SZHVM v Minister for Immigration and Citizenship [2008] FCA 600 | Case summary

CONSIDERATION 18 The first issue in this appeal is the resolution of the appellant's application seeking leave to adduce further evidence in the appeal. 19 There was debate before me as to the relevant considerations that may lead to the reception of further evidence by reference to a number of authorities: see for example Orr v Holmes (1948) 76 CLR 632, at 640-642; Arnotts v Trade Practices Commission (1990) 97 ALR 555 at 612; Greater Wollongong City Council v Cowan (1955) 93 CLR 435 at 444, and generally Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 577. 20 Section 27 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') permits this Court in its discretion to receive further evidence. The exercise of the discretion to receive further evidence must be exercised judicially and consistently with the judicial process. I am not confined to the common law considerations relating to the reception of fresh evidence. So much is clear from the principles enunciated in CDJ v VAJ (No 1) (1998) 197 CLR 172 at [52]-[53] per Gaudron J in dealing with an equivalent provision in the Family Law Act 1975 (Cth). Nevertheless, there are well-established, sound principles surrounding admission of fresh evidence which should normally be considered as relevant to the exercise of the discretion to receive further evidence pursuant to s 27, but which should not constrain this Court in considering the overall demands of justice. 21 In my view, the demands of justice do not require the admission of the further evidence sought to be relied upon by the appellant for the following reasons: (a) The further evidence was clearly capable of being adduced by the appellant in the court below, and there was no justification for the appellant not raising this evidence in the court below; (b) The appellant submitted that the evidence sought to be tendered substantiated two grounds of appeal. The first ground was that the appellant was denied a real and meaningful invitation because of the conscious deception by her migration agent on the basis of the principles in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64. The second ground was that the Tribunal's failure to take a simple administrative step such as calling the appellant on the day of the hearing was a miscarriage of the Tribunal's discretion under s 426A. For reasons set out later, I do not consider these grounds of appeal could succeed even if the further evidence was received in this appeal; and (c) There is the desirability of finality in litigation, particularly in refugee cases involving late allegations of agent fraud. It is highly desirable that those allegations be tested at first instance, and not in the appellate jurisdiction of this Court. I understand that the stakes for the appellant are very high, and that she may hold subjective fears of serious harm or even death, by reason of her actions in Indonesia. The prejudice to the appellant is a factor to be considered. Finality in litigation is a significant factor, although it must be weighed in the balance with other aspects, including what is at stake for an appellant. In view of my conclusions as to the other matters relevant to the reception of further evidence, the consideration of finality simply serves to support the final view I have reached in this appeal. 22 In relation to the ability of the appellant to provide the further evidence and whether there was a justification in not adducing the further evidence in the court below, it is necessary to examine the position as it existed before the Federal Magistrate on 11 July 2007, the date of the hearing. 23 At the outset I indicate that I do not accept as contended by the appellant that in the circumstances of this case, it can be said that the ground of appeal based upon the High Court decision in SZFDE 237 ALR 64 was not available because the High Court decision now relied upon was not handed down until 2 August 2007. The ground itself was known and was capable of being agitated, even if only formally, in view of the earlier Full Federal Court's different position. In any event, the reality of the position is that the appellant, unrepresented before the Federal Magistrate, probably had no knowledge of the legal position, but could and should have sought to put to the Federal Magistrate the true factual position in support of her appeal . This, she simply did not do. I do not consider that the fact that the ground of appeal now sought to be agitated would necessarily have been unsuccessful before the Federal Magistrate was the reason that the further evidence now sought to be adduced was not tendered before the Federal Magistrates Court. The appellant in full knowledge of the facts, chose to misinform the Federal Magistrate of the true position. 24 It is important to realise that, as the appellant herself deposes, on or about 23 December 2005 Mr Marzukie terminated the appellant's employment as a nanny and told her that he would no longer help her in relation to her visa, and stated that she was on her own. Another migration agent was found by the appellant to help with her application before the Federal Magistrates Court. The appellant suggests she had trouble communicating with this new migration agent due to language difficulties and was not in fact able to communicate her circumstances to anyone until August 2007. 25 Be that as it may, the facts and circumstances that are now sought to be relied upon by the appellant were obviously well-known to her at the time of the hearing of the Federal Magistrates Court. The appellant was no longer under the influence of Mr Marzukie or dependent on him for her livelihood, and had a new migration agent. 26 Before the Federal Magistrate no mention was made of any of the facts and circumstances now relied upon, and the appellant misinformed the Federal Magistrate that she was sick and that this was the reason she could not attend the Tribunal hearing. 27 The appellant now accepts that this was not true, and says that the reason why she misinformed the Federal Magistrate was because she did not want to break the promise she made to Mr Marzukie that she would not tell anyone that she was working as a nanny. She said she did not realise Mr Marzukie had taken advantage of her and that because of his actions she could be deported to Indonesia with possible serious consequences. 28 I should interpolate that these reasons for misinforming the Federal Magistrate were not sought to be put before this Court on this appeal, in that they were not read as being part of the evidence tendered by the appellant. However, the part of the affidavit containing these reasons was tendered by the first respondent as admissions of the appellant being contained in her first affidavit as filed (see par 31). 29 In my view, such reasons could only assist the appellant, as they seek to provide a justification for her deliberate misinforming of the Federal Magistrate. Without such evidence, this Court is only left with the fact that the appellant deliberately misinformed the Federal Magistrate that she was sick, and this was the reason she did not attend the Tribunal hearing, with no explanation sought to be made to explain the reason for the appellant so deliberately misinforming the Federal Magistrate. In the end, nothing turns upon the acceptance or otherwise of the reasons given for the appellant's conduct before the Federal Magistrates Court, but I have taken her explanation into account. 30 If Mr Marzukie still had some control over the appellant as at 11 July 2007 (the Federal Magistrates Court hearing date), and the appellant did not have a migration agent to assist her (even if only in a limited way), I could perhaps understand the appellant misinforming the Federal Magistrate. However, by 11 July 2007 (nearly one year and six months after being sacked by Mr Marzukie), the appellant freely chose not to inform the Federal Magistrate of the facts and circumstances now relied upon, and instead said she was sick at the time of the Tribunal hearing and for this reason could not attend. 31 Even accepting that the discretion to accept the further evidence now sought to be adduced is very wide, and is not to be limited by enumerating an exhaustive list of relevant considerations, an important consideration is whether the evidence was capable of being adduced by the appellant in the court below and whether there is any justification for the evidence not being adduced. The hearing before the Federal Magistrates Court was the appellant's opportunity to advance her case, and inform the Federal Magistrates Court truthfully of the facts. I am satisfied that the appellant did have the free choice and the ability to inform the Federal Magistrate of the facts and circumstances now relied upon. If the reason for not doing so was because of her promise not to tell about her employment, that was not a proper basis for misinforming the Federal Magistrates Court. 32 It was argued by the appellant that at the time of the Federal Magistrates Court hearing the appellant still did not understand the process, the documents, the invitation to the Tribunal hearing and the Tribunal's decision. It is to be recalled that she did not speak, read or write English, and was socially isolated and unable to obtain translation assistance. However, as I have said, it seems to me that the essential facts and circumstances which are now relied upon as to the reason for not attending, namely her relationship with Mr Marzukie and the conversation she had with him, are all matters she had experienced herself and could easily have been retold from her own knowledge at the time of the hearing. The appellant merely had to tell the Federal Magistrate that she had the responsibility of looking after a child as a nanny on the day, that no one else could look after the child, that she was dependant on Mr Marzukie for her livelihood and was living in his house, and that she dared not oppose him. The appellant could have told the Federal Magistrate that Mr Marzukie was her migration agent, that she trusted him, and that when he would not let her go to the Tribunal hearing she thought that this would be fine because Mr Marzukie was looking after her. None of these matters was beyond the personal knowledge of the appellant, and none requires an understanding of the documents or Tribunal processes. 33 I fully appreciate that the appellant was unrepresented before the Federal Magistrate, spoke no English, and did not appreciate the role and function of the Federal Magistrates Court. However, in response to the question of explanation for non-attendance, the appellant decided herself to misinform the Federal Magistrates Court when she had all the information at her disposal to properly inform the Federal Magistrates Court if she desired. 34 In any event, I take the view that the further evidence does not provide a basis for upholding the grounds of appeal now sought to be agitated by the appellant. 35 Looking at the contention regarding fraud on the Tribunal, the appellant relies upon the principles set out in the decision of the High Court of Australia in SZFDE 237 ALR 64. 36 It is important to consider the facts of that case and the relevant principle there identified. 37 The High Court stated the relevant facts as follows (at [39]-[49]): The evidence of the first appellant was that when, with her husband, she met Mr Hussain [the migration agent] to discuss the tribunal's letter of invitation dated 27 June 2003, which invited attendance at a hearing of the tribunal, Mr Hussain used words to the effect: It is best not to go. If you go they will refuse you. They are not accepting any visa applications at all at the moment. I am going to take a different approach. I am going to write a letter to the Minister. I am worried that if you go to the [Tribunal] you will say something in contradiction to what I will write. Don't worry. I'm doing what is best for you. A letter to the then minister, dated 15 September 2003, was composed by Mr Hussain in the name of the second appellant. It was headed "Application for Consideration [under] Section 417 of the Migration Act". Section 417 conferred a power upon the minister, if the minister thought it was in the public interest to do so, to substitute for a decision of the tribunal a decision more favourable to an applicant. This and further requests of this nature were rejected. The Federal Magistrate held that Mr Hussain had acted fraudulently in his dealings with the appellants for personal gain, that he had extracted money under false pretences and that the appellants had been dissuaded from attending the tribunal hearing "by the fraudulent behaviour of Mr Hussain". The result was to have "deprived the invitation to the hearing [of] its quality of being a meaningful invitation under s 425". … Neither the reasons of the Federal Magistrate nor the dissenting reasons of French J in the Full Court considered in any detail the question of the motives of Mr Hussain in acting as he did with respect to the rejection of the invitation to attend the tribunal hearing. The inference is well open upon the evidence that Mr Hussain acted as he did for self-protection, lest in the course of a tribunal hearing there be revealed his apparently unlawful conduct in contravention of restrictions imposed by Pt 3 Div 2 of the Act, particularly by s 281. … The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants. 38 The important point to note, in my view, is that the advice given by Mr Hussain directly and immediately had the consequence that the process of the Tribunal was stultified. The decision-making process was directly corrupted. As a direct result of the representation of Mr Hussain the appellant and her family were dissuaded from appearing before the Tribunal, and in fact did not appear. There was also in effect a conveying of a false impression to the Tribunal, namely that the appellant did not wish to appear. 39 Before this Court, the appellant has set out the basis of the fraud in the Further Amended Grounds of Appeal. This is important - as the High Court observed in SZFDE 237 ALR 64 (at [41]-[42]): In the Full Court French J properly observed: … The finding of fraud should have specified, in one place in the reasons, what was said that was fraudulent, how it was fraudulent, and how it was acted upon. The finding of fact that the magistrate made however was not challenged in these proceedings. In his reasons, French J developed the matter as follows: … The agent held himself out to be a practising solicitor and registered migration agent. He was neither. He gave fraudulent advice that the Tribunal was "not accepting any visa applications at all at the moment". He expressed a false concern that if [the first appellant] and her family appeared before the Tribunal they would say something inconsistent with his proposed submission to the Minister. The advice amounted to a representation that the Tribunal process was a sham and that participation in it might prejudice [the first appellant's] prospects of a successful outcome on the basis of a submission to the Minister. … The decision-making process, that is the process of review which incorporates an opportunity for a hearing on the conditions set out in Pt 7, was corrupted. The importance of the appearance before the Tribunal to the outcome of the review was highlighted by the Tribunal's reference, in its reasons, to matters which it did not have an opportunity to explore with [the first appellant] because of her non-appearance. On this basis, in my opinion, the decision of the Tribunal was vitiated. It was not a decision made under the Act and therefore not a privative decision protected by s 474. 40 If one analyses the position on the facts as sought to be adduced in this appeal, there is no evidence of a fraud on the Tribunal within the meaning of SZFDE. 41 In SZFDE 237 ALR 64 at [45] the High Court drew inferences about the conduct and motivation of the agent in question in order to uphold the finding of fraud. In that case, the agent falsely held himself out to the applicants as a registered agent and a solicitor when he was neither. He took their money for a service that he was prevented by law from performing: see SZFDE 237 ALR 64 at [40] and [42]. He gave deliberately false advice which was designed to stop them from attending the Tribunal hearing (at [42]). If his conduct had been discovered he risked imprisonment for 10 years (at [46]). 42 However, in this appeal before me the factual position is quite different. Even if the appellant's evidence were to be accepted in every respect, the Court would find that Mr Marzukie was motivated by his personal desire to have the appellant look after his child for the day (because it suited his personal needs) and was in no way motivated to prevent the Tribunal from conducting a hearing. 43 I do not consider that Mr Marzukie was motivated to hide anything from the Tribunal. The conflict of interest suggested between looking after the appellant's interests and his own personal needs, even if in breach of the Code of Conduct prescribed by the Migration Agents Regulations 1998, has not been shown to be a matter Mr Marzukie would have been concerned about, or would have motivated his conduct. The real reason not to have the appellant attend the hearing was just the fact that Mr Marzukie wanted his child looked after by the appellant. Mr Marzukie may have put his interests above the appellant's but that could not amount to a finding of fraud. He described the 'interview' as 'important', but asserted that work was 'more important', which is more properly to be characterised as 'bad' advice: SZFDE 237 ALR 64 at [53]; see also SZHBC v Minister for Immigration and Citizenship [2007] FCA 1310 at [17]-[18] per Spender J; SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 at [3], [11] and [12] per Allsop J and SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at [31]-[33] per Besanko J. Further, even if there had been a breach of the Migration Agents Regulations, this would not lead to a finding of fraud in the relevant sense. 44 It is noted that the evidence the appellant seeks to adduce concerns her working conditions (the amount paid to the appellant, the tasks she was required to perform, the hours she was required to work). However, the nature of the arrangements for payment (if any) for migration services cannot take the appellant very far, unless it could be established (as it was in SZFDE) that this was in some way connected to the deliberate 'stultification' of the legislative scheme or 'disabling' of the processes of the Tribunal: SZFDE 237 ALR 64 at [49] and [51]. In my view there is no connection between the working arrangements made and the processes of the Tribunal such that those processes were disabled or stultified by the conduct of Mr Marzukie. 45 The further evidence sought to be adduced by the appellant shows that Mr Marzukie gave the appellant at least some letters from the Tribunal, her own mobile number was supplied to the Tribunal in the application for review, the appellant was aware of the existence of the hearing and the date upon which it was to take place, she knew the hearing was 'important', and she intended to go to the hearing. Whilst the appellant was influenced by Mr Marzukie at the last minute not to attend (because she 'dared not oppose him'), she understood the Tribunal hearing was important, and she made the decision not to attend with that knowledge. 46 Further, Mr Marzukie's role and conduct as a registered migration agent is quite unlike that of the migration agent in SZFDE. Such things as encouraging the insertion of the incorrect address on the application form, and telling the appellant that the hearing was an 'interview' are not so significant as to warrant a finding of fraud upon the Tribunal. Further, the appellant herself was complicit and knowingly involved in the decision to mislead the Tribunal as to her place of residence. 47 SZFDE does not stand for the proposition that a failure by an applicant to attend the Tribunal hearing due to the fault or conduct of a third person bears the result that the Tribunal decision to proceed under s 426A of the Act is always vitiated by error. 48 This is a case where the appellant did not attend the Tribunal hearing due to a combination of factors - her own lack of diligence, receipt of some misinformation or bad advice from a third party, and choosing after some persuasion not to attend. None of these matters amounts to fraud because there is no relevant 'fraudulent' conduct vis-ŕ-vis the appellant. The real reason for the appellant not attending is not contained in the various matters particularised by the appellant in the Further Amended Notice of Appeal, but was the appellant's own decision not to attend. The appellant consciously consented to the Tribunal disposing of her case without her appearance, and in the circumstances the legislative scheme and processes of the Tribunal were not in any way disturbed. 49 In Minister for Immigration and Multicultural Affairs v SZFDE and Anor (2006) 236 ALR 42, French J said at [129]-[130]: There are sound policy reasons why a person, whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made. But where a person's participation in a decision-making process is affected by the material dishonesty of another which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision. Whether it has will depend upon a consideration of the circumstances of the particular case. In this case, on the findings made by the learned Magistrate which are not challenged as to the facts, SZFDE and her family were dissuaded from appearing before the tribunal by the fraudulent advice of the migration agent. The agent held himself out to be a practising solicitor and registered migration agent. He was neither. He gave fraudulent advice that the tribunal was "not accepting any visa applications at all at the moment". He expressed a false concern that if SZFDE and her family appeared before the tribunal they would say something inconsistent with his proposed submission to the minister. The advice amounted to a representation that the tribunal process was a sham and that participation in it might prejudice SZFDE's prospects of a successful outcome on the basis of a submission to the minister. SZFDE's negative response to the hearing invitation was procured by the dishonest conduct of her purported representative. To that extent her consent to the disposition of her application for review without a hearing was of no effect. She was denied, by fraud, the opportunity to appear at and be heard by the tribunal on a matter of vital importance to her future and that of her family. The decision-making process; that is the process of review which incorporates an opportunity for a hearing on the conditions set out in Pt 7, was corrupted. The importance of the appearance before the tribunal to the outcome of the review was highlighted by the tribunal's reference, in its reasons, to matters which it did not have an opportunity to explore with SZFDE because of her non-appearance. 50 As the High Court said in the appeal of this decision (SZFDE 237 ALR 64) at [53]: The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court, French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. 51 It is also appropriate to mention at this point the recent decision of Finkelstein J in SZIVK v Minister for Immigration and Citizenship [2008] FCA 334. In that case, his Honour was of the view, having considered the decision in SZFDE, that where a migration agent 'falsely indicated in the response to hearing form that the appellant would attend the hearing when the agent knew that could not occur' or where an agent 'signed documents on the appellant's behalf without his knowledge, consent or authority … and forged [the appellant's] signature', then a court would likely find that there had been a fraud on the Tribunal. For the reasons already set out, SZIVK is distinguishable on the facts from those sought to be put to me on this appeal. 52 In this appeal, even accepting that the evidence suggests that the appellant's negative response to the hearing invitation was procured by her purported agent's coercion, this does and did not amount to dishonest conduct. The appellant's account of her conversation with Mr Marzukie on the morning of the hearing, demonstrating his refusal to take her and his direction that she mind his child in circumstances where she was unable to contact or reach the Tribunal on her own or to otherwise manage independently if she refused his direction, may give rise to an argument that might be characterised as duress. However, duress, while perhaps actionable on other grounds, does not amount to material dishonesty of another which conveys a false impression to the decision-maker such as to make the conduct complained of cognisable as fraud upon the Tribunal under the principles set forth in SZFDE. 53 In Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [30]-[33] it was made clear that even if an act or omission of a migration agent misleads the applicant, and even directly affects the discharge of the Tribunal's statutory duties in a manner adverse to an applicant, it does not mean that the acts are to be characterised as dishonest or a fraud on the Tribunal. The Full Court made the following comments at [32]: We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent's acts or omissions vis-ŕ-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly affects the Tribunal's discharge of its imperative statutory functions in a manner which is adverse to a person seeking Tribunal review can in turn be characterised as a "fraud on the Tribunal". The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent's submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that affects the Tribunal's Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant's absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-ŕ-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud. 54 Whilst the appeal before me is not simply a case of a failure to inform or mere inadvertence, nor is it to be characterised as a case of fraud vis-ŕ-vis the appellant, nor even then a fraud on the Tribunal. I appreciate, as Finkelstein J in SZIVK [2008] FCA 334 (at [33]) reminds us, that there are many ways in which fraud may be manifested. However, this is not a case where one can infer that the agent, in making the statements to the appellant that resulted in her not attending, acted other than honestly; Mr Marzukie was just concerned about his own interests and put them above those of the appellant. 55 Accordingly, the appellant's first ground of appeal could not succeed even accepting the further evidence of the appellant. 56 The applicant's second ground of appeal - that the Federal Magistrate erred in failing to find that the Tribunal should have considered that the appellant's failure to attend the hearing could have been due to the fact that she could not understand the English language invitation, such that the invitation was not 'real and meaningful' - may be dismissed in much shorter order. 57 There is authority that 'there was no obligation on the part of the Tribunal to ensure that the hearing invitation was provided in a language which the appellant could understand': see SZGWH v Minister for Immigration and Citizenship [2007] FCA 543 at [12]. 58 However, be that as it may, there was nothing to suggest in this case that the Tribunal had any need to consider the possibility that the appellant did not understand or could not be properly informed of the invitation - I can find nothing that would put the Tribunal on notice of such a circumstance. The application for review was apparently signed by the appellant, on its face without the aid of an interpreter. Prior to that, the appellant in the application for a visa had employed a migration agent. Admittedly the Tribunal was notified that the appellant needed an Indonesian interpreter. However, there is nothing that puts the Tribunal on notice that in giving an invitation it had to go any further than the method it adopted. The invitation, on the basis of the information provided by the appellant and the legislative scheme, could be sent to the appellant's nominated address and contact made on the nominated mobile number (which was in fact the appellant's number) and, just as the appellant obviously needed to have had assistance in completing the application for review, the Tribunal could assume similar assistance would be made available if any further correspondence took place. 59 The Tribunal was certainly entitled to assume the appellant had received the letter inviting her to attend - the fact that the appellant had not corresponded with the Tribunal since the original application for review was lodged does not mean that the Tribunal was aware of any irregularities or had an obligation to further chase up the appellant to attend the hearing. 60 In fact, as we now know, the appellant was aware of the hearing date, and knew it was 'important'. The failure to attend had nothing to do, in fact, with the appellant's lack of familiarity with the English language. 61 As to the appellant's third ground, the appellant argues that the Tribunal failed to undertake a reasonably open and regular administrative procedural step necessary to provide the appellant with a real and meaningful invitation to the hearing, such as seeking to contact the appellant by telephone on the day of the hearing. In making this argument, the appellant relies on the principles set out in SZJBA v Minister for Immigration and Citizenship (2007) 164 FCR 14. However, that case is inapposite here for the reasons set out below. 62 In SZJBA 164 FCR 14, Allsop J said, starting at [53]: On either basis, the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act. This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. The letter that was received, on its face, told any person who read it that there was with it, or supposedly with it, a five page document which was a response to the relevant invitation. On the facts found by the Federal Magistrate, the five page document was not enclosed. The response was an important document. It must have been, or should have been, apparent that an error (human or machine) had occurred. … … In my view, the inaction of the tribunal for the reasons I have given, amounted to an undermining of the reality and meaningfulness of the invitation to comment that was given purportedly under s 424A or under s 424 or under the general executive power. As such, it was a jurisdictional error in that it undermined the steps in the conduct of the review undertaken pursuant to Pt 7 of the Migration Act, that were required by, or authorised by, the statute or authorised as the conduct of the general executive power under s 61 of the Commonwealth Constitution which had been undertaken by the Tribunal, and, once undertaken, were not to be frustrated by the action or inaction of the Tribunal in circumstances where, as I have said, it was obliged to take basic and simple administrative procedural steps. … Here, the question was not whether the Tribunal should have undertaken some evidence gathering task. The failure here was to take a simple administrative step of an office or housekeeping nature, the failure to take which could be seen on its face at the time to subvert the observance of the Tribunal of its obligation to give procedural fairness by the giving of the s 424A letter, or by the operation of s 424, or by the general executive power. Division 4 of Pt 7 is the statutory formulation of the giving of natural justice: see s 422B. Given the importance of procedural fairness for the principles of jurisdictional error sourced in s 75(v) of the Constitution: see SZFDE237 ALR 164 at [32], any subversion of the process of the tribunal is a matter of importance: SZFDE237 ALR 64 at [32]. The same conclusion is to be reached by the application of the principles that in certain circumstances the decision of a Tribunal or decision-maker will be vitiated if some inquiry is not made. Most recently, Kenny J examined these cases in her Honour's comprehensive judgment in Minister for Immigration andCitizenship v Le[2007] FCA 1318. It can readily be accepted, as her Honour said, that there is no general obligation to inquire found in s 424(7), nor is there a general obligation to initiate inquiries or to make an applicant's case for him or her. I refer, without repetition, to the long list of cases referred to by Kenny J in Le [2007] FCA 1318 at [60]. The absence of such a general obligation of inquiry can be accepted, without denying the limited proposition supported by numerous other cases that, in certain exceptional cases, a failure to make some inquiry may ground a finding of jurisdictional error if it was plainly necessary to make some reasonably straightforward inquiry before the making of the relevant decision: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70. Kenny J discusses this in Le at [60]-[67]. I adopt without repetition her Honour's reasons. The only qualification that I would make to her Honour's reasons is that the rubric of Wednesbury unreasonableness may cover circumstances that amount to jurisdictional error and those that amount to error within jurisdiction. It is unnecessary here to explore such possible differences. Here, the failure to take the steps, which in my view were required in the review process, subverted an opportunity to respond to an invitation contemplated or authorised by the statute as part of the review process and so amounted to jurisdictional error. [Emphasis added] 63 As the quoted extracts suggest, the Tribunal must, where there is material before it that on its face suggests that an error has occurred or that the Tribunal is not in receipt of all materials responding to the invitation (in SZJBA, the letter stating that a five page document was enclosed but without any such enclosure), take simple administrative steps to address the issue (eg make a phone call or send a letter inquiring as to the potentially missing material). In this appeal, however, the appellant cannot demonstrate that there was any material before the Tribunal that would have put the Tribunal on notice of an error or irregularity in the record which needed to be followed up administratively. 64 In SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1, the Full Court distinguished SZJBA on the basis that that decision was different because in that case 'there was a failure to inquire into readily available and centrally relevant information' (at [29]). Similarly, in my view the factual position confronting Allsop J in SZJBA was very different from that which arises in this appeal, and the failure to inquire cannot be seen on its face to subvert the observance of the Tribunal of its obligation to give procedural fairness. 65 The appellant's fourth and final ground - that the Federal Magistrate erred in finding that the appellant received certain letters from the Tribunal in the absence of any evidence of receipt of the letters - is also unsustainable. 66 The Federal Magistrate said: I am unable to accept that she (the appellant) did not know the telephone number of the Tribunal because she had received several letters from it, all of which contain its telephone number. 67 The Federal Magistrate merely used the fact of receipt of the several letters as a factor which led the Federal Magistrate in not accepting certain evidence of the appellant. At its highest the use made of the fact of receipt of several letters led the Federal Magistrate to disbelieve the appellant. As it turns out, the appellant did in fact deliberately mislead the Federal Magistrate as to the reason for her non-appearance. Nevertheless, whether or not the Federal Magistrate had an evidentiary foundation for such a view is a matter which will not assist the appellant in the relief she seeks. Unless this error leads to a conclusion that the Tribunal itself fell into jurisdictional error, it cannot result in setting aside the Tribunal's decision. In view of the above reasons relating to the other grounds of appeal, no basis exists for concluding that jurisdictional error occurred, even on the basis of the further evidence sought to be adduced by the appellant. In these circumstances even if the Federal Magistrate fell into the error alleged by the appellant, it could not result in the appellant obtaining the relief she ultimately seeks. 68 In my view, the reference to the receipt of the several letters could not impact upon the conclusion of the Federal Magistrate that there was no jurisdictional error on the part of the Tribunal. The Tribunal exercised its discretion to proceed in the absence of the appellant, no error has been demonstrated in it adopting that course, and its decision affirming the decision of the delegate must remain.

SZHVM v Minister for Immigration and Citizenship

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Judgment (9 paragraphs)

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Legislation Cited (4)

Cases Cited (19)

Cited By (4)