Case: SZAXY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 76
Outcome: considered
SZAXY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 76 at [11] , Wilcox J observed: Views may sometimes differ as to whether a particular procedural step ought to be taken in the conduct of a review. The fact that the Court might have formed a different opinion to the Tribunal member in relation to a procedural decision does not in itself demonstrate lack of good faith by the Tribunal. His Honour's observation was made in the context of a challenge on the administrative law error ground of bad faith, but it might equally well have been made to like effect in respect of any challenge on the basis of unreasonableness to a procedural decision made by the Tribunal. It is not impossible to conceive of a case whereby an unreasonable decision in respect of a matter of procedure on the part of the Tribunal might, for example, violate the obligation found in s 425(1) , to invite a visa applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Equally, it is not impossible to see how an unreasonable allowance of time to respond to a request under s 424A or the provision of information in response to an invitation given by the Tribunal might violate the requirements of that section. "Unreasonableness" here though would have to be of the order that no reasonable Tribunal in the circumstances could have made the particular procedural decision which it did. The decision would have to be to adopt an adjective appropriately put forward on behalf of the Minister: "capricious". That is not this case in respect of the circumstances attending the making of the Tribunal's decision, as the learned Federal Magistrate plainly appreciated. It is evident that the Tribunal considered on the merits and made value judgments reasonably open in respect of each procedural event which occurred between the filing of the review application and the making of the final decision. One of the earlier procedural events concerned whether the Appellant was then not just physically but also mentally able to attend and give evidence and present his case at a hearing. The Tribunal took the initiative of inviting the Appellant to attend upon a specialist psychiatrist for the purpose of a report being furnished concerning his then state of health and wellbeing. This the Tribunal was entitled to do. The Tribunal then acted on the strength of the report given in making an earlier procedural value judgment. Again, the Tribunal was entitled to act upon such information. As the learned Federal Magistrate remarked at para 11, Dr Walker (the psychiatrist concerned) provided that opinion and as a result the Tribunal put off a hearing for a very considerable period of time: As I have already noted, after April 2008 the applicant no longer made any complaints of a psychological nature. The Tribunal certainly did not prevent the applicant from finding his own doctor. It merely noted: "He was indigent and would have difficulty in so doing." The learned Federal Magistrate observed prosaically but not inaccurately that: This tribunal bent over backwards to assist the applicant and give him extensions of time for a period of over a year from June 2007 when he lodged his application to July 2008 when the last hearing was scheduled. I respectfully agree with those observations.