Case: Minister for Immigration v SZFML [2006] FCAFC 152 ; (2006) 154 FCR 572
Outcome: applied
Neither counsel was able to refer to any decision directly on point. However, in Minister for Immigration v SZFML [2006] FCAFC 152 ; (2006) 154 FCR 572 at 585-587 [54] - [64] Spender, French and Cowdroy JJ considered the operation of Div 4 of Pt 7 of the Act in the context where an applicant for review had instructed her migration agent that she wished to attend a hearing of the tribunal in response to its invitation under s 425(1) , but the agent, purportedly on her behalf informed the tribunal that she did not wish to appear. 15 Their Honours referred to the fact that the tribunal had followed a similar administrative procedure to that used here. It had combined the invitation under s 425(1) with a notification of the date, time and place of the appearance pursuant to s 425A(1) ( SZFML 154 FCR at 586 [61]). They went on to consider what they identified as the 'logical structure of ss 425 and 425A '. They held that this involved the following theoretical sequence ( SZFML 154 FCR at 586 [62]). (1) The tribunal considers whether it should decide the review in the applicant's favour on the basis of the material before it. If it so finds, it can make the decision immediately and end the review. Otherwise it has to issue an invitation unless one or other of the conditions in ss 425(2)(b) or (c) is satisfied. (2) The tribunal asks the applicant for review whether he or she consents to it deciding a review without him or her appearing before it. If that consent is given, the applicant is not entitled to appear and the tribunal can then proceed to decide the review. (3) However, if the applicant does not give that consent, the tribunal must consider whether ss 424C(1) of (2) applies to him or her, and if not, then the invitation must be issued. (4) The tribunal must give the applicant notice of the day on which, and the time and place at which he or she is scheduled to appear. A minimum time between the giving of that notice and the actual hearing is prescribed in Reg 4.35D. (5) If the applicant does not appear at the hearing, then the tribunal is authorised to make a decision on the review without any further steps to allow or enable the applicant to appear before it. (6) Notwithstanding the above, the tribunal has a discretion to reschedule an applicant's appearance before it. 16 In SZFML 154 FCR at 586-587 [63]-[64], the applicant's migration agent had notified the tribunal that the applicant for review had consented to it deciding the review without her appearing before it, in circumstances where she had not authorised the agent to do so. Their Honour's said ( SZFML 154 FCR at 587 [64]): 'No question of the application of s 426A arises. That provision only operates where an applicant has been invited to appear before the Tribunal and does not appear at the time and place at which the applicant is scheduled to appear. In this case the Tribunal proceeded on the basis of the apparent consent tendered on behalf of SZFML . It did not proceed on the basis of her non-appearance at a scheduled hearing.' 17 Thus, Spender, French and Cowdroy JJ analysed the situation as one in which the tribunal had proceeded on the basis of the apparent consent pursuant to s 425(2)(b) rather than on the basis that the applicant for review had not appeared at the hearing (see also SZFML 154 FCR at 587 [65]). Earlier their Honours had referred to Applicant NAFF 2002 v Minister for Immigration [2004] HCA 62 ; (2004) 221 CLR 1 at 10 where McHugh, Gummow, Callinan and Heydon JJ said at 10 [26]-[27]: ' [26] Although the Tribunal was obliged to provide an informal mechanism of review (s 420(1)) , and although the Tribunal was not bound by "technicalities, legal forms or rules of evidence" (s 420(2)(a)) , the Act established important requirements of a substantive kind, several of which were designed to ensure that applicants for review received procedural fairness. The duty of the Tribunal under s 414(1) to review the delegate's decision (which arose once the appellant had applied for review) continued until one of the outcomes described in s 415(2) was arrived at, for example, the affirming, the varying or the setting aside of the decision. [27] One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.' 18 The Minister argued that the response to the invitation to hearing form and his Honour's finding demonstrated that the appellant had consented under s 425(2)(b) to the tribunal deciding the review without him appearing before it. He pointed to what Spender, French and Cowdroy JJ had said in SZFML 154 FCR at 585 [58], namely that where one of the conditions set out in s 425(2) is satisfied, the entitlement to appear before a tribunal established under s 425(1) either did not come into existence or ceased to exist and the tribunal's duty to invite the applicant for review to appear before it was thus discharged. The appellant riposted that the structure of s 425 implied that the consent referred to in s 425(2)(b) had to antedate the issue of the invitation and that once issued the invitation could not be withdrawn. 19 I do not accept the appellant's argument. After issuing an invitation but before the date of the hearing, the tribunal could decide the review in favour of the applicant for review. If it did that, further conduct of the review would be otiose. Not only would there be no need for a hearing but there would be nothing for the applicant for review to put to the tribunal, since the decision already made by it would have granted the applicant what he or she had applied to get in the first place. A reconsideration by the tribunal after issuing an invitation to a hearing under s 425(1) resulting in a decision to grant the applicant for review a protection visa would enable the tribunal to pursue the objective in s 420(1) of providing a mechanism of review that, among other things, was quick. There would be no purpose in continuing to a hearing or suspending the notification to the applicant for review of the favourable decision until some future time simply because, the earlier review of the tribunal was that a hearing ought to take place. A saving of the tribunal's time, public expense, and, possibly, expense for the applicant would ensue from the immediate notification of a favourable decision prior to the scheduled hearing date. 21 Again, it is difficult to see any purpose in the legislative scheme to require the tribunal to go through the empty form of holding a hearing when it had been informed by the applicant for review that he or she consented to the tribunal deciding the review without him or her appearing before it, even after the invitation to attend the review had been issued. Such a consent, if given after the applicant for review has been informed that the tribunal did not consider that it should decide the review in the applicant's favour on the material before it and thus wished to invite him or her to a hearing so as to persuade it to the contrary, would be an informed consent to a decision being made against the interests of the applicant. Such a consent engages the operation of s 425(3) so that after it has been given the applicant is no longer entitled to appear before the tribunal. As Spender, French and Cowdroy JJ considered, once the applicant for review consents to the tribunal deciding the review without him or her appearing before it, the tribunal can proceed under ss 425(2)(b) and (3) to determine the application for review on the basis of the consent: SZFML 154 FCR at 587 [64]. Their Honours distinguished that mode of the tribunal proceeding from its acting on the basis of the power to decide the review under s 426A(1) following the non-appearance of an applicant. The applicant for review by rejecting an invitation to appear under s 425(1) , can waive his or her right to a hearing. That has the effect of an applicant for review consenting to the tribunal deciding the matter without him or her appearing before it. 22 For these reasons, the tribunal was entitled to proceed on the basis that the applicant had consented to it determining the review pursuant to s 425(2)(b). 23 The appellant also argued that by dint of s 430B(4) , if a decision is not made orally or the applicant is not in immigration detention (s 430B(1)) , the date of any decision of the tribunal is the date on which it is handed down. He argued that this provision had the effect of deeming the decision to have been made on a date different to that which it actually records as being the date on which it was made. The appellant argued that until a decision to which s 430B(1) applied was handed down, the tribunal could change its mind on the course or decision it had previously decided to adopt.