SZLLY v Minister for Immigration and Citizenship

5. While his brother maintained a good economic position, the applicant found it "difficult to manage". He started work in a local factory. After some two years, and "much economic shortage", a relative advised him to start a cotton trading business. With help, the business did well ("slowly my business increased").

6. Ultimately, the applicant sought to expand and he was introduced to a "trader" who was "Muslim". With his help, the business expanded. However, following changes by the Gujarat State Government in relation to excise duty on the transportation of cotton, the price of cotton increased and he lost customers. He lost business and at some time the "Muslim trader" called him and "scolded" him. Ultimately, the "Muslim trader" refused to make payment for cotton that the applicant had delivered to him. Following further difficulties the applicant was unable to make payments to his suppliers and further lost business.

7. He claimed that he was warned that if he sought payment from those who owed him money they would kill him. The applicant was unable to repay a debt to a particular dealer. There was a quarrel at his home and the dealer purportedly gave him "warnings of life". He and his wife were frightened and although he sought to relocate to a nearby town, the people to whom the applicant owed money found him and they started "hitting" his wife and son. The applicant and his wife left India and came to Australia because he was unable to repay the debt and they were "under pressure and danger". (I note that the applicant's son and daughter remain in India (see CB 4).) The applicant blamed his "problems" on the "Muslim merchant".

5 It will be seen that this provided very little from which a well-founded fear of persecution for a Convention reason might be discerned. On 15 May 2007 a delegate of the Minister refused the appellants' application for a visa. The appellants applied for a review of that decision by the Tribunal. On such a review the Tribunal exercises all the powers and discretions of the Minister and may affirm or vary the decision, or set aside the decision and make a new decision: s 415. Upon the making of an application for review the Tribunal may determine the matter in an applicant's favour without the necessity for an oral hearing: s 425(2). However, if the Tribunal is not able to form the favourable opinion that the review should succeed it must invite the applicant to a hearing. So much flows from s 425 which provides: (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.

(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.

6 On 10 July 2007, the Tribunal came to the view that it could not accede to the application on the material before it and hence it issued an invitation to the appellants as required by s 425(1). The invitation fixed the hearing for 9.30 am on 21 August 2007 at Clarence Street, Sydney. It was made plain that a Gujarati translator would be available. Given the apparent difficulties with the appellants' application this oral hearing was likely to be significant from their point of view. The invitation was sent to the appellants at an address in Griffith in New South Wales. The day before the scheduled hearing the husband sent a fax to the Tribunal which stated that he was "keenly willing" to appear but that he was in great financial hardship as a result of which he was unable to travel to Sydney. He stated that he had heard it was possible to obtain a hearing in Griffith without the travelling expense inherent in the almost 600 km distance from Griffith to Sydney. He reiterated his lack of finance, noted he had no job and finished by saying that he wished to discuss his situation with the Tribunal. 7 In the events which transpired, the hearing did not go forward on 21 August 2007. On 22 August 2007 the Tribunal or, more precisely, an officer of the Tribunal wrote to the husband. It is useful to set out part of that letter: The Tribunal Member has asked me to write to you about your failure to attend the hearing scheduled for you on 21 August 2007. The Member notes that you informed the Tribunal by fax on the evening of the 20 August 2007 that you wished to attend a hearing but you could not afford to travel to Sydney to attend your scheduled hearing.

The Tribunal does not accept that the cost of travelling from Griffith to Sydney for a hearing is a valid reason for re-scheduling your hearing and organising a video hearing.

However as you have stated that you do wish to attend a hearing the Tribunal has scheduled a new hearing. The Member has decided not to hold the hearing via a video conference and your attendance is requested in person at our Sydney office as indicated below. Please be advised that your inability to attend this second hearing may not be accepted by the Tribunal.

Please note that the scheduled hearing date allows you time to organise appropriate travel to attend the hearing in Sydney and that with the exception of the new date and time, all other details about the hearing, as set out in the hearing invitation letter dated 10 July 2007 still apply.

8 The letter went on to fix a fresh date for the hearing being 30 August 2007. It fixed the hearing time at noon. Consistent with its refusal to hold a video conference the hearing was scheduled to take place in Sydney. On 30 August 2007 - that is, on the re-scheduled day of the hearing - the husband sent a facsimile to the Tribunal. It was in these terms: I am writing about my RRT application. I was keenly willing to appear my hearing. I wrote you in my previous letter to reschedule my hearing in Griffith Town. I live in this town. I am casual seasonal worker/Labor and work in farm Agriculture. Currently due to draught affected area, I am not getting job, and currently unemployed and in financial hardship. This is my situation and I am not able to attend this hearing today. Please do favourable decision in my matter. 9 This was sent at 12.15 pm, that is, after the appointed time had already passed. It is useful to note that the husband continued to claim that his attendance was made impossible by the lack of a job and his financial position. It is also relevant that he did not seek a further adjournment or video hearing but appeared to accept that such a hearing would not now occur and, instead, simply repeated his enthusiasm to attend, if it had been possible, and sought, in the circumstances, a favourable outcome. 10 The attendance section of the Tribunal's record of the hearing records the words "no show". The Tribunal is authorised to deal with a review if an applicant does not appear at the scheduled hearing. So much flows from s 426A which provides: (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.

11 This the Tribunal did. On 31 August 2007 the member constituting the Tribunal signed his reasons for affirming the earlier decision to refuse to grant the protection visa sought. The decision was delivered on 20 September 2007. The Tribunal recounted the events leading to the hearing on 30 August 2007 in these terms: However, on 20 August 2007, after close of business, the applicant sent a fax to the Tribunal expressing his willingness to give oral evidence to the Tribunal but asking that his hearing be conducted by video link to Griffith as he could not afford the expense of travelling to Sydney to appear in person. Attached to the fax was a copy of the hearing invitation of 10 July 2007.

On 22 August 2007 the Tribunal wrote to the applicant indicating that it was not prepared to conduct the hearing by video link but as the applicant's had expressed willingness to give oral evidence the Tribunal offered the applicant a further hearing scheduled on the 30 August 2007. The Tribunal sent this hearing invitation by express post both to his residential and his mailing address. The Tribunal set this hearing for midday to avoid the application incurring accommodation expenses in coming to Sydney to attend the hearing.

On 30 August 2007 the Tribunal received a fax from the applicant stating that he was in financial hardship and could not attend the hearing as scheduled and requested the Tribunal to make a favourable decision in his matter.

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.

12 Those reasons do not advert, as the Tribunal's letter of 22 August 2007 does, to the Tribunal's refusal to accept the excuse proffered for non-appearance as a "valid" reason for either adjourning the hearing or conducting it by way of video conference. However, I have no particular difficulty in inferring that that was the reason the Tribunal acted in the way that it did on 21 August 2007. So far as the rescheduled hearing is concerned, the husband had not, of course, sought a further adjournment for a video hearing. 13 The Tribunal then went on to explain why it did not think it was appropriate to grant a visa. It pointed to the fact that merely making a claim that one fears persecution does not establish that one falls within Art 1A of the Convention. Of course, that was essentially all that the appellants had done in their application. The Tribunal concluded: The Tribunal has a number of issues upon which it requires a good deal more detailed evidence before it could be satisfied that the applicant's claimed fear of harm on returning to India is for a Convention reason.

The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.

14 So far as the first paragraph of this quote is concerned it might be noted that it is with doubts of that kind that s 425 is concerned. If, on the material before it, the Tribunal cannot reach a conclusion favourable to an applicant it must invite that applicant to a hearing. It is that same hearing which the husband had expressed a strong desire to attend.

The Federal Magistrates Court 15 The appellants applied for a quashing of the Tribunal's decision to the Federal Magistrates Court which determined that application by refusing it on 31 July 2008. The appellants presented three reasons why the writs should issue. Two of these were meritless and were found by the federal magistrate to be so. No appeal is brought from his Honour's conclusions about those grounds. The remaining issue was a suggestion that the Tribunal had used information which was adverse to the appellants without giving them an opportunity to respond apparently contrary to s 424A(1). The federal magistrate held this also to be without merit. That issue is pursued in this Court. 16 The federal magistrate went on to consider whether the circumstances of the refusal to grant a hearing by way of video conference might have implications for the application. It is not clear to me whether this was actually in the amended originating process in that Court. However, it is convenient to proceed on the basis that it was. His Honour concluded that the time fixed for the hearing on both occasions was reasonable, that the Tribunal was not obliged to hold a video hearing and that it was open to the Tribunal not to accept that the cost of travelling from Griffith to Sydney was a valid reason for the appellant's absence from the hearing. In those circumstances, the federal magistrate dismissed the application.

Issues 17 The appellants raised only one issue in this Court. It was: (a) whether the Tribunal used information adverse to the appellants without giving them an opportunity to be heard. During the course of the hearing, however, the following issues also became apparent: (b) whether s 425 required the appellants to be given a real and meaningful invitation to attend the hearing; and (c) whether, if it did, such an opportunity was afforded to them.

First issue: whether there was compliance with s 424A 18 Section 424A requires an applicant to be given certain information for comment if that information is to form part of the Tribunal's reasons for decision. Importantly, "information" is defined in s 424A(3)(b) as not including information provided by an applicant. The Tribunal relied upon the husband's account and it alone. Its conclusion was that insufficient information had been provided for it to determine the matter favourably to the appellants. There was, therefore, no information of the kind with which s 424A is concerned. The federal magistrate's conclusion to this effect is clearly correct.

Second issue: whether s 425 required the appellants to be given a real and meaningful invitation to the hearing 19 The Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 establishes three propositions which are pertinent. First, the invitation contemplated by s 425 must not be a hollow shell or an empty gesture: 128 FCR 560 [33]. Secondly, another way of putting the first requirement may be to say that the Tribunal must provide a "real and meaningful" invitation: 128 FCR 561 [37]. Thirdly, what is real and meaningful is to be objectively determined and the obligation exists whether or not the Tribunal is aware of the circumstances which would defeat that obligation: 128 FCR 553 [37]. In SCAR, an invitation was held not to comply with s 425 because, unbeknownst to the Tribunal, the applicant was not in a fit mental state at the time that the hearing took place. 20 There is debate within this Court as to whether SCAR was correctly decided. The competing views (or some of them) are collected in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 389 [94] per French J and 416-417 [211]-[212] per Graham J. Recently in SZHKA v Minister for Immigration and Citizenship (2008) 103 ALD 248 Gray J (with whom Gyles J generally agreed) said this of the requirements of s 425 (at 250 [5]): Thus, it is recognised that the requirement of an invitation to a hearing, found in s 425(1), will not be met if what is actually afforded to the applicant is not a hearing at which the applicant is able to give evidence and present arguments relating to the issues arising in relation to the decision under review. See, for instance, Minister for Immigration and Multicultural Affairs and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; 75 ALD 151; [2003] FCAFC 126 at [37].

21 It is never open to a single judge of this Court to decline to follow a Full Court decision such as SCAR. More is this so when the decision has been recently applied by another Full Court. 22 There is a real issue, however, as to whether the introduction in s 422B(3) of an obligation on the Tribunal to act in a way which is fair and just has rendered the debate about the correctness of SCAR otiose. The significance of s 422B(3) does not yet appear to have been fully appreciated. It had previously been held by a Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at 600 [139] per Merkel and Hely JJ that the effect of s 422B(1) was that there was "no longer an obligation on the part of the RRT to afford applicants before it a fair hearing". 23 Section 422B(3) was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth) ("the Amending Act"). Upon its introduction into the Senate the Minister for Justice and Customs explained it thus: The bill will also insert new provisions into the act, expressly requiring the tribunals, when applying the requirements and procedures set out in relevant divisions of the act (which are an exhaustive statement of the requirements of the natural justice rule), to act in a way that is fair and just.

24 The common law hearing rule was, of course, predicated on procedural fairness. The effect of s 422B(1) was to embody exhaustively the hearing rule in Pt 7 Div 4. Since, however, there was nothing in Pt 7 Div 4 to indicate that any of the procedural powers within it were to be used fairly it followed, as was pointed out in NAMW, that those powers could be used in ways which were not fair without any infringement of Pt 7 Div 4 occurring. The pronouncement in s 422B(1) of the exhaustive nature of Pt 7 Div 4 made it impossible to argue that there was some other implication of fairness. Section 422B(3) restores, as a procedural concept, fairness and justice. In that context, those words are not references to substantive notions of justice or fairness but can usefully be compared with the content of the same words in the expressions "natural justice" and "procedural fairness". It may be that the statutory obligation of fairness in s 422B(3) renders much of the debate about SCAR unnecessary. However, it is not necessary to reach a view on that question because s 422B(3) does not apply to this case. Clause 33 of Schedule 1 to the Amending Act makes s 422B(3) inapplicable to applications for review filed before 29 June 2007. The present application was filed on 7 June 2007. Section 422B(3) does not apply. 25 In this Court the Minister's submission was that SCAR was inapplicable because it was not shown objectively that the appellant could not attend the first hearing. The question of whether that was shown was, of course, a question for this Court. There is some evidence that the appellant could not attend. It is constituted by the appellant's facsimile to the Tribunal of 20 August 2007 which in terms said that he was in great financial hardship and could not attend. There was no attempt before the federal magistrate to resist the admission of the facsimile and, so far as I can see, no attempt to limit its use pursuant to s 136 of the Evidence Act 1995 (Cth) so that it was not admitted as evidence of the truth of its contents. That being so, it is some evidence of the objective circumstances of the appellant. 26 There were two other potential sources of material. The first was the Tribunal's own rejection of that letter as a "valid" reason for holding a video conference. However, it is difficult to place too much weight on this for it is not clear whether the word "valid" connotes a rejection of the truth of the content of the facsimile or a rejection of the ability of that excuse, even if accepted, to serve as a reason for holding a video conference. The second, potentially, was the Minister. I say "potentially" because when the SCAR issue was raised in this Court the Minister did not seek to resist it, for example, on the basis that it would be unfair to permit the issue to be raised because it denied him the opportunity to meet the contents of the facsimile with other evidence about the objective circumstances: cf Suttor v Gondowda (1950) 81 CLR 418 at 438 per Latham CJ, Williams and Fullagar JJ. There is, therefore, no procedural impediment to considering the question. 27 There is no material from the Minister which tends to contradict the contents of the facsimile. I draw no inference from the absence of that evidence for it is not to be supposed that the Minister knew any more about the objective circumstances of the appellant than the Tribunal did. However, it highlights that the contents of the facsimile are uncontradicted. It is not necessarily the case that uncontradicted evidence must be accepted. However, in this case I see no reason to reject it. It follows that I accept that as at 20 August 2007 the appellant was financially unable to attend the hearing with the consequence that there was no real invitation given as required by s 425(1). 28 The Minister submitted that a (then reserved) decision of Middleton J in SZLBE v Minister for Immigration and Citizenship [2008] FCA 1789 had some bearing on this issue. In that case the applicant was unwell on the scheduled day. Subsequently the applicant informed the Tribunal that she was sick on the original day and then sought a further adjournment but without providing any basis for that adjournment. Middleton J detected no error in the decision of the Tribunal not to grant the further adjournment. His Honour was prepared to assume the applicability of SCAR but thought that the case before him could be determined on the basis of the correctness of the decision to proceed in the absence of the applicant: [26]-[30]. 29 This was because it was (at [28]): not a situation where the operative decision arose from the failure to give any 'real or meaningful' invitation. Rather, the situation arose after a consideration of the appellant's letter of 30 May 2007 requesting a rescheduling, and the failure of the appellant to provide any basis acceptable to the Tribunal not to proceed to hear and determine the matter pursuant to s 426A of the Act.

30 As Middleton J noted, the Full Court's decision in NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [35]-[36] per Ryan, French and Nicholson JJ is authority for that proposition. Thus it follows that the reasonableness of the invitation objectively determined includes a consideration of any reasonable requests by the Tribunal for a good reason to justify an adjournment and the response received from the applicant. No doubt questions of pragmatism strongly support such a view but it has two consequences which, so it seems to me, make the operation of SCAR problematic. First, it means the status of the invitation under s 425(1) fluctuates with time. What may start life as an invitation which does not satisfy the requirements of SCAR may become one that does if an applicant does not respond to a reasonable request for an explanation of the reason for an adjournment. Secondly, this reasoning would appear, at least in principle, to permit the Tribunal to issue an unreasonable invitation and rely upon it so long as an applicant failed, when asked by the Tribunal, to give some good reason why he or she could not comply. 31 However, the reasoning in NALQ and SZLBE has no application in the present circumstances. The Tribunal did not ask the husband for any supporting material to make good his claimed inability to attend. It simply issued the pronouncement that his proffered reason was not a valid one. Unlike SZLBE the appellant was not given an opportunity to make good his claim that he could not attend. 32 In those circumstances, the appellants are entitled to relief. I make orders accordingly. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate: Dated: 4 March 2009 The appellants appeared in person.

Solicitors for the First Respondent: Sparke Helmore