Case: Sok v Minister for Immigration and Citizenship [2007] FCA 413
Outcome: distinguished
Did it matter that this exchange took place only between the Tribunal and Mr Oladejo and in the absence of Ms Le and an interpreter? For the following reasons, I do not think so. I accept that, as the Minister submitted, this was not a case in which the Tribunal did not complete the steps in the review process that it considered necessary to afford a real, in the sense of fair, opportunity to present evidence and arguments: compare Sok v Minister for Immigration and Citizenship [2007] FCA 413 at [52] per Kenny J. 47 It is immaterial that Mr Oladejo had no right to address the Tribunal, providing he had the capacity to answer the Tribunal's enquiries of him on Ms Le's behalf. Although present to assist Ms Le, Mr Oladejo had no right to address the Tribunal at the hearing on 7 March 2006. The right (though not the capacity) of someone other than the review applicant to address the Tribunal at a hearing is circumscribed by the Act. When appearing before the Tribunal, the review applicant is entitled to have another person present to assist, although the assistant is not entitled to present arguments or address the Tribunal, unless the Tribunal is satisfied that exceptional circumstances justify the assistant in doing so: see s 366A(1) and (2). The review applicant has no other right to representation when appearing before the Tribunal: see s 366A(3). The Act does not, however, limit the capacity of another person to assist the review applicant at a hearing, when he or she is invited by the Tribunal to do so. Whether a person has the capacity to assist will generally depend on the relationship between the review applicant and the other person. 48 It is clear enough that Mr Oladejo had the capacity to discuss the further conduct of the hearing with the Tribunal on Ms Le's behalf. Section 366A of the Act does not affect a review applicant's right to engage a representative otherwise than while appearing before the Tribunal: see s 366A(4). In the present case, Ms Le had instructed the law firm of Koenig and Simons to act for her in relation to her review application. Mr Oladejo was apparently a consultant to the firm. Furthermore, as we have seen, on the day of the hearing, Ms Le specifically advised the Tribunal that she had appointed Mr Oladejo as her representative to act on her behalf in relation to her application and to be an "authorised recipient". The Act plainly contemplates that review applicants can appoint representatives to act on their behalf in relation to proceedings before the Tribunal: see, e.g. ss 276, 277, 312B, 332G and 368C. Generally speaking, these representatives will be registered migration agents, although there are other specified persons who may also assist. Under s 312B of the Act, a registered migration agent must notify the Tribunal when he or she gives immigration assistance to a person in relation to a review application after agreeing to represent the review applicant in respect of the review. Furthermore, the transcript shows that, from the outset of the hearing and with Ms Le's tacit consent, the Tribunal permitted Mr Oladejo to act as her representative and he did so act. Amongst other things, before the critical exchange, the Tribunal had already exchanged comments with him concerning the possibility of a further hearing. The interpreter was, of course, present on these earlier occasions and, on the first two occasions, so too was Ms Le. 49 Further, in keeping with his appointment as her representative, Ms Le also nominated Mr Oladejo as her "authorised recipient" for the purposes of the Act. The appointment of an authorised recipient attracts the provisions of s 379G of the Act. Under s 379G(1), a review applicant may give the Tribunal written notice of another person who is authorised "to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review" and, in this event, the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant, although s 379G does not apply "to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal": see 379G(5). 50 The circumstances may show, as they do in this case, that the review applicant has authorized another to represent him or her, as the law permits, for the purposes of communications between him or her and the Tribunal. Although the Act makes specific provision for the manner of certain written communications, it does not do so in respect of oral communications with a review applicant's representative of the kind in question in this case. 51 The communication between the Tribunal and Ms Le's representative was not rendered nugatory because it was not contemporaneously translated to Ms Le. There is no basis in the Act or elsewhere to require that any oral communication between the Tribunal and the review applicant's authorised representative be translated contemporaneously to the review applicant. The Tribunal has no general duty to provide an interpreter on every occasion when it is seeking to communicate with a review applicant. The Act does impose an obligation to provide an interpreter where a request is made by a person appearing before the Tribunal to give evidence for the purposes of communication between the Tribunal and that person, unless the Tribunal considers the person sufficiently proficient in English: s 366C(1) and (2). Moreover, the Tribunal must provide an interpreter if the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, even though no request was made: s 366C(3). Obviously, this obligation extends to a review applicant where he or she is appearing to give evidence and lacks proficiency in English. In this case, the Tribunal had complied with its obligations under s 366C by providing an interpreter, as requested, for the review applicant and other witnesses when they gave their evidence to the Tribunal. It was not, however, obliged to ensure that its discussion with Ms Le's representative regarding the possibility of a further hearing was translated to Ms Le herself. 52 It does not follow from this that a representative is at large with respect to his client's affairs. Registered migration agents (as Mr Oladejo was required to be) are subject to regulation by the law, including the Act, the Migration Agents Regulations 1998 (Cth), and the Code of Conduct made under these Regulations and s 314(1) of the Act. Under the Code, registered migration agents are required to act in the lawful interests of their client at all times (clause 1.12); to deal with their clients competently, diligently and fairly (clause 2.1); and to have due regard to a client's dependence on the agent's knowledge and experience (clause 2.4). Further, they "must ... within a reasonable time after agreeing to represent a client, confirm the client's instructions in writing to the client; ... act in accordance with the client's instructions; and ... keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client...": clause 2.8. Mr Oladejo was thus obliged to seek Ms Le's instructions on the matter of a further hearing and, for this purpose, to inform her of his discussion with the Tribunal. 53 For these reasons, I accept the Minister's contention that there was no proper basis for the Federal Magistrate to conclude that the Tribunal's repeated offers to conduct a hearing were not genuine merely because the offers were made to Mr Oladejo and were not contemporaneously translated to Ms Le. Accordingly, I accept the Minister's submissions with respect to the first ground of appeal advanced at the hearing of the appeal. 54 Further, having regard to the transcript and the Tribunal's reasons for decision, there was no warrant for the Federal Magistrate's finding, if this is what it was, that the Tribunal sought to transfer its responsibilities regarding a further hearing to Ms Le's representative. In this context, it must be borne in mind that the Tribunal is bound to consider the review applicant's wishes, although it does not have to act on them. Section 361(3) of the Act provides in effect that the Tribunal must have regard to the review applicant's wishes, as expressed in a notice under s 361(2), as to the witnesses that should be called to give oral evidence. In the exchanges about the possibility of a further hearing, the Tribunal was in substance asking whether the review applicant's wishes, as expressed at the outset of the hearing, remained the same and thus whether she wished to have the hearing continued on another day when an interpreter was available. Although not obliged to comply with Ms Le's wishes, it was open to the Tribunal to take the view that Ms Le, as advised by Mr Oladejo, was in the best position to assess whether, in view of what had occurred at the 7 March hearing, the s 359A letter and her response to it, the remaining witnesses should be asked to give their evidence at a further hearing. Since Ms Le did not request a further hearing after the s 359A letter, then, it was open to the Tribunal to conclude that, having regard to the evidence and other material already before it, including the discussion with Mr Oladejo, there was no call for a further hearing. The Minister's fifth ground of appeal is thus made out.