Bakshi v Minister for Immigration

[2015] FCCA 2092

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAKSHI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2092

Catchwords:
MIGRATION – Partner visa – applicant did not reply to an invitation to comment from Tribunal – applicant not given opportunity to appear before Tribunal – whether letter of invitation satisfied the requirements of ss.359 and 359A – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359, 359A, 359B, 359C, 360, 363A, 424A

Migration Regulations 1994 (Cth), cl.820 of sch.2, cl.3001 to sch.3

Ching v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1131
Haritos v Commissioner of Taxation [2015] FCAFC 92
Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413
Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) FCR 214

Applicant: GAURAV BAKSHI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 326 of 2015

Judgment of: Judge Smith

Hearing date: 3 June 2015

Date of Last Submission: 23 June 2015

Delivered at: Sydney

Delivered on: 7 August 2015

REPRESENTATION

Solicitor for the Applicant: Mr R. Killalea, Kazi & Associates

Counsel for the First Respondent: Mr O. Jones

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 326 of 2015

GAURAV BAKSHI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The once slender Migration Act1958 has expanded considerably in its middle age. Much of this is due to the introduction to it of many procedural technicalities. Of these, the ones that have arguably attracted the greatest judicial attention are those which governed reviews in the Migration Review Tribunal (“Tribunal”) and the Refugee Review Tribunal and, in particular, the requirement that each Tribunal must give applicants an opportunity to address adverse information. Those requirements were governed by s.359A in respect of the Tribunal and s.424A in respect of the Refugee Review Tribunal.

2. While the obligations of the two Tribunals under these provisions are analogous, there is an important difference between them. Where an applicant before the Tribunal fails to respond to an invitation under s.359A (or for that matter s.359) of the Act, he or she forfeits any right to appear before the Tribunal to give evidence and present arguments about the issues that arise in relation to the decision under review. There is no similar provision in respect of the Refugee Review Tribunal.

3. In these proceedings, the applicant was not given an opportunity to appear before the Tribunal because he did not reply to an invitation to comment on, respond to or provide information. The issue is whether that invitation was one that satisfied the technicalities of the requirements in ss.359 and 359A. If it did not, as the applicant contends, then the Tribunal failed to provide the applicant with an essential element of the review, namely a hearing, which would constitute jurisdictional error.

Background

1. The applicant is a citizen of India who applied for a Partner (Temporary) (Class UK) visa on the basis of his relationship with his sponsor. The only subclass for that class of visa was a subclass 820, the criteria for which were contained in cl.820 in sch.2 to the Migration Regulations1994. Clause 820.211 requires the applicant to meet the requirements of sub-cls.(2), (5), (6), (7), (8), or (9). The only relevant subclause was (2). That subclause requires the applicant to be the spouse of the person who sponsored him. As the applicant was not the holder of a substantive visa at the time of his visa application, cl.820.211(2)(d) requires that:

   (i)the applicant:

   a.entered Australia as the holder of a subclass 995 (Diplomatic) visa or as a special-purpose visa holder who at the time of entry met the requirements of subclause (2A); and

   b.satisfies schedule 3 criterion 3002; or

   (ii)the applicant satisfies schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

2. Criterion 3001 is contained in sch.3 to the Regulations and provides:

   (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa--1 September 1994; or

   (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa--the day when the applicant last became an illegal entrant; or

   (c)if the applicant:

   (i)     ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)     entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of:

   (iii)   the last day when the applicant held a substantive or criminal justice visa; or

   (iv)    the day when the applicant last entered Australia unlawfully; or

   (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation--the later of:

   (i)     the day when that last substantive visa ceased to be in effect; and

   (ii)     the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

3. On 30 May 2014 a delegate of the Minister decided to refuse to grant the applicant a visa because he was not the spouse of his sponsor. The applicant applied to the Tribunal for review of that decision.

4. By letter dated 10 November 2014 headed “Invitation to comment on or respond to information and to provide information – Mr Gaurav Bakshi”, the Tribunal gave particulars of certain information that it considered would be the reason or part of the reason for its decision. The Tribunal, invited the applicant to comment on or respond to that information and invited him to provide further information concerning his relationship with his sponsor. In response, the applicant sent a statutory declaration made by him on 20 November 2014.

5. The Tribunal then identified a further issue on the review, namely that the applicant was not the holder of a substantive visa, did not enter Australia as the holder of a subclass 995 visa or special-purpose visa and had not made an application for the visa within 28 days of the day on which he ceased to hold a substantive visa. Having identified this issue, the Tribunal sent the applicant a letter dated 9 December 2014 setting out particulars of information, inviting him to give comments on or respond to that information and to provide other information in writing. The letter required a response or comment by 23 December 2014. This letter was the focus of submissions in these proceedings and is set out in full at [20] below.

6. On 11 December 2014 the Tribunal wrote to the applicant inviting him to appear before it on 15 January 2015. However, by letter dated 6 January 2015, the Tribunal wrote to the applicant cancelling the hearing scheduled for 15 January on the basis that he had lost his entitlement to a hearing under ss.359C and 360(3) as he had not responded to the letter dated 9 December 2014 within the prescribed period.

7. The Tribunal made a decision on 7 January 2015 affirming the decision of the delegate. It found that the applicant had not met criterion 3001 because the visa application was not made within 28 days of the date on which the applicant had last held a substantive visa and he had provided no compelling reason as to why that requirement should be waived.

Consideration

1. The applicant accepts that the Tribunal sent the 9 December 2014 letter to the appropriate address and within the time required by the Act and Regulations. The consequence of that is that it does not matter whether or not the applicant actually received the letter because he is taken to have received it for the purposes of the Act.

2. The only issue is whether the 9 December 2014 letter could properly be described as an invitation under either or both ss.359 or 359A of the Act.

3. Section 359 provides that the Tribunal may get any information that it considers relevant by inviting the person in writing to give the information.

4. Section 359A(1) of the Act relevantly requires the Tribunal to give to the applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review.

5. Section 359B(2) provides that where an invitation is given under s.359 or s.359A the comments on or response to the information must be given within the period specified in the invitation.

6. The consequence of a failure to respond or comment within the specified period is provided by s.359C, namely that the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on information. Further, s.360(3) provides that if the applicant has not responded or commented within the specified period then he or she is not entitled to appear before the Tribunal.

7. Section 363A further provides that:

   If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.

8. The combined effect of these provisions is, as briefly outlined above, that where the Tribunal invites an applicant to comment on or respond to or provide information in accordance with ss.359 or 359A of the Act and, he or she fails to do so within the required time, the Tribunal does not have the power to grant a further oral hearing: Hasran v Minister for Immigration & Citizenship (2010) 183 FCR 413 at [25] to [32].

9. The applicant raised three grounds in the proceedings. The first ground was that, taken as a whole, the 9 December 2014 letter was not an invitation within the meaning of either ss.359 or 359A of the Act but rather was sui generis (a Latin phrase meaning unique, or in a class of its own). The second ground focused upon the aspects of the letter that purported to come within s.359A of the Act. In this respect, the applicant argued that the subject of the letter was not “information” within the meaning of the Act. He argued that this was because it involved a legal conclusion rather than a fact and also because it did not in and of itself undermine the applicant’s entitlement to the visa. The third ground focused on the part of the letter purportedly issued under s.359 of the Act.

10. Because of the central importance of the letter to the issues in the proceedings it is necessary to set out in full. It stated:

    9 December 2014

    Dear Mr Bakshi

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION AND TO PROVIDE INFORMATION - MR GAURAV BAKSHI

    I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Partner (Temporary) (Class UK) visa.

    Invitation to comment on or respond to information

    In conducting its review, the Tribunal is required by the Migration Act 1958 to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that the Tribunal has not made up its mind about the information.

    The particulars of the information are:

    •   You were not the holder of a substantive visa at the time of application.

    •   You did not enter Australia as the holder of a Subclass 995 visa or special purpose visa.

    •   You lodged the visa application on 27 August 2012 and thus did not make application for the visa (the subject of this review) within 28 days of the relevant day (10 July 2011) that being the day you ceased to hold a substantive or criminal justice visa on or after 1 September 1994.

    •   You, therefore, do not meet criterion 3001 and subsequently criteria 3003 and 3004 (the Schedule 3 criteria).

    •   As you do not meet the Schedule 3 criteria, you may not meet cl.820.211(2)(d)(ii) which is a requirement for the grant of the visa.

    This information is relevant to the review because as you were not the holder of a substantive visa at the time of application and did not enter Australia as the holder of a Subclass 995 visa or special purpose visa you must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, you must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are 'compelling reasons' for not applying those criteria (the waiver of the Schedule 3 criteria).

    The information is further relevant because if you do not have 'compelling reasons' for waiver of the Schedule 3 criteria the Tribunal will be obliged to affirm the decision under review.

    You are invited to give comments on or respond to the above information in writing.

    Invitation to provide information

    You are also invited to provide the following information in writing:

    Please submit 'compelling reasons' for waiver of the Schedule 3 criteria.

    Timeframe to give comments or response and provide information

    Your comments or response and the information should be received at the Tribunal by 23 December 2014. If the comments or response or information are in a language other than English, they must be accompanied by an English translation from an accredited translator

    If you cannot provide either the written comments or response or the information or both by 23 December 2014, you may ask the Tribunal for an extension of time. If you make such a request, it must be received by the Tribunal before 23 December 2014 and you must state the reason why the extension of time is required.

    The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    Consequences of not responding to either invitation

    If the Tribunal does not receive either your comments or response or the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain your views on the information or to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

    If you have any questions, please email [email protected], or contact me on the number listed below, or telephone the Tribunal's national enquiry line on 1300 361 969. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

    …

    (Emphasis in original)

Ground 1

1. In his written submissions, the applicant supported the first ground by saying that there is no statutory provision for the Tribunal to send an invitation under both ss.359 and 359A. He also submitted that the letter referred to neither of the provisions and wrongly noted that, so long as there was a response to either of the invitations in the letter, then the applicant would still be entitled to a hearing.

2. In oral submissions, the applicant conceded that there was no requirement for an invitation to expressly refer to the provision under which it is made. However, he added two arguments to his first ground, namely, that the phrase “subject to your comments or response” is not contained in the Act, and secondly, that some of the dot points on the first page of the letter were cast as conclusions and therefore did not amount to “information”.

3. The applicant was correct to concede that there is no requirement in the Act to specify the provision under which an invitation is sent. However, he was wrong to press the argument that a letter which contains an invitation under both ss.359 and 359A is, for that reason, not an invitation under either of those provisions. First, there is no express requirement that the invitations be set out separately; secondly, apart from a number of requirements that the applicant concedes were complied with, a s.359A invitation need only be given in writing in a document and, in respect of s.359, the Tribunal may, but need not, give it in writing: s.359(2). Thirdly, in light of the prescriptive nature of other procedural requirements imposed upon the Tribunal, there is no room in my view to imply such a limitation on the way in which an invitation may be given under these provisions.

4. The second argument in the first ground relates to the paragraph under the heading “consequences of not responding to either invitation”. I do not accept, however, that that paragraph was in any way incorrect or misleading. The effect of the paragraph was to explain that, if the applicant failed to respond to either part of the letter, he would not be entitled to appear before the Tribunal to give evidence and present arguments. That accurately summarises the effect of the provisions that are outlined above and in particular s.363A.

5. The applicant’s oral arguments must also be rejected. The first argument, as noted earlier, is that the words “subject to your comments or response” under the heading “invitation to comment on or respond to information” does not appear in the legislation. That is quite right, however, there is no prohibition on the Tribunal trying to explain the purpose of the letter. The Tribunal is not only obliged to give an invitation to comment on information that it considers would be the reason or part of the reason for its decision, but is also obliged to consider any response to it. In light of that, there is nothing wrong with the Tribunal explaining in its letter that the provisional view it has of the relevant information was subject to anything the applicant might say in response to it.

6. The second oral argument relied on the assertion that a number of the dot points on the first page of the letter were not, contrary to the indication in the letter, “information”, but rather legal conclusions. For example, the statement “you, therefore, do not meet criterion 3001…” was such a conclusion.

7. I agree with the applicant that the last two dot points at least were not “information” within the meaning of s.359A of the Act. However, that does not mean that the letter was not an invitation under s.359A. First, the first three dot points did include “information” within the meaning of the Act. I set out my reasons for this conclusion in respect of the second ground below. Secondly, the Tribunal is obliged to “ensure, as far as is reasonably practicable that the applicant understands why the information is relevant to the review”: sub-s.359A(1)(b). Clearly enough, the matters set out in the last two dot points on the first page of the letter explain the relevance of the information which was set out in the first three dot points. Thus, although the letter might have suggested that those matters were “information” that misdescription did not derogate from the fact that each element in s.359A was addressed in the letter. In my view, in order for the letter to be properly described as an invitation under s.359A it was only necessary for there to be one piece of “information” within the meaning of the Act.

1. For those reasons, the first ground is rejected.

Ground 2

1. The first point made by the applicant in respect of the second ground is that a legal conclusion does not constitute “information” within the meaning of the Act. He argued that the first two dot points in the letter were legal conclusions and so did not constitute “information”. The applicant could not point to any authority to support that proposition. In my view, it is wrong. In SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) FCR 214, Allsop J (as his Honour then was) explained at [205]:

   Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2nd Ed 1991). In this context, the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]….

2. Given that the whole purpose of the obligation under s.359A is to give the applicant an opportunity to address matters that might form the basis of the Tribunal’s decision, it is not apt to take an overly narrow view of the meaning of the word “information”. As there is not always a clear boundary between matters of fact and law, or mixed fact and law (see, for example, Haritos v Commissioner of Taxation [2015] FCAFC 92) the question whether a particular matter is “information” within the meaning of s 359A is not answered solely by categorising it is as either “legal” or “factual”. Further, it may be noted that in respect of the particular subclass of visa for which the applicant applied, some of the criteria were couched in terms that might be described as legal conclusions. Thus, while “information” does not extend to include subjective appraisals, thought processes or determinations, I see no reason why the circumstance that a person does not hold a substantive visa at the time of the application, does not fall within its scope. The same reasoning applies to circumstance that the applicant did not enter Australia as the holder of a particular class of visa.

3. The applicant appeared at one point to argue that the first three dot points were conclusions drawn from other information and so did not constitute “information”. The first difficulty with that argument is that the applicant was unable to say what that other information was. Thus, he could not establish that what was included in the letter was no more than a conclusion drawn from other facts or circumstances. The second difficulty is that, as with the supposed dichotomy between law and fact, there is not necessarily a bright line between fact or circumstance communicated to a person and a conclusion drawn from that fact or circumstance. For example, a person might be told that it is raining outside, a matter which may well be a conclusion drawn from the observation of a number of facts. By contrast, but to the same effect, the same person might also have been told that outside it was cloudy and that a large number of drops of water were falling from the clouds towards the ground. What is important for the purposes of the operation of s.359A is that the person was informed of the relevant circumstance of fact and not simply that that circumstance of fact was an irreducible fact in and of itself.

4. The next argument raised by the applicant in respect of the second ground was that the “information” set out in the letter did not fall within s.359A(1) because it did not, in its terms, contain a “rejection, denial or undermining” of the applicant’s claims to be entitled to a visa: Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507 at [22] referring to SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190. However, that argument reveals a misunderstanding of the cases upon which it relies as well as of the “information” contained in the letter.

5. Critically, in order to obtain the visa, the applicant had to establish that, if he was not the holder of a substantive visa at the time of the application, and did not enter Australia as the holder of a subclass 995 visa or special-purpose visa, he satisfied, criterion 3001. That criterion, in turn, required the applicant to show that he had applied for the visa within 28 days of ceasing to hold a substantive visa. This criterion involved a number of steps. If it were not for the fact, for example, that the applicant did not hold a substantive visa at the time at which he lodged his application, the other parts of the criterion would not have applied. Once that is understood, it is clear that information that went to each of the relevant steps could be “part of the reason” for the Tribunal’s decision to refuse to grant the visa.

6. Contrary to the applicant’s understanding, the Act does not only operate in respect of information that would, without more, spell the end of the applicant’s prospects of obtaining the visa. Because s.359A(1) applies just as much to a “part of the reason” as it does to “the reason” it is sufficient for the relevant information to “undermine” the applicant’s claims to be entitled to the visa and it is not necessary in every case that it involve a “rejection” of those claims.

7. The final argument put in support of the second ground is that the Tribunal did not ensure, as far as reasonably practicable, that the applicant understood why the information was relevant to the review and the consequences of it being relied upon in affirming the decision that was under review. The particular matter relied upon was the statement in the last paragraph on the first page of the letter that “you must satisfy criteria 3001, 3003, and 3004 of sch.3 unless the Minister is satisfied that there are ‘compelling reasons’ for not applying those criteria”.

8. The argument was that it was in fact impossible to comply with criteria 3001, 3003, and 3004. That is because, it was argued, those criteria are in fact alternatives. The applicant relied upon the following passage of the judgment of Lindsay FM in Ching v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1131:

   [8] The way in which the Sch 3 criteria apply is capable of generating confusion. The applicant must satisfy “Sch 3 criteria 3001, 3003 and 3004” unless the Minister is satisfied that there are compelling reasons for not applying those criteria. The reference is to all three at the criteria. But it must be taken to mean such of the three criteria as are applicable to the applicant. Criterion 3003 cannot ever apply to the applicant, for example, because he did not hold a substantive visa on or after 1 September 2004. Criteria 3001 and 3004 both appear to be applicable. So, if he cannot satisfy the criteria of either, the Tribunal will need to find compelling reasons for not applying them.

9. Nothing in that passage supports the applicant’s argument. The simple point is that the letter accurately reflected the criterion in sub-cl.820.211(2)(d) as set out above. The fact that there might be some difficulty in understanding that criterion is irrelevant to the question of whether s.359A was complied with. What the letter made abundantly clear was that the criteria in 3001, 3003 and 3004 could not be met because the applicant had not lodged his visa application within 28 days of having ceased to hold a substantive visa. On any reading of the letter, the applicant would have known precisely the issue raised by the information set out in the letter and what he was required to address in order to overcome the possibility that he would be refused the grant of a visa because of the information.

10. For those reasons the second ground is rejected.

11. The consequence of the rejection of the first and second ground is that the applicant was invited under s.359A to comment on or respond to information but did not do so within the period specified in the invitation. In those circumstances, and in light of the combined operation of ss.359C(2), 360(3) and 363A, he was not entitled to be invited to attend a hearing before the Tribunal. For that reason, the failure of the first two grounds means that this application is bound to fail and will be dismissed with costs. However, as the third ground was argued before me, I give my reasons in respect of that ground as well.

Ground 3

1. On the second page of the letter the applicant was invited to “submit ‘compelling reasons’ for waiver of the schedule 3 criteria.” The applicant argues that that is not “information” within the meaning of s.359. He argued that “information” in s.359 must have the same meaning as that in s.359 A.

2. I accept the applicant’s basic proposition that the meaning of “information” is the same in both ss.359 and 359A. However, I do not accept that this letter did not constitute an invitation under s.359. The principal reason for this conclusion is that the scope and purpose of s.359 is quite different to that of s.359A. Section 359 gives the Tribunal power to obtain information and, if it does so, requires it to have regard to that information. By contrast, s.359A, as I have already noted, is aimed at providing an opportunity to the applicant to be aware of, and be able to respond to, what might loosely be called adverse material. Thus, s.359A is aimed at affording procedural fairness to an applicant. It is for that reason that the terms of s.359A are detailed and prescriptive. For example, the Tribunal is required to give “clear particulars” of “any information” and to “ensure” that the applicant understands why that is information that is relevant to the review.

3. For those reasons, although the letter did not, in terms, seek “information” but rather asked for “compelling reasons”, it is nevertheless an exercise by the Tribunal of its power under s.359. It is relevant to that conclusion that any response to a request for “compelling reasons” would necessarily include some information even if it were also to include an analysis of, and submissions based upon that information.

4. For those reasons I reject ground three.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 7 August 2015