CONSIDERATION
11 No error necessarily occurred in the Tribunal proceeding to make a decision in the absence of the appellant and without taking any further action to allow or enable the appellant to appear before it. The Tribunal may proceed to determine an application for review before it in the absence of an applicant at a Tribunal hearing if the applicant is invited and does not appear at the time and place at which he or she is scheduled to appear: s 426A(1); see also Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73; VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407.
12 The important issue is whether the Tribunal properly exercised its discretion to proceed in accordance with s 426A in the absence of the appellant. In this case the real issue for determination is one of fact, namely, whether the appellant did in fact appear before the Tribunal at the scheduled time of 10.30 am on 28 July 2006. On the evidence before the federal magistrate, it appears that the Tribunal staff unsuccessfully took steps to locate the appellant when he had left the premises of the Tribunal after arriving on the scheduled day but before the scheduled hearing time. Further, the Tribunal had no material before it to explain the absence of the appellant at the scheduled time.
13 This is not a case where the Tribunal staff effectively rescheduled the hearing time by so informing the appellant. As the federal magistrate found as a matter of fact at [35] of her judgment:
The applicant said under oath that no one had told him to leave the Tribunal premises, contrary to the unsworn claim in his contentions that he was "told by a staff member that the hearing would be rescheduled due to the non-availability of an interpreter." I prefer the evidence of the applicant given on oath and find accordingly. The applicant left not because anyone told him that he should and not because anyone told him that the hearing would be rescheduled, but because he formed the misapprehension that the hearing would not proceed that day because the interpreter had not arrived before 10.15 am.
14 The federal magistrate after hearing oral evidence from the appellant and two Tribunal officers found that the appellant had arrived for the Tribunal hearing at approximately 10.00 am for a 10.30 am hearing and that he had been told by a Tribunal officer to wait to be called. Her Honour further found that the appellant had left the Tribunal premises before 10.15 am (at [34]). Her Honour found that the appellant left because he formed the misapprehension that the hearing would not proceed that day because the interpreter had not arrived before 10.15 am (at [35]). Her Honour found that the appellant did not tell anyone at the Tribunal that he was leaving or check whether it was appropriate to do so, even though his level of English would have enabled him to make that enquiry (at [37]). After hearing from the appellant, in my view the federal magistrate was entitled to make a finding upon his level of English, which could inform the federal magistrate of her conclusions. Her Honour then proceeded to make the essential factual finding, at [38]:
…I find that the applicant left the Tribunal premises before 10:15am on 28 July 2006, at least 15 minutes before the scheduled hearing time. He did so contrary to the request that he take a seat and wait to be called.
15 All these are factual findings based upon the credibility of witnesses, which I must appropriately respect: see generally Fox v Percy (2003) 214 CLR 118 and the cases therein referred to.
16 After making these factual findings, her Honour then concluded:
44. In the present case, it cannot be said that the applicant did not attend the hearing through no fault of his own. He gained a false impression, and left the Tribunal premises before the scheduled hearing time, without checking with the Tribunal staff and contrary to the request that he wait to be called. The applicant's level of English was sufficient to enable him to understand the request to wait and also to check with Tribunal staff before leaving. However, even if the applicant had been entirely blameless, VSAF and VNAA show that the Tribunal is entitled to proceed in the absence of the applicant, provided that the appropriate invitation has been sent to the appropriate address.
And continued (as I have already indicated):
45. The applicant in this case clearly was sent an invitation to attend a hearing on a particular date and at a particular time. Perhaps due to an unfortunate misunderstanding, he did not do so. In such circumstances, the authorities indicate that it was open to the Tribunal to proceed to determine the matter in the applicant's absence. It is not relevant that this court might have dealt with the matter differently. The Tribunal acted in accordance with its statutory powers. It did not make a jurisdictional error in proceeding to determine the applicant's case in his absence. This ground is not made out.
17 The appellant submitted that had the interpreter been on time, the hearing would have proceeded "without a hitch". The appellant submitted that he did not contribute to the inability of the Tribunal to commence the hearing in view of the late appearance of the interpreter. However, the federal magistrate found as a fact that the appellant left the Tribunal before 10.15 am. The hearing was not scheduled until 10.30 am. Accordingly, if the interpreter arrived at 10.30 am, the appellant would have already left and the hearing would have proceeded in the absence of the appellant.
18 The appellant questioned why the hearing officer came to collect him at the Tribunal reception area at 10.15 am for the hearing when the interpreter had apparently not already arrived. The reason for this seems to be that it was part of the duties of the administrative officer of the Tribunal to go to the reception counter approximately 15 minutes before the scheduled hearing time, which was approximately 10.15 am, to accompany the appellant to the hearing room for the hearing. This was done so that the appellant in this case would be ready for the scheduled hearing time when the Tribunal could begin.
19 The appellant also submitted that he or his migration agent could have been contacted by the Tribunal or further efforts could have been made to contact him, or contact him in a more sensible way than merely looking around the premises of the Tribunal. However, there is nothing in the Act which requires the Tribunal to do so, and s 426A(1) specifically authorises the Tribunal to proceed as it did. I do not find that the Tribunal made any error in exercising its discretion to proceed based upon the material it had in its possession at the time it made its decision. Whether it may have undertaken a different course or whether I would have undertaken a different course is immaterial.
20 The appellant finally submitted that the federal magistrate erred in engaging "in a fact finding mission surrounding the conduct of the Tribunal". However, in order to determine whether the ground advanced by the appellant was made out, and in light of the evidence before her, her Honour was required to make factual findings. As to the essential finding in this case that the appellant was not present at 10.30 am on 28 July 2006, the scheduled hearing time, I do not regard it as reviewable as no error is shown in the arrival of such finding. It was a factual finding made by the federal magistrate based upon her assessment of the witnesses and the evidence before her.
21 In my view the appeal should be dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton .