Discussion
15 A notice of appeal was filed in this court on 19 August 2005. The grounds set out in the notice of appeal are twofold. First, it is said that the Federal Magistrate erred in failing to identify the mistake made by the RRT in making a decision without giving the appellant a hearing. The appellant states in the notice of appeal that he has "further evidence to prove that I have visited RRT before the appointed hearing date".
16 The second ground of appeal states that the RRT failed to give information to the appellant under s 359A of the Act, although it appears that the appellant intends by this to make reference to s 424A of the Act. No particulars are provided of this ground.
17 The first ground of appeal addresses the issue of whether by operation of s 425 of the Act, the RRT was bound to wait until the appointed hearing date had passed before handing down its decision. The appellant did not file any written submissions, but he appeared before me this morning in person. He told me from the bar table that he went to the RRT on 4 May 2004 and that he asked for an opportunity for a hearing. What he told me merely addressed some of the evidence which was dealt with comprehensively by the learned Federal Magistrate. However, the appellant also told me that his boss could be a witness because he asked his boss for leave from work on 4 May 2004.
18 Even if the appellant had endeavoured to put this evidence before me in an admissible form in an attempt to adduce fresh evidence pursuant to s 27 of the Federal Court Act 1977 (Cth), it would not have satisfied the ordinary principles which apply. In part, what I was told does not amount to fresh evidence at all and as to what the appellant told me about his having taken leave from work on 4 May 2004, that could not satisfy the requirements referred to by Dixon J in Greater Wollongong City Council v Cowan (1955)93 CLR 435 ("Cowan") at 444-445. Even if s 27 is freed of the narrower common law constraints laid down in Cowan, I do not consider that anything I was told this morning, even if put into proper form, could possibly enliven a discretion to admit fresh evidence; see Cottrell v Wilcox [2002] FCA 232 at [19] - [20].
19 It seems to me to be plain that the learned Federal Magistrate dealt comprehensively with the documentary and oral evidence of the appellant on the question of whether he endeavoured to withdraw his consent on 4 May 2004 and that his Honour decided this question of fact adversely to the appellant. No proper issue is or could be raised on appeal to overcome that finding.
20 I turn then to consider the question of construction of s 425 which I have said is the first ground of appeal raised by the notice of appeal.
21 Section 425 is curiously expressed. It provides in s 425(2)(b) that the obligation to issue the invitation referred to in s 425(1) does not apply if an applicant consents to the RRT deciding the review without the applicant appearing before it.
22 As Federal Magistrate Smith observed at [27], this seems to assume that consent could be given before the invitation is sent to an applicant.
23 The RRT's ordinary practice of issuing an invitation under s 425(1) only after it has determined that it is unable to decide the review in the applicant's favour on the material before it and of inviting an applicant to give consent to dispensing with the hearing in the same letter which invites the applicant to attend that hearing demonstrate the impracticality of proceeding on the basis contemplated by the literal interpretation of the section.
24 The majority judges expressed preference in SAAP for a non sequential approach to Division 4 of Part 7 of the Act provides support for a non-literal construction of s 425. See SAAP at [60] - [63] per McHugh J, [154] - [159] per Kirby J and [202] per Hayne J.
25 It seems to me to be plain that it is open on the proper construction to s 425(1) and 425(2)(b) to extend an invitation to the hearing and then determine from the applicant's response whether he or she consents to the RRT deciding the review without the applicant appearing.
26 There is nothing in s 425 or in any provision of Division 4 of Part 7 which required the RRT to await the expiration of the appointed hearing date in circumstances in which the applicant indicates that he or she does not wish to attend the hearing.
27 As Federal Magistrate Smith correctly concluded at [44] of his decision:
"My reasons for giving s.425 an effect which empowers the Tribunal not to proceed with a hearing if a consent satisfying s.425(2)(b) is received after the hearing invitation was given, would also lead me not to imply an exclusivity into s.426A(1) as to the circumstances in which "the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it" (using the language of s.426A(1)). The result of my construction of s.425 is that the two sections allow different grounds upon which the Tribunal may dispense with conducting a hearing once an invitation has been sent. Section 425 allows a discretion to conclude its review without any qualification as to the time, provided that one of the events described in s.425(2) has occurred. Section 426A(1) allows a discretion to do this only after the appointed hearing has passed, and on the ground of the non‑appearance. I do not consider that any inconsistency between the two sections arises from my construction."
28 See also the decision of Federal Magistrate Smith in SZDOG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 213 ALR 439 compared with Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18 at [27] and X v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 319 at [24]; that was not the situation in the present case. Accordingly there was no error in the RRT proceeding to determine the application before the appointed hearing date.
29 The second ground of appeal asserts that the RRT failed to give information to the appellant that it considers would be the reason, or part of the reason for affirming the decision under review pursuant to s 424A of the Act.
30 The notice of appeal does not indicate what information is said to be subject to s 424A and ought to have been provided to the appellant. This ground of review was not expressly put before Federal Magistrate Smith.
31 Although the appellant's assertion in the original application before Federal Magistrate Smith that the RRT did not follow the procedure prescribed by law and his allegation in the amended application was he was "not given full and natural justice in connection with the hearing for evidence" could be said to encompass an allegation of breach of s 424A, the learned Magistrate was not invited to address this ground of review. Accordingly, the Federal Magistrate did not address it. In any event, I accept the Minister's submission that it is clear from the RRT's reasons for decision, in particular its finding at page 5 that "the applicant's claims are so very vague and general that the Tribunal is unable to establish the relevant facts".
32 The RRT was unable to determine the application in his favour due to the lack of information before it. This much was made clear to the applicant when the RRT invited the appellant to appear before it at a hearing. The question was therefore one of a deficiency of material rather than of adverse information.
33 It is well established that the proceeding is an inquisitorial one and it is for an applicant to put such material as it wishes before the RRT: see Abebe v The Commonwealth (1999) 197 CLR 510 per Gummow JJ and Hayne. Accordingly the second ground of appeal is rejected.