SZHLI v Minister for Immigration and Citizenship

(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. (3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice. 426A (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal 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 on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from 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. Application before the Federal Magistrate 10 The appellant filed an application for judicial review of the Tribunal's decision in the Federal Magistrates Court in October 2005. The appellant claimed that she was not aware of the Tribunal's decision until just before she filed the application. In her amended application the appellant relied upon the following grounds: 1 The Tribunal failed to give the appellant proper notice of the hearing pursuant to s 425A of the Act and thereby fell into jurisdictional error; 2 The Tribunal failed to exercise its discretion under s 426A of the Act and thereby fell into jurisdictional error;

3 The Tribunal committed jurisdictional error in that there was no evidence to support its conclusion that the alleged threats to the appellant did not amount to persecution; 4 The Tribunal failed to exercise its jurisdiction in not considering the appellant's claim that she was a member of a particular social group; and 5 The Tribunal acted in breach of s 424A of the Act in not giving the appellant an opportunity to comment on relevant materials. 11 The appellant was given leave by the Federal Magistrate to pursue an additional ground, ground 1A, alleging failure on the part of the Tribunal to comply with s 425(1) of the Act. The particulars of that ground were: The Tribunal gave notice to the applicant that she was entitled to come to a hearing to give oral evidence to support her claims. The Tribunal did not 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. Decision of the Federal Magistrate 12 The Federal Magistrate accepted that the amendments introduced by the Amending Act applied to the appellant's review after 1 June 1999. However, the Federal Magistrate found that this did not result in the Tribunal again having to invite the appellant to a hearing, because the signed "Response to Hearing Offer" form stood as the appellant's consent under s 425(2)(b), to the Tribunal conducting the review in her absence. As such, s 425(1) did not apply, and the Tribunal did not act in contravention of that section in not issuing the invitation. The Federal Magistrate referred to the case of Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 (Liu) in support of his finding. 13 The Federal Magistrate also found that, as s 425(1) did not apply, the requirements of s 425A were not enlivened and, therefore, no notice, as described in that section, was required. Similarly, as the appellant had not relevantly been invited to appear, s 426A had no application and was not contravened by the Tribunal. Grounds 1, 1A and 2, therefore, failed. 14 In relation to grounds 3 and 4 the Federal Magistrate found that "paucity of information" was the basis of the Tribunal's conclusions but that this did not indicate jurisdictional error. Further, such "paucity of information" had prevented the Tribunal from giving any consideration to the appellant being a member of a particular social group for the purposes of ground 4. Finally, ground 5 failed as the Federal Magistrate found that there was no evidence that extraneous material had been relied upon by the Tribunal. Notice of Appeal 15 The notice of appeal contained the following grounds: (a) The Federal Magistrate erred in failing to find the Tribunal committed jurisdictional error of law by non‑compliance with s 425(1) of the Act in that the Tribunal did not invite the appellant to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review. (b) The Federal Magistrate erred by failing to find the Tribunal committed jurisdictional error of law by non‑compliance with s 425A of the Act in that the Tribunal did not give to the appellant a notice pursuant to s 425A of the Act stating the day on which the appellant was scheduled to appear. (c) The Federal Magistrate erred by failing to find the Tribunal committed jurisdictional error of law by non‑compliance with s 426A of the Act in that the Tribunal failed to exercise its discretion under s 426A in deciding whether to take further action to allow or enable the appellant to appear before it. 16 The notice of appeal also raised additional grounds of appeal (namely, grounds 4 and 5) but at the hearing of the appeal, counsel for the appellant abandoned those grounds. 17 As to ground 1, counsel for the appellant submitted that an important effect of the amendments was to give applicants a new right, namely, a right to make submissions at a hearing before the Tribunal. This right was additional to the pre‑existing right to give evidence at the hearing. The appellant contended that after 1 June 1999, it was necessary under s 425(1) for the Tribunal, before it made its decision, to invite the applicant to attend a hearing to give evidence and make submissions. The appellant submitted that the decision of the Tribunal was attended by jurisdictional error because the Tribunal had not invited the appellant under s 425 of the Act to attend a hearing to give evidence and make submissions at that hearing. The appellant submitted that the Tribunal had thereby denied the appellant the benefit of the legislative amendments. 18 The appellant submitted that the completion of the "Response to Hearing Offer" form by the appellant could not amount to "consent" within the meaning of s 425(2)(b) of the Act. This was because the form was sent in response to an invitation to attend a hearing which did not purport to comply with the Act as amended, and failed to offer the appellant the benefits of the "substantive new rights", namely, the right to give evidence and make submissions at the hearing. 19 The appellant also submitted that the reliance by the Tribunal upon Liu was misplaced, because that case was distinguishable. In fact, said the appellant, if anything, the case supported the appellant's contention. The appellant also submitted that SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 (SZBEL) supported her contention that on a proper construction of ss 425, 425A, 426 and 426A of the Act, the Tribunal is required by s 425(1) to issue an invitation to the hearing before there can be any "valid" consent under s 425(2)(b). 20 In my view, the appellant's contentions are not to be accepted. 21 One of the amendments introduced by the Amending Act makes provision in s 425(2)(b) for an applicant to consent to the Tribunal deciding the review without the applicant appearing before it. The Act also provides that in circumstances where s 425(2) applies, s 425(1) does not apply. Further, the Act does not prescribe nor qualify the means by which an applicant may consent to the Tribunal deciding the review in the absence of a hearing within the meaning of s 425(2)(b) of the Act. In particular, the Act does not prescribe a procedure by which the Tribunal is to inform an applicant of his or her rights in relation to a hearing, as a precondition to the applicant giving a "valid" consent within the meaning of s 425(2)(b). Nor, in my view, does the proper construction of the Act require the issuing of an invitation to a hearing as a precondition to the giving of a "valid" consent. To the contrary, the scheme of the Act operates on the basis that an invitation to a hearing is only required to be given to an applicant, if none of the conditions described in s 425(2) is met. The Act contemplates the giving of consent as an event which precedes and exempts the Tribunal from issuing, any invitation to a hearing. Accordingly, in my view, the appellant's contention that the completion and forwarding of the "Response to Hearing Offer" form did not amount to the appellant consenting to the Tribunal deciding the review without the appellant appearing before it, cannot be accepted. 22 In Liu, each of the applicants had, prior to the amendments coming into effect, attended a hearing before the Tribunal. However, the Tribunal member resigned before deciding the review, and a new member of the Tribunal was appointed to complete the review. After the amendments had come into effect, the second member made a decision and, thereby, completed the review, without inviting the applicants to a second hearing. The Full Court decided that there was no absolute right to a hearing before the Tribunal member who makes the review decision, and that the Tribunal had not fallen into jurisdictional error by not inviting the applicants to a second hearing. 23 The appellant is correct in her contention that Liu is distinguishable on the facts from this case. However, contrary to the submissions of the appellant, the Liu case does not support the proposition contended for by the appellant. It is true that the Full Court acknowledged that the Amending Act introduced substantive new rights, including a right to make submissions at a hearing, but the Full Court did not consider the question of whether there are any conditions associated with an applicant giving a "valid" consent within the meaning of s 425(2)(b). Further, the Full Court did not find that, on the proper construction of the Act, consent could not validly be given unless there had been a prior invitation to a hearing issued under s 425(1). 24 Likewise, in SZBEL the High Court did not consider the question of whether there are any conditions associated with an applicant giving a "valid" consent under s 425(2)(b). Further, the case is not authority for the proposition advanced by the appellant that, on a proper construction of the Act, it is necessary for the Tribunal to issue an invitation to a hearing before there can be a "valid" consent under s 425(2)(b). 25 Accordingly, ground 1 of the appeal is dismissed. 26 Grounds 2 and 3 of the appeal are also dismissed for the reasons given by the Federal Magistrate. In short, each of s 425A and s 426A is only enlivened if s 425(2) does not apply. In this case, s 425(2)(b) applied. It is well established that s 425 and s 425A are to be read together and s 425A does not impose a separate obligation to that in s 425. The process described in s 425A is the mechanism by which the invitation referred to in s 425 is to be issued (VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at 413; Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 231 ALR 630). 27 It follows, therefore, that the appeal is dismissed with costs. I certify that the preceding twenty‑seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Solicitor for the First Respondent: Sparke Helmore

Date of Hearing: 14 February 2007

Date of Judgment: 10 September 2007