Case: SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 ; (2005) 144 FCR 251
Outcome: applied
In SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 ; (2005) 144 FCR 251 ('SZDQO') at [29] Conti J held that: '... in circumstances where the Tribunal decides to reschedule a contemplated hearing at the behest, explicitly or implicitly, of an applicant, s 425A does not apply in relation to the notice of a rescheduled hearing, at least insofar as concerns the period of the reviewed notice. The sanction on the Tribunal in those circumstances would be the operation of the general law as to natural justice...' 13 I do not accept the appellant's contention that Conti J's construction of s 425A may create injustice where no notification of the effect of s 426A is included in a notification of a rescheduled hearing. Such notification would have been given in any valid notice of the original hearing date and, in any event, his Honour's holding was made in respect s 425A(3); his Honour did not address the other requirements of s 425A. 14 Anticipating a submission from the respondent (not in fact made) that s 422B prevented an applicant from complaining of procedural unfairness in relation to insufficient notice or a defective notice of a rescheduled hearing, the appellant submitted that, if this position was correct, it was a reason for adopting a construction of s 425A that the section applies in these circumstances. The argument is that the Act discloses an intention to regulate the content of procedural fairness so as not to deprive an applicant of all such rights in particular circumstances. If the notification periods mandated by s 424A of the Act do not apply in relation to a rescheduled hearing, and s 422B prevents an applicant from relying on common law grounds of procedural fairness, it would appear that the applicant had little protection from the unreasonable rescheduling of hearing times. While there is a superficial attraction in this submission I am not prepared to accept that s 422B has this effect. Section 422B is discussed below. 15 I respectfully agree with Conti J's conclusion but, even if I did not, I would need to be satisfied that the decision was 'plainly wrong' before I would be prepared to depart from it; Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 at 32. The learned Federal Magistrate correctly applied SZDQO in finding that s 425A(3) did not apply in relation to a rescheduled hearing. 16 Accepting that the Tribunal does not have to give notice of a rescheduled hearing requested by the applicant s 425A(3), the question arises whether the limitation of the natural justice hearing rule imposed by s 422B of the Act applies to a rescheduled hearing requested by the applicant. Section 422B, which is found in Part 7 Division 4 of the Act, provides: 'This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. ' (emphasis added.) 17 The question was not answered in SZDQO which dealt with the more specific question of the application of s 425A(3) . The answer depends on the extent of the 'matters' with which Division 4 of Part 7 of the Act deals an issue on which there is some difference of opinion in this Court; see Branson J's analysis in SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [12] - [16] . The view I have formed about the notice of the rescheduled hearing that was given to the appellant is such that I do not need to explore this difference of opinion or what limits might be imposed in Division 4. This is because I am satisfied that, once it is accepted that s 425A(3) does not apply, the highest that the Tribunal's obligation to give notice of the rescheduled hearing date can be put is that the notice must, in all the circumstances, be reasonable. I am satisfied that the notice given to the appellant met this standard.