Case: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14
Outcome: distinguished
As to the appellant's third ground, the appellant argues that the Tribunal failed to undertake a reasonably open and regular administrative procedural step necessary to provide the appellant with a real and meaningful invitation to the hearing, such as seeking to contact the appellant by telephone on the day of the hearing. In making this argument, the appellant relies on the principles set out in SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 ; (2007) 164 FCR 14. However, that case is inapposite here for the reasons set out below. 62 In SZJBA [2007] FCA 1592 ; 164 FCR 14 , Allsop J said, starting at [53]: On either basis, the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. The letter that was received, on its face, told any person who read it that there was with it, or supposedly with it, a five page document which was a response to the relevant invitation. On the facts found by the Federal Magistrate, the five page document was not enclosed. The response was an important document. It must have been, or should have been, apparent that an error (human or machine) had occurred. ... ... In my view, the inaction of the tribunal for the reasons I have given, amounted to an undermining of the reality and meaningfulness of the invitation to comment that was given purportedly under s 424A or under s 424 or under the general executive power. As such, it was a jurisdictional error in that it undermined the steps in the conduct of the review undertaken pursuant to Pt 7 of the Migration Act , that were required by, or authorised by, the statute or authorised as the conduct of the general executive power under s 61 of the Commonwealth Constitution which had been undertaken by the Tribunal, and, once undertaken, were not to be frustrated by the action or inaction of the Tribunal in circumstances where, as I have said, it was obliged to take basic and simple administrative procedural steps. ... Here, the question was not whether the Tribunal should have undertaken some evidence gathering task. The failure here was to take a simple administrative step of an office or housekeeping nature, the failure to take which could be seen on its face at the time to subvert the observance of the Tribunal of its obligation to give procedural fairness by the giving of the s 424A letter, or by the operation of s 424, or by the general executive power . Division 4 of Pt 7 is the statutory formulation of the giving of natural justice: see s 422B. Given the importance of procedural fairness for the principles of jurisdictional error sourced in s 75(v) of the Constitution : see SZFDE 237 ALR 164 at [32], any subversion of the process of the tribunal is a matter of importance: SZFDE [2007] HCA 35 ; 237 ALR 64 at [32] . The same conclusion is to be reached by the application of the principles that in certain circumstances the decision of a Tribunal or decision-maker will be vitiated if some inquiry is not made. Most recently, Kenny J examined these cases in her Honour's comprehensive judgment in Minister for Immigration and Citizenship v Le [2007] FCA 1318. It can readily be accepted, as her Honour said, that there is no general obligation to inquire found in s 424(7), nor is there a general obligation to initiate inquiries or to make an applicant's case for him or her. I refer, without repetition, to the long list of cases referred to by Kenny J in Le [2007] FCA 1318 at [60] . The absence of such a general obligation of inquiry can be accepted, without denying the limited proposition supported by numerous other cases that, in certain exceptional cases, a failure to make some inquiry may ground a finding of jurisdictional error if it was plainly necessary to make some reasonably straightforward inquiry before the making of the relevant decision: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169-70. Kenny J discusses this in Le at [60]-[67]. I adopt without repetition her Honour's reasons. The only qualification that I would make to her Honour's reasons is that the rubric of Wednesbury unreasonableness may cover circumstances that amount to jurisdictional error and those that amount to error within jurisdiction. It is unnecessary here to explore such possible differences. Here, the failure to take the steps, which in my view were required in the review process, subverted an opportunity to respond to an invitation contemplated or authorised by the statute as part of the review process and so amounted to jurisdictional error . [Emphasis added] 63 As the quoted extracts suggest, the Tribunal must, where there is material before it that on its face suggests that an error has occurred or that the Tribunal is not in receipt of all materials responding to the invitation (in SZJBA , the letter stating that a five page document was enclosed but without any such enclosure), take simple administrative steps to address the issue (eg make a phone call or send a letter inquiring as to the potentially missing material). In this appeal, however, the appellant cannot demonstrate that there was any material before the Tribunal that would have put the Tribunal on notice of an error or irregularity in the record which needed to be followed up administratively. 64 In SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 , the Full Court distinguished SZJBA on the basis that that decision was different because in that case 'there was a failure to inquire into readily available and centrally relevant information' (at [29]). Similarly, in my view the factual position confronting Allsop J in SZJBA was very different from that which arises in this appeal, and the failure to inquire cannot be seen on its face to subvert the observance of the Tribunal of its obligation to give procedural fairness.