Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553
Outcome: cited
The Tribunal's decision is a "privative clause decision" within the meaning of s 474 of the Act . This Court cannot set the decision aside except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. A breach of s 360(1) constitutes jurisdictional error: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (" SCAR ") at 561 per Gray, Cooper and Selway JJ. 21 Thus, the Full Court in SCAR dismissed an appeal from a judge who had granted relief by way of certiorari in circumstances in which, unknown to the Tribunal, on account of his father's recent death, at the time of the hearing, the review applicant was suffering from extreme distress. The Full Court had regard to the obligation that s 425(1) (and therefore s 360(1)) imposed and acknowledged, at 560, that the invitation to attend a hearing "must not be a hollow shell or an empty gesture". It added at 561: "It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; not does it require the Tribunal to carry out an inquiry in order to identify what the case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671. On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a 'real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation." 22 Although the reasoning in SCAR has not met with universal approval (see, for example, Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at 417 per Graham J), it was a unanimous decision of a Full Court of this Court and has been followed by subsequent Full Courts: see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ; and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ; and also cf SZFDE at 389 per French J and 400 per Allsop J. In any event SCAR remains binding on me, as on other judges of this Court at first instance: also cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456 (" NAQF ") at 475-476 per Lindgren J and SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477 at [26] per Cowdroy J. In NAQF , at 476, Lindgren J referred to SCAR and observed, by way of illustration of the nature of the s 360(1) obligation, that there would be a breach of this provision "[i]f, at an MRT hearing, the member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue". 23 SCAR is consistent with the approach adopted more recently by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 (" SZBEL "). SZBEL confirms that conformity with s 360(1) requires the provision of an in-substance opportunity to give evidence and present submissions. At the heart of the reasoning in the joint judgment of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ is the proposition, at 600, that: "The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the tribunal. The applicant is to be invited 'to give evidence and present arguments relating to the issues arising in relation to the decision under review'. The reference to 'the issues arising in relation to the decision under review' is important." (Emphasis original) This reference to s 425(1) applies equally to s 360(1) of the Act .