SZKGF v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The appellant is a citizen of the People's Republic of China. He arrived in Australia in December 2004 and lodged an application for a protection visa on 19 January 2005. A delegate of the Minister refused to grant the visa and the appellant sought review of that decision. The Refugee Review Tribunal affirmed the delegate's decision. In August 2005, by consent, that decision was set aside by Gyles J on 8 August 2006 and remitted to a differently constituted tribunal (Tribunal). The appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court where his application was dismissed; [2007] FMCA 2153. 2 The appellant now appeals from his Honour's decision. His grounds of appeal are that the Tribunal had made a jurisdictional error in that it had not complied with s 424A of the Migration Act 1958 (Cth) and that its reasons were irrational, illogical and biased. 3 When the matter was called on for hearing there was no appearance by or on behalf of the appellant. Efforts were made by the Court Officer and the Registry staff to locate the appellant and to ensure that he was not in some other area of the Court. These efforts were unsuccessful and eventually the matter was called on for hearing. In such circumstances s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to dismiss the appeal however, Counsel for the Minister, Mr Lloyd, informed us that his client would prefer the matter to be heard because issues in this appeal have arisen in a number of other cases. We agreed to do so. 4 As Mr Lloyd observed the only real issue in this appeal arises from the inclusion of an incorrect postcode on two letters sent to the appellant and received and acted on by him. The issue is the significance of this error on the validity of the Tribunal's decision and/or the availability of any relief. No particulars were given to support the allegation of irrationality and bias and, in the absence of any submissions from the appellant, we see no reason to disagree with the views expressed by the learned Federal Magistrate in dismissing these claims; see in particular [16] and [19] of his Honour's reasons. 5 The facts relevant to the postcode issue may be stated briefly. During September 2006 the appellant notified the Tribunal of a change of address. By letter dated 4 October 2006 the Tribunal sent an invitation to the appellant to attend a hearing before the Tribunal. That letter was sent to the correct number and street address in Surry Hills but stated the postcode as 2000 whereas the correct postcode is 2010. Notwithstanding this the letter clearly reached the appellant who responded that he would attend the hearing and did in fact do so. At the hearing he gave further evidence that conflicted with the information given in his application for a protection visa and with the evidence given to the first tribunal. 6 Following the hearing the Tribunal sent a letter, dated 28 November 2006, to the appellant apparently pursuant to s 424A of the Migration Act. The letter pointed out inconsistencies between the appellant's evidence given in his application, before the first tribunal and at the hearing before the Tribunal. It invited him to comment. As with the previous letter, this letter was correctly addressed except that the Tribunal again used the same incorrect postcode. Once again it is clear that the appellant received the letter as he immediately responded stating that what he had said in his initial application was correct. On 25 January 2006, the Tribunal handed down its decision affirming the delegate's decision. 7 An application for judicial review of the Tribunal's decision was dismissed by Scarlett FM on 18 December 2007. In relation to alleged jurisdictional error based on failure to comply with s 424A of the Migration Act, the Federal Magistrate, at [25], accepted that Minister's submission that there had been no jurisdictional error as "perhaps despite the Tribunal's efforts rather than because of them" the Tribunal's errors had no effect on the discharge of its substantive obligations. His Honour observed that the submission was "clearly correct both in law and at commonsense". His Honour also referred to the observations of Madgwick J in SZJSP v Minister for Immigration and Citizenship [2007] FCA 1925at [28]-[30], a decision which he held was binding on him. 8 In considering this appeal it is necessary to remember that there has been no practical injustice. Despite the Tribunal's difficulty in correctly addressing its communications to the appellant, he received both invitations. He attended the hearing and responded to the s 424A letter. There is no suggestion that he was in any way inhibited in putting to the Tribunal any information or submission he wished to make. It seems to us to be plain that the appellant lost no opportunity to advance his case: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [37]-[38]. 9 Given that the appellant's case was remitted to the Tribunal for a further hearing, an issue might have arisen as to whether it was necessary for the Tribunal to issue a further invitation under s 425 to attend a hearing. We are inclined to the view that no such invitation was required; see NBKM v Minister for Immigration and Citizenship [2007] FCA 1413 at [15]-[32] and SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713 at [16]; cf SZHLM v Minister for Immigration and Citizenship [2007] 98 ALD 567 at [34]. It is not necessary for us to decide that question however as the appellant was invited to the second hearing and did attend. 10 Similarly, we do not believe that it is necessary for us to decide if the letter of 28 November 2006 complied with the requirements of s 424A as, in our view, no obligation arose under that section. That letter referred not to "information that would … be the reason … for affirming the decision that is under review" but to inconsistencies between information given at the hearings and on earlier occasions. As the High Court held in SZBYR v Minister for Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]: However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. 11 In any event there are cogent reasons for concluding that the postcode is not part of the address and therefore the use of the incorrect postcode did not result in non-compliance with s 424A(2)(a). On this point see the views expressed by Emmett FM in SZLBR v Minister for Immigration and Citizenship [2008] FMCA 154 at [39]-[40]. 12 Even if the postcode is properly to be regarded as part of the address, the question would arise as to whether the use of the incorrect postcode constituted a jurisdictional error. In Tasker v Fullwood [1978] 1 NSW LR 20 at 24, the NSW Court of Appeal said that in such circumstances it is relevant to consider the extent of the failure to observe the statutory requirement. Moreover in Victoria v Commonwealth (1975) 134 CLR 81 at 179 Stephen J pointed to the need to examine the extent of non-compliance in the particular case "to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute". Relying on these authorities, Mr Lloyd advanced persuasive arguments that use of the incorrect postcode would not result in jurisdictional error however it is not necessary to decide that issue and, in the absence of a contradictor, we do not do so. 13 As we earlier remarked, the clear absence in this case of any practical injustice or even inconvenience to the appellant resulting from the postcode error is such that, were we to find that there had been a jurisdictional error, we would, in the exercise of our discretion decline to grant relief. As Mr Lloyd summarised it: This is a case where [the Court] can be satisfied that any breach could have had no effect upon the Tribunal's decision …: no hearing was missed; no invitation to comment left unanswered; no delay caused; no prejudice suffered. 14 The circumstances that may attract an exercise of discretion adverse to an applicant are discussed in Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [56]-[57]. As Mr Lloyd commented in his written submissions: In the circumstances of that case, [Aala] this discretionary ground was not available because the denial of natural justice deprived [the prosecutor] of the possibility of a successful outcome… There the prosecutor had not had the opportunity to advance evidence that he had wanted to advance. That is very different from the present case. 15 See also Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam at [38] where Gleeson CJ observed that there the appellant had suffered no practical injustice and no procedural unfairness. A lack of practical injustice was also the basis for and exercise of the discretion to refuse relief in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [56]-[57]. See also SZJSP v Minister for Immigration and Citizenship at [28]-[29] where Madgwick J remarked at [29]: To set aside the Tribunal's decision and require reconsideration of the appellant's claims de novo would be, … to allow the triumph of mere technicality over substance …. 16 Our attention was drawn to the appeal in SZIZO v Minister (NSD 1936 of 2007) in which a Full Court has recently reserved its decision. Counsel informed us that this appeal "raises some similar questions as to whether a jurisdictional error is made out when a possible non-compliance has no material consequence and/or whether relief should be refused in such a case" in the exercise of the Court's discretion. Despite the similar questions in the two appeals the factual difference are such that we do not consider that the decision in either of these appeals would necessarily determine the outcome of the other. 17 For the above reasons the appeal must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Stone, Jacobson and Edmonds.