Migration Regulations 1994, reg 4.35D

SZBAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 790

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

NBBU v Minister for Immigration & Multicultural Affairs [2004] FCA 767

Collector of Customs v Agfa-Gavaert Ltd [1996] HCA 36; (1996) 186 CLR 389

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121

Applicant WAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62

WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106

Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590

SZBNS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 458

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293

Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188

VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134

Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275

SZAPF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 684

SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026

Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102; (2003) 129 FCR 214

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

Re, Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Nil at hearing. (Post-hearing written submissions prepared by Mr S. Lloyd)

(1)

That the Refugee Review Tribunal be joined as second respondent.

(2)

That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 20 December 2004.

(3)

That a writ of mandamus issue requiring the Refugee Review Tribunal to re-determine the applicant's application according to law.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) made on 20 December 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.

The applicant is a citizen of the People's Republic of China who arrived in Australia on 7 March 2003 and applied for a protection visa on 3 August 2004. His application was refused by a delegate of the respondent and he sought review by the Tribunal. He attended a Tribunal hearing on 25 October 2004 and also on 12 November 2004.

The applicant claimed to fear persecution by reason of his practice of Falun Gong. He claimed that he started openly practising Falun Gong in China in 1998 but stopped after Falun Gong was banned in July 1999. He claimed that in December 1999 the Guang Zhou police detained him for questioning. He was warned not to practise Falun Gong but because he did not agree to do so his temporary residence permit was confiscated and he was forced to leave Guang Zhou within three days, selling his seafood business at half the market price. After that he 'roamed about' teaching Falun Gong. He claimed that after three Falun Gong practitioners he knew were arrested and persecuted he was forced into hiding. In 2001 the local village security guard came to his home and told his father that the applicant must report to the local police station and confess if he was still practising Falun Gong. He claimed that he left China with the help of fellow Falun Gong practitioners and friends. He travelled to Australia using a Hong Kong travel document.

At the Tribunal hearing on 25 October 2004 the applicant claimed he had practised Falun Gong privately in Australia until he was detained. A witness told the Tribunal that he had met the applicant in Villawood Detention Centre and that the applicant had started practising Falun Gong with him in March 2004. The witness told the Tribunal he had taught the applicant Falun Gong movements and did not know if he had practised Falun Gong in China.

It is apparent from the Tribunal reasons for decision that in the hearing the issue of identity of the applicant was canvassed at length, although in the findings and reasons part of the Tribunal decision it accepted that the applicant was a citizen of the PRC. However in other respects the Tribunal found that the applicant lacked credibility and that his claims could not be accepted. It found his evidence to be inconsistent and contradictory. It addressed areas of concern. It rejected as evasive his explanation as to the reason and circumstances in which the police allegedly detained him. Nor was the Tribunal satisfied that the police in China contacted the applicant's wife about his whereabouts in 'July 2000 probably' as he had claimed for the first time in his oral evidence before the Tribunal. It found his explanation for failing to mention this very relevant claim earlier to lack plausibility. It found further implausibilities in his evidence about his detention by the police and had regard to the different explanations he provided as to why he was released from such detention. The Tribunal was not satisfied that the applicant had been practising Falun Gong in China either openly or in private or that he had been detained by the police in connection with the practice of Falun Gong as claimed.

The Tribunal found that the fact that the applicant claimed to have stayed in China until 2003 indicated that he was not in fear of persecution. It noted that he appeared to have many contacts and would have been in a position to obtain a false passport if the need arose. It was not satisfied that he was in fear of persecution as claimed.

The Tribunal also addressed the applicant's claims about his Falun Gong activities in Australia. It had regard to the fact that the applicant made no attempt to involve himself with other Falun Gong practitioners upon his arrival in Australia and to the evidence of his witness that he taught the applicant Falun Gong movements whilst in the Villawood Detention Centre from March 2004. In light of the fact that the applicant was learning the Falun Gong movements in March 2004 the Tribunal did not accept that he had practised Falun Gong since 1998. It found that his practice of Falun Gong at Villawood, the production of the witness to give evidence as to such practice and the letter from the Falun Dafa Association stating that it was aware that the applicant had been practising Falun Gong since at least May 2004 (as well as supporting statements from other witnesses provided after the hearing) amounted to conduct engaged in by the applicant for the purpose of strengthening his refugee claim. It found that it was required to disregard such conduct in accordance with s.91R(3) of the Migration Act 1958 (Cth).

The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal concluded:

As on the evidence before me I find that the Applicant did not practice Falun Gong in China and Australia prior to his incarceration at Villawood Detention Centre in February 2004, was not detained, his wife was not contacted by the police, and he has no genuine fear of persecution I find the Applicant lacks credibility. My non-acceptance of the Applicant as a Falun Gong practitioner is also supported by the fact that he made no attempt to involve himself with other Falun Gong practitioners upon his arrival in Australia. I therefore reject that he lost his residency permit, was forced to sell his seafood business, his father was detained and questioned by the Public Security Bureau, his wife was questioned by the Public Security Bureau, he supplied Falun Gong materials and propaganda or that he is of adverse interest to the Chinese authorities. I am not satisfied there is a real chance the Applicant will be persecuted for a Convention reason.

The Tribunal reasons contain a lengthy summary of a discussion in the hearing of the identity of the applicant and the authenticity of the Hong Kong passport on which he had travelled to Australia. However the Tribunal decision was based on the inconsistency and implausibility of the applicant's claims. It made no express finding as to whether the passport was in fact false. As indicated above, it accepted that identity cards produced by the applicant established that he was a citizen of the PRC.

The applicant sought review of the Tribunal decision by application filed in this Court on 6 January 2005. He relies on an amended application filed on 27 April 2005 which refers to the grounds in the original application and an additional ground. I have considered the grounds raised by the applicant individually and cumulatively.

The first ground relied upon is that:

The Tribunal relied crucially upon advice received by it from the Department of Foreign Affairs and Trade.

However contrary to this submission, the Tribunal decision did not place any reliance whatsoever on country information provided by the Department of Foreign Affairs and Trade (DFAT) or otherwise. Its findings were based on the lack of credibility in the applicant's claims about what had occurred in China and the application of s.91R(3) in relation to his activities in Australia. This ground does not establish jurisdictional error.

The second ground is as follows:

The applicant through his adviser at the Tribunal hearing cautioned against the Tribunal relying on such advice. The Tribunal sought the assistance of the Department of Foreign Affairs and Trade in establishing whether its earlier advice remained accurate.

Again, insofar as this is a separate ground it bears no relationship at all to the basis for the Tribunal decision. The applicant's assertions are unsupported by the evidence. The Tribunal decision did not rely on the advice of DFAT.

The third ground is:

The Tribunal was in error law the fact from my side (sic) that the decision involved an error of law whether or not the error appears on the record of the decision.

This generally expressed unparticularised claim does not establish jurisdictional error. Nor do the three grounds considered together establish jurisdictional error. The Tribunal did not rely on DFAT advice.

The ground contained in the amended application is as follows:

The Tribunal failed to exercise its jurisdiction by not observing procedures which it was required by the Act to observe.

Particulars

The Tribunal is required by s.425 of the Act to invite the applicant to appear before it to give evidence and present arguments. S.425A requires that notice of the day on which, and the time and place at which, the applicant is scheduled to appear is to be given, being in the case of a person in immigration detention no less than 7 days from the date when notice is taken to have been received (reg 4.35D).

The Tribunal wrote to the applicant on 17 September 2004 to notify him of a hearing scheduled for 22 October 2004 (CB55). For some reason not apparent in the Court Book that hearing did not take place. On 22 October 2004 the Tribunal again wrote to the applicant to notify him of a hearing on 25 October 2004 (CB59). Even if received by the applicant on the same day, the invitation did not give 7 days notice.

In NBBU v MIMA [2004] FCA 767, Sackville J held that the notice requirements of s.425A apply equally to an adjourned hearing. The case of SZBAZ v MIMIA [2004] FMCA 790 may be distinguished because the present applicant did not request the postponement.

No written submissions were filed by the applicant. However after the hearing both parties were given the opportunity to file further written submissions in light of the recent decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. The respondent filed supplementary submissions prepared by counsel. Michael Jones, solicitor, filed amicus curiae submissions.

Relevant provisions of the Migration Act 1958 and Migration Regulations 1994

Section 425(1) is as follows:

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.

(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.

(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4) The notice must contain a statement of the effect of section 426A.

Relevantly, subsection 425A(3) provides for the period of notice to be at least the prescribed period. In this instance Migration Regulation 4.35D(a) provides that, for subsection 425A(3), the prescribed period where (as in this case) the applicant is in detention:

starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of seven days after the day on which the notice is received.

In this instance the applicant was in detention at all relevant times. The Tribunal wrote to the applicant by letter sent to both his residential and mail address (Villawood Immigration Detention Centre) and to his migration agent on 17 September 2004 inviting him to a hearing of the Tribunal on Friday, 22 October 2004 to give oral evidence and present arguments in support of his claims. There is no suggestion that this letter was other than a valid s.425A(1) notice which properly specified the scheduled date, time and place and contained the requisite notices about witnesses and the consequences of non-appearance. Nor is there any suggestion that the period of notice required under s.425A(3) was not met in relation by the letter of 17 September 2004.

On 20 September 2004 the Tribunal received a faxed response to its hearing invitation signed by the applicant indicating that he wished to attend the hearing and that he wished to bring his migration agent to the hearing.

On 22 October 2004 (the date the hearing was scheduled) the Tribunal wrote again to the applicant at the Immigration Detention Centre referring to its invitation of 17 September 2004 and stating:

Due to circumstances beyond our control, we will not be able to have a hearing on that date. We regret any inconvenience caused. Your new hearing is ...

The letter went on to advise that the date would be Monday 25 October 2004 at a specified time and place. The letter asked the applicant to "immediately telephone" a named officer "and tell us whether you will attend the hearing".

A Tribunal file note contained in the material before the Court and annexed to an affidavit sworn by the solicitor with carriage of the matter for the respondent's solicitors is as follows:

Hearing rescheduled on 22/10/2004 by PRSDSA.

22/10/04 submission (in form of letter) received by fax fm AR [Tribunal officer]

0.04 Adviser called to request new date of hearing that was originally scheduled for today. I informed him the new hearing date is Monday, 25.10.04 at 10.30am [Tribunal officer].

The applicant attended the Tribunal hearing on 25 October 2004. The Tribunal reasons for decision record that at the end of the hearing the member informed the applicant that a second hearing would be scheduled and asked him to provide identity documents (his identity having been discussed at length) as soon as possible.

On 26 October 2004 the Tribunal wrote to the applicant (and his adviser) stating that the Tribunal member "has requested you to come to a further hearing" and advising "If you want to come to a hearing it will be on ... Friday 12 November 2004". There is no suggestion that the Tribunal failed to observe applicable procedures in relation to this letter or the further hearing which the applicant attended on 12 November 2004.

Initially it was contended by the solicitor for the respondent that on 22 October 2004 the applicant's adviser had requested a new hearing date and hence, consistent with my reasoning in SZBAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 790, s.425A was not applicable to the postponement. However, in supplementary written submissions prepared by counsel after the hearing, it was stated that, having made inquiries of the Tribunal, the Minister no longer contended that the adjournment occurred as a consequence of a request by the applicant. I accept that the adjournment occurred as a result of a decision by the Tribunal.

As stated in the amended application, the letter of 22 October 2004 did not give the applicant seven days notice of the adjournment to 25 October 2004 (however it was sent and whenever it was taken to be received under ss.441A and 441C). It was contended for the applicant that this meant that s.425A(3) was not satisfied and claimed that in NBBU v Minister for Immigration & Multicultural Affairs [2004] FCA 767 Sackville J had held that the notice requirements of s.425A applied to an adjourned hearing.

The respondent submitted that the legislative scheme in the Migration Act 1958 envisaged only one notice being given under s.425A and that the notice of 17 September 2004 satisfied the applicable procedural obligation. It was pointed out that s.426 (which provides that the applicant may request the Tribunal to call witnesses) commences:

In the (emphasis added) notice under section 425A ...

The respondent also contended that while the scheme of the Act was not entirely clear about how changes of dates for hearings and other adjournments of the review were to be effected, the Tribunal's power under s.427(1)(b) to "adjourn the review from time to time" provided the statutory basis for the Tribunal to vary the dates, or times or places of review. It was argued that on this basis, while a valid s.425A(1) notice must be given specifying a scheduled date, time and place, containing the requisite notices about witnesses and the consequences of non-appearance and giving the prescribed period of notice, subsequent to that notice, changes to the date of the applicant's scheduled appearance before the Tribunal were authorised by the Tribunal's adjournment power. It was submitted that the Act did not prescribe any further or additional notice requirements and so no question arose as to whether the letter dated 22 October 2004 was a valid notice under s.425A(1). It was contended that it did not need to be, as it was simply a notice of change of hearing date and time.

The first issue before the Court is whether the obligation in s.425A(3) to give a prescribed period of notice applies to a change by the Tribunal to the date and time of a Tribunal hearing in circumstances where it is not in dispute that the original notice of hearing complied with all of the requirements of ss.425 and 425A including the requirement of a prescribed period of notice.

The applicant (who was unrepresented at the hearing) relied on the decision in NBBU. In that case Sackville J gave brief reasons for making consent orders remitting the matter to the Tribunal for reconsideration. His Honour indicated that the applicant had been invited by letter from the Tribunal dated 28 October 2003 to attend a hearing on 16 December 2003. Subsequently, that hearing date was changed to 18 December 2003 and the Tribunal notified the applicant of this by facsimile letter dated 16 December 2003 sent to his authorised recipient. His Honour stated that the respondent accepted that non-compliance with the prescribed of notice period constituted a jurisdictional error. His Honour referred to ss.425 and 425A(3) and to reg 4.35D. He was satisfied that the error on the part of the Tribunal was sufficient to justify consent orders remitting the matter for reconsideration by the Tribunal. There is no explanation of the circumstances in which the hearing date was changed. Counsel for the respondent contended that NBBU developed upon very different facts from the present (although that does not appear in the very brief reasons for judgment) and that as the case was decided on the basis of a concession, it does not provide any binding ratio. While Sackville J certainly proceeded on the basis that there was a breach of s.425A(3) in such circumstances he cannot be said to have decided that any failure of the Tribunal to comply with s.425A(3) when postponing a hearing date necessarily amounts to jurisdictional error in all circumstances.

The applicant sought to distinguish SZBAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 790 in which I held that in postponing a Tribunal hearing at the request of an applicant the Tribunal was not issuing a fresh invitation for which the specified period of notice would be required under s.425A(3). Hence it was not necessary for the Tribunal to provide the prescribed period of notice under s.425A(3) provided the obligations under s.425A had been met in relation to the initial invitation. I took the view that the applicant was given the requisite period of notice in the initial invitation and that the invitation the Tribunal had extended remained open. In the hearing the solicitor for the respondent relied on this decision. (Also see the recent decision in SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026 in which Conti J held at [29] that where the Tribunal decides to reschedule a contemplated hearing "at the behest, explicitly or implicitly, of an applicant, s.425A does not apply in relation to the notice of a rescheduled hearing, at least insofar as it concerns the period of the reviewed notice"). However, as the application contends, in SZBAZ I confined my findings to the situation where a hearing was rescheduled at the request of an applicant. The respondent now concedes however that this is not such a case.

In contrast, in SZBNS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 458, I considered a situation very similar to the one now before me. The Tribunal had invited an applicant to a hearing by a notice that complied with s.425A. Prior to the scheduled hearing the Tribunal informed the applicant that it was unable to hold the hearing on the date specified but that his new hearing would be as specified. It did not give the applicant 14 days notice (the period in s.425A(3) and Reg.4.35D applicable to an applicant who was not a detainee). In those circumstances counsel for the respondent conceded that there was a failure to comply with s.425A(3) in relation to the rescheduled hearing. However, consistent with the decision of the Full Court of the Federal Court in Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102, I held that where the substantive obligation under s.425 was fulfilled and no lack of procedural fairness established, the breach did not give rise to a jurisdictional error. As in NBBU, in light of counsel's concession, it was not necessary to address the issue of why s.425A was breached.

Similarly, in SZAPF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 684 Federal Magistrate Driver proceeded on the basis that where a hearing was postponed twice by the Tribunal there was a failure to comply with the Act and Regulations in circumstances where the prescribed period of notice under s.425A(3) was not given in relation to either of the postponements of the hearing. However the applicant had attended the postponed hearing, given evidence and made submissions and his Honour found (at [20]) that in the circumstances these failures to comply with the Act and Regulations "were immaterial and did not constitute jurisdictional error". The approach in these cases to whether a breach constitutes jurisdictional error is considered further below in light of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.

It is necessary to have regard to the subject matter, context, language and purpose of s.425A and the statutory regime of the Migration Act 1958 to determine its application (see generally Collector of Customs v Agfa-Gavaert Ltd [1996] HCA 36; (1996) 186 CLR 389 and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]).

Under s.414 of the Migration Act 1958 the obligation of the Tribunal upon receiving a valid application for review is to review the decision under challenge. (See NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [26]). Section 420(1) provides that in carrying out its functions under the Act the Tribunal: "is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick." It is not bound by technicalities, legal forms or rules of evidence but must act according to substantial justice and the merits of the case (s.420(2)). Critically, as McHugh, Gummow, Callinan and Heydon JJ pointed out in Applicant WAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62 at [26] the Migration Act 1958 has "established important requirements of a substantive kind, several of which were designed to ensure that applicants for review received procedural fairness."

Section 425A of the Act appears in Division 4 of Part 7 of the Act which regulates the conduct of the review by the Tribunal. The critical aspect of the Tribunal's duty to review the delegate's decision in this instance is the duty in s.425(1) to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (see Applicant NAFF of 2002 at [27] and SZBNS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 458 at [14]). Compliance with s.425 has been held to be a precondition to the valid exercise of the Tribunal's jurisdiction (Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 at [38]). The Tribunal's obligation under s.425 is to issue an invitation to the applicant to attend a hearing which must be 'real and meaningful' and not a 'hollow gesture' or an 'empty shell' (SCAR at [33] - [37], NALQ at [30] and see Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31]).

It is apparent from a consideration of Division 4 of Part 7 of the Act that s.425A contains the mechanism by which the required invitation to appear under s425 is to be extended. In VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 at [14] Sundberg and Hely JJ referred to the need to read ss.425 and 425A together and stated in relation to 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."

"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."

The notice prescribed in s.425A is intended to ensure that the s.425 invitation is a meaningful invitation by requiring that the applicant is notified in a way and given sufficient time to enable him or her to prepare for the hearing, as well as by making the applicant aware of the purpose of the hearing and the consequences of non-attendance (see Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275 at [43] per Branson J). Each of the subsections of 425A is expressed in mandatory terms.

Section 426 of the Act provides that in 'the' notice under s.425A the Tribunal must notify the applicant that he or she is invited to appear to give evidence and of the fact that the applicant may request the Tribunal to call witnesses. Under s.426A(1) if the applicant "is invited under s.425 to appear" and does not appear "on the day on which, or at the time and place at which the applicant is scheduled to appear" the Tribunal may make a decision "without taking any further action to allow or enable the applicant to appear before it". This provision does not prevent the Tribunal from rescheduling the applicant's appearance or from delaying its decision to enable the applicant's appearance before it as rescheduled. (s.426A(2)).

43.

Section 427(1) is as follows:

(1) For the purpose of the review of a decision, the Tribunal may:

(c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or

(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

Section 426 does not limit the number of occasions on which a notice of invitation to a hearing is required. While in the ordinary course of events one invitation and notice would suffice, it is clear (and s.426A(2) reinforces this) that at times there may be a need for a hearing to be rescheduled. The fact that s.426(1) commences "in the notice under section 425A ..." (emphasis added) does not lead to the conclusion that the legislative scheme envisages only one notice being given under s.425. Rather the purpose of s.426 (as part of the statutory regime of procedural fairness) is to ensure that the s.425A notice not only advises of the day on which, and the time and place at which the applicant of the fact is scheduled to appear (s.425A(1)) and meets the other s.425A obligations, but also notifies the applicant of the fact that he or she is invited to appear before the Tribunal to give evidence and that he or she may request the Tribunal to obtain oral evidence from a named person or persons (s.426(2)). If the Tribunal gives an applicant a fresh invitation to appear section 425A(1) (and hence the other provisions of s.425A including sub-section (3)) will come into play. The s.426A(1) consequences of non-appearance after an invitation are such as to suggest that it is consistent with the statutory scheme (see Project Blue Sky at [70]) that every notice of invitation by the Tribunal to a hearing should comply with s.425A.

45.

Section.427(1)(b) gives the Tribunal power to "adjourn the review from time to time". However s.427 does not compel the conclusion that where an adjournment of a review takes the form of a rescheduling of a hearing it is not subject to the s.425A requirements. Section 427 says nothing about notice obligations.

It is the case that some delay in the review process could result if in every case the Tribunal is required to give the period of notice referred to in s.425A(3) to an applicant whenever a Tribunal member delays or is late for a scheduled hearing. However, as McHugh J pointed out in SAAP at [58] the s.420 legislative object of providing a mechanism of dealing with review applications that is efficient and quick "should not be interpreted to detract from the obligation to deal with them fairly".

It is also the case that in particular instances, provided the obligations under s.425A were met in an initial notice of invitation so that the applicant was given adequate notice of the opportunity to attend a hearing and was thus placed in a position to give evidence and present arguments, the invitation might still be said to be 'meaningful' if a hearing was postponed without a further period of notice of the time required by s.425A(3). However even if it may be said in general terms that an invitation to appear remains open where a hearing is postponed or rescheduled by the Tribunal (rather than at the request of the applicant), it is clear from s.425A(1) that the Tribunal must not only extend the invitation to an applicant, it must also give the applicant notice of the day, time and place at which the applicant is schedules to appear. Clearly this obligation must apply to a hearing postponed or rescheduled at the behest of the Tribunal. An 'open' invitation in relation to which no details of day, time and place were provided would not be 'meaningful' (let alone comply with s.425A(1)). Once s.425A(1) is enlivened to require a 'notice', it follows from the language of s.425A that subsections 425(2), (3) and (4) would also apply to the notice.

There is nothing in the language of s.425A or elsewhere in the Division or Act to require the general words of s.425A(3) to be read down or given anything other than their ordinary meaning consistent with the purpose and language of the Act. Section 425A is expressed in terms which would apply to any invitation to appear given by the Tribunal. It is in mandatory terms and is not qualified. (See SAAP AT [71] and [165] and cf ss.423, 424 and 426A). Where the Tribunal postpones a hearing the initial invitation does not remain open. To meet its s.425 obligations the Tribunal must issue a fresh invitation if the hearing is rescheduled at the behest of the Tribunal. In such a case s.425A will apply to the fresh invitation extended to the applicant. As McHugh, Kirby and Hayne JJ pointed out in SAAP in relation to s.424A, s.425A falls within Division 4 of Part 7 of the Act and is part of the statutory regime of procedural fairness (McHugh J at [77], Kirby J at [161] and Hayne J at [197]) and as Kirby J observed in SAAP at [162], the provisions of Division 4 of Part 7 are "unusually detailed, specific and particular" and while some may see them as "inflexible" they are dealing with "unusually important decisions". His Honour stated at [162]:

A measure of inflexibility is the will of the Parliament so as to protect the rights to due process of those affected.

Finally, I note that under s.422B the subdivision is now an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with (cf NALQ at [27] and see WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FAC 106). Whatever the ultimate scope afforded to s.422B (compare WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624, Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590 and note Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264) it clearly indicates a legislative intention to confine the operation of principles of natural justice. Hence, while counsel for the respondent stated in written submissions that the Minister "would readily accept that the power to adjourn would need to be exercised appropriately and reasonably" the source of such obligation was not identified and this may now only be so if it is mandated by a provision of Division 4 of Part 7 (although see SZDQO at [29] per Conti J). In any event, irrespective of the effect of s.422B, consistent with the approach in SAAP, which considered the Act prior to the introduction of s.422B (see McHugh at [55] and Hayne at [197]), the purpose of the provisions in Division 4 of Part 7 is to provide procedural fairness to applicants in determining whether a decision of a delegate of the Minister should be affirmed (and see Gleeson CJ in SAAP at [17] suggesting that what is contemplated by s.425 is governed by the rules of procedural fairness). Section 425A(3) is also concerned with procedural fairness. It is this provision that is intended to ensure that any notice of an adjournment is reasonable. I am satisfied that s.425A(3) was breached in relation to the postponement of the hearing from 22 to 25 October 2004.

Whether breach of s.425A(3) constitutes jurisdictional error

It is thus necessary to consider whether such breach constitutes jurisdictional error. In NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102; (2003) 129 FCR 214 the Full Court of the Federal Court held that a failure to observe the requirements of s.424A(2) (as to the method of conveying to the applicant information on which comment was invited) did not constitute jurisdictional error by the Tribunal where the failure was not one of substance, where the substantive requirement of s.424A(1) was otherwise satisfied and in circumstances where there was no unfairness or failure to accord procedural fairness (see NAHV at [23]). I followed the reasoning in NAHV in relation to a breach of s.425A(3) in SZBNS (also see SZAPF).

However in SAAP the majority of the High Court held that where there was a breach of s.424A(2) consisting of a failure by the Tribunal to give written notice to an applicant in respect of oral evidence given by one of her witnesses at the Tribunal hearing, such failure constituted jurisdictional error. As McHugh J pointed out at [73]:

Section 424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review.

... because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal's decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation.

In those circumstances His Honour stated that it was "not to the point" that the Tribunal may have given the applicant particulars of the adverse information orally. McHugh J stressed at [77] that "if the requirements to give written particulars is mandatory", then failure to comply means that the Tribunal has not discharged its statutory function. His Honour also stated that there can be no "partial compliance with a statutory obligation to accord procedural fairness". McHugh J expressly disapproved the proposition that a decision made despite the lack of strict compliance with a statutory obligation to accord procedural fairness was a valid decision under the Act and stated that any suggestion to the contrary in NAHV should not be accepted.

Hayne J (with whom Kirby J agreed) asked whether having regard to the language of the relevant provisions (ss.414 and 415) and the scope and object of the Act it was a purpose of the legislation that an act done in breach of the provision in question should be invalid. His Honour noted the imperative language of s.424A and that the evident purpose of s.424A and several other provisions in Div 4 of Part 7 was to give applicant procedural fairness and that want of procedural fairness may constitute jurisdictional error but found that the 'immediate focus' was on 'the character of the decision' and its validity. Hayne J stated at [208]:

Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s.424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.

This it was not necessary to consider whether the procedures actually followed in the particular case were procedurally fair (Hayne J at [209]).

Similarly, in this case, s.425A is part of the regime of statutory procedural fairness (SAAP AT [77]). Section 425A(3) is expressed in mandatory terms, a factor which was stressed in SAAP. The obligation to give the prescribed period of notice applies to every notice of invitation to a hearing. As with s.424A the giving of the specified period of notice under s.425A(3) is a step required to accord procedural fairness to the applicant. Division 4 of Part 7 (which now also contains s.422B, a provision that was not applicable to the decision of the Tribunal considered in SAAP) provides a statutory regime of procedural fairness. Consistent with the approach taken in SAAP, if s.425A is applicable, then it is a "statutory formulation of the obligation to accord procedural fairness in the conduct of a review" in relation to the matters it deals with (SAAP per McHugh J at [73] and [77] and also see Hayne J at [204]-[208] and "an imperative obligation for the conduct of a review" Kirby J at [173]).

Further, as one of the mandatory steps prescribed by the Act s.425A(3) is directed at informing the applicant of his or her opportunity to have a hearing in a manner that is intended to ensure such opportunity is meaningful. As Hayne J found in SAAP in relation to s.424A (and bearing in mind the principles in Project Blue Sky) the language, scope and objects of the Act point to the conclusion the purpose of the legislation is that that want of compliance with the mandatory requirements s.425A(3) involves jurisdictional error renders the Tribunal decision invalid. Hence, as his Honour observed at [208] (and see McHugh J at [77]) it is not "to the point" whether the relevant prescribed steps are necessary or even desirable to give procedural fairness in a particular case, as the Act "prescribes what is to be done in every case".

Finally, counsel for the respondent submitted that if there was a technical breach of s.425A(3), then breach of that provision would not sustain relief in the circumstances of this case because the breach could not have made any difference (see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145) and because the applicant had had the relevant opportunity to comment on adverse information so no unfairness occurred. Counsel pointed to the fact that the applicant received an initial valid notice under s.425A(1) which ensured that he had sufficient time to prepare for a hearing and request any witnesses (that being the purpose of the notice period), that he was given a hearing at which his witness was able to appear, that he received an invitation to attend the second hearing which allowed more time than required, attended such second hearing and had every opportunity to present his case. It was contended that the applicant was in no way detrimentally affected by the change in the hearing date and that any breach of s.425A(3) could not have made any difference to the result, that he was not denied an opportunity as a result of the breach to put any part of his case and did not lose any opportunity to respond to any adverse material. Indeed it was contended that no detriment at all was suffered by the applicant even at a theoretical level. In contrast, it was contended that in SAAP the applicant had lost an opportunity to receive a written communication and to consult her lawyer about what response should be made and that while there was no evidence that that breach did make a difference in that case, the High Court had considered that it was sufficient that it might have done so on the basis that it was a denial of a procedure directed to providing procedural fairness (an opportunity to respond to adverse material). It was also contended that the period of time between notice and hearing was not of the same nature as the period of time within which to respond to adverse material.

In SAAP it was also contended that relief should be withheld because compliance with the obligation "could not have made any difference" because the applicant had had the relevant opportunity (to comment on adverse information) and because no unfairness had occurred. Yet McHugh J limited the circumstances in which the discretion to refuse relief may be exercised despite a finding of jurisdictional error stating at [83]:

However, where the relevant breach is the failure to observe fair decision-making procedures, the bearing of the breach upon the ultimate decision should not of itself determine whether the constitutional writs of certiorari and mandamus should be granted. If there has been a breach of the obligation to accord procedural fairness, there is jurisdictional error for the purposes of s75(v) of the Constitution.

His Honour suggested at [84] that if the decision was invalid for want of procedural fairness there was no reason to withhold discretionary relief. (Also see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [57] - [59]). He concluded that there was nothing to suggest that the conduct of the appellant in SAAP warranted the exercise of the discretion to refuse relief (such as delay, waiver, acquiescence or unclean hands).

Further, his Honour stated at [84]:

Whether the first appellant was in fact deprived of a relevant opportunity to deal with the adverse material received by the Tribunal from her eldest daughter should not affect the discretion to grant relief.

Hayne J (with whom Kirby J agreed) held in SAAP that the decision reached by the Tribunal was invalid and that there was no basis on which the 'undoubted discretion' to refuse the relief sought should be exercised against its grant. His Honour also noted (at [211]) that there was no suggestion of delay, waiver, acquiescence or other conduct of the appellants said to stand in their way and continued:

... As Gaudron J said in Enfield City Corporation v Development Assessment Commission ...

Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less. (footnote omitted)

Even if the considerations advanced by the Minister were relevant to considering whether relief should go for jurisdictional error constituted by a want of procedural fairness (a question I need not examine) they are not considerations that bear upon whether certiorari should go to quash what is found to be an invalid decision.

Similarly, the considerations advanced by the Minister in this instance would not bear upon whether certiorari should go to quash the invalid Tribunal decision. There is no suggestion of delay, waiver, acquiescence or unclean hands (or that a particular outcome is compelled by the statute, see McHugh J in SAAP at [80]). Whether or not the applicant was deprived of a relevant opportunity to be made aware of and have a 'meaningful' invitation to a hearing or to give evidence and present arguments, or the bearing of the breach of s.425A(3) on the ultimate decision, is not such as to warrant withholding the relief sought.

Consistent with SAAP the Tribunal should be joined as a party and the relief sought by the applicant should be granted.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Barnes FM