Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553
Outcome: followed
There are two possible answers to this question. The first is that s 360(1) of the Migration Act requires 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.' If the Tribunal has conducted what purports to be a hearing, but has not in truth allowed an applicant to give evidence and present arguments relating to those issues, it has not complied with this statutory obligation. The Tribunal has failed to comply with an essential precondition to making a decision on the applicant's application to review the decision of the Minister's delegate, and has therefore failed to perform the duty, conferred on it by s 348 of the Migration Act , to review that decision. Its decision is invalid and must be set aside. This is the reasoning followed by the Full Court in Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33] [41], in relation to s 425(1) of the Migration Act , which imposes on the Refugee Review Tribunal an obligation in terms identical with the obligation imposed on the Tribunal by s 360(1). At [33], the Full Court approved the statement of Goldberg J in Mazhar v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1759 (2000) 183 ALR 188 at [31] that: 'The invitation must not be a hollow shell or an empty gesture.' 84 In SCAR at [38], the Full Court recognised that compliance with s 425 is a 'precondition to the valid exercise of the Tribunal's jurisdiction', and that failure to comply involves a jurisdictional error. At [41], the Full Court found that the Refugee Review Tribunal in that case had not extended 'a meaningful invitation'. 85 In the present case, because it interrupted her and imposed an arbitrary time limit on her, the Tribunal did not permit Ms Antipova to give evidence and present arguments as she wished to do. Although there was a semblance of a hearing, and the Tribunal invited Ms Antipova to it in terms mandated by s 360(1) of the Migration Act , the invitation was not a real and meaningful one, because what she was invited to do was denied to her. The Tribunal failed to observe a precondition of the exercise of the jurisdiction conferred on it. Its decision was made without an invitation to attend a hearing of the kind required, because such a hearing has not yet been conducted. 86 Counsel for the Minister submitted that SCAR has been the subject of judicial criticism, and even that it has been not followed. Reference was made to WAJR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 106 (2004) 204 ALR 624, in which French J distinguished SCAR on the facts at [46]. At [57] [59], his Honour discussed the question whether s 422B of the Migration Act operated to preclude the application of the principles of procedural fairness in the context of the failure of the Refugee Review Tribunal to ask any questions at the hearing as to a particular issue on which it later found adversely to the person seeking a protection visa. In the course of that discussion, his Honour examined whether there had been a failure to comply with s 425 of the Migration Act . In the alternative, his Honour examined the issue on the assumption that s 425 had no application, holding that the denial of procedural fairness in that case amounted to jurisdictional error, notwithstanding s 422B. Nothing that his Honour said in that passage amounted to a criticism of SCAR , or a refusal to follow it. Indeed, at [58], his Honour affirmed the central propositions for which SCAR stands, saying: 'A failure to conduct a hearing of the kind contemplated by s 425 in my opinion would amount to a failure to comply with the obligation imposed by that section upon the tribunal to invite an applicant to participate in such a hearing. That obligation is so central to the conduct of the tribunal process that it necessarily conditions the power to make an adverse decision on review.' 87 In M17/2004 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 86 (2005) 85 ALD 597, Ryan J also dealt with the alleged failure of the Refugee Review Tribunal to raise at the hearing an issue on which it later found against the person applying for a protection visa. At [58], his Honour accepted that compliance with s 425 was held in SCAR to be a precondition to the valid exercise of the Refugee Review Tribunal's jurisdiction, and that failure to comply would therefore be jurisdictional error. At [59], his Honour quoted from the joint judgment of Tamberlin and Katz JJ in Minister for Immigration &amp; Multicultural Affairs v Cho [1999] FCA 946 (1999) 92 FCR 315 at [29] , where their Honours said: 'In considering the extent of the requirements imposed by s 425 it is important to keep in mind that the exercise is essentially one of statutory interpretation...Care must be taken not to confuse the question of the interpretation of s 425 according to its language with a question as to whether the full range of natural justice requirements should be injected into s 425 under the guise of giving content to an obligation to afford an "opportunity to give evidence".' 90 At [62], Ryan J quoted from NALQ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 121 at [30] , a passage in which the Full Court recognised that the invitation required by s 425 must be 'real and meaningful and not just an empty gesture', citing both SCAR and Mazhar . The Full Court in NALQ proceeded to discuss earlier authorities on the nature of the invitation required. At [34], there was a discussion of whether the Full Court in SCAR at [37] had misconstrued the judgment of Hely J in Applicant NAHF of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 140 (2003) 128 FCR 359, but the Full Court in NALQ did not determine this question. 91 This examination of the authorities demonstrates that, far from having been criticised or not followed, SCAR is very much in the mainstream of authority. The invitation required by s 425 of the Migration Act (and, for identical reasons, that required by s 360), must be real and genuine. As the reasoning of Tamberlin and Katz JJ in Cho at [33] demonstrates, it is legitimate to examine what occurred at the hearing, in order to ascertain whether the invitation extended satisfies that requirement. If what took place under the guise of a hearing was not a genuine opportunity for an applicant for review 'to give evidence and present arguments relating to the issues arising in relation to a decision under review', then the invitation required by s 425 (or s 360) will not have been extended as required. Of course, it is necessary to bear in mind, as Tamberlin and Katz JJ said in Cho at [29], that it is not legitimate to regard every want of procedural fairness as nullifying the invitation. It is only defects rendering the proceedings ineffective to fulfil the purpose for which the invitation is required that will have this effect. SCAR is therefore binding on me as a single judge. In any event, in my view, it is correctly decided. 93 If SCAR is wrongly decided, and s 360(1) of the Migration Act is not to be given the meaning it bears in my opinion, it is necessary to consider the second answer to the question whether s 357A of the Migration Act ousts the right, which Ms Antipova would have otherwise, to establish that the Tribunal's unfairness to her constitutes jurisdictional error, entitling her to have the Tribunal's decision set aside. Section 357A is a difficult provision to construe. It does not exclude altogether the principles of procedural fairness. There must be some doubt as to whether Parliament could exclude procedural fairness altogether, given that a denial of procedural fairness is a ground for the remedies referred to in s 75(v) of the Constitution . At best, the legislative power extends to regulating procedures, and this is what s 357A attempts to do. It provides that Div 5 of Pt 5 of the Migration Act is taken to be 'an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with'. The provision assumes that there will be aspects of the 'natural justice hearing rule' that are not matters dealt with by any provision of Div 5. As the cases so far have shown, identifying a provision dealing with a particular 'matter', relating to procedural fairness is not always easy. See, for example, the passages in WAJR , to which I have referred in [86]. The present case is relatively easy. No provision of Div 5 deals with the imposition of time limits on the hearings of the Tribunal. Unless it be s 360(1) , no provision deals with the process by which evidence is adduced at a Tribunal hearing. There is certainly no provision dealing with the 'matter' of a Tribunal member interrupting answers to questions. No provision gives the Tribunal member a right to control and censor the evidence given, by refusing to hear what the applicant for review wishes to say.