REPRESENTATION
Counsel for the Applicant: Mr. N. McNally
[2]
Solicitors for the Applicant: Parish Patience Immigration Lawyers
[3]
Solicitors for the Respondent: Blake Dawson Waldron
[4]
ORDERS
(1) A writ of certiorari issue, quashing the decision of the second respondent.
(2) A writ of mandamus issue, requiring the second respondent to redetermine the matter according to law.
(3) The first respondent pay the applicant's costs set in the amount of $5000.
FEDERAL MAGISTRATES
[5]
Minister for Immigration & Multicultural & Indigenous Affairs
[6]
REASONS FOR JUDGMENT
This is an application filed in this Court on 10 August 2005 seeking review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 28 October 2004, and handed down on 23 November 2004, to affirm the decision of a delegate of the respondent Minister made on 10 August 2004 to refuse a protection visa to the applicant.
The applicant is a national of Indonesia who arrived in Australia on 4 March 2000, and on 22 July 2004 lodged an application for a protection visa. Her claims to protection can be found in her application to the first respondent's Department, copied at Court Book ("CB") 1 to CB 24, particularly at CB 7 to CB 10. Her application for review to the Tribunal is reproduced at CB 44 to CB 47, and attached is a statement of her claims (CB 48 to CB 49).
The Tribunal wrote to the applicant by letter dated 28 September 2004 (CB 56 to CB 57) and advised the applicant that it had considered the material before it in relation to her application and was unable to make a decision in her favour on this information alone. The Tribunal invited the applicant to a hearing before it to give oral evidence and present arguments in support of her claims. The Tribunal provided a time and place and gave the date for the hearing as 27 October 2004. The Tribunal advised the applicant that if she was unable to attend the hearing she should contact the Tribunal immediately, and that if she did not attend the hearing, and the Tribunal did not postpone the hearing, it could make a decision on her case without further notice. The Tribunal's letter enclosed a "Response to Hearing Invitation" form and asked that the applicant return the completed form to the Tribunal. The letter was sent to the applicant's migration adviser who had been nominated by the applicant as the "authorised recipient" for correspondence (CB 46). A copy was sent to the applicant at her residential address. I note that the applicant separately provided in her application form, as her address for service, the address of her migration adviser (CB 46).
In the Tribunal's decision record, under the heading of "Claims and Evidence" (CB 65.7), the Tribunal records that on 26 October 2004 the applicant's representative attended the Tribunal registry and advised that the applicant would "not be attending the hearing". The Tribunal records that this person indicated that he would write to the Tribunal to this effect. No letter was subsequently received (CB 65.8). According to the Tribunal's decision record the applicant did not appear at the Tribunal hearing, and the Tribunal proceeded, pursuant to s.426A of the Migration Act 1958 ("the Act"), to make a decision on the review without taking any further action to enable the applicant to appear before it. This sequence (as far as it goes) is not disputed by the applicant's solicitors (see the applicant's outline of submissions, filed 3 May 2006, at paragraphs 5 to 7).
The Tribunal's "Findings and Reasons" are reproduced at CB 66.5 to CB 67. Relevantly, the Tribunal found:
Despite not having seen the original, nor a copy, of the applicant's passport, that the applicant was a national of Indonesia (CB 66.5).
That country information considered by the Tribunal indicated that persons of Chinese ethnicity may face harm amounting to persecution in Indonesia (CB 67.1).
However, despite this, that although the applicant made references to riots in Indonesia in 1998, her claims were based on "mere assertions" (CB 67.2), and as such the Tribunal was not satisfied that her fear of persecution arising from her "Christian Chinese ethnicity" in Indonesia was well founded.
Further, that the applicant had been put on notice that the Tribunal was not satisfied that she was entitled to a protection visa on the evidence provided, and that had she attended a hearing, her claims could have been investigated more fully. In these circumstances, in affirming the delegate's decision, the Tribunal concluded that the requisite (and relevant) statutory elements had not been made out, and that the applicant did not have a well founded fear of persecution for a Convention reason.
The applicant's application for review was filed on 10 August 2005. In submissions filed on 3 May 2006, the applicant's solicitors attached a proposed amended application, and indicated that they would seek leave to file this application in Court. At the hearing before me Mr. Reilly appeared for the respondents and Mr. McNally for the applicant. Mr. McNally sought leave to file an amended application, and leave was granted. The applicant proposes three grounds of complaint, each of which is particularised:
"Ground 1: The Refugee Review Tribunal failed to determine a material claim made by the Applicant.
Ground 2: The Tribunal breached s424A of the Migration Act 1958.
Ground 3: The Tribunal breached s426A of the Migration Act 1958."
The applicant's first ground of complaint is that the Tribunal failed to exercise its jurisdiction because it failed to determine a material claim made by the applicant. The complaint is that the Tribunal failed to deal with the applicant's claim that she would be persecuted in Indonesia because of her "Chinese ethnicity", and that the Tribunal considered instead whether or not she would be persecuted because she was a "Christian" of "Chinese ethnicity". Mr. McNally's submission was that the applicant clearly claimed that she feared persecution on the basis that she was a person of Chinese ethnicity in Indonesia. That while it was true that the applicant was a Christian, her claims actually related to her Chinese ethnicity. Mr. McNally submitted (in a point which is also relevant to ground 2 of the application which asserts a claimed breach of s.424A of the Act) that the only source of the information that the applicant was a Christian, was that contained in her answer to question "12" in her protection visa application form submitted to the first respondent's Department (CB 1.9). Mr. McNally's submission was that the applicant's claims subsequently, as set out in various parts of the Court Book now, show a consistent presentation that her fear was that she would face harm on return to Indonesia as a person of Chinese ethnicity. While it was not wrong, in his view, for the Tribunal to consider any religious aspects that might attach to this claim arising out of her Christian religion, which is not disputed, ultimately the Tribunal was required to deal with the claim as put, and then to deal with any other claim, or aspect of the claims, that could be said to have arisen from the circumstances before it.
Mr. McNally's submission was that in all of the documents reproduced in the Court Book, which were relevantly before the Tribunal, all of the applicant's references to why she feared persecution were made in the context of her fear arising from her Chinese ethnicity:
At CB 8: in answer to question "41" in the application for a protection visa, the applicant clearly states in answer to the question:
"What do you fear may happen to you if you go back to that country?":
"I fear for my safety because in capital city Jakarta riot happened May 1998 against Chinese."
Clearly, the applicant's reference here is to the riots that happened in May 1998 "against Chinese", and there is no mention of "religion".
At CB 9: in answer to question "42":
"Who do you think may harm/mistreat you if you go back?":
The applicant responded in terms of Chinese people being made a "space-goat" (sic: scape goat) by those who initiated the riots.
At CB 9: in answer to question "43":
"Why do you think this will happen to you if you go back?":
The reference again is to "Chinese". There is no reference to any religious elements. The applicant's claims revolved around the persecution of Chinese people, not Christian people, or even Christian Chinese people.
At CB 10: in answer to question "44":
"Do you think the authorities of that country can protect you if you go back? If not, why not?":
The applicant again focused on "Chinese doing business", and that "they" would "destroy Chinese business", and then specifically stated:
"[T]hat's why 'well founded fear' being persecuted because of the race and systematic element doing this and the authority not able to protect us".
That the delegate's decision record, which is reproduced in the Court Book at CB 30 to CB 37, is focused consistently on "anti Chinese riots" and "ethnic Chinese claims".
In her submission of 31 August 2004 to the Tribunal (CB 48 to CB 49), the applicant again focuses on her fears arising from her Chinese ethnicity. At CB 48.6 the applicant states, in her own words as to why she is a refugee :
[7]
"I'm one of the victims from rasialism (sic: racialism)".
As set out at CB 49, the applicant clearly confirms the Convention ground that she seeks to rely on as:
[8]
"Race".
9. In essence therefore, Mr. McNally's submission was that apart from one reference in her protection visa application, in response to a specific question as to her religion (to which the applicant replied "Christian"), there is no other reference in any of the material before the Tribunal to the applicant's religion and certainly not in those parts of the relevant documents putting forward the applicant's claims. At all relevant points in the material, either where the applicant was responding to questions set out in the relevant form as to why she believed herself to be a refugee, or where she volunteered information by way of her handwritten statement, the clear basis of her claim was that she feared harm has a person of Chinese descent in Indonesia. The Convention ground on which she relied was "race". There was no reference to a reliance on any Convention ground of "religion", and nor was any such claim made by the applicant.
10. Mr. McNally submitted that in looking at the Tribunal's decision record, it is the Tribunal itself that appears to have introduced the element of religion to the applicant's claims, by way of its use of the word "Christian". In particular he pointed to:
CB 66.2, where the Tribunal made reference to the protection visa application and stated:
"In her written protection visa application of 22 July 2004, the ethnic Chinese Christian applicant claimed to have departed Indonesia [in March 2000], due to her 'experiences in May 1998'".
CB 66.3 where the Tribunal accurately reflected the applicant's claims as:
"The applicant feared that ethnic Chinese Indonesians will be 'made the scape goat' in the future…"
and continued with this at CB 66.9:
"Country information considered in the course of preparing for this decision indicated persons of Chinese ethnicity may, at times, face harm amounting to persecution in Indonesia"
the Tribunal then proceeded, at CB 67.2, to deal with this in the following way:
"However, while the applicant referred to eg, the May 1998 riots, based on her mere assertions, I am not satisfied her fear of persecution arising from her Christian Chinese ethnicity in Indonesia is prospectively well founded."
This was followed with a reference to the Tribunal having put the applicant on notice that it was not satisfied on what had been put before it and further, a reference to the applicant not attending the hearing before the Tribunal. Ultimately, the Tribunal found at CB 67.4:
"Therefore, I am not satisfied the applicant would have a well founded fear of persecution for reasons of her Christian Chinese ethnicity should she return to Indonesia."
Mr. McNally acknowledged Mr. Reilly's submissions that authority in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ("Wu Shan Liang") at 271 - 272 and 291, sets out the relevant well settled propositions as to how Tribunal decision records are to be read. Mr. McNally emphasised that, with Wu Shan Liang in mind, his submission was that nonetheless the Tribunal's decision record still revealed error in the way the Tribunal approached its task. His argument as to what the Tribunal was doing ("what was going through the Tribunal's mind at the time") could be seen with reference to the extracts from country information as reproduced at CB 50 to CB 53. These extracts carry notations, at some parts, with a reference to the applicant and her (Tribunal) file number noted in the margin. In particular, Mr. McNally pointed to these notations as they were adjacent to information regarding not only the situation of ethnic Chinese in Indonesia, but also adjacent to information relating to freedom of religion in Indonesia. His submission was that information relating to the situation of ethnic Chinese supported the applicant's claim, but that the information relating to freedom of religion went against the applicant's claim, and that this indicated that the introduction of the characteristic of "Christian" to the Tribunal's understanding of the applicant's claims to fear persecution was the factor that led to the Tribunal finding adversely to the applicant. This submission was also relevant to ground 2 which asserts that the information that the applicant was a "Christian" was not given to the Tribunal for the purposes of review (as that is understood in light of Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 ("Al Shamry") and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ("SZEEU") such as to bring it within the exception contained in s.424A(3)(b) and as such given that it was a part of the reason for the decision, should have been put to the applicant in writing: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ("SAAP")).
While Mr. McNally conceded that the Tribunal's use of the term "ethnic Chinese Christian applicant" in its decision record at CB 66 .2, when referring to what the applicant had put in her written protection visa application, may have been, and may be construed, as a mere descriptor, he pressed however that when the Tribunal came to direct its mind to the chance of persecution occurring in the future, as at CB 67.2 and CB 67.4, it said that it was not satisfied that her fear of persecution (based as it was on "mere assertions") arising from her "Christian Chinese ethnicity" was prospectively well founded, and then further found that it could not be satisfied on the evidence provided by the applicant, that the applicant would have a well founded fear of persecution for reasons of her "Christian Chinese ethnicity" should she return to Indonesia. At that point, in addressing the issue of a well founded fear, the Tribunal had based its lack of satisfaction on the applicant's "Christian Chinese ethnicity" and not, consistent with her claims, on her Chinese ethnicity.
There is no evidence that the file note was prepared by the Tribunal member.
The Tribunal did not "cancel" the hearing on its own initiative. The applicant advised that she would not attend.
There was no evidence, or even assertion before me, to contradict the Tribunal's account that the applicant did not attend on the scheduled day.
In my view, properly in context, it can be seen that the word "cancelled" as used in the file note, is an administrative response by the Tribunal's employee to the applicant's own advice.
There is nothing before me to show that the Tribunal member cancelled, or withdrew, the invitation to the hearing. The clear decision record shows only that the hearing offer was open, and the applicant did not attend.
In all these circumstances the Tribunal was entitled to proceed as it did. Section 425(1) provides that the Tribunal must invite the applicant to a hearing. This was done. Section 425(2)(b) provides that s.425(1) does not apply where an applicant consents to the Tribunal deciding the review without the applicant appearing before it. There is no evidence before me (for example by way of a "Response to Hearing Invitation" form) to show that the applicant acted in a positive way to give such consent. But in the circumstances it can be clearly implied that such consent was given when she advised (through her agent) that she did not intend to appear at the hearing. Nothing was put before me to show that this advice was given in error, or that the applicant wanted to attend the hearing. In any event, I am of the view ground 3 does not succeed, as the Tribunal was, in all the circumstances, entitled to proceed pursuant to s.426A. The applicant was invited to a hearing, advised that she did not want to attend, and subsequently did not attend. The description by a Tribunal employee in a file note that as a result of advice from the applicant that the hearing was "cancelled does not in my view in all the circumstances preclude the Tribunal from proceeding, as it did, pursuant to s.426A(1). Ground 3 does not succeed.
In all, the Tribunal did not in my view deal with the claim as put by the applicant for the reasons set out above. I will make the orders sought by the applicant and return the matter to the Tribunal for proper consideration.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 4 August 2006
Mr. Reilly for the respondents conceded that the Tribunal's reference to the applicant's "Christian Chinese ethnicity" was clumsy, and in a "literal" way, does not make sense. I agree with Mr. Reilly's submission that Christianity is a religion, and not an ethnicity, and that in that way to say "Christian Chinese ethnicity" makes no sense. He relied on Wu Shan Liang and relevant authorities which are consistent with the proposition that mere "loose language", or "clumsy phraseology" does not amount to error. The submission was, with the relevant authorities in mind, that the Tribunal could be seen to have done nothing more than use "loose language" and "clumsy phraseology".
Mr. Reilly agreed that the applicant's claims were enunciated solely on the basis of race, and not on the basis of religion. Dealing first with the applicant's submission that the Court should make certain inferences from the notations on the copies of the country information, reproduced at CB 50 to CB 53, Mr. Reilly submitted that the inference that Mr. McNally asked the Court to draw was "far-fetched". I agree with this aspect of Mr. Reilly's submission. There is nothing before me to show who the author of the notations in the margin of the country information material was. Even if there had been evidence that the relevant Tribunal member had made those notations, there is nothing to show for what purpose, whether it was directly relevant to the issue before the Court now.
The issue before the Court therefore, is to seek to discern, on the relevant material before it, whether the Tribunal properly understood the applicant's claims (ground 1) and for the purposes of ground 2, the reason (or, if relevant, any part of that reason) for affirming the decision under review. Mr. Reilly's argument was that the reason that the applicant ultimately failed was not based on any judgement about her claims, but that the applicant's failure to attend the hearing was the factor that led to the Tribunal being unable to reach the requisite level of satisfaction (as required by the relevant statutory provisions). The reason that the Tribunal did not find in favour of the applicant was that it could not be satisfied that she was entitled to protection on the evidence that she had put before the Tribunal, something that the Tribunal notified the applicant about. The Tribunal specifically stated (CB 67.3):
"If the applicant had attended the hearing it would have been possible to investigate these, and other, issues more fully. However, on the evidence provided by the applicant, I am not satisfied that all the statutory elements for the grant of protection are made out."
Mr. Reilly referred to Bennett J., in SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [22] - [23] and with reference also, in particular, to Hely J., in SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [16]. This submission also related to ground 2 and included a reference to SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238, a Judgment of Allsop J., with particular reference at [11] and [12].
While clearly noting the authorities referred to by Mr. Reilly, in my view, the issue still remains in the case before me, as to whether the inability to reach the requisite level of satisfaction on the part of the Tribunal was based on a proper understanding of the applicant's claims. There is no argument with Mr. Reilly's submission that a Tribunal's decision, based solely on the Tribunal's inability to be satisfied on the material that had been put before it, in circumstances where such material was inadequate and contained insufficient detail to enable the Tribunal to reach the requisite level of satisfaction, would (in the absence of anything else) reveal no error on the part of the Tribunal.
But the case before me contains one element that in my view takes this case beyond the point of simply being unable to be satisfied on what was before it. Clearly, the lack of satisfaction must relate to a proper understanding of the applicant's claims. Simply, the Tribunal needs to exhibit an understanding, through its decision to record, of what exactly it could not be satisfied about. The use of the word "Christian" therefore raises the question as to whether the Tribunal properly understood the claim put forward by the applicant, about which it said it could not be satisfied such that the protection visa should not be granted. The Court is well seized of the need to read a Tribunal decision fairly, as set out in relevant authorities such as Wu Shan Liang. However, I do not see such authorities as absolving the Tribunal if it has misunderstood the nature of the applicant's claim, and has turned its mind to a claim that was never made.
A fair reading of the Tribunal's decision record reveals that the Tribunal, in its review of the material before it, from the beginning, characterised the applicant as "the ethnic Chinese Christian applicant" (CB 66.2). Had that been the only reference to "Christian" in its decision record, a fair reading in my view, would be that the Tribunal meant this word as a mere descriptor of the applicant, which, with its specific reference to "a written protection visa application" (CB 66.2) was a justifiable description of the applicant. The Tribunal's subsequent, and accurate, referral to the applicants "fear" that ethnic Chinese Indonesians would be made "the scape-goat" in the future, and would again be subject to violence" (CB 66.3) would serve in my view to reinforce the descriptive (of the applicant) nature of the use of the term "Christian" at CB 66.2. This is reinforced when it commences its analysis at CB 66.5 under the heading: "Findings and Reasons" where the Tribunal makes reference (at CB 66.9) to country information that it considered "in the course of preparing for this decision", and found that such information indicated that "persons of Chinese ethnicity" may at times face harm amounting to persecution in Indonesia. But, in the very next sentence the Tribunal moves from using the word "Christian" as a mere description of the applicant, to being relevant to a part of the basis for her fear:
"…I am not satisfied her fear of persecution arising from her Christian Chinese ethnicity in Indonesia is prospectively well founded." (CB 67.2)
In my view it is significant, on a plain reading of the Tribunal's decision, that the applicant's fear of persecution arose from what was described as her "Christian Chinese ethnicity". This is repeated in the Tribunal's conclusion as to whether it could be satisfied, or not, that the visa should, or should not, be granted. The Tribunal clearly again says at CB 67.4:
"Therefore, I am not satisfied the applicant would have a well founded fear of persecution for reasons of her Christian Chinese ethnicity should she return to Indonesia".
While it is clear that when setting out the applicant's claims the Tribunal appeared to understand the nature of the claims made, that is, they related to ethnic Chinese in Indonesia, and while I am prepared to accept that in setting out these claims, the Tribunal's use of "Christian" initially was meant as a description of the applicant, in my view the words "ethnic Chinese Christian applicant" in that sense should not be seen as "clumsy", but at that point as an accurate description of the applicant. However, on a plain reading of the Tribunal's decision record, at the most relevant points of its record when the Tribunal was specifically addressing its mind as to what it could not be satisfied about, the Tribunal quite plainly stated that it could not be satisfied that her fear of persecution arose from both "Christian" and "Chinese ethnic" reasons. While I agree that at one level it is open to argue that the use of the word "Christian" in this context, may be just clumsiness on the part of the Tribunal, the Tribunal, in the only parts of its decision record where it addresses the subject of whether it could reach the requisite level of satisfaction, certainly imports, at least in part, the notion that the applicant claimed to fear persecution because of some "Christian" element. It may be that the Tribunal, having noted the word "Christian" in the protection visa application, was in fact seeking to deal with a situation where it may have been subsequently said that there were circumstances in the applicant's material that could give rise to an additional Convention ground: that of religion. It may be that the Tribunal was seeking, as an abundance of caution, to deal with any such potential situation.
Clearly, concepts such as "a plain reading" and "a fair reading" and "a beneficial reading" of a Tribunal's decision do involve some amount of seeking to discern what was in a Tribunal's mind in deriving meaning, and some certainty, as to what a Tribunal was actually doing. However, it is equally not appropriate for a Court to enter into conjecture (with no other evidence before it) as to what a Tribunal may have been doing merely to support a finding that a plain reading reveals no jurisdictional error. While not moving away from the proposition that the Tribunal's decision should not be "over zealously" scrutinised with an eye "attuned to error", the Tribunal's plain words cannot be discounted in favour of a level of conjecture by the Court as to what was in the Tribunal's mind. Particularly when such conjecture is carried out in the circumstances where the Tribunal's presentation carries some confusion.
I found Mr. Reilly's submissions to be strong. But ultimately a plain reading of the Tribunal's own decision record, in two parts of its conclusion as to why it could not be satisfied, reveal that the applicant's Christianity played some part in the description of the applicant's claims, as distinct from the description of the applicant herself. While there may have been an element of clumsiness involved, as Mr. Reilly submits, and I certainly accept his submission that to talk of "Christian ethnicity" makes no sense. Ultimately, I see the repeated use of the word "Christian", as used in the context of her fears of persecution, as being more than just a "clumsy" expression.
The Tribunal, in my view, did not deal with the applicant's claim as put plainly by the applicant herself. The Tribunal was either confused as to the nature of the claim, or was confused in its presentation of the claim or even may have been seeking to deal with what it saw as another aspect of the claim in a compressed, but nevertheless confusing, way. In any event, the Tribunal clearly said it could not be satisfied as to the applicant's fear of persecution, not on the basis solely of her Chinese ethnicity, but on something different, which it described twice as "Christian Chinese ethnicity". The Tribunal's failure to deal with the applicant's claim, that is, to properly deal with the applicant's claim as consistently put by the applicant herself, in my view reveals jurisdictional error on the part of the Tribunal, and justifies making the orders sought.
I should just note that in relation to the applicant's second ground of complaint, the breach of s.424A, that the only material before the Court now, which reveals that the applicant was a "Christian", is to be found in the protection visa application. As a result, to the extent that the Tribunal's perception of the applicant's fears as arising from, at least in part, her "Christianity" was a part of the decision which was adverse to the applicant, then such information on which this perception was based would have needed to have been dealt with in the way as set out in the relevant authorities SAAP, Al Shamry and SZEEU.
Having found jurisdictional error in the Tribunal's decision it is not necessary to consider the applicant's third ground of complaint, but I do not see that ground as being made out. The applicant's complaint was that she was invited to a hearing before the Tribunal which was scheduled, pursuant to s.425 of the Act, for 27 October 2004. On 26 October 2004 the hearing was "cancelled". In this regard the applicant refers to a "file note" (copied at CB 69) that indicates:
"Advisor came to reception and said that applicant is not attending the hearing, he said he will send a letter advising the Tribunal today…Hearing was cancelled on 26/10/2004 by PRLFSA."
The applicant argues that s.426A empowers the Tribunal to make a decision "on the papers" only where, first, the applicant is invited to appear, and second, where the applicant does not appear on the day scheduled. The applicant's argument is that as the Tribunal made its decision on 28 October 2004, and at that time there was no "scheduled hearing" (because it had been "cancelled"), and as a result the Tribunal did not have the power pursuant to s.426A to affirm the decision of the delegate.
Mr. Reilly submitted that the assertion that no hearing was scheduled at the time of making the Tribunal's decision is contrary and inconsistent with the Tribunal's own decision record at CB 65.9 where the Tribunal, in the context of describing the migration agent's advice that there would be no appearance on the day in question, but that the confirmatory letter had not been received as promised, continued by saying:
"That said, the applicant did not attend the Tribunal at the time or on the day the Tribunal hearing had been scheduled."
Further, that even if the hearing had been "cancelled", the Tribunal was in any event empowered to make its decision under s.425(2)(b), and that on either approach there was no jurisdictional error. He submitted that any error relating to s.426A, rather than s.425(2)(b), can have made no difference to the outcome.
I accept Mr. Reilly's submissions in relation to ground 3. A hearing was scheduled by the Tribunal to take place on 27 October 2004. The applicant, and her adviser, were on clear notice as to the importance of the hearing, and of the possible consequences of any failure to attend. The Tribunal's letter of invitation made it clear that on what had been put before it the Tribunal was unable to make a favourable decision. A failure to attend could result in a decision without further reference to the applicant. The Tribunal's decision record reveals that the Tribunal member constituted for the purpose of conducting the review, had been scheduled a hearing for 27 October 2004 (CB 65.8). The day before (26 October 2004) the applicant advised (through her migration agent) that the applicant "would not be attending the hearing". On 28 October 2004 when it came to make its decision, the Tribunal noted that on the scheduled hearing day (the day before) the applicant did not attend. The Tribunal then proceeded to a decision pursuant to s.426A of the Act. The possibility of this was clearly notified earlier to the applicant.
The file note relied on by the applicant (CB 69) does not in my view reveal error on the part of the Tribunal: