NBBL v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal by applicant NBBL from a decision of Federal Magistrate Barnes dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') which affirmed a decision of the respondent's delegate to refuse the appellant's application for a Protection (Class XA) Visa pursuant to the Migration Act 1958 (Cth) ('the Act'). The notice of appeal filed by the appellant simply asserts as the ground of appeal a 'denial of procedural fairness by the Tribunal'. 2 On the hearing of the appeal, the appellant was represented by Mr Ian Archibald of counsel. 3 The appellant now seeks leave to file an amended notice of appeal from the whole of the judgment of Federal Magistrate Barnes given on 8 February 2006 on the following ground, namely: '1. The presiding member of the Tribunal erred in the exercise of his discretion to proceed under s 426A of the Migration Act 1958 ('the Act') in a manner amounting to jurisdictional error. PARTICULARS (a) Failure to take adequate account of the request from the applicant to attend the review hearing; (b) Failure to take steps to contact the applicant or his migration adviser after the non-appearance of the applicant at the reviewing hearing and prior to making the decision under the review; (c) Failure to adjourn or reschedule the hearing; (d) Failure to take adequate account of the seriousness of the consequences for the applicant; (e) Failure in the circumstances to exercise the discretion reasonably; (f) Failure to take into account the subject matter, scope and purpose of the discretion which he was exercising; (g) Failure to act on balance in accordance with the objects of Part 7 of the Act in that the Tribunal did not act in a manner that was fair nor just, nor in accordance with substantial justice and the merits of the case.' 4 The central question in the appeal, should leave be given, is a short point of limited scope. Counsel for the appellant says that the question sought to be agitated has not been expressly dealt with in any other case and is a matter of some importance. The point, in context, is this. The appellant applied for a Protection Visa on 31 December 2002 having arrived in Australia on 26 November 2002. The appellant contends that he is a citizen of the People's Republic of China ('PRC') and has a well‑founded fear of persecution by authorities of the PRC because he subscribes to and practises the mind and body development techniques described as Falun Gong also known as Falun Dafa which is the subject of contended national suppression by the government of the PRC. 5 The appellant claimed to have been introduced to Falun Dafa by a friend and notwithstanding the techniques of discouragement on the part of PRC authorities, the appellant continued to practice Falun Dafa which resulted in his dismissal from employment at the factory where he had held employment for over 23 years. The appellant claimed that being characterised as a Falun Dafa practitioner made it difficult for him to find work and gave rise to his fear of persecution. 6 The application for a Protection Visa was refused on 7 February 2003 and the appellant applied to the Tribunal for review of that decision on 6 March 2003. On 25 September 2003, the Tribunal wrote to the appellant by registered mail addressed to the Migration Agent of the appellant and to the appellant personally to invite the appellant pursuant to ss 425 and 425A of the Act to attend a hearing on Wednesday, 26 November 2003 at 9.30am at a nominated place, to give oral evidence and present arguments in support of his claims. On 27 September 2003, the appellant sent a 'Response to Hearing Invitation' form to the Tribunal advising that he would attend the hearing and requested the Tribunal to make arrangements for an interpreter of the Mandarin language to be available. 7 The hearing information form notes that the interpreter was available from 9.23am on the nominated day at the nominated place. However, the appellant did not appear at 9.30am and the hearing concluded at 10.00am. The hearing information form notes that there was 'no show' by the appellant. 8 The Tribunal elected to make a decision in relation to the review application in reliance upon s 426A of the Act and on 16 December 2003 the Tribunal upheld the decision of the respondent's delegate to reject the appellant's application. 9 The appellant contends that s 426A, properly construed, confers a discretion to exercise a statutory power in one of two ways. First, provided the pre‑conditions to the exercise of power are satisfied, the Tribunal may make a decision on the review 'without taking any further action to allow or enable the applicant to appear before it' (s 426A(1)). Secondly, the Tribunal might delay its decision on the review and reschedule the hearing to enable the applicant to appear before it (s 426A(2)). The exercise of the discretion thus arising is informed, it is said, principally by two things. First, on the facts of this case, the applicant made it plain to the Tribunal that he wished to attend a hearing and be heard in relation to his claims, with the assistance of an interpreter. The election to exercise a discretion to make a decision without taking any further action to enable the applicant to appear before the Tribunal necessarily foreclosed the applicant's opportunity to advance arguments in support of the claims in circumstances where the Tribunal understood the applicant wished to take advantage of that 'hearing opportunity'. Secondly, the principles upon which the statutory power to either make a decision or reschedule a hearing might be exercised are informed, it is said, by the nature of the jurisdiction exercised by the decision‑maker (R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553); the statutory framework consisting of express and implied provisions in the Act and inferences of legislative intention to be drawn from the subject matter of the Act (Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1964-1965) 113 CLR 475 at 503 and 504 per Kitto J); and a recognition that when a discretionary power is statutorily conferred upon a decision‑maker the power must be exercised '… reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention' (Kruger v The Commonwealth (1997) 190 CLR 1 at 36 per Brennan CJ. 10 Since Division 4 is an 'exhaustive statement' of the natural justice hearing rule, the election to make a decision on the review without rescheduling a further opportunity to enable the applicant to be heard in circumstances where the Tribunal knew the applicant wanted to be heard, is said to be 'unreasonable'. Accordingly, jurisdictional error on the part of the Tribunal arises and Federal Magistrate Barnes erred, it is said, by failing to find that the Tribunal engaged in jurisdictional error when it exercised the discretion conferred by s 426A by proceeding to make a decision on the review rather than reschedule the applicant's appearance before it. 11 The respondent says that this ground was not raised before Federal Magistrate Barnes and should not be permitted to be raised now for the first time on appeal as it is unmeritorious and there are no 'exceptional circumstances' demonstrated by the appellant consistent with the observations of their Honours Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ in Metwally v University of Wollongong (1985) 60 ALR 68 at 71 to this effect: 'Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.' 12 There nevertheless remains a discretion to entertain a new ground of appeal if it is expedient and in the interests of justice to do so (Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 31) recognising the broader notion of 'the interests of justice' suggested in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 per Branson, Katz JJ at [8], and the discipline required of parties in the conduct of the case (Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9 per Gyles J at [61] - [62]). 13 In determining the question of whether leave should be given to file the proposed amended notice of appeal, it is necessary to give some consideration to the merits of the ground raised and consider whether the ground has a reasonable prospect of success. The strength of the prospect of success and the substance of the ground necessarily informs whether it is expedient and in the interests of justice that leave be given. See Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at [18]. 14 In relation to the question of whether the issue was raised before Federal Magistrate Barnes, her Honour noted at [13] that the application for review filed on 16 February 2004 in the Federal Court contained 'a number of generally expressed and unparticularised grounds'. An amended application was filed on 31 March 2004. A further amended application was filed on 28 June 2004 and a further amended application was filed on 9 August 2004. In this appeal, the appellant seeks leave to file an affidavit of Laura Rutter affirmed on 31 July 2006 which annexes the application and each amended application. In order to complete the contextual record, I gave leave to read and file the affidavit of Ms Rutter in the appeal. No version of the application document raises, in terms, the ground now sought to be agitated by the appellant. The highest at which the matter might be put is that Federal Magistrate Barnes noted at [17] a claim by the appellant that he had been denied procedural fairness by the Tribunal. The content of that claim seems to be based upon an alleged failure on the part of the Tribunal to comply with ss 424A and 425 of the Act. 15 I am unpersuaded that the appellant raised the current contention in the earlier proceedings. The attempt to do so now raises the matter for the first time. 16 The underlying facts going to the ground were, however, examined by her Honour. At [15] her Honour considered the principles governing the decision by the Tribunal to proceed pursuant to s 426A to make a decision on the review consequent upon the Tribunal's invitation to the appellant of 25 September 2003 to appear before the Tribunal and the failure on the part of the appellant to appear on the nominated day and at the nominated time and place. The Tribunal said this: 'The Tribunal based its decision upon its lack of satisfaction on the material before it that the applicant met the applicable criteria. The findings that the Tribunal made were open to it on the material before it. The Tribunal was not obliged to accept at face value the applicant's claims: see SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [15] - [16]. I note that in similar circumstances, where an applicant failed to appear before the Tribunal in the face of a letter such as the letter of 25 September 2003 putting him on notice that the Tribunal was not prepared to make a favourable decision on the information before it, the Full Court of the Federal Court described rejection of the application for review as the "inevitable consequence" of the applicant's non-attendance at the Tribunal hearing: see NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5].' ('NAVX v MIMIA') 17 The point of distinction the appellant seeks to make in this case is that he advised the Tribunal that he wanted to appear and advance arguments in support of his claims. In NAVX v MIMIA, relied upon by her Honour, the appellant advised the Tribunal that he did not wish to give evidence and that he consented to the Tribunal deciding his application without hearing him. 18 At paragraphs [23] - [25] of the judgment, her Honour addressed the complaint made by the appellant that his migration agent had 'put him into the dark' concerning the opportunity to appear before the Tribunal and thus the appellant had not been afforded procedural fairness. Apart from noting that the Tribunal had written to the appellant's migration agent and to the appellant at both residential addresses nominated in the documentation before the Tribunal, her Honour observed that NASF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162 ('NASF v MIMIA') is authority for the proposition that no lack of procedural fairness or other jurisdictional error arises in circumstances where the Tribunal's invitation of 25 September 2003 was sent in accordance with the requirements of the Act. No issue is raised concerning compliance with ss 425 or 425A as the appellant responded to the invitation on 27 September 2003 affirming a desire to appear. However, the appellant says that any reliance upon NASF v MIMIA in the context of the proposed ground of appeal is unsound because in that case a similar point of differentiation also arises namely, that the appellant's migration agent, in that case, had returned the form to the Tribunal stating that the appellant did not wish to attend the hearing before the Tribunal. Accordingly, it is not correct to describe either NAVX v MIMIA or NASF v MIMIA as authorities guiding or informing the exercise of the discretion conferred upon the Tribunal by s 426A on the footing that they represent 'similar circumstances' (as Federal Magistrate Barnes observed at [15]). 19 The respondent concedes that these cases reflect a factual point of distinction from the circumstances of this case but it is a distinction without a difference as a matter of principle. In support of that notion, the respondent says that although s 426A confers a discretion, it is a discretion to be exercised recognising that Division 4 of the Act contains an exhaustive statement of the natural justice hearing rule, that the course the Tribunal might take is unconstrained other than by reference to the language of the section and that Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 at [38] - [39] ('MIMIA v SZFHC') is authority for the proposition that if the Tribunal complies with ss 425 and 425A in inviting an applicant to appear before the Tribunal, the Tribunal is not required to make further enquiries if the applicant fails to attend. Whilst in MIMIA v SZFHC, the appellant failed to respond to a hearing invitation issued by the Tribunal and in NAVX v MIMIA and NASF v MIMIA, the respective appellant elected not to attend before the Tribunal in response to an invitation, these differences, it is said, do not give rise to any constraint upon the general principle identified by the respondent. 20 It is common ground that the Tribunal complied with the requirements of the Act in inviting the appellant to appear before it and in issuing the notice. The exhaustive statement of the natural justice hearing rule requires the Tribunal, in the circumstances recited in ss 425 and 425A to provide the appellant with an opportunity to appear before the Tribunal 'to give evidence and present arguments relating to the issues arising in relation to the decision under review'. The exercise of the power conferred by s 426A upon the Tribunal to 'make a decision on the review without taking any further action to allow or enable the applicant to appear before it' is, in terms, predicated only upon the conjunction of a complying invitation having issued to the appellant pursuant to s 425 to appear before the Tribunal and a failure on the part of the appellant to appear 'on the day on which, or at the time and place at which, the appellant is scheduled to appear'. The power to make a decision on the review consequent upon the conjunction of those events does not, however, prevent the Tribunal from taking a different course of 'rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled'. 21 Although I accept that the power conferred upon the Tribunal cannot be exercised capriciously and must be exercised reasonably, the election to make a decision on the review is not, by itself, the expression of an unreasonable exercise of the power. It is expressly contemplated by the section. If the evidence demonstrates in a particular case that the exercise of the power to make a decision on the review was capricious or wholly failed to take account of any matter put before it as to the reason for the failure on the part of the appellant to attend before the Tribunal, a question of procedural fairness might arise. This is not such a case. There seems to me to be no obligation falling upon the Tribunal to make any inquiry as to the failure on the part of the appellant to appear. In MIMIA v SZFHC, the applicant for a Protection Visa said that the Tribunal was on notice that he may not have received the invitation letter to attend before the Tribunal for the purposes of ss 425 and 425A because the 'Response to Hearing Invitation' form was not returned to the Tribunal because the letter addressed to the applicant's residential address was returned unclaimed and, in those circumstances, he did not appear at the hearing. Applicant SZFHC contended that in those circumstances an obligation fell upon the Tribunal to 'find another method of contacting the respondent' [38]. Their Honours Spender, French and Cowdroy JJ at [39] said '… 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'. 22 If there is no further obligation falling upon the Tribunal to search and discover a method of communication with an applicant in the circumstances of MIMA v SZFHC (once compliance with ss 425 and 425A is demonstrated), it seems to me that the Tribunal is entitled to rely upon the express written statement of the appellant of his intention to appear as a basis for proceeding to make a decision on the review on the footing that the appellant has made an election not to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. Otherwise, as a matter of practical reality, every time an applicant for review fails to attend a Tribunal hearing having expressed an intention to appear, the Tribunal must, as a function of procedural fairness, on the appellant's contention, reschedule the appellant's appearance before it. What is important is that the Tribunal only proceed to make a decision on the review pursuant to s 426A in circumstances where there has been compliance by the Tribunal with ss 425 and 425A thus affording the appellant an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. 23 The respondent says that in considering the question of whether the Tribunal ought to have rescheduled the appellant's appearance before it, an adjournment of the hearing upon the failure of the appellant to attend ought to have been granted because adjournments are more readily granted in inquisitorial proceedings (Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273 at 283 per Moore J); the election to proceed to make a decision without taking any further action to enable the appellant to appear may involve procedural fairness on the ground that speed and peremptoriness may convey an inference that the Tribunal has failed to consider relevant material and engaged in a constructive excess of jurisdiction (Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197); and that consistent with the observations of McHugh J in Minister for Immigration & Multicultural Affairs Re ex parte Miah (2001) 206 CLR 57 at [126], the rules of natural justice regulate the exercise of a power conferred upon a public official (or Tribunal) unless those rules '… are excluded by plain words of necessary intendment (Annetts v McCann (1990) 170 CLR 596 at 598)' and 'An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations" (Annetts v McCann at 598) Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice (Annetts v McCann also at 598)', per McHugh J at [126]. 24 It seems to me that in conferring a power upon the Tribunal in terms of s 426A, the Parliament necessarily had regard to the character of the review process undertaken by the Tribunal. Whilst that process might be described as inquisitorial, the power to elect to make a decision on the review in the circumstances of the conjunction of events contained within s 426A(1)(a) and (b) was expressly conferred in the context of the scope and role of the Tribunal under the Act. Further, there is nothing in the material that suggests any basis for inferring or concluding that the Tribunal by electing to make a decision on the review took a speedy or peremptory course involving a failure to consider relevant material. In addition, although the power conferred by s 426A must not be exercised capriciously, there is a clear intention on the part of the legislature not couched in indirect references or equivocal considerations to empower the Tribunal to consider and decide upon the evidence and arguments grounding the review and thus make a decision on the review, should the appellant fail to appear having been afforded an opportunity to do so. 25 Accordingly, the proposed ground of appeal has no prospect of success. Accordingly, I propose to refuse leave to amend the notice of appeal. I dismiss the appeal with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.