SZNOT v Minister for Immigration and Citizenship

The Conduct of the Tribunal Hearing 7 The first Ground of Appeal directs attention to the manner in which the hearing was conducted before the Tribunal. This ground alleges: · that the Tribunal failed to allow sufficient time in which to reply to "relevant questions"; and · that the Federal Magistrate did not consider the effect of the length of the hearing and the short adjournments allowed, nor did the Federal Magistrate consider that the adjournments allowed "were not sufficient enough for the applicant to answer all questions of the Tribunal ...". The First Appellant maintained during the course of his oral submissions that there were four "relevant questions" but he was unable to identify any of them. 8 In resolving what is understood to be the same argument now before this Court as was advanced before the Federal Magistrates Court, the Federal Magistrate noted that no transcript of the hearing before the Tribunal had been made available, and further noted the details of the Hearing Record of the Tribunal, including the timing of the adjournments allowed and the duration of each adjournment. The Federal Magistrate concluded: [16] … In the absence of any medical evidence about the effect of a hearing of this length with the adjournments of this length included, I am unable to be satisfied that the applicant's claims, which would appear to me to involve a failure to provide a proper hearing under s.425 of the Act, can be maintained. This Court is in no better position than the Federal Magistrate. 9 Although the Tribunal performs an inquisitorial function (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [18], 259 ALR 429 at 434; SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [57], 164 FCR 14 at 28 to 29), it remains the primary responsibility of a claimant to present such evidence and to advance such submissions as are considered relevant to the claims being made: Abebe v Commonwealth (1999) 197 CLR 510 at 576; SZJZS v Minister for Immigration and Citizenship [2008] FCA 789 at [15] to [16], 102 ALD 318 at 321 to 322; SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 at [24]. 10 And, upon an application seeking judicial review, the onus remains on an applicant to establish the excess of statutory power being alleged. An applicant "cannot make a bare assertion of impropriety and then fish for a case: he has the onus of establishing an improper exercise of power": Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177 per Drummond J. Thus, in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45] Hill, Sundberg and Stone JJ regarded it as "trite law that the onus of establishing the factual foundation for a claim of a breach of natural justice or a failure to afford procedural fairness lies on the party alleging the breach…". The onus also remains upon an applicant alleging any other excess or abuse of statutory power: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 at [22] to [23], 170 CLR 649 at 671 to 672 per Gaudron J; X v Australian Crime Commission [2004] FCA 1475 at [22], 139 FCR 413 at 419 to 420 per Finn J. See also: AB Pty Ltd v Australian Crime Commission [2009] FCA 119 at [8], 175 FCR 296 at 298. 11 On occasions it may be that the very nature or extent of questions being asked may provide a basis upon which some assessment can be made as to the amount of time which may be required to prepare a meaningful response. The content of questions which require detailed information to be collated or information to be obtained from overseas may provide a basis for concluding that a claimant should be permitted more time to respond than for a question more susceptible of ready and immediate response. Much will necessarily depend upon the circumstances of each individual case. 12 In the present case, however, the now Appellants simply failed to make out any argument as to the inadequacy of the opportunity extended to them before the Tribunal to make out their claims. Any possible inference from the facts contained within the Appeal Book certainly would not help the Appellants. The case that the First Appellant sought to advance was much the same case as was first raised before the delegate. An interview had been conducted with the delegate on 7 November 2008. The reservations as to the case sought to be advanced had long been known prior to the hearing before the Tribunal. Any inference that new or different considerations only emerged at a later stage and that inadequate time was then permitted to address such issues is not presently available. And the Hearing Record of the Tribunal, as referred to by the Federal Magistrate, discloses the adjournments of various duration being granted. 13 No inference should be drawn that the present Appellants were not given adequate time in which to respond to questions raised in respect to the claims the First Appellantsought to advance. The Tribunal expressly took into account the extent to which the First Appellant's medical condition may have affected his ability to immediately or effectively respond to questions being asked. The Tribunal in that part of its reasons where it set forth the "Primary applicant's evidence" thus stated: [40] The applicant showed the Tribunal medication he was taking for blood pressure or a similar complaint. He said that he might speak faintly or vaguely, and that he was feeling a little tired. The Tribunal arranged for 2 breaks during the hearing, but observed that the applicant was lucid and articulate, although his evidence was sometimes digressive. It is also relevant to note that a prior application for an adjournment of the hearing before the Tribunal had been made by letter sent by facsimile dated 17 March 2009 and supported by the provision of a medical certificate. An adjournment was granted and the hearing originally scheduled for 18 March 2009 was adjourned to 31 March 2009. There was no evidence of any further application for any further adjournment being sought. 14 No error is discernible in the reasons of the Federal Magistrate. The first Ground of Appeal is dismissed.

Section 424AA 15 The second Ground of Appeal directs attention to s 424AA. 16 That section provides as follows: Information and invitation given orally by Tribunal while applicant appearing If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so-the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information-adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. 17 The particular provisions to which the second Ground of Appeal directs attention are s 424AA(b)(i) and (iv). 18 The evolution of s 424A and the introduction of s 424AA have been recounted by Tracey and Foster JJ in SZMCD v Minister for Immigration and Citizenship ('SZMCD')[2009] FCAFC 46 at [63] to [70], 174 FCR 415 at 429 to 430. After having done so, their Honours observed: [71] The policy and purpose reflected in s 424A is that the Tribunal should be compelled: (a) To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal; (b) To ensure that the visa applicant understands the significance of those matters to the decision under review; and (c) To give the applicant a reasonable opportunity to comment on or to respond to those matters of concern. [72] It is evident that the same policy and purpose underpin s 424AA. Sections 424A and 424AA "are intended to be complementary": SZMCD [2009] FCAFC 46 at [2], 174 FCR 415 at 417 per Moore J. See also: SZFQY v Minister for Immigration and Citizenship [2009] FCA 935 at [31]. 19 The second Ground of Appeal duplicates the first to the extent that the Appellants seek to contend that there were "unhelpful short adjournments" throughout the course of the hearing. The second Ground, however, is understood to go further than the first, seeking also to contend that: · the Tribunal failed to take such steps as were "reasonably practicable" to enable the now Appellants to understand why information was relevant to the review (s 424AA(b)(i)); · the Tribunal failed to allow the now Appellants "additional time" which it is to be assumed was sought, and that the Tribunal ought to have considered "that the applicant reasonably needs additional time" (s 424AA(b)(iv)); and · paragraph [22] of the reasons for decision of the Federal Magistrate is incorrect. It is not necessary to resolve the submission of the First Respondent that s 424A was not engaged because the matters being raised with the now Appellants did not constitute "information" within the meaning of and for the purposes of s 424A. Even assuming that s 424A was engaged, no contravention of s 424AA is in any event established. 20 The difficulty confronting the now Appellants before both the Federal Magistrates Court and now this Court is that there is no basis upon which any conclusion can be reached that the steps taken by the Tribunal were not all such steps as were "reasonably practicable" to enable them to advance their claims. Nor is there any basis upon which any conclusion can be reached that the time which was permitted was not adequate. As noted by the Federal Magistrate at [21], there is no identification of any information in relation to which it is said further time was needed in which to respond. Any such inference as is available again supports a conclusion that adequate time in which to respond was permitted. 21 In paragraph [22] of the reasons for his decision, the Federal Magistrate states: It would appear to me that the Tribunal was indicating to the applicant, as required by s.424AA of the Act, that there were options for him to deal with the matters raised. In SZMCD v Minister for Immigration [2009] FCAFC 46, a Full Bench of the Federal Court, Moore, Tracey, and Foster JJ, considered an exchange very similar to the one extracted in the context of s.424AA and came to the view that it was sufficient and that the matters of substance adequately addressed the requirements of s.424AA. So, to the extent that the applicant's submissions raise a failure to comply with that section, I am unable to accept them. The balance of the written submissions repeat the matters referred to in the amended application and there is no need for me to deal with them again. On the facts of the present case, no error is discernible in those reasons, even if it is assumed in favour of the Appellant that s 424A was engaged. 22 The second Ground of Appeal is also rejected.

Conclusions 23 No error is discernible in the reasons of either the Tribunal or, more relevantly, the Federal Magistrate. 24 Finally, it should be noted that a principal submission of the Appellants was that the Tribunal had failed to take into account a submission dated 30 March 2009. That submission, the First Appellant contended, set forth the case that he was seeking to advance. He also contended that, had that statement been taken into account, he would not presently be before this Court. The statement, it is considered, assumes relevance both because: · it is a written account of those matters the now First Appellant wanted to be taken into account; and · to the extent that it has been reduced to writing, the account addresses in large part any difficulty the First Appellant may have experienced when appearing in person before the Tribunal. Contrary to the submission of the Appellants, however, the Tribunal did take that statement into account, referring to it in its reasons for decision and summarising the contents of that submission. There is no reason to reach any conclusion other than that the Tribunal gave genuine consideration to the claims sought to be advanced by the now Appellants. 25 As none of the Grounds of Appeal has been made out, the appeal is to be dismissed. 26 At the hearing of the appeal by this Court, the First Appellant repeated the contention previously advanced that his medical condition affected his ability to fully present his case. A short adjournment during the course of the hearing of the appeal was thus permitted to afford an opportunity to the First Appellant to collect his thoughts and to present all such submissions as he considered may have advanced the Appellants' case. 27 Specific reference should be made to an order made by the Federal Magistrate that the reasons for judgment of that Court "not be published without leave of the Court". Such an order is certainly not the norm. Section 91X of the Migration Act 1958 (Cth) prohibits the publication of the name of an applicant. The reasons of the Federal Magistrate do not transgress that prohibition. But the reasons as were provided by that Court descend into such detail as may enable the actual identity of the present First Appellant to be determined. The current reasons for decision of this Court do not suffer the same difficulty. Counsel on behalf of the First Respondent properly brought this Court's attention to the Order as previously made. But, in the absence of any challenge to that Order, it is not considered appropriate to either set it aside or vary it.

ORDERS 28 The Orders of the Court are: 1. The appeal is dismissed. 2. The First Appellant is to pay the costs of the First Respondent. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.