SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 | Case summary

8 The name, address and phone contact details of the appellant husband's and the appellant wife's eldest daughter were completed in Section D. The appellant husband nominated his eldest daughter as the authorised recipient. She was, at the date the document was signed, 21 years of age. It would be inappropriate to include that information in these reasons: s 91X of the Act. All of the appellants lived at the same address. 9 On 13 February 2006 the Tribunal wrote to the appellant husband at that address explaining what would follow as a result of the application for review. 10 The letter indicated that the appellant husband should inform his wife and four children about the letter, and "any reply will be regarded as a joint response unless we are advised otherwise." 11 On 28 February 2006 the Tribunal wrote again to the appellant husband at the address inviting him and any persons "listed above" to come to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The letter is endorsed with the words "Mailed 28/2/06". It was indicated that the hearing would take place on Thursday, 23 March 2006 at 11.30 am at Level 11, 83 Clarence Street, Sydney. Again, the appellant husband was told that he should inform his wife and four children about the letter and, again, that "any reply will be regarded as a joint response unless we are advised otherwise." The letter was accompanied by a "Response to Hearing Invitation" form. 12 If ss 441A(4) and 441C(4)(a) of the Act apply, then the letter is deemed to have been received by the appellant husband on 9 March 2006. 13 The letter was sent to the appellant husband in purported compliance by the Tribunal of its obligation to invite an applicant who has applied to the Tribunal for review of a decision to appear before the Tribunal: s 425. Section 425A(3) says that in giving a notice under s 425 the period of notice given must be "at least the prescribed period". The period has been prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) commencing when the applicant received notice of the invitation to appear before the Tribunal and ending at the end of 14 days after the day on which the notice is received. 14 The notice of the hearing, therefore, was valid for the purpose of s 425A and reg 4.35D, as the period of notice given was at least the prescribed period. 15 In fact, the s 425A notice of invitation to appear must have been brought to the appellant husband's attention by at least 6 March 2006 because, on that day, he signed the "Response to Hearing Invitation" form indicating that he wished to attend the hearing; that no family member wanted a separate hearing; and that he would need an Arabic interpreter. He indicated that he wanted the Tribunal to call two witnesses. 16 The Tribunal hearing record shows that, in fact, the appellant husband did appear and so also did his wife, eldest child and three other children. The hearing record shows that the appellant husband, the appellant wife and their eldest child, who was incidentally the authorised recipient, all gave evidence before the Tribunal on 23 March 2006. 17 This is a case where the appellant husband nominated his eldest child to be the authorised recipient to receive all correspondence but the Tribunal continued to correspond directly with the appellant husband and, in particular, sent the s 425A notice to him. There is no evidence as to whether the appellant husband ever read the s 425A notice but he did sign the Response to Hearing Invitation form on 6 March 2006 and he did, as did all of the appellants, attend the hearing on 23 March 2006 at which he and his wife and eldest child gave evidence. 18 The appeal first came before a judge of this Court on 12 February 2008. At that time, the first respondent's then counsel, Mr J K Smith, who was junior counsel on the hearing of the appeal before the Full Court, brought to the Court's attention a matter that was not considered by the Federal Magistrate in the Court below, namely, that the Tribunal gave the s 425A notice to the appellant husband rather than the authorised recipient. He submitted that the matter ought to be heard by a Full Court. The judge thought it appropriate for the appellate jurisdiction of the Court to be exercised by a Full Court: s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth). At the same time, the judge referred the appellants to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to the appeal. The appellants were referred in due course to Ms B K Nolan of counsel. Thereafter, an amended notice of appeal was filed which abandoned the grounds originally relied on by the appellants when they were unrepresented and substituted a single ground of appeal: The Federal Magistrate erred in failing to hold that the decision of the Refugee Review Tribunal ("the Tribunal") was rendered infirm by jurisdictional error and was therefore invalid because the decision of the Tribunal was made after a breach of section 441G of the Migration Act 1958 (Cth), namely that the Tribunal failed to give the authorised recipient, instead of the applicant for review ("the applicant"), any document that it would otherwise have given to the applicant. 19 The first respondent consented to the notice of appeal being amended in accordance with the ground mentioned above. The appellants were right to abandon the grounds of appeal originally advanced. 20 Because this appeal raises questions of construction of various sections of the Act, it is necessary to say something of the scheme of the Act insofar as it is relevant to applications for protection visas. 21 Section 36 of the Act provides for a class of visas to be known as protection visas and identifies the criterion for a protection visa. Section 45 provides that a non-citizen who wants a visa must apply for a visa of a particular class. The Minister has the power to grant a visa: s 29. The Minister's powers under the Act can be delegated to any person who is subject to the directions of the Minister: s 496. 22 Subdivision AB of Division 3 of Part 2 of the Act provides a "Code of procedure for dealing fairly, efficiently and quickly with visa applications". 23 Section 54 of the Act requires the Minister, in deciding whether to grant or refuse to grant a visa, to have regard to all of the information in the application. The applicant for a visa may continue to provide the Minister with any additional relevant information up until the time the Minister has made a decision whether to grant or refuse to grant the visa and the Minister must have regard to that information in making the decision: s 55(1). 24 The Minister, on the other hand, may, if he or she wants, get any information that he or she considers relevant to the application but, if the Minister does get such further information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa: s 56(1). 25 In considering the application, the Minister is obliged to give particulars of the relevant information which would be a reason or part of a reason for refusing to grant the visa and otherwise particulars of the kind mentioned in s 57(1)(b) or (c). 26 An application for a visa must be considered by the Minister within 90 days, with the 90 days starting on the day on which the application was made or on the day prescribed by regulations in prescribed circumstances: s 65A. 27 The Minister also has the power to cancel visas, the powers for which are identified in s 118 of the Act. The Act provides for a procedure for cancelling visas: Subdivision E of Division 3 of Part 2. 28 The Act provides for a procedure whereby a decision to refuse to grant a protection visa or a decision to cancel a protection visa can be reviewed by the Tribunal: s 411. 29 An application for review of a decision by the Tribunal must be made within 28 days after notification of the decision: s 412. 30 If a valid application is made under s 412 for review of a decision to refuse to grant or to cancel a protection visa, the Tribunal must review the decision: s 414(1). 31 The Tribunal, exercising its powers of review, has all of the powers and discretions that are conferred by the Act on the person who made the decision: s 415(1). 32 Section 420 provides that the Tribunal is obliged in carrying out its functions to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick: s 420(1). In that regard, the Tribunal, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case: s 420(2). 33 Division 4 of Part 7 provides for the conduct of review. Section 422B provides that the division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters with which the Tribunal is dealing: s 422B(1). Although s 422B was introduced into the Act by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), it was not part of the Act under consideration in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294. 34 Division 4 imposes a number of obligations upon the Tribunal in satisfaction of the natural justice hearing rule. First, it permits the Tribunal to get any information that it considers relevant but, if the Tribunal gets such information, the Tribunal must have regard to it in making a decision. The Tribunal is obliged, pursuant to s 424A, to give to the visa applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review and to ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review and invite the applicant to comment on it. The information and invitation must be given to the applicant who is not in immigration detention by one of the methods specified in s 441A: s 424A(2). 35 If a person who is invited under s 424 to give additional information, or invited under s 424A to comment on information, does not give the information or comment before the time for giving it has passed, the Tribunal can then make a decision on the review without taking any further action to obtain the additional information or comment: s 424C(1) and (2). 36 Section 425 obliges the Tribunal to 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: s 425(1). However, no invitation need be given if the Tribunal considers that it should decide the review in the applicant's favour; or the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or s 424C(1) or (2) applies to the applicant. No invitation need issue to an applicant who has previously been asked to provide information or comment but not responded. 37 Where an applicant is invited to appear before the Tribunal, 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: s 425A(1). If the applicant is not in immigration detention, the notice must be given to the applicant by one of the methods specified in s 441A: s 425A(2)(a). The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period: s 425A(3). The notice must contain a statement of the effect of s 426A: s 425A(4); and notify the applicant both that he or she is invited before the Tribunal to give evidence and of the effect of s 426(2): s 426(1). 38 Section 426 permits the applicant, within seven days of receiving a notice under s 425A, to request the Tribunal to obtain oral evidence from a person or persons named in the notice: s 426(2). Although the Tribunal must have regard to the applicant's wishes in that regard, the Tribunal is not required to obtain evidence from a person named in the applicant's notice: s 426(3). 39 If an applicant who is invited under s 425 to appear before the Tribunal does not 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: s 426A(1). 40 Section 427 invests the Tribunal with powers for the purpose of the review of a decision. The Tribunal is empowered to take evidence on oath or affirmation; to give information to the applicant and to the Secretary of the Department; to require the Secretary to arrange for the making of any investigation or any medical examination that the Tribunal thinks necessary, and to give the Tribunal a report; and to adjourn the review from time to time. 41 The Tribunal may summon a person to appear before the Tribunal or summon a person to produce documents to the Tribunal: s 427(3). It may require a person to give evidence either on oath or affirmation and administer an oath or affirmation to a person appearing: s 427(3)(c) and (d). The Tribunal may allow a person to appear before it by telephone, closed-circuit television or any other means of communication: s 429A. 42 The Tribunal may authorise a person mentioned in s 428(1) to take evidence on oath or affirmation: s 428(1). The power to authorise may be exercised inside or outside of Australia and upon such terms of limitation as are specified by the Tribunal: s 428(2). A person so authorised has all of the powers of the Tribunal under s 427(1) and the power to administer an oath or affirmation: s 428(3). 43 The hearing of an application for review by the Tribunal must be in private: s 429. 44 Division 5 of Part 7 deals with the way in which the Tribunal records decisions and hands down those decisions. Relevantly, the decision must be in writing: s 430(1). The applicant must also be given notice when the decision is to be handed down: s 430A(2). If the applicant is not present when the decision is handed down, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the written statement: s 430B(6). If the Tribunal gives a decision orally, the Tribunal must give the applicant a copy of the statement within 14 days after the decision concerned is made: s 430D(1). 45 Division 6 of Part 7 deals with offences and, in particular, with witnesses who fail to attend as prescribed by summons issued by the Tribunal (s 432), or who attend but refuse to be sworn or make an affirmation (s 433), or who obstruct or hinder the Tribunal or disrupt the taking of evidence by the Tribunal (s 434). 46 Division 7A of the Act deals with the giving and receiving of review documents. Importantly, s 422B(2) provides that this division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. Section 441A details the methods by which the Tribunal may give documents to a person other than the Secretary of the Department. The Registrar or an authorised officer of the Tribunal may hand the document to a person: s 441A(2). The Registrar or an authorised officer of the Tribunal may hand the document to another person who is at the last residential or business address provided to the Tribunal and who appears relevantly to live or work there and who appears to be at least 16 years of age: s 441A(3). The Registrar or authorised officer may fax or email or transmit electronically a document to the last fax number, email address or other electronic address provided to the Tribunal: s 441A(5). 47 Section 441A(4) provides: (4) Dispatch by prepaid post or by other prepaid means Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Tribunal by the recipient in connection with the review; or (ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review. 48 Section 441C deals with when a person is taken to have received a document from the Tribunal. It deals with each of the methods of giving a document to a person provided for in s 441A. Relevantly, s 441C(4) provides: (4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or (b) in any other case - 21 days after the date of the document. 49 The purpose of s 441A is to provide a code by which documents are provided to a recipient and the purpose of s 441C is to provide a code for deeming the day of receipt of those documents by a recipient. In the latter case, that avoids the necessity of inquiring into when, in fact, the recipient received the documents. 50 Section 441G deals with authorised recipients. It provides: (1) If: (a) a person (the applicant) applies for review of an RRT-reviewable decision; and (b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review; the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method. (2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document. (3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient. (4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication. (5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal. 51 The purpose of s 441G is to allow the applicant to appoint an authorised recipient to receive the documents which the applicant would otherwise have received himself or herself. The section allows, therefore, an applicant to advise the Tribunal that his or her migration adviser or legal adviser is to be the authorised recipient and receive the documents that the applicant otherwise would have received. 52 In many cases, applicants for protection visas are unable to speak or read English and it is in their interests that the document be received by someone who is fluent in the English language and who can advise them in relation to any document that has been received from the Tribunal. It may also be important, having regard to the need to act urgently, that the authorised recipient receive the document and act upon it in the applicant's interest immediately upon its receipt. 53 If an applicant for a protection visa has nominated an authorised recipient, s 441G obliges the Tribunal to give that person any document it would otherwise have given the applicant. By doing so, the Tribunal is deemed to have given the document to the applicant: s 441G(2). It may, as s 441G(2) makes plain, also give the document to the applicant. The Tribunal must give the document to the authorised recipient in accordance with one of the methods in s 441A. 54 The decision of this Court in Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565 would support one caveat to that proposition. In that case, the Court was concerned with the construction of s 477 of the Act. That section provides: 477 Time limits on applications to the Federal Magistrates Court (1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision. (2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if: (a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and (b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so. (3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period. (4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section. 55 The Court decided that service on an authorised recipient did not satisfy s 477(1). It found that s 477(1) requires actual service on the applicant before time runs. Buchanan J (with whom Gyles and Jacobson JJ agreed) said at [47]: The result is that so far as the limitation periods in s 477 are concerned applicants with authorised recipients will be treated in the same fashion as applicants without authorised recipients. Before their right to apply for judicial review of a decision of the RRT which is alleged to be beyond jurisdiction is extinguished it will be necessary for the periods of time prescribed by s 477 to pass after the applicant is given personally the written statement required by s 430(1) of the Act to be prepared by the RRT. 56 In that case, the Court decided that s 441G was a deeming provision and service pursuant to that section was not effective for the purposes of s 477. 57 That decision does not impact on the general proposition referred to above. Section 477(1) requires actual service on the applicant in all cases. 58 If the Tribunal chooses to adopt the method in s 441G(1), it will have satisfied that subsection if the envelope in which the document is enclosed is addressed to the authorised recipient by name and residence: Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84. 59 The first respondent advanced a number of contentions to support a holding that the Tribunal had complied with its obligations to provide the appropriate person with the documents. None of those contentions, in my opinion, should be accepted. 60 In this case, the applicant appointed an authorised recipient under s 441G. The notice under s 425A had to be given by one of the methods specified in s 441A: s 425A(2). The first respondent contended that, because notice was given in accordance with s 441A(4), s 425A(1) was complied with. In my opinion, that argument must be rejected. Compliance with s 441A in the giving of a document to a recipient does not discharge the Tribunal from other obligations it has under the Act. If an applicant has appointed an authorised recipient under s 441G, then any document that the Tribunal would otherwise have given to the applicant must be given to the authorised recipient in accordance with one of the methods of service under s 441A. That is simply what s 441G says. 61 It was contended by the first respondent that by the eldest daughter signing the application for review under the words "[u]nless I advise the Tribunal otherwise, I authorise the Tribunal to communicate with Applicant 1 or his or her authorised recipient about this application", all of the appellants authorised the appellant husband to receive correspondence on their behalf for the purpose of the review. I reject that submission. 62 By signing the application for review, all of the appellants, except the appellant husband, authorised the Tribunal to communicate with, relevantly, the appellant husband or his or her authorised recipient (if there was one). It was implicit in the authority, if there was an authorised recipient, that the Tribunal communicate with the authorised recipient. 63 The first respondent also contended that there is no obligation under s 441A to address the document at all and, in those circumstances, it would be sufficient to give a notice simply to a person's address. I would reject that argument. The purpose of s 441A is to ensure, as far as reasonably practicable, that any document that the Tribunal must give or wishes to give an applicant (or indeed any person) will come to the attention of that person. The purpose of the section is to ensure that the Tribunal adopts one of the methods in the section. 64 Section 441A(4) does not contemplate that the Tribunal would send a letter to an address without indicating who is intended to be the recipient of the letter. Indeed, s 441A(1) and the heading to s 441A speak of giving a document to a person. Subsection (4) assumes that the letter will be addressed by indicating the person to whom it is sent and that person's last known address for service or last residential address. The fact that the subsection does not mention that the recipient's name and description should be included on the envelope is not surprising. It would be assumed by almost everyone that where one sends a document by post to another person the envelope in which the document is contained will indicate the person (or corporation perhaps) who is the intended recipient and that person's residence. Such a construction is consistent with the relevant definition of "address" in the Macquarie Dictionary, "a direction as to name and residence inscribed on a letter, etc". 65 It was argued that by sending the document to the eldest daughter at the same address that the Tribunal had complied with s 441G because the document had been sent to her address. I reject that argument. The notice was addressed to the appellant husband. It may be assumed that the envelope was addressed in the same way. In my opinion, notwithstanding that the notice was sent to the authorised recipient's address, it cannot be said that the Tribunal discharged its obligation under s 441G(1) and gave the notice to the authorised recipient instead of the appellant. 66 In VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570, the Court was called upon to consider s 494D(1) of the Act which is, relevantly, in the same terms as s 441G. In that case, the applicant had nominated an authorised recipient. The Tribunal sent its decision to the appellant care of the authorised recipient. The Court held at 579: What is clear is that s 494D(1) is enlivened only when the relevant document, in this instance the letter of 3 January 2002, was "given" to the authorised recipient. It must be given to the authorised recipient by one of the means provided for in s 494B. Clearly the addresses contemplated then in s 494B(4)(c)(i) and (ii) for dispatch by prepaid post are those applicable to the authorised recipient, and not some other addresses such as those of the appellant or of some other person. The letter of 3 January 2002 was not addressed to the authorised recipient. It was addressed to the appellant, care of the authorised recipient. The factual consequence was that the authorised recipient did not consider the letter was addressed to her. She notified the appellant of the letter addressed to him at her address, and the appellant in fact arranged the collection of the letter from the post office. We do not consider the letter of 3 January 2002 was, in the circumstances, given to the authorised recipient. The respondent's contention to the contrary may be tested by reference to s 494B assuming the letter was to be given to the appellant. If the letter had been addressed to another person (not the appellant) at care of the appellant's last address for service (see s 494B(4)(c)), it could not be said to have been given to the appellant. That is clearly not the intention of the legislature about how s 494B(1) and (4) should operate. 67 In my opinion, the position is plain and that is that the notice given under s 425A was given only to the appellant husband and not to the authorised recipient. That, in my opinion, means that the Tribunal did not comply with its obligations under s 441G of the Act, which requires that where an applicant has nominated another person to be the authorised recipient the Tribunal must communicate with that person. 68 It was put that the notice must have come to the attention of the authorised recipient. There is no evidence to that effect. It is clear that it came to the attention of the appellant husband, as I have already said, because he signed the Response to Hearing Invitation on 6 March 2006. But it is not surprising it came to his attention as it was sent to him. There is nothing in what happened after the Tribunal posting the notice that would indicate that the notice must have come to the attention of the authorised recipient. She must have learned, of course, that the hearing was to be on Thursday, 23 March 2006 at 11.30 am because she attended. But that does not mean that she ever saw the notice. Even if she did see the notice, that would not mean that the Tribunal has complied with s 441G. The Tribunal's obligation under s 441G was to give the authorised recipient the document. A constructive delivery would not be sufficient. There must be a physical delivery of the document to the authorised recipient: WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190. 69 It was contended by the appellants that the failure by the Tribunal to comply with s 441G demonstrated jurisdictional error and that the decision of the Tribunal had to be quashed and the application to the Tribunal remitted to it for further consideration. 70 The first respondent contended that even if the Tribunal did not comply with s 441G that in the circumstances of this case the failure of the Tribunal to comply with s 441G did not demonstrate jurisdictional error. In support of that contention, it was submitted first, that the notice under s 425A was given within the prescribed time; secondly, that it was given to one of the appellants; thirdly, all of the appellants attended the hearing; and fourthly, the relevant appellants gave evidence at the hearing. 71 In those circumstances, it was contended that the review hearing had proceeded in accordance with the natural justice hearing rule as provided for in Division 4 of Part 7. 72 The purpose of Division 4 is to provide a method by which an applicant can seek to have the Minister's or the Minister's delegate's decision reviewed to determine whether that decision should be affirmed. The review is a full merits review. Division 4 is designed to accord procedural fairness to an applicant seeking a review. The review is to be conducted by an inquisitorial Tribunal, which obliges the Tribunal to obtain information relevant to the visa application, subject to any limitations in the Act itself. Because it is inquisitorial and not adversarial, the applicant is not entitled to be represented by any other person (s 427(6)(a)) or cross-examine any other person giving evidence (s 427(6)(b)). Nor is the applicant entitled to insist upon the Tribunal receiving evidence from witnesses: s 426(3). It is for the Tribunal to judge whether it would assist the Tribunal in determining the question before it to hear evidence from any particular witness. 73 The Division assumes that the Tribunal will gather relevant information from a number of sources. The Secretary must, of course, provide the documents prescribed in s 418 which are in the Secretary's possession or control. The Tribunal is given all the powers of the Minister, if the Minister made the decision under review, or the Minister's delegate, if the delegate was the decision maker. The Division contemplates that the Tribunal will obtain further documents and information from sources apart from the applicant. The Division requires the Tribunal to have regard to any information it gathers and also to bring any information to the attention of the applicant for the applicant's comment if that information may be used for the purpose of affirming the decision under review. Whilst the Tribunal is said to be conducting a review, it does so on the information which it obtains from the Department, the delegate, the applicant and any other source. The information which it may accumulate may be quite different to that which the delegate had when the delegate made a decision. Natural justice is further provided to the applicant by requiring the Tribunal to invite the applicant to the hearing except in the circumstances mentioned in s 425(2). The purpose of requiring the Tribunal to invite the applicant to the hearing is to ensure that the applicant has an opportunity of putting his or her case to the Tribunal considering the review. It is important that the applicant receive notice of that invitation. 74 There are three procedures which are mandated by the legislation. First, the Tribunal must give the applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. Secondly, except in the circumstances mentioned in s 425(2), the Tribunal must invite the applicant to appear before the Tribunal. Thirdly, the Tribunal must conduct a hearing. 75 Each of those procedures which are mandated by the Division must be complied with: SAAP 228 CLR 294. Moreover, since that decision, the legislature has made it plain that this subdivision ought to be understood as incorporating all of the obligations necessary for an administrative decision-maker to discharge the natural justice hearing rule. If the Tribunal fails to provide the applicant with the benefit of any of those procedures which are mandated by the Division, the Tribunal will have failed to discharge "imperative duties" or to observe "inviolable limitations or restraints" found in the Act and would commit jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 76 The Tribunal will have given an applicant proper notice of an invitation to appear before the Tribunal if the Tribunal gives notice in accordance with s 425A. 77 Proper notice will have been given, therefore, if notice is given to the applicant in accordance with s 441A. But, where the applicant has nominated an authorised recipient, the notice which is given under s 441A must be given to the authorised recipient pursuant to s 441G. 78 The question in this case is whether, where an applicant has nominated an authorised recipient, there is an imperative duty resting upon the Tribunal to give notice under s 425A to the authorised recipient rather than the applicant. 79 The appellants contended that ss 441A and 441G are an exhaustive statement of natural justice and procedural fairness requirements as to service and notice, and they interact with the provisions of ss 425 and 425A, also exhaustive statements of natural justice and procedure fairness requirements as to the obligation to invite applicants to a hearing. It was put that the failure to comply with the statutory regime necessarily meant that the Tribunal had made a decision without jurisdiction. The Tribunal's decision was not therefore a privative clause decision (s 474) and must be quashed. 80 The first respondent contended, in the alternative to the submissions to which I have referred, that if the Tribunal had not complied with its obligation to give notice to the authorised recipient, the failure to comply with that statutory obligation did not invalidate the Tribunal's decision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490. 81 In that case, McHugh, Gummow, Kirby and Hayne JJ in a joint judgment said at [93]: In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". (Footnotes omitted.) 82 If there has been a failure by a statutory body to comply with a statutory condition, the failure will not render a decision made subsequent to that failure necessarily invalid. Whether or not the breach will result in invalidity is not assessed by determining whether the obligation was couched in mandatory or directory terms. It therefore will not necessarily be fatal to the decision that there was a breach of a procedural condition for the exercise of the statutory power. Instead, the inquiry into the validity of the decision must commence with the decision and the court should ask itself whether the act done in breach of the statute should be invalid. For that inquiry, the scope and object of the statute and the particular provision will inform the answer. 83 The first respondent took the Court to Tasker v Fullwood [1978] 1 NSWLR 20 where Hope, Glass and Samuels JJA said at 23-24: From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty. Ltd. case. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v. Beaumont. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v. The Commonwealth. (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty. Ltd. case. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v. The Commonwealth. (Footnotes omitted.) 84 Apart from VEAN of 2002 133 FCR 570, there is other authority of this Court in relation to cognate sections. 85 In Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181, the appellant applied for a business visa which the Minister's delegate refused. The appellant then applied to the Migration Review Tribunal for the review of that decision. The appellant appointed an authorised recipient pursuant to s 379G(1) of the Act. The Tribunal sent a letter to the appellant care of his authorised recipient at the authorised recipient's address. The Court held that the Tribunal had failed to comply with s 379G of the Act because it had not given the communication to the authorised recipient. 86 In SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199 the Court, constituted by the same members as in Lee 159 FCR 181, held that, where an applicant had nominated his migration adviser as his authorised recipient, the Tribunal had failed to comply with its statutory obligations in addressing an invitation to appear to the applicant. 87 In my opinion, the provision of s 422B, which makes the content of Division 4 and Division 7A, together with ss 416, 437 and 438 a complete code for the discharge of the Tribunal's obligations in relation to the natural justice hearing rule, suggests that Parliament intended that there be strict adherence to each of the procedural steps leading up to the hearing. Each of the procedural steps is imperative and must be complied with in the manner described in the Act. 88 There is good reason why the Tribunal should give notice to the authorised recipient instead of, or in addition to, the applicant. 89 As I observed earlier, in most cases, applicants for protection visas do not speak English. In many more cases, the applicants are not literate in English. In most cases, applicants do not have access to translating services. Most applicants do not have the benefit of the social structures which native born Australians have, such as an extended family. In many cases, applicants have no real knowledge of the nuances which would allow them to claim refugee status. Few understand what Australia's obligations are under the Refugees Convention. 90 Where, therefore, an applicant has nominated an authorised recipient, usually it will be for the purpose of having that person assist the applicant to present the applicant's case at the hearing. I do not mean by that that the authorised recipient is to be nominated for the purpose of representing the applicant at the hearing. That is not the purpose for nominating the authorised recipient. The purpose of the nomination of the authorised recipient is to allow the applicant to have access to someone who can advise them in relation to communications from and to the Tribunal. In many cases where a nomination is made of an authorised recipient, were the applicant to be given the notices under s 424A or s 425A, the applicant would not understand the notice or know how to respond. Even if the applicant took the notice to the authorised recipient after receiving it, it may be that the applicant will not have time to respond and therefore suffer the consequence rendered by s 424C or s 426A. In my opinion, any failure by the Tribunal to comply with s 441G will, if uncorrected before the hearing takes place or the decision made, mean that the Tribunal will have committed jurisdictional error. 91 That leads to the rather absurd conclusion that is demonstrated by the facts of this case. In this case, whilst the Tribunal failed to comply with s 441G, the appellant husband was aware of the invitation as early as 6 March 2006 and all of the appellants attended the hearing and those that wished gave evidence. In fact, no unfairness or prejudice was visited upon any of the appellants by reason of the Tribunal's failure to comply with its statutory obligation. 92 The first respondent contended that if the Court was of the opinion that consideration needed to be given as to whether the constitutional writs would issue, then the Court should, in the exercise of its discretion, decline to do so. 93 It was contended by the first respondent that this Court should follow the decision of Madgwick J in SZJSP v Minister for Immigration and Citizenship [2007] FCA 1925. It was contended there is nothing in the decision of SAAP 228 CLR 294 inconsistent with the approach adopted by his Honour. It was said that the observations of McHugh and Hayne JJ are to be read in light of the observation by Kirby J that the failure to provide the written document in that case did have potential ramifications for procedural fairness. See also SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 per Kirby J at [74]-[77]. 94 The appellants contended, however, that this Court should proceed in accordance with the views of Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 where their Honours said at [58]-[59]: It is one thing to refuse relief on the ground of utility because, as Lord Wilberforce put it, "[t]he court does not act in vain". For example, the application for an administrative determination may be one which, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse. Or the prosecutor's complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor. Again, the decision under review may have no legal effect and no continuing legal consequences may flow from it. In such a situation, the reasoning in Ainsworth v Criminal Justice Commission, where the remedy refused was certiorari, indicates that prohibition will not lie. However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for "trivial" breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v). (Footnotes omitted.) 95 In SAAP 228 CLR 294, McHugh J said at [83]-[84]: However, where the relevant breach is the failure to observe fair decision-making procedures, the bearing of the breach upon the ultimate decision should not itself determine whether the constitutional writs of certiorari and mandamus should be granted. If there has been a breach of the obligation to accord procedural fairness, there is jurisdictional error for the purposes of s 75(v) of the Constitution. There is no reason to rewrite the limitation ordinarily implied on the statutory power to deny jurisdictional error for "trivial" breaches of the requirements of procedural fairness. If the decision of the tribunal is invalid for want of procedural fairness, there is no reason to withhold discretionary relief. There is nothing to suggest that the conduct of the appellants warrants the refusal to exercise the discretion. There is no suggestion of delay, waiver, acquiescence or unclean hands. Whether the first appellant was in fact deprived of a relevant opportunity to deal with the adverse material received by the tribunal from her eldest daughter should not affect the discretion to grant relief. (Footnotes omitted.) 96 At [207], Hayne J adopted the dicta of Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala 204 CLR 82. It is right, as the first respondent has contended, that Kirby J took into account the existence of a document which may have contained critical facts. However, he did agree with Hayne J that the contentions advanced for the refusal of relief on discretionary grounds should be rejected: [174]. 97 It should be only in exceptional circumstances that a Court should refuse to issue the constitutional writs once the Court has determined that the Tribunal had failed to comply with its imperative statutory obligations to an applicant seeking the review of a decision of the delegate refusing the applicant a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted. 98 There is no suggestion that the appellant husband knew when he appeared before the Tribunal that there had been a breach by the Tribunal in its statutory obligations so it is unsurprising that no complaint was made of unfairness or prejudice by the authorised recipient not having received the invitation under s 441G. This Court does not know when she learned of the invitation or whether she suffered any prejudice. 99 In SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84, the Full Court, in the exercise of its discretion, refused to issue the constitutional writs where a s 424A notice to the appellant omitted the appellant's post code. The appellant did not appear on the appeal. As the Full Court observed on that appeal, speaking of this appeal, the factual differences in the two cases are such that the decision on either appeal could not determine the result in the other appeal. 100 The appeal therefore should be allowed. The Federal Magistrate's orders at first instance dismissing the applicants' application for judicial review and ordering the applicants to pay the first respondent's costs should be set aside. 101 In lieu thereof there should be an order quashing the decision of the Refugee Review Tribunal made on 16 May 2006 and an order remitting the applicants' application for a review of the decision of the delegate of the Minister to the Refugee Review Tribunal for determination according to law. The first respondent should pay the appellants' costs of the appeal. I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

SZIZO v Minister for Immigration and Citizenship

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Judgment (11 paragraphs)

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