Case: Minister for Immigration and Citizenship v SZKTI and Another [2009] HCA 30 ; (2009) 258 ALR 434
Outcome: followed
first submission of the appellant, as it was made orally, contended that there was a discretion vested in the Tribunal, pursuant to s 359(1) and s 359C of the Act, to not proceed to make a decision on the facts before it, even though the appellant had failed to respond to the invitation seeking more information. The appellant submits that the Tribunal retains a discretion to gain more information in such situation, and pursuant to Minister for Immigration and Citizenship v SZKTI and Another [2009] HCA 30 ; (2009) 258 ALR 434 , it may do that by telephone or other means. The appellant submits that in the very particular factual circumstances of these proceedings the Tribunal should have sought more information before making its decision. These circumstances include the uncertainty surrounding 10 March 2008; the unclear decision of the delegate; the unclear purpose of the medical documents provided to the delegate; and the obligation of the Tribunal, pursuant to reg 2.43(2)(b) of the Regulations, to be positively satisfied that there were no exceptional circumstances explaining the appellant's failure to comply with condition 8202 of his visa. The appellant's counsel acknowledges that the issues raised for consideration by the Amended Notice of Appeal were not raised in the hearing before the Federal Magistrate in the precise form currently argued. However, the appellant submits that since the delivery of judgment by the Federal Magistrate, the High Court of Australia has delivered its decisions in SZMOK and in SZKTI which were on 2 July 2009 and on 26 August 2009 respectively, each of which the appellant submits are pertinent to the issues raised by the appeal. In regards to the first factor, the Court considers that the legal arguments have a reasonable prospect of success. The explanation for the failure to raise the arguments below, that being recent High Court authority, is sufficient. The Court accepts that the decisions of SZMOK and SZKTI are highly relevant for the purposes of the appellant's arguments. The Court considers that there is no inconvenience to it in allowing the appellant's arguments, given that it was open to the Court to hear arguments in favour of granting leave and, if granted, then to proceed into a consideration of the new grounds of appeal in the hearing of the proceedings. As to the fourth factor referred to in NAJT , obviously much is at stake for the appellant. An unsuccessful appeal will see his visa cancelled and his deportation to Myanmar. Indeed, one could imagine few more significant consequences for an individual in a hearing before the Federal Court. The Tribunal addressed such issue obliquely at [33] to [38] of its decision. However, it concentrated on the narrower issue of whether it could have invited the appellant to appear before it, notwithstanding his failure to reply to the invitation. The Tribunal referred to conflicting authority which considered whether s 360(3) and s 363A of the Act mandates that upon the failure to respond under s 359C of the Act, an applicant is not entitled to appear before the Tribunal. The Federal Magistrate also considered such issue. Since SZKTI it is clear that a Tribunal may obtain information without an appellant appearing before it, for example by telephone: see SZKTI at [47] (referring to s 424(1) which is in identical terms to s 359(1)) and s 366. Therefore, the Tribunal never addressed the issue why it was not exercising its discretion to attempt to seek further information. Instead it appears that the Tribunal either felt it had no power to invite the appellant to appear before it, or, even if it did, it refused to do so. This is not to suggest that the Tribunal must positively state in every decision similar to the current one why it is not going to seek additional information when an applicant fails to provide a response. However, it is notable that the Tribunal did feel it necessary to explain its decision not to seek more information in the present circumstances, albeit on the narrower issue of whether it could have attempted to invite the applicant to appear before it. In many situations, the Tribunal's decision to proceed to a final decision in the absence of comment by the applicant may not be problematic, as the reasons for not seeking further information would be obvious. One of the reasons for the provision of invitations to provide more information or make comment under s 359A of the Act is procedural fairness. For example, the requirement that an applicant ought to be able to make comment on information adverse to his or her position (s 359A(1)). In the situation where no comment is forthcoming, there will usually be no difficulty with the Tribunal exercising its discretion to proceed to a decision because the applicant has been afforded procedural fairness, in the sense of being invited to comment, even if such offer is not accepted. It is possible that, as demonstrated by the current circumstances, the Tribunal can proceed upon a fiction, that being that the applicant had been provided with notice when, in reality, the notice had not been received. The Act, pursuant to sections such as s 379C(4), makes it clear that such a course is open to the Tribunal. However, the current situation is distinct. Although the Act allowed the Tribunal to proceed to decision in the absence of a reply from the appellant, if it did so it would be proceeding on a paucity of facts on an issue critical to the eventual finding, that being whether there were exceptional circumstances which justified the appellant's failure to comply with condition 8202 of his visa. As the Tribunal itself said in the invitation, If the Tribunal ultimately finds that you did not comply with condition 8202 of your student visa...the Tribunal will need to consider whether the non-compliance was "due to exceptional circumstances beyond the non-citizen's control". Further to the above, SZIAI requires that the inquiry be an obvious one in the circumstances. The exact nature of the inquiry could have been to seek to contact the appellant by another means such as email or telephone since the Tribunal had his details. Alternatively, the Tribunal could have contacted the delegate or Department. The Minister submits that it would be strange that in the circumstance that s 359C and s 360(3) prevented the Tribunal from inviting the appellant before it that it should be able to seek oral evidence under s 359(1) and s 366. However, that informal mechanism is exactly what the High Court has said is available in SZKTI at [47]. Even if the Tribunal did not seek oral evidence, the Tribunal could have sought to clarify whether the appellant had, in fact, received the invitation. To repeat, this is not to suggest that such step is always required of the Tribunal, merely that in certain circumstances it should be taken. The Court considers that a further inquiry of the appellant would have clarified the key issue, that being whether or not there were exceptional circumstances explaining his non-compliance with condition 8202 of his visa. The mere failure of the appellant to reply to the invitation was not evidence that there were no exceptional circumstances. As subsequent facts showed, such failure was because he never received the invitation. The Tribunal was not to know that, but it could have emailed or phoned the appellant to find out with certainty whether there was evidence of exceptional circumstances. Such step would not have posed any difficulty, since the Tribunal held the appellant's email and telephone contact details. Positive contact with the appellant himself could have put beyond any doubt whether there were, in fact, exceptional circumstances. It is absurd to claim in the light of SZKTI that a simple telephone call or email to the appellant to make contact with him did not render such information ' easily ascertainable '.