Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553
Outcome: cited
His Honour accepted that the appellant had been too unwell to attend the Tribunal hearing. However, his Honour found that this did not amount to a breach of s 425 of the Act. In relation to whether the appellant had been afforded a 'real and meaningful' invitation to the Tribunal hearing, his Honour found that the decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 did not help the appellant, stating that (at [26]): In Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 , the Full Court of the Federal Court held that s 425 required the Tribunal to extend an objectively meaningful invitation to the [appellant] to attend the Tribunal's hearing which could not be achieved if the respondent was not in a fit state to represent himself at the hearing. The court said that s 425 imposed an objective requirement on the Tribunal to provide a "real and meaningful" invitation whether or not the Tribunal was aware of the actual circumstances which would defeat that obligation. However, in SCAR, the s 425 invitation had been issued in the period prior to the commencement of s 422B and its codification of the natural justice hearing rule for proceedings before the Tribunal. In relation to s 422B , and its equivalent provisions in other parts of the Act, the Full Court of the Federal Court said in Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Lat [2006] FCA 61 ; (2006) 151 FCR 214 at 225 [66] , that such provisions have the effect that those sections found in div 4 of pt 7 of the Act provide a comprehensive procedural code containing detailed provisions for procedural fairness which exclude the common law natural justice hearing rule. The application of that reasoning to s 422B was expressly adopted by the same full court bench in SZCIJ v Minister for Immigration &amp; Multicultural Affairs [2006] FCAFC 62. 15 In the amended notice of appeal filed on 18 August 2008, the appellant essentially contended that his Honour erred in law by: &#8226; not following the Full Court decision in SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 when construing the obligation of the Tribunal under s 425 of the Act to provide a 'real and meaningful' invitation, whether or not the Tribunal was aware of the circumstances that would defeat that obligation; &#8226; upholding the Tribunal's decision in circumstances where his Honour sought to distinguish the High Court decision in Bhardwaj 209 CLR 597 on the basis that the s 360 invitation (which is equivalent to a s 425 invitation) now provides different rights; and &#8226; upholding the second respondent's decision where the Tribunal committed jurisdictional error in circumstances where its exercise of discretion under s 426A of the Act miscarried by reason of its failure to: (i) give the appellant a real and meaningful invitation under s 425(1) of the Act; (ii) take into account a relevant consideration (that is, regarding the appellant's letter dated 30 May 2007); and (iii) explain why, without medical evidence, there was no 'good reason' for seeking an adjournment. 16 At the outset, I turn to consider the first respondents application for leave to rely upon a proposed notice of contention dated 31 July 2008 as follows: To the extent (if any) that the Federal Magistrates Court accepted that the Appellant was unfit to attend the hearing of the Refugee Review Tribunal on 9 May 2007 for the purposes of Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 , such a finding was not open in the absence of medical evidence to that effect. 17 It is important to appreciate that the appellant's severe incapacitation and illness were, in the circumstances, adequately described by the appellant, whatever the cause or description of the medical condition involved. The Federal Magistrate obviously accepted the symptoms were such that the appellant could not attend the hearing. 22 I have come to the view that this case can be determined by a consideration of the facts, assuming in favour of the appellant the applicability and correctness of SCAR [2003] FCAFC 126 ; 128 FCR 553 and applicability of Bhardwaj 209 CLR 597. 23 I make the assumption as to the correctness of SCAR [2003] FCAFC 126 ; 128 FCR 553 even though SCAR has not met with universal approval: see, eg, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 ; SZJZY v Minister for Immigration and Citizenship [2008] FCA 280 ; SZGWN v Minister for Immigration and Citizenship [2008] FCA 238. 25 Recently, Gray J (with whom Gyles J agreed) in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 confirmed that, despite the codification of procedural fairness rules by virtue of s 422B of the Act, the process rights contained in Div 4 (which include s 425 of the Act) remain important to the exercise of the Tribunal's substantive powers. His Honour said at [5]: Section 425 , like other provisions found in Div 4 of Pt VII , represents Parliament's expression, in terms appropriate for the task of reviewing decisions refusing to grant protection visas, of an aspect of the requirements of procedural fairness. If this proposition were ever doubted, it is now confirmed by the presence of s 422B , enacted subsequently to most of the other provisions in Div 4. Like the rules of procedural fairness in other contexts, the rights given to an applicant by Div 4 are rights relating to the process by which decisions are made, rather than to the substantive content of those decisions. To say this, however, is not to diminish the importance of those rights. It has long been recognised that a statutory power, the exercise of which may affect adversely a person's interests, is impliedly subject to a requirement that the decision-maker afford procedural fairness to that person. The fact that, in the context of the Tribunal's task of reviewing decisions to refuse protection visas, Parliament has chosen to make the exercise of the Tribunal's substantive powers depend expressly upon the process rights contained in Div 4, and to spell out for that purpose what constitutes procedural fairness, does not diminish the importance of those process rights. Thus, it is recognised that the requirement of an invitation to a hearing, found in s 425(1) , will not be met if what is actually afforded to the applicant is not a hearing at which the applicant is able to give evidence and present arguments relating to the issues arising in relation to the decision under review. See, for instance, Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [37] . 37 The above reasoning disposes of all the contentions of the appellant, assuming the Federal Magistrate fell into error in not following and applying SCAR [2003] FCAFC 126 ; 128 FCR 553 , and in distinguishing Bhardwaj 209 CLR 597.