FEDERAL COURT OF AUSTRALIA Rana v Minister for Immigration & Multicultural Affairs [2000] FCA 840 SURJIT RANA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 92 OF 2000 MANSFIELD J 5 JUNE 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 92 OF 2000 BETWEEN: SURJIT RANA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 5 JUNE 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay to the respondent costs of the application to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 92 OF 2000 BETWEEN: SURJIT RANA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 5 JUNE 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 11 January 2000. The Tribunal affirmed the decision of a delegate of the respondent to refuse to grant to the applicant a protection visa under the Migration Act 1958 (Cth) ("the Act"). As there was only one point argued on the appeal, I can deal briefly with the background facts. 2 The applicant is a citizen of India. He arrived in Australia on 6 August 1996 and soon thereafter lodged an application for a protection visa. In support of his application, he lodged a statutory declaration. On 10 February 1998, a delegate of the respondent refused that protection visa, leading to the application for review of that decision by the Tribunal. That application was signed by the applicant on 6 March 1998. 3 The Tribunal then proceeded to consider the application. It received the material before the delegate of the respondent in accordance with the Act. Because it was not satisfied that it should decide the review in the applicant's favour on the basis of the material then before it, it was necessary for the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1). Section 425(1) provides: "The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review." 4 Section 425A contains provisions as to the content of the notice of invitation to appear before the Tribunal, and as to other matters including the period of notice which must be given. Section 426 also provides: "(1) In the notice under section 425A, the Tribunal must notify the applicant: (a) that he or she is invited to appear before the Tribunal to give evidence; and (b) of the effect of subsection (2) of this section. (2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. (3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice." 5 In an endeavour to comply with those obligations, on 24 September 1999 the Tribunal sent by registered post to the applicant a letter which contained the following passage: "The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence and to present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons." 6 It specified the hearing date as 11 November 1999. No issue is raised as to the adequacy of the period of notice given. 7 The applicant did not attend on the day or at the time and place set out in the letter to the Tribunal. The Tribunal then proceeded to consider the material before it. On 17 December 1999 it sent a further letter to the applicant notifying him that a decision had been made, and that it would be handed down on 11 January 2000. The Tribunal's decision was subsequently handed down on that day. Having considered the material before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and as amended by the Refugees Protocol (using those terms as defined in the Act). It was not satisfied that the criterion set out in s 36(2) of the Act for a protection visa was met. It therefore affirmed the decision not to grant a protection visa. 8 In the course of its reasons, after referring to the letter of 24 September 1999, the Tribunal said: "No response has been received and the applicant did not attend the scheduled hearing. In these circumstances I am satisfied that the Tribunal has discharged its obligation to provide the applicant with the opportunity to give oral evidence to present arguments before it and that he has effectively declined that opportunity. This matter has therefore been determined on the evidence before the Tribunal. That evidence comprises the Department's and the Tribunal's files relating to the application and information which the Tribunal has obtained from independent sources about matters referred to in the application." I take the reference to the Tribunal's files to include material contained within the application for review by the applicant. 9 The short point on this application is that the letter of 24 September 1999 did not comply with the requirements of ss 425 and 425A of the Act because it expressly said that the invitation to attend the hearing of the Tribunal was "to give oral evidence" rather than simply to "give evidence". It is contended that that letter amounts to a failure to comply with s 425 of the Act. That is because it expressly refers to, and therefore limits, the opportunity to attend to give evidence to oral evidence rather than to other forms of evidence. 10 It may be accepted that s 425 of the Act prescribes a procedure required by the Act to be observed in connection with the making of the decision: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (Lindgren J, 6 May 1997, unreported). Consequently, if that procedure was not observed, the ground of review available under s 476(1)(a) of the Act would be made out. 11 I am informed by both counsel that there are no decisions dealing with the particular point. It is therefore appropriate to make a decision on the arguments presented before me, having regard to the terms of s 425 and its context in the Act. The respondent submits that s 425(1) of the Act does contemplate a visa applicant being given the opportunity to appear to give evidence, which in context means to appear to give oral evidence. The visa applicant must also be given the opportunity to present arguments relating to the issues concerning the decision under review. 12 In my judgment the defect which is asserted in the letter of 24 September 1999 does not in fact reflect a failure to comply with s 425 of the Act. I consider that that letter does satisfy the requirements of s 425, although it refers to "oral" evidence. 13 There are several reasons why I have reached that conclusion. The first is that s 425(1) does not require the Tribunal to invite the applicant simply to give evidence. The obligation is to invite the applicant to appear to give evidence before the Tribunal. It clearly contemplates that the applicant will attend personally before the Tribunal to give evidence. That is also apparent from the balance of s 425(1) which contemplates the visa applicant appearing to present arguments on the claim. That is further apparent from the requirements concerning the content of the notice of invitation to appear imposed by s 425A. The Tribunal is required to give the applicant a sufficient period of notice to be able to attend, and the notice must specify the time and place and date at which the applicant "is scheduled to appear" before the Tribunal. In addition, s 427(1)(a) empowers the Tribunal to take evidence on oath or affirmation, and s 428(1) provides how the Tribunal may exercise that power of taking evidence. 14 In addition, in my judgment s 425 in context does deal with the personal attendance of a visa applicant to give evidence, rather than the right of a visa applicant to produce documentary material in support of an application. Section 423 of the Act entitles the applicant before the Tribunal to provide a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider, and to provide written arguments relating to issues arising in relation to the decision under review. That entitlement is not limited in point of time. As counsel for the respondent acknowledged, that entitlement may be exercised from time to time including on the occasion at which an applicant appears to give evidence if the invitation required by s 425 is taken up. In Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339 at 349 Tamberlin and Katz JJ, in the context of s 425 as it was previously expressed before being amended on 1 June 1999, indicated that the entitlement to produce other material to the Tribunal was an ongoing entitlement and not an entitlement which could be exercised only on the one occasion. I do not think that the textual changes made to s 425 give any reason to doubt the continuing applicability of that decision. Counsel for the respondent pointed out also that Div 4 of Pt 7 of the Act, dealing with the conduct of review by the Tribunal, contains other provisions setting out the circumstances in which the Tribunal is empowered to seek additional information either from the applicant or from other sources. Those provisions are in ss 424, 424A, 424B and 424C. In the letter of 24 September 1999, the Tribunal gave to the applicant the opportunity to submit any new documents or written arguments in addition to the opportunity to appear to give evidence. The letter said: "If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form. Any documents you send are to be in English, or translated into English by an accredited translator." 15 In my view, the context in which s 425 appears is one which firstly contemplates an application for review together with the entitlement of the applicant for review to provide additional material to the Tribunal in relation to any matter of fact that the applicant wishes the Tribunal to consider, the entitlement of the Tribunal to seek additional information either from the applicant or from other persons, and then the entitlement of the applicant to be given the opportunity to appear to give evidence before the Tribunal if s 425(1) applies. Generally speaking it will apply unless the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it, or unless the applicant consents not to be given the opportunity to appear before the Tribunal: see s 425(2). 16 Finally, I note that s 426(1) requires the Tribunal when giving the notice of invitation to appear to an applicant to also notify the applicant of the effect of s 426(2) of the Act. It requires the Tribunal to notify the visa applicant of the right within a specified time to give to the Tribunal written notice that the applicant wants the Tribunal "to obtain oral evidence" from a person or persons named in the notice. 17 The Tribunal is not obliged to accommodate that request, but it is obliged to have regard to it: s 426(3). I note that s 426(2) expressly refers to the Tribunal obtaining "oral evidence" from other persons whereas s 425(1) uses the expression "appear … to give evidence". In my view that difference of expression tends to fortify the contentions of the respondent. That is because ss 425 and 426 contemplate the Tribunal receiving further oral evidence from an applicant or from others before making a decision on an application. I do not think that there is any real difference in substance between the expression in s 426(2) concerning the Tribunal obtaining oral evidence from another person than the applicant from the expression in s 425(1) concerning the Tribunal inviting the applicant to appear to give evidence before it. Each of those processes involves possible sources of information (either from the applicant or from another person) being provided on the occasion of a hearing at which oral evidence will be given by the applicant and, at the Tribunal's discretion in having regard to the applicant's wishes, by other reasons. 18 I was referred generically to the decisions under the Bankruptcy Act 1966 (Cth) including Kleinwort Benson Australia Ltd v Crawl (1988) 165 CLR 71, which, it was submitted, recognise the strict obligation to ensure that a bankruptcy notice does not depart from the requirements of that Act except in respect of merely formal matters. I do not consider that those decisions under the Act are of any real assistance in resolving the issue now before the Court. That is simply because s 41 of the Bankruptcy Act 1966 lays down specifically the contents of a bankruptcy notice if the bankruptcy notice is to be validly given. There are decisions of the Court indicating that s 41 must be strictly complied with. However, s 425 of the Act is quite different and is in distinguishable terms. It does not purport to set out precisely what is the form and content of the invitation to appear which ss 425 and 425A require. As counsel for the respondent pointed out, those decisions do not assist the applicant because I have found that, upon the proper construction of s 425(1), it does require the Tribunal to invite the applicant to appear to give evidence, that is, oral evidence before the Tribunal. 19 For those reasons in my judgment this application should be dismissed. I also order that the applicant pay to the respondent costs of the application to be taxed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 22 June 2000 Counsel for the Applicant: Mr M Newman Solicitors for the Applicant: Newman & Associates Counsel for the Respondent: Mr J Smith Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 5 June 2000 Date of Judgment: 5 June 2000