for example Amankwah v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 248 at [13]; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [20]. The express qualifications in s 425 of the right to be invited to appear concern a limited set of circumstances. The right to be invited exists unless the applicant's appearance is unnecessary from the applicant's point of view because the review will be decided on the papers in favour of the applicant or the applicant consents to the invitation not being extended, or the applicant forfeits the right. The fact that the right can be lost in certain specified circumstances, and the nature of those circumstances, only serves to underline the parliament's intention that, at least generally, there should be a right to be invited to appear before the tribunal.

Moreover, while it is not necessary to determine the question for the purposes of this appeal, we do not agree with the minister's submissions that the applicant's right to appear before the tribunal was diminished to a merely formal right to be invited by the changes made to s 425 by the Amendment Act. As we have noted, the Amendment Act provided a new right to present argument before the tribunal and to receive notice of the hearing, as well as a right to be invited to comment on adverse material. Certainly there is nothing in the explanatory memorandum to indicate that the right to be invited to appear was intended to be reduced to a merely formal right.' 35 Section 425 is not a code setting out all of the requirements for a fair hearing by the Tribunal. For example, s 425 is directed to the invitation, rather than the hearing itself - this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s 425. This does not mean that there is no such obligation - only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that the Parliament has made compliance with s 425 of the Act a necessary condition and element of a fair hearing by the Tribunal. 36 It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671. 37 On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a 'real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788. 38 It is clear from its terms that compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal's jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a 'jurisdictional error'. 39 The legal position is analogous to that considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117. In that case the applicant had sent a facsimile to the Tribunal advising that he could not attend the hearing on account of illness and seeking another date. The Tribunal member was not informed of the facsimile and proceeded with the hearing in the absence of the applicant. The question in that case was whether a hearing conducted by the Tribunal in the absence of the applicant was invalid for jurisdictional error. The High Court held that it was. As it was put by Hayne J at [149]: 'The error committed by the tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act.' Admittedly that decision was made in the context of the then relevant statutory provision which required that the Tribunal give the applicant an opportunity to appear before it and to give evidence and to present arguments, whereas s 425 of the Act is limited to giving notice in relation to those matters. However, for the reasons given above that difference is not critical in the current case, whatever might be the situation in other cases. 40 Indeed, it was not disputed by the parties before us that if the respondent was unable to understand the proceedings before the Tribunal then there had been a jurisdictional error. Ms Maharaj argued that this principle did not apply in this case for two reasons: (a) Because, as a matter of fact, the evidence did not establish that the respondent was unable to understand the proceedings. This argument depends upon the facts as found. We have set out above the facts as found by the primary judge and the basis for his findings. In the light of the unchallenged evidence before him, particularly of the psychologist, those findings were fairly open. (b) Because there was no evidence that there would have been a different result. As to that it is sufficient in this case to say that the findings of the Tribunal as to credit were obviously critical to its ultimate conclusion. Its findings as to credit were based, in part at least, upon its conclusion that the respondent's answers were vague. The psychologist's evidence gave a possible explanation for that vagueness. The result is that the unfair process may well have affected the conclusion reached by the Tribunal. 41 Given the findings of fact made by the primary judge that the respondent was not in a fit state to represent himself before the Tribunal it is clear that the invitation he received under s 425 of the Act was not a meaningful one. Through no fault of the Tribunal it was not aware of this. Even so, the Tribunal did not comply with s 425 of the Act. It did not extend a meaningful invitation to the respondent. The respondent did not receive the fair hearing required by the Act. Consequently the Tribunal made a 'jurisdictional error.' 42 The result is that the decision of the Tribunal was invalid. This is the result reached by the primary judge, although for different reasons. As his Honour's decision was correct the appeal must be dismissed. 43 The court acknowledges the assistance it received from counsel. It particularly records its thanks to Mr Barrett QC who appeared pro bono. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, Cooper and Selway.

Dated: 6 June 2003 Counsel for the Appellant: S Maharaj

Solicitor for the Respondent: Refugee Advocacy Service of South Australia