Case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Outcome: cited
His Honour also distinguished this case from that of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. In Bhardwaj , under the former wording of s 360 of the Act (the Migration Review Tribunal equivalent of s 425) , the Tribunal was held to be in jurisdictional error for failing to consider a request for an adjournment because of the applicant's ill health and then proceeding to make its determination on the review application. 12 His Honour further found that while some issues were not raised in the s 425A notice, this did not vitiate that notice or demonstrate jurisdictional error on the part of the Tribunal. To the extent that the appellant submitted that some notification by the Tribunal was required in respect of issues which were not decided adversely to her by the delegate, the appellant misconceived the Tribunal's decision; the Tribunal made no findings on any matters other than the appellant's nationality. Thus, it could not be concluded that anything which the delegate had considered favourably for the appellant was decided differently by the Tribunal as, relevantly, no findings were made by the Tribunal. His Honour found that, in this case, the Tribunal exercised its discretion by not rescheduling the hearing and by proceeding to make its decision. When considering how to exercise its discretion under s 426A , the Tribunal considered the appellant's letter advising the Tribunal of her alleged indisposition, but found it unconvincing. In light of that conclusion, his Honour found that the Tribunal did not accept that the appellant had demonstrated an inability to attend the hearing, and exercised its discretion not to reschedule the hearing. 13 As I have indicated, there was a positive finding by the Federal Magistrate, after hearing evidence, that the appellant was too unwell to attend the Tribunal hearing. 14 Prior to making this finding his Honour set out the details of the appellant's account as follows at [22]-[23]: 22. The second matter arising in respect of this asserted ground of review turns on the applicant's claim to be too unwell to attend the Tribunal hearing listed for 9 May 2007. Her evidence to the Court was that she had food poisoning which manifested as severe diarrhoea and exhaustion. She said that she was staying at a friend's home but the friend had gone away with her boyfriend leaving the applicant alone and speaking no English. She said that she was unable to make contact with her friend or with another friend and was too ill to leave the flat. The applicant said that she was able to speak to the second friend the next day and asked her to make contact with the Tribunal to advise them that she had been ill and to ask for a postponement of the hearing. The applicant said that it was not easy to make contact with this friend who would not always ring her back promptly and that a couple of weeks after this conversation her friend told her that contact had been made with the Tribunal, although the applicant was not told what her friend had said to the Tribunal. 23. The applicant was cross-examined closely as to how her illness could be so bad as to prevent her from attending a hearing which she conceded was very important and might save her life. She insisted that she was severely incapacitated by the food poisoning and spent the day running between the bedroom and the bathroom and not being able to communicate with anybody because of her lack of English. It should also be noted that the applicant did not provide to the Tribunal or to the Court a medical certificate confirming her illness on the day. However, it should also be observed that her counsel had been unaware until the night before the hearing that her medical condition on the day of the Tribunal hearing was a matter of vital significance in these proceedings. The applicant had not explained this to him even though she had given evidence on the subject at a show cause hearing on 19 November 2007. 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. 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. 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.