Migration Act 1958, ss.426A, 65, 36(2), 426A(1)(b), 425, 425A, 425(1), 425(2)(b), 425(3), 430B(4), 441G, 422B, 430, 430A.

V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018; (2001) 114 FCR 408

Minister for Immigration and Multicultural and Indigenous Affairs v SZFML and Anor [2006] FCAFC 152

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2004] HCA 62; (2004) 221 CLR 1

NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162

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

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162

SZBYR and Anor v Minister for Immigration and Citizenship [2007] HCA 26

SZFML v Minister for Immigration and Anor (No. 2) [2005] FMCA 1947

Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318

Brown v West [1990] HCA 7; (1990) 169 CLR 195

Harris v Great Barrier Reef Marine Park Authority [1999] FCA 437; (1999) 162 ALR 651

Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1; 195 ALR 502

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

X v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 319 Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73; (2001) 109 FCR 18 SZEUZ v Minister for Immigration and Anor [2005] FMCA 967

NAHP v Minister for Immigration [2004] FMCA 145

SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [44] per Mason J.

(1) The reference to the first respondent be amended to read "Minister for Immigration and Citizenship".

(2) The application made on 10 March 2006 and amended on 2 March 2007 is dismissed.

(3) The applicant pay the first respondent's costs set in the amount of $5,000.

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

1. This is an application filed under the Migration Act 1958 ("the Act") on 10 March 2006 and amended on 2 March 2007, seeking review of the decision of the Refugee Review Tribunal ("the Tribunal"), signed on 6 February 2006 and handed down on 16 February 2006, which affirmed the decision of the delegate of respondent Minister made on 23 November 2005 to refuse a protection visa to the applicant.

2. The applicant is a citizen of the People's Republic of China who arrived in Australia on 2 October 2005. On 13 October 2005, the applicant made an application for a protection visa. On 23 November 2005 a delegate of the respondent Minister refused to grant a protection visa, and on 20 December 2005 the applicant applied for review of that decision.

3. The applicant's claims to protection as a refugee were set out in his application for a protection visa (reproduced in the Court Book ("CB") at CB 1 to CB 26), in supporting documents (CB 27 to CB 28) and in his application for review to the Tribunal (CB 38 to CB 41). The applicant sought protection in Australia based on his fear of harm from the Chinese authorities arising out of his Christian beliefs, his claimed failure to have complied with the Chinese government's family planning policies, and because he feared that because he left China illegally and that he would be charged with "high treason".

4. Following refusal of his application for a protection visa, the applicant sought review by the Tribunal (the application is reproduced at CB 38 to CB 41). The applicant advised the Tribunal that he had an adviser to act for him in relation to the application ("Wei Ming Qian" of Eternity International (Aust) Pty Ltd - CB 39), and nominated his agent as the "authorised recipient" for the purposes of receiving correspondence in connection with the review (CB 40).

5. By letter sent to the applicant's agent and copied to the applicant (CB 42 to CB 43) dated 20 December 2005, the Tribunal explained the process relevant to its conduct of the review. By letter dated 10 January 2006 (CB 45 to CB 46), the Tribunal invited the applicant to a hearing scheduled for 9 February 2006. The letter was sent to the applicant's authorised recipient/agent. The letter advised the applicant that the Tribunal was unable to make a decision in his favour on the material that was before it and invited the applicant to a hearing for the purpose of giving him the opportunity of giving oral evidence and presenting arguments in support of his claim. The Tribunal provided a "Response to Hearing Invitation" form and asked the applicant to inform it as to whether he wished to attend the hearing or not. A completed "Response to Hearing Invitation" form was received by the Tribunal on 31 January 2006, notifying the Tribunal that the applicant did not want to attend the hearing and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the applicant to appear before it (CB 49).

6. In its decision record (CB 54 to CB 60), signed on 6 February 2006 and handed down on 16 February 2006, the Tribunal recorded the following:

"On 10 January 2006 the Tribunal wrote to the applicant, by letter addressed to his nominated mailing address, advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 January 2006. He was advised that if he did not attend and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

[The reference to "9 January 2006" is in all the circumstances in error as the hearing had been scheduled for 9 February 2006].

On 31 January 2006, the Tribunal received the "Response to Hearing Invitation" form from the applicant indicating that he did not want to attend the hearing. He consented to the Tribunal proceeding to make a decision on the review without taking further action to allow or enable him to appear before it.

In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it."

7. The Tribunal then proceeded to affirm the decision under review on the basis that on what had been put before it, and in the absence of anything further from the applicant, it was unable to reach the requisite level of satisfaction (under s.65 and s.36(2) of the Act) such that the applicant must be granted a protection visa.

8. By way of amended application filed on 2 March 2007, the applicant put one ground before the Court:

"The second respondent fell into jurisdictional error by proceeding to make a decision pursuant to s.426A of the Migration Act, 1958 before the scheduled date of the hearing."

9. At the hearing before the Court, Mr T Ower of Counsel appeared for the applicant. The applicant was present and gave evidence. Ms L Clegg appeared for the first respondent.

10. In all, the Court has relevantly before it:

1. The application of 10 March 2006.

2. A bundle of relevant documents filed by the Minister on 2 May 2006 (the Court Book).

3. The applicant's written submissions filed on 11 April 2007.

4. The applicant's affidavit of an undeclared date filed on 2 March 2007.

5. The first respondent's written submissions filed 16 April 2007.

6. An amended application filed on 2 March 2007.

7. Following the hearing, further supplementary submissions were received from both parties.

11. The applicant's position is that the Tribunal purportedly proceeded to make its decision pursuant to s.426A of the Act in circumstances where the Tribunal had no authority, given the plain language of s.426A of the Act to proceed to make such a decision before the "scheduled" hearing date. Section 426A(1)(b) of the Act empowers the Tribunal to proceed to make a decision on the review if the applicant:

"does not appear before the Tribunal on the day on which or the date and time on which the applicant is scheduled to appear."

By proceeding therefore, to make its decision purportedly pursuant to s.426A of the Act on 6 February 2006, when the scheduled date of the hearing was 9 February 2006, the applicant submitted that the Tribunal did not have the power to act in the fashion that it did.

12. The Minister does not dispute the proposition that s.426A of the Act only applies if the applicant does not appear at the hearing at the appointed day, time and place. The Minister's response, to the applicant's ground however, is that regardless of the application of s.426A of the Act, the Tribunal did have the power to proceed to make a decision on the review because the Tribunal had the apparent express consent of the applicant to proceed to make a decision without taking any further action to allow him to appear before it. This was with reference to the "Response to Hearing Invitation" form at CB 49. The Minister's position is that the Tribunal had complied with its obligations in relation to s.425 and s.425A of the Act, and that s.425(1) of the Act no longer required that a hearing be conducted once the Tribunal had received the notification from the applicant that he consented to the Tribunal deciding the review without his appearing before it. In the alternative, the Minister submitted that while maintaining there was no legal error in the decision of the Tribunal, that if there was such legal error, then it was not a jurisdictional error given that the Tribunal had the clear power to proceed the way it did, by the combination of the applicant's consent, and the effects of s.425(2)(b) and s.425(3) of the Act. That is, given that there was an alternative source of power for the Tribunal to act in the way it did, that any error is an error within the Tribunal's jurisdiction.

13. Further in the alternative, the Minister's position was that as a matter of discretion, relief should be withheld in the event that jurisdictional error is established, because even in the circumstance where the Tribunal misconceived the power upon which it operated, the Court is able, and ought, to adopt a course to give to the decision that which should have been made on the facts in light of further or different considerations (V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018; (2001) 114 FCR 408 at [79]).

14. The Minister also put forward that given the operation of s.430B(4) of the Act, that there was ultimately no "improper" or "misconceived" reliance upon the Tribunal on s.426A of the Act in any case.

15. Legislation relevant to the consideration of this issue includes:

1. Section 425:

"Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal."

2. Section 426A:

"Failure of applicant to appear before Tribunal

(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."

3. Section 430B:

"Tribunal decision to be handed down

(1) This section applies to any decision on a review by the Tribunal other than the following decisions:

(a) a decision that is given orally;

(b) a decision on the application of a person who is in immigration detention.

(2) On the day, and at the time and place, specified in the notice referred to in section 430A, the decision on the review is to be handed down (on behalf of the Tribunal) by:

(a) the Principal Member; or

(b) a person authorised in writing by the Principal Member to hand down decisions.

An authorisation may set out the circumstances in which a person is authorised to hand down decisions.

(3) The Tribunal's decision may be handed down:

(a) by reading the outcome of the decision; and

(b) whether or not either or both the applicant and the Secretary are present.

(4) The date of the decision is the date on which the decision is handed down.

(5) If the applicant and the Secretary are present at the handing down of the decision, the Tribunal must give each of them a copy of the statement prepared under subsection 430(1).

(6) If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1). The copy must be given to the applicant:

(a) within 14 days after the day on which the decision is handed down; and

(b) by one of the methods specified in section 441A.

(7) If the Secretary is not present at the handing down of the decision, the Tribunal must give to the Secretary a copy of the statement prepared under subsection 430(1). The copy must be given to the Secretary:

(a) within 14 days after the day on which the decision is handed down; and

(b) by one of the methods specified in section 441B.

(8) Without limiting the generality of subsections (6) and (7), an applicant or the Secretary is taken not to be present at the handing down of a decision if:

(a) he or she is not at the same location as that of the person who is handing down the decision when the decision is handed down; and

(b) the decision is being handed down by:

(i) telephone; or

(ii) closed-circuit television; or

(iii) any other means of communication.

(9) A reference to the applicant or the Secretary being present at the handing down of the decision includes a reference to a representative of the applicant or Secretary being present."

16. The applicant sought to rely on his undated affidavit filed in Court on 2 March 2007. Ms Clegg formally objected to the affidavit. The affidavit on its face contains a reference to a certification by an interpreter in the Mandarin language, but no certification appears on the face of the affidavit. In any event, the applicant was able to give evidence in Court, and was subsequently cross examined by Ms Clegg.

17. The applicant confirmed that the signature appearing on the "Response to Hearing Invitation" form (as reproduced at CB 49) was his signature and that he had been told to sign it by his agent whom he described as: "somebody whose surname is Chan". The applicant gave evidence that he spoke to Mr Chan on two occasions ("I think twice"), but was unable to recall what was discussed. The applicant said that he did not understand "what the Refugee Review Tribunal is", and did not understand that he had been invited to a hearing of the Tribunal.

18. In cross examination, the applicant said, contrary to his earlier assertion that he had no memory of what occurred at the meeting with his agent, that the agent had told him to sign the "Response to Hearing Invitation" form, and that he signed it. The applicant, however, still maintained that he could not remember any of what was said to his agent, yet when pressed as to possibilities as to what may have transpired at the hearing (that it was open to the applicant to go to the hearing but that it would not make any difference to the outcome of his application), the applicant asserted that the agent did not make any such statements.

19. The applicant provided further contradiction in that he agreed that he knew that he would be asked at some stage to give evidence before the Tribunal, but was unable to say when this knowledge came to him, and stated that "it was all done by my agent". When pressed, the applicant's response was: "I don't understand what you are talking about, I'm empty minded". The applicant also stated that he did not recall making an application in this Court seeking review of the decision of the Tribunal. Further, he claimed, again in contradiction, that he received help with his application to the Court and that this help had been obtained from his "agent" whom he had contacted for assistance in making his application to the Court.

20. Ms Clegg submitted that the Tribunal was able to proceed as it did (not pursuant to s.426A of the Act) because the circumstances that the Tribunal reported ("in these circumstances" - at CB 57.8 - see [6] above) were that the Tribunal had the consent of the applicant to proceed to make a decision on the review, without taking any further action to enable him to appear before it. The Minister relies on the consent provided by way of the "Response to Hearing Invitation" form (CB 49 - putting to one side the issue of whether the consent was informed, and/or induced by the fraud of the agent). Ms Clegg's submission was that s.426A of the Act was not the only basis on which the Tribunal could have proceeded, and the circumstances that the Tribunal referred to (that is, including the applicant's consent) meant that once that consent was given, the effect of ss.425(2)(b) and (3) of the Act meant that the applicant no longer had an entitlement to appear at a hearing before the Tribunal. In those circumstances, it was appropriate for the Tribunal to proceed to determine the review without taking any further action to enable the applicant to appear before it.

21. Mr Ower submitted that once an invitation is issued to an applicant pursuant to s.425(1) of the Act, then there is no other path other than that contained in s.426A of the Act for the Tribunal to proceed to make a decision without enabling the applicant to appear before it. That is, once the invitation has been issued pursuant to s.425(1) of the Act, then the Tribunal must wait until the time and date of the scheduled hearing and then consider the exercise of its discretion pursuant to s.426A. His submission was that the matters set out in s.425(2) of the Act (and this includes s.425(2)(b) of the Act - that is the applicant's consent to the Tribunal deciding the review without the applicant appearing before it) do not apply after the invitation has been issued if the applicant does not appear.

22. His submission was that the matters set out in s.425(2) need to be ascertained before the invitation is sent out pursuant to s.425(1) of the Act. I understood his submission to be that while the Tribunal "conflates" the appropriate steps to be taken (that is, by sending the invitation letter containing the request as to whether the applicant consents to the matter proceeding with, or without, a hearing), that such an action should be taken by the Tribunal prior to a hearing. That is, before issuing an invitation to the hearing pursuant to s.425(1), the Tribunal should obtain the consent of the applicant to decide a review without the applicant appearing before it, or consider whether it should decide in the applicant's favour on the basis of the material before it.

23. Mr Ower relied on what was set out by the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML and Anor [2006] FCAFC 152 ("SZFML") as the "logical steps" required by s.425 of the Act at [62]:

"The logical structure of ss425 and 425A involves the following theoretical sequence:

1. The Tribunal considers whether it should decide the review in the applicant's favour on the basis of the material before it. If it so finds, it can move directly to decision and that is the end of the review process. If it considers that it cannot decide the review on that basis then an invitation must issue unless one or other of the conditions in s 425(2)(b) or (c) is satisfied.

2. The Tribunal asks the applicant whether he or she consents to the Tribunal deciding the review without the applicant appearing before it. If the applicant so consents then the applicant is not entitled to appear before the Tribunal and no invitation need issue. The Tribunal can then proceed to decide the review.

3. If the applicant does not consent to the Tribunal deciding the review in his or her absence the Tribunal must consider whether subs 424C(1) or (2) applies to the applicant. If neither subsection applies then the invitation must issue.

4. The Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

5. The minimum time between giving the applicant notice of the date, time and place of the hearing and the date must be that prescribed in reg 4.35D.

6. If at the hearing the applicant does not appear then the Tribunal may make a decision on the review without any further steps to allow or enable the applicant to appear before it.

7. Notwithstanding the preceding the Tribunal may reschedule the applicant's appearance before it."

24. Mr Ower's submission was that consistent with these "logical steps", once the Tribunal has given the applicant the day, time, and place at which the applicant is to appear for a hearing, then s.425(2)(b) of the Act has no further work to do.

25. I do not agree with the applicant's argument in this regard. First, I note that the circumstances in SZFML, and the circumstances before the Court now can be distinguished. In SZFML, the Full Federal Court considered the Minister's appeal against orders made in this Court on the basis that the applicant in that case "did not consent" under s.425(2)(b) of the Act to the Tribunal deciding the review without her appearing before it (at [83]). The circumstances in that case were that it was the applicant's agent who purported to respond on the applicant's behalf to the hearing invitation and indicated that the applicant did not want to come to a hearing. The Court's judgment turned on the reason that the purported consent to the Tribunal proceeding without a hearing was not "an effective consent" by her, with regard to the evidence that was before the Court at first instance: (see [7], [15], [17], [42]-[46] and [65] - "the Tribunal determined the application for a review without hearing SZFML on the false premise that she had consented to it doing so and therefore on the false premise that she was not entitled to a hearing. That false premise led to a failure of the statutory procedural fairness requirement specified in Division 4").

26. I accept submissions made by Ms Clegg that the basis on which the Full Federal Court found for the applicant in that case does not appear before the Court now. The Tribunal in this case was not relying on any apparent authority of the applicant's migration agent and/or authorised recipient (pursuant to s.441G of the Act).

27. But further in my view, what the Full Federal Court (said at [6]) was that the "logical structure" of s.425 and s.425A of the Act involved ("involves") the "theoretical sequence" that it proceeded to set out. Even without the language used, this in my respectful view needs to be read in light of what the Court said at [54]:

"The primary question for decision is whether the Tribunal was authorised to decide the application for review without a hearing on the basis of the consent to that course purportedly given to the Tribunal by SZFML's agent. The question is one involving the application of the terms of the Act to the facts of the case.

28. Further, at [55]-[57], the Court considered what constituted a "consent" pursuant to s.425(2)(b) of the Act and referred to Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2004] HCA 62; (2004) 221 CLR 1, and in particular to what the High Court said at [10]. The Full Federal Court then said (at [58]):

"It follows that where one of the conditions set out in s425(2) is satisfied the entitlement to appear before a Tribunal established under s425(1) either does not come into existence or ceases to exist and the Tribunal's duty to invite the applicant to appear before it is discharged"

29. With respect, I understood the "theoretical sequence" involved in the "logical structure" of s.425 of the Act as not being the only sequence, theoretical or otherwise, that can be drawn from the relevant parts of Division 4 of Part 7 of the Act. The Full Federal Court not only made reference to the entitlement pursuant to s.425(1) of the Act not coming into existence if one of the conditions set out in s.425(2) of the Act is satisfied, but also (most relevant to the issue under consideration now) contemplated that the entitlement to appear pursuant to s.425(1) of the Act may cease to exist if one of the conditions set out in s.425(2) of the Act is satisfied.

30. Further at [64], the Full Federal Court in SZFML stated that:

"No question of the application of s426A arises. That provision only operates where an applicant has been invited to appear before the Tribunal and does not appear at the time and place at which the applicant is scheduled to appear. In this case the Tribunal proceeded on the basis of the apparent consent tendered on behalf of SZFML. It did not proceed on the basis of her non-appearance at a scheduled hearing."

31. In my respectful view, when taken with what the Court said at [58], and in the context of the circumstances that were found to exist in SZFML, and putting aside the issue of whether the consent given was the applicant's, (which was ultimately the determining issue) it was still the case that the consent (if it had been properly given) was after the invitation to hearing was issued, not before. The Court's reasoning in that matter, with respect, was that the Tribunal had proceeded on a false premise as to the consent tendered on behalf of the applicant, and not that the Tribunal could not have proceeded on the basis of the consent being given after the invitation to the hearing had been issued. Plainly, as set out below, the case before the Court now does not turn on any false premise of the Tribunal having received any such consent through a migration agent.

32. I do not see that the language of s.425 provides for the temporal limitation as submitted by Mr Ower. While it is plainly open for the Tribunal to consider, and act, on each of the matters set out in ss.425(2)(a),(b) and (c) prior to the invitation to hearing being issued, I cannot see that the Tribunal is precluded from considering, and acting, on each of those matters after the invitation has been issued. The plain language of the section is that s.425(1) of the Act creates the obligation on the Tribunal to invite the applicant to appear before it. Section 425(2) provides that s.425(1) "does not apply if" ss.425(2)(a), (b) or (c) were to exist. In my view, I agree with Ms Clegg's submission that this is a case which falls within those cases that stand for the proposition that the Tribunal is entitled to proceed to make a decision where it has complied with the relevant requirements of the Act (NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162 at [16], NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [30]- [37]). Noting of course what the High Court found in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (fraud by an agent satisfies the operation of the legislative scheme - Division 4 of Part 7 - which affords natural justice to applicants).

33. Further, in my view, having sent the letter inviting the applicant to the hearing pursuant to s.425(1) of the Act, it was still open to the Tribunal (with reference to s.425(2)(a) of the Act) to consider, in light of whatever material that was before it at that time, that it should decide the review in the applicant's favour and in those circumstances not to then proceed to the (even in practical terms) unnecessary requirement of a hearing.

34. The Tribunal's letter of invitation is reproduced at CB 45 to CB 46. In that letter (which, other than for references to specific dates, is the standard letter sent by the Tribunal in matters of this type), the Tribunal specified, in addition to the invitation to the hearing, that the applicant could "send us any new documents or written arguments you want the Tribunal to consider" (CB 46.2). Further: "any new documents or written arguments", were to be sent to the Tribunal by 17 January 2006. In the circumstances of this case, this was before the scheduled hearing date of 9 February 2006.

35. In these circumstances, I cannot see that the legislation prevents the Tribunal from considering any new documents or arguments sent by the applicant prior to the scheduled hearing date, and once having considered this material, to find that it is then able to decide the review in the applicant's favour on this material. In these circumstances, in my view, the obligation to invite the applicant to a hearing, and the applicant's entitlement to appear at the hearing, in the words of the Full Court in SZFML at [58] at that time, "ceases to exist" and "the Tribunal's duty to invite the applicant to appear before it is discharged".

36. Similarly s.425(2)(c) of the Act provides that the obligation to invite the applicant to a hearing does not apply if an applicant has been invited to provide additional information (pursuant to s.424 of the Act), or invited to provide comment on information (pursuant to s.424A of the Act), and does not provide the information or comments within the time provided for that purpose. In these circumstances, the Tribunal may then proceed to make a decision on the review without taking any further action to obtain the additional information or the applicant's comments on information.

37. As with the situation relating to s.425(2)(a) of the Act as set out above, if the date in respect of which the information or comments are to be given precedes the date of any scheduled hearing, then at the expiry of that date, without the information or comments having been given, the obligation of the Tribunal to invite the applicant to a hearing and the entitlement of the applicant to appear pursuant to s.425(1) of the Act "ceases to exist" (with reference to SZFML at [58]) and the Tribunal may then proceed to determine the review on what is before it.

38. In my view, the Tribunal may still choose to conduct a hearing, but it is not obliged to do so. Conversely, if the additional information or comments on information were persuasive such that the Tribunal could be satisfied that the applicant meets the relevant criteria for grant of a protection visa, then as with the situation in s.425(2)(a) of the Act, the Tribunal may proceed to determine the review in the applicant's favour on what is then put before it in circumstances where there is no longer the obligation (which has ceased) to proceed to a hearing.

39. Analogous and consistent with this above is where the invitation pursuant to s.425(1) of the Act is issued and the applicant chooses, and consents to the Tribunal proceeding without a hearing (the circumstances in the case now). Even at this later time, the obligation to invite the applicant to a hearing "ceases".

40. Further, to the extent that the applicant's submissions rely on a sequential view of the provisions of Division 4 of Part 7 of the Act (the "logical structure" and "theoretical sequence"), even in light of what the Court said at [58] in SZFML, the majority view of the High Court in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 ("SAAP") is also instructive.

41. In particular, per McHugh J at [60]:

"But this does not mean that s 424A is spent because s 425 is engaged. In other words, the Division [Division 4 of Part 7 of the Act] does not necessarily compel a sequential process, so that once the s 425 procedure has commenced or is in progress, s 424A no longer has any role to play."

"Another argument that favours a construction of the Division for which the appellants contend is that there is nothing in the Division to suggest that the Division is to have a strict sequential operation. If it were, the exercise by the Tribunal of its powers of review would be substantially confined. In the context of the otherwise broad powers of the Tribunal in the conduct of the review, such a result could hardly have been intended by the Parliament."

42. Noting of course what was said in SZBYR and Anor v Minister for Immigration and Citizenship [2007] HCA 26 ("SZBYR") ("anomalous temporal operation"), that the Court was not revisiting the issue considered in SAAP, and the comments in SZBYR were made with:

"attention...to the particular terms...upon the present facts." (SZBYR at [13]).

43. Further, if an additional object of Division 4 (in addition to the obligation to accord procedural fairness to an applicant) is also to "facilitate the quick and efficient determination of applications for review" (see SAAP at [57]), then in my view, a decision by the Tribunal to determine an application in an applicant's favour after an invitation has been issued pursuant to s.425(1) of the Act, based on information or comments received pursuant to s.424 or s.424A of the Act, or indeed otherwise received by the Tribunal, could not mean that a Tribunal is compelled nonetheless to proceed to a hearing simply because the invitation to the hearing has been issued.

44. In the circumstances referred to above (particularised at [35]-[37]) on Mr Ower's submission, the invitation cannot be withdrawn, and the only option for the Tribunal in these circumstances would be to await the date for the hearing, at which the applicant either does not appear, and the Tribunal can then proceed pursuant to s.426A of the Act (presumably to make a favourable decision to the applicant that it could have made a little while earlier) or if the applicant does appear (notwithstanding the earlier advice to the contrary), to have nothing to do other than to advise the applicant that it had already reached the level of satisfaction that the visa should be granted.

45. Conversely, I do not see it as procedurally unfair, in circumstances where the Tribunal complies with whatever relevant obligations do arise, for the Tribunal to proceed to make a decision in circumstances where an applicant has been provided with an opportunity pursuant to either s.424 or s.424A of the Act to provide information, or comment on information, and where a hearing invitation has also been issued for a hearing scheduled at some time after the date by which the comments or information were to be received, and the Tribunal proceeds to a decision where an applicant agrees and consents to the Tribunal doing so without conducting a hearing. I do not see that Division 4 of Part 7 of the Act provides for the type of limitation as submitted by Mr Ower now.

46. In all therefore, I agree with Ms Clegg that the Tribunal did comply with its obligation to invite the applicant to a hearing pursuant to s.425(1) of the Act. The applicant then consented to the Tribunal proceeding to determine the review without conducting a hearing. This consent does invoke the provisions of s.425(2)(b) of the Act and in my view, at that point, the obligation set out in s.425(1) of the Act "ceases to exist".

47. In light of SZFML, I did consider the issue as to whether the applicant's consent to the Tribunal proceeding to make a decision without taking further action to allow him to appear before it involved any false premise on the part of the Tribunal as to the applicant's consent. That is, whether the Tribunal proceeded on a false premise that the applicant had consented to it proceeding to a decision "and therefore on the false premise that" he "was not entitled to a hearing". I considered whether the false premise could be said to have "led to a failure of the statutory procedural fairness requirement specified in Division 4" (SZFML at [65]).

48. Further, I also considered whether any fraud on the part of the migration agent can be said to exist, such that it could be said to have affected the Tribunal's decision in the sense explained by the High Court in SZFDE, leading to a constructive failure of the Tribunal's exercise of its jurisdiction (SZFDE at [52]).

49. While the applicants in SZFML and the current case both engaged migration agents, the circumstances can be distinguished on the basis that in SZFML, the agent responded to the invitation to hearing on the applicant's behalf, and it was the agent who sent notification to the Tribunal indicating that the applicant consented to it deciding the review without her appearing before it. The finding at first instance in that matter (SZFML v Minister for Immigration and Anor (No. 2) [2005] FMCA 1947) was that the applicant did not authorise her agent either generally or specifically, to make such a consent. Therefore there was no such consent for the purposes of s.425(2)(b) of the Act. The Tribunal however, proceeded on the basis of the consent tendered on behalf of the applicant. The Court found that the Tribunal determined the application for review without hearing from the applicant on the false premise that she had consented to it doing so, and on the false premise that she was therefore not entitled to a hearing. This false premise was said to lead to a failure of the statutory procedural fairness requirements specified in Division 4 of Part 7 (SZFML at [65]).

50. In the case before the Court now, the "Response to Hearing Invitation" form was signed by the applicant himself. The applicant's evidence before this Court in examination by his Counsel was that the signature appearing at the foot of this document (as reproduced at CB 49) was his signature. The applicant's evidence was that although he signed this document he did not know why he did so.

51. Beyond that point however, the applicant's evidence was unsatisfactory. Not only under cross examination by Ms Clegg, but even when examined by his own Counsel. The applicant gave contradictory evidence. For example, he asserted that his agent told him to sign the form, but then also said that he could not remember what the agent said to him or what he said to the agent at the relevant meeting with him.

52. Further, when it was put to him in cross examination that it was possible that his agent told him that he had an opportunity to go to a hearing to attend to his case, the applicant asserted that the agent did not tell him that, while at the same time insisting that he had no memory, and could not remember what had occurred at the meeting with the agent, other than he was told to sign the "Response to Hearing Invitation" form. The applicant described himself as "empty minded".

53. The applicant was not believable in the witness box. Despite being in Court in these proceedings, and having made his application to the Court on 10 March 2006 without the assistance of a solicitor on the record, the applicant's evidence was that he could not recall having made such an application and did not understand that he was in Court now because he had signed an application form seeking to review the decision of the Tribunal.

54. The applicant gave evidence, in spite of just having said that he could not recall making an application to this Court, that he had received assistance with this application from his migration agent whom he had contacted earlier to assist him for this purpose ("I did contact him before for assisting in this"). I further note the applicant's evidence that he did not seek that the agent come and give evidence to assist him in relation to the circumstances surrounding the signing of the "Response to Hearing Invitation" form containing his consent to the Tribunal.

55. This can clearly be contrasted with the situation in SZFML where the evidence accepted by the Court was that the applicant had not given her consent. Both the applicant and her migration agent both gave evidence at first instance in that case (see SZFML v Minister for Immigration and Anor (No. 2) [2005] FMCA 1947 at [27]- [54]). The Court accepted the applicant's evidence as having "the ring of truth to it" and found it significant that the agent was unable to give the Court relevant details (see SZFML at [44]-[45]). On this evidence, the Court was satisfied, and found that the applicant had not consented to the Tribunal proceeding to decide the review without enabling her to appear before it.

56. The applicant's evidence before the Court now did not have the "ring of truth" about it. The applicant claimed to remember certain things which were to his advantage (that his agent told him to sign the form), but at the same time insisted that he could not remember anything at all about any conversation with his agent. I cannot be satisfied on the applicant's evidence that he did not consent to the Tribunal proceeding to determine his application without his appearing before it. I am satisfied that there is at least a very strong inference that he did give such consent.

57. I also note in this regard that in submissions, Mr Ower submitted that what could be taken from the applicant's evidence was that he was "by no means a very sophisticated person". But as to whether the applicant's evidence was helpful in relation to the issue as to whether he had consented, and as to whether he understood the nature of the document reproduced at CB 49, Mr Ower described that he: "wouldn't put it highly".

58. Given what is set out above, nor is there evidence before the Court such that it could be said that there was fraudulent conduct by the agent. Further for that matter there is insufficient evidence before the Court to say (for the reasons already referred to above as they relate to the issue of consent) that the agent acted in bad faith or fraudulently such that a finding of fraud can be made out.

Factual Error, Legal Error: Jurisdictional Error

59. While for the reasons set out above, I am of the view that the Tribunal was able to proceed to determine the application prior to the scheduled hearing date (for reason that the obligation to invite the applicant pursuant to s.425(1) of the Act had ceased because of the applicant's consent pursuant to s.425(2)(b) of the Act), I did consider whether the Tribunal stating that it proceeded to make, in these circumstances, the decision pursuant to s.426A, might nonetheless be said to be an error such that it was an error in the exercise of its jurisdiction and such as to form a basis for the relief that the applicant seeks.

60. Ms Clegg submitted that at the time of decision, the Tribunal most probably did not appreciate that the date of the scheduled hearing had not yet passed, and that its error in this regard was a factual error and not one that could be characterised as a legal error. There is perhaps some support for this proposition to be found in the Tribunal's decision record. At CB 57.5 the Tribunal made reference to it having written to the applicant on 10 January 2006 inviting the applicant to a hearing but then said:

"The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 January 2006"

Plainly, this should have been "9 February 2006".

61. But whatever the situation in this regard, I do accept Ms Clegg's "alternative submission" (without conceding) that even if the Tribunal's stated reliance upon s.426A of the Act is "a legal error", it is still an error within jurisdiction because at the time of the making of its decision, the Tribunal did have the power to proceed in the way that it did. This is because of the applicant's consent provided to the Tribunal pursuant to s.425(2)(b) of the Act, leading to the obligation to invite the applicant to a hearing pursuant to s.425(1) of the Act ceasing to exist.

62. What is plain from the Tribunal's reasons for proceeding at the time, even if it was mistaken in its reference to s.426A of the Act, is that the circumstances to which the Tribunal referred, and in which it said it proceeded to make its decision, were that the applicant had consented to the Tribunal "proceeding to make a decision on the review without taking further action to allow or enable him to appear before it" (CB 57.7). The Tribunal did not need to rely on s.426A of the Act in order to make its decision. The decision was made within its jurisdiction to do so. I agree with Ms Clegg that a reference to a source of power that did not enable it to so proceed does not affect the validity of the exercise of the power if another source of power exists. See Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [124] per Heydon J, Brown v West [1990] HCA 7; (1990) 169 CLR 195, Harris v Great Barrier Reef Marine Park Authority [1999] FCA 437 at [8]- [22]; [1999] FCA 437; (1999) 162 ALR 651 at 654-657).

63. Further in this regard, I note that a distinction can be drawn between s.426A of the Act and those other parts of the procedural code as set out in Division 4 of Part 7 which provide for mandatory obligations imposed on the Tribunal. For example, with reference to s.424A of the Act, the Tribunal must give to the applicant any information which it considers would be a reason or part of the reason for affirming the decision under review. While exceptions to this exist, the obligation is mandatory subject to those exceptions. Similarly, with the invitation to appear at a hearing, it is mandatory for the Tribunal to invite the applicant to appear before it, unless one of the conditions set out in s.425(2) of the Act is in existence.

64. This can be distinguished with s.426A of the Act. Under s.426A of the Act, the Tribunal is not obliged to proceed to make a decision on the review without taking any further action to allow or enable an applicant to appear before it. Such action is discretionary. Had the Tribunal breached any of the statutory mandatory obligations, for example, had it not invited the applicant to a hearing in circumstances where none of the conditions in s.425(2) of the Act had come into existence, then this would have been jurisdictional error on the part of the Tribunal (see for example, SAAP).

65. Within this statutory code, a failure to provide an applicant with an opportunity of a hearing or a failure to comply with the requirements set out in s.424A of the Act, given that these are the stated and mandatory procedural fairness provisions, can be distinguished from a discretionary power which the Tribunal purported to exercise in a particular way in circumstances where it was plainly available to the Tribunal to proceed to the same result, but in circumstances where there was no breach of any procedural fairness obligation owed to the applicant. That is, the applicant gave his consent to the Tribunal proceeding to determine the review, without taking further action to enable him to appear at a hearing before it.

66. Further in this regard, I also agree with Ms Clegg that even based on the applicant's own evidence to the Court, he would not have attended the hearing before the Tribunal on the scheduled hearing date in any event. Again this can be distinguished from the case in SZFML where the applicant indicated that she did wish to attend the hearing, and attended on the scheduled date, which had been cancelled by the Tribunal, where cancellation had been notified her agent but not her. Further, where she, on the evidence, had no knowledge of the rescheduled hearing date because of the action of her agent who informed the Tribunal that she did not wish to attend without her knowledge.

67. Further, the purported reliance on s.426A ultimately made no difference to the outcome in this case. It is, as Ms Clegg submits, on the evidence before the Court, clear that even if the Tribunal had waited until the scheduled hearing date, the applicant would not have appeared at the hearing and the same decision (albeit consistent with the requirement in s.426A of the Act) would have been made. The Tribunal's conduct therefore did not serve, in a practical sense, to visit injustice upon the applicant (Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1; 195 ALR 502 at [37] and per Gleeson CJ and McHugh and Gummow JJ at [106], Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [147]).

68. In all therefore, in the case before the Court now, the Tribunal discharged its obligation to invite the applicant to a hearing pursuant to s.425 of the Act. The applicant gave his consent to the Tribunal proceeding to determine the application for the review without his attending a hearing pursuant to s.425(2)(b) of the Act, and the Tribunal then proceeded to make its decision on what was before it. The mandatory obligation to invite the applicant to a hearing ceased with the giving of the applicant's consent.

69. Mr Ower has not submitted any jurisdictional error on the part of the Tribunal in the way that it subsequently went about determining the review, or any error arising from its findings and reasons. For the reasons set out above, no jurisdictional error is revealed on the Tribunal's part.

Alternative Basis: Tribunal Acted Pursuant to s.426A

70. Given the finding above that there was no jurisdictional error in the Tribunal's decision, it is not strictly necessary to address the following issue. However, I do so as the matter was raised with the parties during the hearing, and formed the basis of supplementary submissions from both parties, and in my view, in any event, does establish an alternative basis for dismissing the application before the Court.

71. The applicant's complaint is that in mistakenly relying on s.426A of the Act, the Tribunal proceeded to make its decision on 6 February 2006 which was on a date prior to the scheduled hearing date to which the applicant had been invited. The applicant's argument as set out above is that it was only on that date, pursuant to s.426A of the Act, that the Tribunal had the power to then proceed to make its decision.

72. The Minister submits that an alternative basis for dismissing the applicant's complaint is that with reliance on s.430B(4) of the Act, that the decision was made on 16 February 2006, and not on 6 February 2006. Further, that 16 February 2006 is plainly after the date on which the hearing had been scheduled to occur.

73. Section 430B(4) states that the date of a Tribunal decision is the date on which the decision is handed down. The Minister submits that a practical effect of this is that the time for seeking judicial review of a decision of a Tribunal, commences only after the date on which the Tribunal has completed its task, and is functus officio.

74. Ms Clegg submitted that the Tribunal continues to exercise jurisdiction until the handing down of a decision, given the provisions of s.430B(1) and s.430D of the Act. (I note this does not apply to decisions that are given orally, or a decision on an application of a person who is in immigration detention - neither circumstance which is applicable in the case now), and that any information received or taking place between the making of the decision and the handing down must be taken into account by the Tribunal. See: X v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 319 ("X") per Gray J at [23]-[24] and Moore J at [38], Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73; (2001) 109 FCR 18 per Merkel J at [19]-[51], SZEUZ v Minister for Immigration and Anor [2005] FMCA 967 per Smith FM at [32] and NAHP v Minister for Immigration [2004] FMCA 145 per Barnes FM at [16], with references to SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 at [26], to X and to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [44] per Mason J.

75. The Minister's argument is that if the Tribunal is taken to have continued to exercise its jurisdiction until 16 February 2006, then its purported reliance on s.426A of the Act (as at 6 February 2006) is a reliance that continues until it concludes its task by handing down its decision pursuant to s.430B of the Act. Therefore, even if as at 6 February 2006 the Tribunal did misconceive its reliance on s.426A, any such error is effectively rectified by the operation of s.430B(4) of the Act, as at 16 February 2006 which was plainly well after the scheduled hearing date of 9 February 2006.

76. Ultimately therefore, the applicant's complaint about the Tribunal's reliance on s.426A of the Act is addressed by the obligation on the Tribunal to continue to exercise jurisdiction until the date of the handing down of the decision. In this case, certainly by that time, the condition set out in s.426A(1)(b) of the Act, that is that the applicant did not appear on the date of the scheduled hearing date, was well and truly met. The Minister submits that such a construction is supported by the statutory scheme of the review of protection visas as set out in Part 7 of the Act. Further and ultimately, that it cannot be forgotten that at the time of the handing down of the decision, the Tribunal was permitted, as at that time, indeed as at 9 February 2006, to proceed pursuant to s.426A of the Act, and to have made its decision in circumstances where the applicant did not appear at the hearing.

77. In response, Mr Ower submitted that there is a clear difference between the "making" of a decision and the "date" of the "final decision". In support of this, he argues:

1. It is Division 4 of Part 7 that is the exhaustive statement of the natural justice hearing rule (given s.422B) and that with reference to SAAP at [77], relevantly, s.425 and s.426A must be interpreted "strictly". Section 430B falls outside Division 4 and on its face is not concerned with the matters affecting the "natural justice hearing rule".

2. Section 430B can be distinguished from s.426A of the Act in that it does not refer to the "making" of a decision, but the "date" of the decision.

3. When construed in context with s.430 of the Act, which deals with the preparation of a "written statement" setting out the "decision" and "reasons for the decision", that it is clear that the decision is "made" before the Tribunal invites the applicant to appear for the "handing down". As a matter of logic therefore, the decision is "made" before the invitation to the handing down of the decision is extended to the applicant pursuant to s.430A of the Act.

78. The applicant's submission therefore, was that the decision before the Court now was prepared and finalised as a written statement on 6 February 2006 (see CB 61 - the date on which the Tribunal member signed the decision record), that the invitation to the handing down was sent on the following day (see CB 50 to CB 52) and that the terms of that letter referred to:

79. Mr Ower's submission in all was that the Tribunal had no authority to proceed to make a decision pursuant to s.426A of the Act, before the scheduled hearing date (9 February 2006) and given that s.426A of the Act must be interpreted "strictly" that the decision therefore was made before the scheduled hearing date. Further, that s.430B(4) of the Act does not deem the decision to have been "made" when it is handed down. The "date" of the decision is different from the making of the decision. Mr Ower's submission was that while this may have consequences for the running of time for an appeal of the Tribunal's decision, if it were intended to have consequences for the rights of an applicant to be afforded natural justice, then this section would have been enacted in Division 4, and not Division 5. Mr Ower submitted that the construction of this section, which allows for "the curing of a contravention of s.426A", by the simple measure of delaying the 'handing down' of the decision would necessarily require the importing of words into the section to the effect that the date on which the decision is made is the date on which the decision is handed down. His argument was that this is not what is stated in s.430B(4) of the Act and that it is not possible to read "is made" into s.430B(4) of the Act.

80. While he acknowledged that the respondent was right in pointing to authority supporting the proposition that the Tribunal is not functus officio until the handing down of the decision, he submits that the fact that the Tribunal's "decision" continues to be exercised up until this time, has no bearing on the fact that the Tribunal can make no decision pursuant to s.426A of the Act if the prerequisites are not met. He argued that the potential to change a decision once made up until the time it is handed down, does not justify the making of the original decision pursuant to s.426A of the Act.

81. Mr Ower is correct to point to the placement of s.430B of the Act in Division 5 and not in Division 4 (which is, of course the exhaustive statement of the natural justice hearing rule). He is also correct in the submission that the plain wording of s.430B(4) of the Act refers to the date of the decision being the date on which it is handed down and does not use language referring to the "making" of the decision.

82. Notwithstanding that however, I am attracted to the first respondent's submission. Both parties agree that the Tribunal is not functus officio until it hands down its decision. Mr Ower provides no argument or authority to counter the Minister's reference to that line of authority that proposes that the Tribunal continues to exercise jurisdiction until the handing down of the decision. If this line of authority is correct and applicable, and the Tribunal continues to exercise jurisdiction until the handing down of the decision, which by virtue of s.430B of the Act, is said to be the "date" of the decision, then this allows for the decision to have been said to have been made at the later, and not the earlier, time.

83. In my view, it is inconsistent to say that a decision is "made" (as implicit in this is that the Tribunal's exercise of its jurisdiction in making the decision ceases) but that there can then be some sort of continuing exercise of its jurisdiction in the "making" of its decision that exceeds beyond that point. To argue as Mr Ower does, casts in doubt the appropriateness of the authority referred to above, which proposes that there is an obligation on the Tribunal to consider any relevant material up until the time it becomes functus officio. That is, up until the time it has handed down its decision.

84. Further, s.426A of the Act, which does make reference to the "making of a decision", does not make any reference as to the timing of the making of such a decision such that it could be said that a decision could not be "made" at the time of the handing down of the decision. The elements of s.426A of the Act provide for an invitation pursuant to s.425 of the Act to appear at a hearing, and if the applicant does not appear at the scheduled time, plainly, the Tribunal may make a decision at that time.

85. But I do not see that it limits the making of such a decision only at that time and not at some time later. That is, up until the time of the handing down of the decision. In this light, I am attracted to the Minister's submission that while the Tribunal was "in error" as at 6 February 2006 in purporting to proceed pursuant to s.426A of the Act (although for the reasons set out above it still acted within its jurisdiction) that this error is rectified by the operation of s.430B(4) of the Act and that at 16 February 2006, which was well after the scheduled hearing date, the condition necessary to enable the Tribunal to have proceeded pursuant to s.426A of the Act had been met.

86. In all however, I dismiss the application currently before the Court on the basis as set out above. While the Tribunal was in error in stating that it proceeded to a decision pursuant to s.426A of the Act, nonetheless the applicant's consent to the Tribunal's proceeding without enabling the Tribunal to appear at a hearing before it, meant that the obligation that the applicant be given the opportunity of a hearing pursuant to s.425(1) of the Act ceased at the time of the applicant giving his consent pursuant to s.425(2)(b) of the Act. The Tribunal therefore acted within its jurisdiction in proceeding to make a decision. In these circumstances, no jurisdictional error is made out by the applicant. The application is therefore dismissed.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Nicholls FM