Federal Court (Full Court). Does a failure to perform the Secretary’s duty under s 418(3) of the Migration Act 1958 (Cth) to give the Tribunal the documents that are relevant to the review invalidate a subsequent decision by the Tribunal?
A delegate of the Minister refused to grant the Appellant a protection visa, after which he applied to the Tribunal for merits review, providing an email address for the purpose of communicating with the Tribunal.
Before the Tribunal made its decision, the Department received information from Corrective Services NSW that the Appellant had been imprisoned. The Appellant did not have access to his email while in prison.
The Department's Secretary did not inform the Tribunal of that information, even though s 418(3) of the Migration Act 1958 (Cth) provided:
The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar [of the Tribunal] each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.
The Tribunal invited the Appellant to a hearing using that email address, but the Appellant did not see that invitation at the time. As he did not attend the hearing, the Tribunal dismissed his review application under s 426A(1A)(b) of the Migration Act 1958 (Cth), and then confirmed the dismissal under 426A(1E).
Some of the questions to the Full Court Federal Court (FCAFC) were as follows:
Question 1: Is the obligation under s 418(3) ongoing?
Question 2: In some circumstances, can the performance of a statutory obligation by a person other than the decision maker constitute an indispensable requirement for a valid decision?
Question 3: If the answer to Question 2 is yes, does a failure to perform the Secretary’s duty under s 418(3) invalidate a subsequent decision by the Tribunal?
Question 4: If the answer to Question 3 is yes, does that answer apply to all dispositive decisions by the Tribunal, including a decision disposing of a review under s 426A(1A)?
Question 5: Does the Act place an onus on the Tribunal to find a review applicant and prompt them to update their contact details?
Question 6: Does the High Court's decision in SZIAI about failure to make an obvious inquiry about a critical fact apply to facts going to the substantive issues in the review, as opposed to a discretionary decision as to whether to dismiss a review under s 426A(1A)(b) or whether to confirm such a decision under s 426A(1E)?
Question 7: Does the power in s 424 to get any “information” the Tribunal considers relevant in conducting a review attach to a decision under s 426A?
The FCAFC answered those questions as follows: