Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: referred to
It does not seem to me to matter whether a letter was required to be sent by s 424A or not. If s 424A required the letter to be sent (see in particular SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and the sixth piece of information to be commented upon) a statutory obligation arose under ss 424A , 424B and 424C to give a real and meaningful invitation to comment. If the letter was not required by s 424A , nevertheless the Tribunal thought it was, and sent a letter to the appellant through his advisers requesting comment upon certain matters. Though purportedly sent under s 424A , it may simply have been sent under s 424 , or merely as part of the exercise of executive power. In either case, the Tribunal having stated that it would receive a response was bound to give a real and meaningful opportunity to respond: see for example s 424(1). 53 On either basis, the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Part 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. The letter that was received, on its face, told any person who read it that there was with it, or supposedly with it, a five page document which was a response to the relevant invitation. On the facts found by the Federal Magistrate, the five page document was not enclosed. The response was an important document. It must have been, or should have been, apparent that an error (human or machine) had occurred. Whether or not someone did or did not read the coversheet and appreciate this is not determinative. It is clear that someone read at least the second paragraph. The first paragraph (immediately above the second paragraph) in its terms said (together with the express statement above it that there was a " coversheet + 5 pages ") that the response was forwarded when, on this hypothesis, it was not. Whether or not this letter was given to the Tribunal member or not, the Tribunal had notice, in clear plain English, that the appellant (through his advisers) had attempted (unsuccessfully) to respond to the invitation and that something (by way of human or machine error) had gone wrong. This was plain from the English language used on the coversheet. The fact that a person or persons at the Tribunal may not have so understood the coversheet (if that be the case) does not matter. Notwithstanding the submission of Mr Roberts SC, the coversheet was not ambiguous. The present tense was used. It stated that there were five pages with it. On the findings of the Federal Magistrate, there were not. The Minister cannot hide behind the Tribunal not reading, or not reading carefully enough, such an important communication. To do so is itself to undermine the reality and meaningfulness of the invitation to comment that the Tribunal itself had given. A hint of the approach or administrative mindset that led to no step being taken to ring Playfair about the apparently missing five pages can be seen in Mr Willoughby-Thomas' evidence in cross-examination. Although he had no personal knowledge of the events the subject of the application and this appeal, he stated the following in the exchange with the applicant in cross-examination in the extract was that referred to earlier: They may or may not have rung, but, receiving hundreds of these faxes, often they are, generally, printed off and placed on the file for consideration by the members. 54 It is not good enough to say that the Tribunal gets lots of faxes. This was an important document. It was apparently a coversheet to a response to an invitation to comment. Reading it made clear that what had apparently been intended to be sent had not been received. The obligation to give an invitation to comment, and separately or cumulatively, the giving of an invitation to comment carried with it, as I have said, an obligation of the kind that I have expressed to enable that invitation to be meaningful and real: that is the obligation to take reasonably open and regular administrative procedural steps of at least a simple character to permit or facilitate the fulfilment of the real and meaningful nature of the invitation. That started with the obligation to read the communication. It extended to ringing Playfair at the identified number to tell them the five pages apparently intended to be sent had not come through. 57 These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process: Re Ruddock; Ex parte S154 201 ALR at 450-451 [57]-[58], 455-6 [81], 457 [86] and [88]; Miah [2001] HCA 22 ; 206 CLR 57 at 69-70 [31] - [32] ; Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 [29] - [31] ; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 648 [208] ; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 513 [97]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 146 [52] ; Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; NCSC v News Corporation Limited [1984] HCA 29 ; (1984) 156 CLR 296 at 315; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2006) 204 CLR 82 at [75] ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134 [2003] HCA 1 ; (2003) 195 ALR 1 at 8; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 405, [78] ; Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [39] ; VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 24; Re Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387 at 413 [76] ; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [22] ; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at [4] ; SZBEL 228 CLR 592 at [40]; SZFDE [2007] HCA 35 at [30] ; Minister of Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 540-41 [71] , 526 [18] and 531 [37]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [111] ff and [199]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [9] , [69] and [165].