Case: NAJT v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 134
Outcome: discussed
The learned Federal Magistrate then went on to consider whether there was an arguable case of jurisdictional error arising from the failure of the RRT to take any steps to contact the applicant's migration agent. He referred to a decision of a Full Court in NAJT v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 134 (" NAJT "). 10 Federal Magistrate Driver found at [6] that the RRT had met its statutory obligation under s 425 of the Act to invite the applicant to a hearing. The learned Magistrate observed at [7] that the RRT believed the appellant had accepted the hearing invitation and that the form of acceptance of the invitation was potent evidence of that. 11 His Honour went on to say that whilst he did not exclude the possibility that the signature on the form of acceptance was not the appellant's signature, any default or misbehaviour on the part of the migration agent could not invalidate the decision of the RRT. 12 His Honour found that there was nothing before the RRT to indicate that the appellant did not want to attend the hearing. His Honour found that the RRT had invited the appellant to attend in accordance with its statutory obligation and that it was entitled pursuant to s 426A to proceed in his absence. 13 The learned Magistrate went on at [9] to say that there may be circumstances where it is desirable for the RRT to attempt to contact a migration agent but he said that whether there was a breach of a general law fair hearing rule in the present case was not a question which it was necessary to decide because of the provisions of s 422B of the Migration Act . 14 His Honour said that the only remaining issue was whether there was a possible breach of s 424A of the Act in not notifying the appellant of the information contained in the protection visa application upon which the RRT relied in coming to its decision. 15 However, his Honour found at [11] that the information was adopted by the appellant in his application for review and accordingly the information fell within the exception contained in s 424A(3)(b) of the Act . 16 The notice of appeal raises the same grounds as were put before the learned Federal Magistrate, with one exception. The additional ground is that the Minister asserted before the Federal Magistrate that the appellant entered Australia in 1997 whereas in fact he arrived in 2003. 17 There is no error in the Federal Magistrate's finding that the appellant's claims were not overlooked. His Honour was correct in adopting the Minister's submissions set out at [2] of the judgment. 18 The appellant is correct in asserting that the Minister's submissions before the Federal Magistrate mistakenly referred to the applicant's date of arrival in Australia as 1997. However, that was of no relevance to the decision; indeed the RRTs decision specifically refers to the fact that the appellant arrived in Australia in March 2003. The learned Magistrate was correct in finding that the RRT was entitled to proceed under s 426A. 19 The exercise of the power under s 426A(1) is predicated upon the satisfaction of two conditions, these are: first, an invitation under s 425 , and second, a failure to appear. Both of those conditions were satisfied. 21 Whether or not the decision in NAJT might be thought to have been decided on analogous provisions of the Act , namely ss 57 , 494A , 494B and 494C , it is clear that the case turns on its own facts. 22 Madgwick J, with whom Conti J agreed, said at [189] that on the evidence in that case it was known to the delegate before he proceeded to make his decision that an effective invitation had not been sent. That was not the position here. 23 As the learned Federal Magistrate held, the RRT believed that the invitation had been received and accepted, indeed it was entitled to do so. The return of the form of invitation sent to the appellant's residential address was not to the point because the RRT had received a form of acceptance apparently signed by the appellant. It was entitled to proceed on the basis that the form had been sent to and received by the appellant's authorised agent.