SHOULD THE TRIBUNAL HAVE TRIED TO CONTACT THE APPELLANT WHEN SHE DID NOT APPEAR AT THE HEARING?
46 Last, it is said that the Tribunal failed to exercise a discretion under s 426A(1) in accordance with the Act and thereby committed a jurisdictional error. The appellant argues that the Tribunal ought to have had regard to the fact that she had indicated she wished to attend a hearing but, because she did not arrive, it ought to have taken the simple step of telephoning her on the telephone number which the Tribunal had to ascertain whether or not there was some reason for her non-attendance.
47 I am asked to infer from material in the appellant's affidavit which was unchallenged before his Honour that had she been telephoned on the day of the hearing she would have attended the hearing and/or made arrangements to seek an adjournment with the Tribunal. The appellant did not state that explicitly in her affidavit of 16 March 2006. I infer that she had considerable concerns about her immigration status and continued to liaise and speak with people at the Shine Business Consultant Centre at all relevant times. While I might be prepared to infer in her favour that she would in fact have communicated to the Tribunal that she wanted a hearing and sought to arrange a convenient time either on the day fixed for the hearing or at some other time, the first question is what was the scope of the discretionary power in s 426A?
48 The Minister submits that considerations which the Tribunal was bound to take into account are those specified in s 426A(1)(a) and (b), namely, that a proper invitation had been given to the appellant to appear at a hearing before the Tribunal under s 425 and the appellant had not appeared before the Tribunal on the day on which, or at the time and place at which, she was scheduled to appear. The Minister argues that s 426A(2) is, in effect, facultative in allowing the Tribunal to re-schedule the time of an appellant's appearance to enable him or her to appear at a later or an alternate time but that subs (2) does not, in effect, create some consideration which the Tribunal is bound to take into account in exercising its discretion.
49 It is well known that a statutory provision which confers a discretion upon a decision-maker in terms unconfined allows the decision-maker to have regard to a range of factors that are similarly unconfined in the exercise of a discretion, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Limited (1979) 144 CLR 45 at 49-50; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24 at 40 per Mason J). Mason J went on to say that:
'By analogy where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.'
50 The appellant says that the whole purpose of the scheme in the Act of notifying applicants for review of a hearing before the Tribunal is to enable them to be heard. So much may be taken for granted. But the Act also sets out a, albeit at the time not an exhaustive, statutory regime for notification and specifies circumstances in which the Tribunal may move to come to a decision where a person, having been notified, does not appear. There can be no doubt that the Tribunal was obliged to act judicially and that the principles of natural justice or, as they are now called, procedural fairness applied, to the extent that they were not otherwise qualified or truncated by the terms of the Act, to the exercise of the discretion under s 426A(1).
51 In The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553 the High Court held that:
'…when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances.'
52 The court applied the famous dictum of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 where he said:
'The requirements for natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.'
53 Their Honours went on to approve what Kitto J said in Mobil Oil Australia Pty Limited v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504, namely:
'What the law requires in the discharge of a quasi-judicial function is judicial fairness …. What is fair in a given situation depends upon the circumstances.'
54 The Tribunal here was faced with a situation in which the statutory requirements for notification of the appellant that her hearing was to take place on 22 March 2001 had been observed. Those requirements included a requirement that the appellant be told, as she was in accordance with s 425A(4), the effect of s 426A. The appellant was told in the letter notifying her of the appointment of the hearing in a large marked box in block letters:
'If you do not attend the hearing and a postponement has not been granted the Tribunal may make a decision on your case without further notice.'
55 A decision-maker who takes one of a number of available courses does not commit an error in the exercise of jurisdiction because one course, rather than when another more favourable to the person claiming to be affected by the decision, was followed. Section 426A(1) gave the Tribunal power to make a decision once the two requirements in the section had been met, namely that a valid invitation had been issued and the applicant for review did not appear at the time of the appointed hearing.
56 Obviously decisions concerning whether or not a person had established his or her claim to the entitlement of a protection visa are of the utmost importance to the individual concerned. In a very real sense the decision can mean the difference between life and death. If the decision to refuse a visa be wrong, but not affected by jurisdictional error, its consequence can be the return of the applicant for review to the place where persecution is feared and, because of the error, the realisation of the very fear, which can be, in some cases, death.
57 The seriousness of the possibility that a consequence of a decision to proceed to affirm a decision under s 426A(1) that the persecution feared could be suffered is in my opinion part of the subject matter, scope and purpose of the legislation and conditions the way in which the discretion in s 426A(1) falls to be exercised. It is therefore a serious step for the Tribunal to decide, when the applicant has been asked to appear and, as in this case, has said that she wanted to appear, simply to rely on her non-attendance without more.
58 But the question is whether the Tribunal was bound to take into account that the appellant had provided a telephone number and was therefore potentially contactable. The evidence in the appeal papers reveals that no attempt was made to contact the appellant after she had failed to appear. So the Tribunal must have been aware of her indication that she wished to be there, her non-attendance and the fact that her non-attendance may have had very serious consequences for her. Indeed, in the passage to which I referred earlier in my judgment, the Tribunal referred to her failure to give evidence in support of her claims as a matter which it was taking into account in the way in which I had described.
59 An administrative decision which involves jurisdictional error is regarded in law as no decision at all: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506 [76] citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51] per Gaudron and Gummow JJ at 618 [63] McHugh and at 646-647 [152] per Hayne J. In the latter case the Tribunal had failed to have drawn to its attention at the time it made its decision a communication from the applicant for review that he was unable to attend because of illness. It later embarked on a further review of his case and the court upheld that exercise on the ground that the Tribunal initially had not performed a review at all because it failed to have regard to the applicant for review's communication to it and had not decided in accordance with the Act.
60 Here the Act gave the Tribunal the discretion to proceed or not once the appellant did not appear on 22 March 2001. The Tribunal did not have to give reasons for its exercise of discretion under s 426A because s 430 of the Act did not require it to do so. In Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [27], the full court held that where the Tribunal had sent to an applicant for a review, at his address for service, a letter inviting him to a hearing in accordance with ss 425 and 425A in circumstances where s 422B was not then in force, the mere fact that the Tribunal received the letter back with a return to sender endorsement did not oblige the Tribunal to do anything further to search in its files to see other addresses at which the applicant may be contacted. Their Honours said ([2006] FCAFC 73 [38]-[39]):
'The respondent says the Tribunal was on notice that he may not have received the letter because the "Response to Hearing Invitation" form was not returned, because the letter to his residential address was returned unclaimed, and because he did not appear at the hearing. The respondent says that in these circumstances, the Tribunal was obliged under s 425 to search both its own and the Department file to attempt to find another method of contacting the respondent. He says that in this case, the Tribunal had an obligation to contact the migration agent listed if the respondent's Department file to find more recent contact details, and possibly also to ring the residential telephone number contained in the respondent's protection visa application.
The submissions of the respondent in this respect are rejected. In view of the decision in VNAA it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s 425A (in fact, two) was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.'
61 The appellant distinguishes that decision on the basis that this matter had proceeded one stage further in that the appellant had been contacted, and had indicated she wished to attend the hearing. The obligation under s 425, at the time at which the appellant's claim came to be considered by the Tribunal, was to invite the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That was complied with. Whether the appellant took up the invitation seems to me to be a matter for the appellant at the end of the day. The Tribunal's obligation had been discharged.
62 Section 426A permitted the Tribunal to make a decision without taking any further action to allow or enable the appellant to appear before it, once it had discharged what the uncontested position is in this case - its obligation to invite the appellant to appear in a way that conformed with the Act. She did not appear at the time and place and on the day which she was invited to do so. While it may have been preferable, and while most decision-makers possibly would have decided, to attempt to make contact with the appellant to see whether some mistake had occurred, the Act in express terms authorised the Tribunal to do as it did.
63 I think that a construction of s 426A(1) that obliged the Tribunal to accord natural justice to an applicant for review if they did not appear in accordance with s 426A(1)(b), was at odds with the express words of the discretion in the section. Those words are that:
'[It] may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.'
64 It seems to me to be quite inconsistent with those words to construe the obligations of procedural fairness to require the decision maker to give the applicant an opportunity to retrieve his or her position after a failure to appear in that situation.
65 I cannot see that it could be implied under s 426A(1) that the Tribunal had to consider whether or not to contact the applicant. The Tribunal is authorised to decide not to do so. For all the evidence reveals, the Tribunal may have considered whether or not to contact the appellant and decided against it. Again, it seems to me that if it did that no possible jurisdictional error could be established. While it seems to me that the course that the Tribunal took in the present case has produced a very unfortunate and, I think, unduly harsh result for the appellant, I do not think that the Tribunal committed a jurisdictional error in doing what it did.
66 I am fortified in this construction of s 426A by a decision of Greenwood J in NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045, especially at [24]. The matter may also be tested by considering whether, if the Tribunal had decided to make attempts to contact the appellant on her failure to attend on 21 March 2001, the Minister could have attacked that conduct on the ground that a jurisdictional error occurred. In my opinion it could not.
67 It was plain that the Tribunal had a discretion one way or the other to decide whether or not to take further action. I do not think that it could be inferred or implied that the requirements of procedural fairness necessitated the Tribunal, in arriving at a decision under s 426A(1) to consider contacting the appellant, and, if it failed to do so, the whole of the exercise of its jurisdiction would be thrown into doubt. The very terms of the section seem to me to negate such an approach.
68 I do not see any error in the way in which the Chief Federal Magistrate approached this issue. For these reasons I reject this ground.