Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SZFML and Anor [2006] FCAFC 152
Outcome: distinguished
In contrast, in Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SZFML and Anor [2006] FCAFC 152 the agent had correctly indicated to the Tribunal that his client wished to attend the hearing. Shortly before the hearing date the Tribunal changed the date. A further invitation was provided to the agent, who responded stating that the appellant did not wish to attend. However evidence established that in fact the appellant, being unaware of the date change, had attended at the hearing on the day and had always wished to provide further evidence in support of her case. Further, cross examination of her agent satisfied the Court that the agent's evidence that he received instruction from the appellant was unreliable. The Full Court found that the appellant had not authorised her agent either generally or specifically to complete the second Response to Invitation form. It concluded that s 441G of the Act had no operation if the agent for the appellant acted beyond the scope of his authority in returning the Response to Invitation contrary to the instructions provided by the appellant. The Full Court confirmed the finding of the Federal Magistrate that where there was no effective consent submitted to the Tribunal by an appellant concerning the hearing, the appellant was not bound by the conduct of the agent. 22 The facts of the present case do not raise this issue. The appellant acknowledges that he signed the Response to Invitation form. He did not speak English but he knew that the form related to an invitation to attend the hearing, and he signed the form knowingly indicating that he would not be attending the hearing. His complaint is that he was given the wrong advice by his migration agent, namely that the migration agent would attend the hearing. Unlike the unique circumstances in SZFML, the appellant does not claim that he wanted to attend the hearing. Rather, he was content for the migration agent to attend. 23 I consider that the circumstances now before the Court are indistinguishable from those considered in NASF . The appellant has not been denied an opportunity to attend the hearing and the Tribunal complied with the requirements of s 425, in the same way as was found by Bennett J in SZBZL . The Court therefore concludes that there was no jurisdictional error on the part of Nicholls FM. 26 In SCAR the Full Court recognised that under certain circumstances the invitation process prescribed by s 425 of the Act may not have been fulfilled (see also SZFML ). However, in SCAR the Full Court found that the Tribunal innocently provided unfair treatment to the appellant in circumstances where the appellant was ill. In Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; (2002) 122 FCR 322, the Tribunal provided a translator who was unable to speak the appellant's language. In VBAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804 ; (2002) 121 FCR 100, the appellant was misled by statements of the Tribunal. In Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 359, the Tribunal declined to grant an adjournment of the hearing, knowing that the appellant was incapacitated. Although the requirement of s 425 had been followed, the invitation was held to be 'an empty gesture and a denial of procedural fairness'(see Hely J at 366 [36]). 28 In SZFDE French J dissented, finding that the fraud did affect the decision because it resulted in the non-appearance of the appellant before the Tribunal. As a consequence the Tribunal was deprived of the opportunity of exploring certain issues with the appellant. French J concluded that the Tribunal's decision ' was not one made under the Act, and therefore not a privative clause decision protected by s 474 '. French J's decision recognises the possibility that where, through no fault of their own, an appellant is deprived of a hearing, circumstances may exist to vitiate the decision despite compliance with the requirements of the statutory scheme. This possibility was also recognised by the Full Court in SZFML . It is apparent that the facts in each case will be critical in determining whether consent by the appellant to the agent in fact existed.