FEDERAL COURT OF AUSTRALIA Rana v Minister for Immigration & Multicultural Affairs [2000] FCA 1736 IMMIGRATION – Notice of hearing before Refugee Review Tribunal – Statutory requirement that notice invite applicant "to appear before the Tribunal to give evidence" – Letter sent invited applicant to appear "to give oral evidence" – Whether failure to comply with a procedure required to be observed – Whether invitation "to give evidence", in statutory context, referred to personal attendance by applicant – Whether invitation "to give evidence" meant "to give oral evidence". Migration Act 1958 (Cth ) – ss 420, 423, 424, 424A, 424B, 424C, 425, 426, 427, 428, 429, 476 Re William Bros Ltd (1928) 29 SR (NSW) 248 applied Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 mentioned SURJIT RANA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 674 of 2000 RYAN, SUNDBERG and EMMETT JJ 29 NOVEMBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 674 OF 2000 BETWEEN: SURJIT RANA APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: RYAN, SUNDBERG and EMMETT JJ DATE OF ORDER: 29 NOVEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. 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 674 OF 2000 BETWEEN: SURJIT RANA APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: RYAN, SUNDBERG and EMMETT JJ DATE: 29 NOVEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT BACKGROUND 1 The appellant is a citizen of India. He arrived in Australia on 6 August 1996, and lodged an application for a protection visa on 12 August 1996. On 10 February 1998 a delegate of the respondent refused the application. On 6 March 1998 the applicant sought review of that decision. On 24 September 1999 the Refugee Review Tribunal sent a letter to the appellant at his agent's address. It was in part as follows: "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 present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain evidence from another person or persons. If you want to come to a hearing it will be on: [date, time and address of hearing supplied] … If you want the Tribunal to take oral evidence from another person or persons, you must complete the 'witness' details on the enclosed form and return it by 8 October 1999. The Tribunal will consider your wishes but it does not have to take evidence from any witnesses you name. 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 …. If you do not attend the hearing and a postponement has not been granted the Tribunal may make a decision on your case without further notice." 2 It is common ground that the letter was received and that it gave sufficient notice of the hearing. The appellant did not attend the hearing. The Tribunal handed down its decision on 11 January 2000. It stated in part: "The letter was sent to the applicant at his address for service, in accordance with the regulations. A copy was also sent to his adviser. 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 and present arguments before it and that he has effectively declined that opportunity. The matter has therefore been determined on the evidence before the Tribunal. The evidence comprises the Department's and Tribunal's files relating to the application and information which the Tribunal has obtained from independent sources about matters referred to in the application. FINDINGS AND REASONS As the applicant has not availed himself of the opportunity to attend an oral hearing, the Tribunal has before it only the information contained in the written material from which to make a determination." The Tribunal affirmed the delegate's decision not to grant a protection visa. 3 On 7 February 2000 the appellant applied to the Federal Court for an order of review, claiming that the letter of 24 September 1999 did not comply with the requirements of s 425(1) of the Migration Act 1958 which 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 The letter invited the appellant to attend the hearing "to give oral evidence" rather than "to give evidence", and he contended that it thus purported to restrict the evidence he could give at the hearing to oral evidence. He claimed that this constituted a failure to comply with s 425(1). The primary judge and both parties accepted that s 425 prescribes a procedure required by the Act to be observed in connection with the making of a decision, and that a failure to comply with s 425 is a ground of review under s 476(1)(a). LEGISLATIVE CONTEXT 5 Section 425 appears in Division 4 of Part 7 of the Act. That Division, which consists of ss 423 to 429A, deals with the conduct of reviews by the Tribunal. Section 423(1) provides "An applicant for review by the Tribunal may give the Registrar: (a) a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and (b) written arguments relating to the issues arising in relation to the decision under review." Section 424(1) empowers the Tribunal to acquire any information it considers relevant. Sub‑section (2) empowers it to invite a person to give additional information. Section 424A(1) requires the Tribunal to give an applicant particulars of any information it considers would lead to its affirming the decision under review and invite the applicant to comment on that information. Section 424B deals with the form of the invitations under ss 424 and 424A. Then comes s 425. Section 425A(1) provides that if the applicant is invited to appear before the Tribunal, it must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. 6 Section 426 provides: "(1) In the notice under s 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." 7 Section 427(1)(a) provides that for the purposes of a review of a decision, the Tribunal may take evidence on oath or affirmation. Sub‑section (3) provides in part that "… the Tribunal in relation to a review may: (a) summon a person to appear before the Tribunal to give evidence; and (b) summon a person to produce to the Tribunal such documents as are referred to in the summons; and (c) require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and (d) administer an oath or affirmation to a person so appearing." Sub‑section (5) provides: "The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true." Section 429A provides: "For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by: (a) telephone; or (b) closed circuit television; or (c) any other means of communication." DECISION AT FIRST INSTANCE 8 The primary judge held that the letter satisfied the requirements of s 425(1) notwithstanding that it referred to "oral evidence" rather than to "evidence". His Honour gave several reasons for so holding: · Section 425(1) invites an applicant "to appear before the Tribunal to give evidence", rather than merely "to give evidence before the Tribunal". This contemplates that the applicant will attend personally before the Tribunal to give evidence. · Sections 425A(1) and 427(3)(c) also contemplate an applicant's personal attendance. · Section 423 entitles an applicant to provide a statutory declaration in relation to any matter of fact the applicant wishes the Tribunal to consider, as well as written arguments relating to issues arising from the decision under review. This entitlement may be exercised at any time preceding the hearing and at the hearing. This part of the context in which s 425 appears shows that the section deals with the personal attendance of an applicant in order to give evidence rather than the applicant's right to produce documentary material in support of an application. · Also forming part of the context in which s 425 appears, ss 424, 424A, 424B and 424C set out circumstances in which the Tribunal is empowered to seek additional information either from the applicant or from other sources. His Honour did not think there was any real difference in substance between the entitlement of the applicant to request "the Tribunal to obtain oral evidence" (s 426) and the requirement that the applicant be invited to appear "to give evidence" (s 425). Both sections involve information being provided at a hearing. APPELLANT'S SUBMISSIONS 9 The appellant's submissions can be summarised as follows: · If the Tribunal had intended to invite the applicant to appear to give oral or documentary evidence or both, it could simply have said so. Ideally it would say: "You are invited to attend a hearing and give evidence. You may give that evidence orally or by a tender of documents, although the Tribunal would prefer to see the documents in advance". · Section 420(1) requires the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. The word "informal" constrains the Tribunal from employing technical inferences. However it was to technical inferences that the primary judge resorted in coming to his decision. · The letter did not invite the applicant to come to a hearing "and give oral evidence", but rather to come to a hearing "to give oral evidence". Attention was drawn to the difference between the notice requirements of s 425(1) of the Act and s 104 of the Health Insurance Act 1973 (Cth). The latter provides: "The notice under section 102 must require the person under review to appear at the hearing and give evidence to the Committee." · In interpreting s 425, regard should be had to s 420(1), which is said to contain the governing principles by which the Tribunal is to perform its task. · The primary judge's reliance on s 427(1)(a) ignores the fact that an applicant might fail to realise that the right to tender documents exists. · The primary judge's resort to the context in which s 425 appears does "not make up for a breach of the section and a failure to observe a procedure required by the Act to be observed". 10 We agree with the primary judge, for essentially the reasons he gave, that the phrase "appear before the Tribunal to give evidence" in s 425(1) is a reference to the giving of oral evidence, and that the Tribunal's letter reflects the true construction of the provision. We add only three matters to his Honour's catalogue of reasons for reaching this conclusion. The first is that to "give evidence" in the natural and ordinary meaning of the words is to make statements on oath. See, for example, Re Williams Bros Ltd (1928) 29 SR (NSW) 248. Evidence may of course be oral or documentary. But it is the addition of the word "give" that focuses on oral evidence. The distinction between "evidence" or "obtaining" or "taking" evidence on the one hand and "giving evidence" on the other, is reflected in Division 4. Numerous sections refer to the giving of evidence. However s 426(3) provides that the Tribunal is not required "to obtain evidence (orally or otherwise)" from a person named in an applicant's notice under sub‑s (2). The second matter is that apart from s 427(1)(a) and (3)(a) there are several indications that the "giving" of evidence is the giving of oral evidence. Section 427(7) is an example. The third matter is that s 427(3)(a) and (b) highlight the distinction between giving (oral) evidence and producing documentary evidence. 11 We are not persuaded by any of the appellant's submissions summarised in par 9. The first misses the point. The Tribunal did not have the intention attributed to it. Its intention was to convey to the appellant that he could give oral evidence, and present arguments, in support of his claim. As we have said, that is a correct rendering of s 425(1). The second submission relies on the word "informal" in s 420(1). That section is directed to the Tribunal. It cannot be used to attack the primary judge's use of the conventional tools of statutory construction. The third submission does not assist the appellant. The Tribunal's letter uses the words of s 425(1) ‑ "to give evidence". It is not to the point that a different statute uses the words "and give evidence". The fourth submission is dealt with by what we have said about the second. The fifth submission does not bear on the proper construction of s 425(1). The final submission assumes what it seeks to prove. 12 Even if we had been of the view that the construction of s 425(1) contended for by the appellant was correct, in the exercise of our discretion we would not have afforded him any relief. See Singh v The Minister for Immigration & Multicultural Affairs (2000) 98 FCR 469 at 479. The appellant put forward no evidence that he was misled by the Tribunal's letter, and did not suggest he had any documents that he wanted to put before the Tribunal. Indeed he did not even attend the hearing. In those circumstances he would not have been entitled to a favourable exercise of our discretion. CONCLUSION 13 The appeal should be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan, the Honourable Justice Sundberg and the Honourable Justice Emmett. Associate: Dated: 29 November 2000 Counsel for the Appellant: M Newman Solicitor for the Appellant: Newman & Associates Counsel for the Respondent: J Smith Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 November 2000 Date of Judgment: 29 November 2000