Chebat v Minister for Immigration
[2007] FMCA 171
•11 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEBAT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 171 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a temporary business entry visa – applicant not having an approved sponsor – whether the Tribunal met its obligations under s.359A of the Migration Act 1958 (Cth) in relation to that issue considered – whether the Tribunal erred in considering a request for an extension of time to respond to the invitation to comment on that issue considered. |
| Evidence Act 1995 (Cth), s.160 Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.343, 357A, 359A, 359B, 359C, 360A, 362B, 379C, 424A, 424B Migration Legislation Amendment Act (No 1) 1998 (Cth) Migration Regulations |
| SZGUP v Minister for Immigration & Anor [2006] FMCA 1130 |
| Applicant: | TONY CHEBAT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1906 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 21 February 2007 |
| Date of Last Submission: | 30 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2007 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr D Meltz |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Court directs that the title of the first respondent be amended to the Minister for Immigration and Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1906 of 2006
| TONY CHEBAT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was handed down on 19 June 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a temporary business entry visa. This proceeding began with a show cause application filed on 10 July 2006. That application asserted notification of the decision of the Tribunal on 26 June 2006. On that basis I find that the application was filed within time. On 9 October 2006 I made orders by consent dispensing with a hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) and listing the matter for final hearing.
The background to the applicant’s visa claims and the Tribunal decision on them is set out in the Minister’s initial outline of written submissions filed on 20 February 2007. I adopt, with minor amendments, paragraphs 1 through to 12 of those submissions as background for the purposes of this judgment:
On 3 October 1997, the applicant applied for a Temporary Business Entry (Class UC) visa (“the visa”), naming Artistiling as his proposed employer[1] and Artistiling lodged an application for approval as a business sponsor.[2]
[1] Relevant Documents (“RD”) 2
[2] RD 1
On 12 May 1998, a delegate of the Minister rejected the application of Artistiling for approval as a business sponsor[3] and refused the applicant’s visa application, finding that the applicant was not the subject of an approved business nomination by an employer who is a pre-qualified business sponsor or a standard business sponsor. Accordingly, the applicant did not satisfy cl.457.223(4) or (5) of the Migration Regulations.[4]
[3] RD 10
[4] RD 13
On 5 June 1998, the applicant lodged an application for internal review by the Migration Internal Review Office (“MIRO”).[5] Although in a decision dated 21 December 1998 MIRO affirmed the decision to refuse the grant of the visa,[6] due to a problem with the notification of the MIRO decision, the application to MIRO was taken to be an application properly made to the Tribunal on 1 June 1999.[7]
[5] RD 15
[6] RD 21
[7] see RD 47 and item 40(1) of Pt.1 of Sch.1 to the Migration Legislation Amendment Act (No. 1) 1998 (Cth)
On 10 March 2006, the Tribunal wrote to the applicant pursuant to s.359A of the Migration Act 1958 (Cth) (“the Migration Act”), inviting him to comment on information relevant to the review[8], namely that:
[8] RD 29
The case file 9802407T from the Department of Immigration and Multicultural Affairs discloses that a decision was made on 12 May 1998 to reject the application made by Artistiling for approval as a business sponsor.
The basis upon which you had applied for the visa is that you would be employed by an approved business sponsor. Without there being an approved business sponsor, the visa criteria cannot be met.
On 20 March 2006, the applicant confirmed receipt of the s.359A letter and was reminded of the deadline by which a reply was required as stated in the letter.[9]
[9] RD 32
On 5 April 2006, the applicant enquired as to how he could seek an extension to respond and was told to put his request in writing with reasons and it would be forwarded to the Tribunal member.[10]
[10] RD 33
On 20 April 2006, the applicant enquired whether his request for an extension of time to respond to the s.359A letter had been granted. He was informed that there was no request on file or in Casemate (the Tribunal’s electronic system) and was asked to resend his request.[11] On 21 April 2006, the Tribunal received the applicant’s request for a further 28 days to respond to the s.359A letter by facsimile transmission.[12] The reasons for the request were that:
[11] RD 35
[12] RD 36
1. I have not gathered all information and documents needed.
2. The company that sponsored me back in 1998 can no longer sponsor me at this time, therefore I am organizing another sponsor.
3. My immigration agent needs more time, as this is a new dealing for him.
On 1 May 2006, the extension of time was refused[13] and the applicant was invited to attend a hearing of the Tribunal.[14] The extension was refused because the Tribunal was of the view that, should the applicant wish to obtain a new sponsor, that was open to him in any event.[15]
The applicant did not attend the hearing scheduled for 30 May 2006. On that day, a Tribunal officer spoke with the applicant. The applicant was asked why he had not attended the hearing. He advised that he had requested an extension to respond to the s.359A letter, but had been advised by telephone that the extension had not been granted. As a result, he could not see any use in attending the hearing and it would go ahead without him.[16]
Tribunal decision
The Tribunal was satisfied that the hearing invitation was issued pursuant to s.360 and complied with s.360A of the Act. Following the applicant’s non-appearance at the hearing, the Tribunal determined pursuant to s.362B to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.[17]
The Tribunal noted that one necessary criterion for the visa was that the proposed employer is a pre-qualified business sponsor or a standard business sponsor, but the application for approval as a business sponsor made by Artistiling was refused by the delegate on 12 May 1998. There was no application for review before the Tribunal in respect of that decision, and the proposed employer did not seek such a reconsideration. Finally, the Tribunal noted that there was no evidence before it to show that an application for approval by another proposed employer to be a business sponsor had been approved or had been made.[18]
The Tribunal found that the applicant did not meet cl.457.223(4) or (5) of the Migration Regulations and affirmed the decision under review.[19]
[13] RD 36A, RD 42, RD 50
[14] RD 37
[15] RD 36A, RD 50
[16] RD 42
[17] RD 50
[18] RD 51
[19] RD 51
The application and evidence
The applicant relies upon his application filed on 10 July 2006 and his affidavit filed on 18 September 2006. I received that affidavit without objection, subject to the qualification that assertions about jurisdictional error would be treated as submissions. I also received the book of relevant documents filed on 14 August 2006 as evidence.
The application sets out the following grounds:
1. The MRT did not apply the law correctly.
2.The MRT erred in law by not granting the applicant an extension of time to respond and comment on information that the Tribunal considered would be the reason, or part of the reason for affirming the decision under review. The applicant was made aware that the first respondent made an error of law regarding this application and the decision which was made sometime in 1998. The Tribunal breached the law of natural justice and procedural fairness by not giving the applicant a copy and an explanation and reasons as well as an address for his previous sponsor, namely Artistiling.
3.Based on the length of time from 1998 until now the applicant cannot rely on a letter issued to him some eight (8) years after a decision was made and the applicant correctly advised the officer of the Tribunal that an extension of time is important to locate Artistiling or another sponsor.
4.The MRT erred in law by not replying to the letter sent by the applicant and the reason for the Tribunal’s decision not to grant the extension of time. The Tribunal does not have the right to take the view that it was open to the visa applicant to obtain a new sponsor in any case. Even the decision does not reveal a detailed statement of the conversation as the applicant stated to the Case Officer that he suffers physically and has been under medical treatment and the Tribunal failed to meet his expectation as to grant the extension of time.
Submissions
Both parties took up the opportunity to file an outline of written submissions. In the applicant’s submissions, filed on 8 February 2007, he asserts that the Tribunal failed to accord him procedural fairness by not giving him additional time and a copy of documents in order for him to respond and comment on the information given to him in the s.359A letter sent to him. The applicant asserts that the Tribunal committed a legal error in refusing his request for an extension of time to respond to that invitation to comment and in depriving him of the understanding of the “basis of the application under review” which I take to mean that he was not made to understand the issues upon which comment was requested. The applicant submits that in the circumstances more time to respond was reasonably required and he was entitled to understand what was requested of him. The applicant relies upon my decision in SZGUP v Minister for Immigration & Anor [2006] FMCA 1130.
The Minister relevantly submits as follows:
Grounds of application
In his application filed on 10 July 2006, the applicant appears to raise the following grounds:
(a)The MRT did not apply the law correctly.
(b)The MRT erred in law and denied the applicant procedural fairness by not granting the applicant an extension of time to respond to the s.359A letter. The MRT was not entitled to take the view that it was open to the visa applicant to obtain a new sponsor in any case. The applicant informed the Tribunal Case Officer that he “suffers physically and has been under medical treatment” and the Tribunal failed to meet his expectation as to the grant of an extension of time.
(c)The MRT breached the requirements of natural justice by not giving the applicant a copy of the delegate’s decision made in 1998 and an address for Artistiling.
Contentions
First ground - error of law
Without particulars, this ground is meaningless.
Second ground - refusal of extension of time
Section 359B(4) of the Act is to the effect that if a person is to respond to a s.359A letter within a prescribed period, the Tribunal may extend that period for a prescribed further period (namely a period ending 28 days after notice of the extended period is received by the applicant).[20] In the present case, the response to the s.359A letter was required by 18 April 2006.[21] As the request for an extension of time was not received by the MRT until 21 April 2006, that is outside of the time permitted for a response, the Tribunal could not have granted an extension of time in any event.[22] Therefore, no jurisdictional error can be disclosed by its refusal to extend time.
Even if the Tribunal could have granted an extension of time, its refusal to do so did not disclose jurisdictional error. In SZGUP v MIMA [2006] FMCA 1130, Driver FM found that the Refugee Review Tribunal (“the RRT”) constructively failed to comply with the obligation in section 424A(1)(c) (the RRT equivalent to section 359A(1)(c)) to invite the applicant to comment on the particulars of adverse information provided. This constructive failure was based on the miscarriage of the RRT’s discretion under section 424B(4) (the RRT equivalent to section 359B(4)) to extend the time for the provision of a response to the section 424A invitation. In SZGUP, the RRT had, in concluding it was not satisfied the applicant occupied a single room at the Villawood Immigration Detention Centre (“VIDC”), relied on an incident report from February 2005 which recorded at that time the applicant was allocated a room in the Macquarie Building shared with two others. A later incident report, of May 2005, supported the applicant’s claim to have moved from a room in the Macquarie Building to the Clarence Building.
The February 2005 report was not provided to the applicant but its contents were discussed at the hearing and were summarised in the section 424A [invitation]. The applicant sought, under the Freedom of Information Act 1982, a complete copy of the VIDC record from which the February 2005 report was taken.
The applicant’s response to the section 424A invitation included that “we will not be in a position to finalise our submission until we have viewed the report in its entirety”. No extension of time to respond to the section 424A letter was granted and the RRT was not prepared to delay its decision to await the outcome of the Freedom of Information process as it had “summarised the contents of the very brief report, running to no more than six lines ”in the section 424A invitation.
The Court held that the RRT failed to give meaningful consideration to the request for an extension of time to respond to the section 424A invitation because:[23]
(a)the RRT knew that the applicant was seeking a complete copy of the VIDC record;
(b)the RRT assumed, incorrectly, that the only relevant item in the VIDC record was the February 2005 report;
(c)because the Tribunal knew the applicant was seeking a more complete copy of the record than the report disclosed (that is, the February 2005 report), it was meaningless to say there was no point in waiting.
[20] reg 4.18A
[21] s.379C, s.359B(2), reg 4.17
[22] Usman & Anor v MIMA [2005] FMCA 966 at [43]-[44], M v MIMA [2006] FCA 1247 at [52]; but see also MIMIA v Sun [2005] FCAFC 201 at [51], SZEXZ v MIMIA [2006] FCA 449 at [46]
[23] SZGUP v MIMA [2006] FMCA 1130 at [37]-[42]
It seems therefore that the RRT misunderstood the substance and, or in the alternative, the significance of the applicant’s request for an extension of time. It also appears to have been significant to his Honour’s reasoning that some adverse impact, or unfairness, flowed to the applicant as a result of the failure to grant the extension of time,[24] namely the applicant was denied the opportunity to put before the RRT what was relevant material.[25]
SZGUP is distinguishable from the circumstances of the present case. In the present case, the Tribunal did have proper regard to the applicant’s request for an extension of time. It did not misunderstand the substance or significance of the applicant’s request. The only substantive issue raised in the s.359A letter was in respect of the absence of an approved business sponsor. The applicant’s request for an extension of time to respond was in substance made on the basis that he sought further time to gather “information and documents needed” and to organise a new sponsor. It was open to the Tribunal (if that is what it did) to proceed on the basis that the reference to gathering further information and documents was in respect of the issue of obtaining a new sponsor, particularly given that was the issue raised in the s.359A letter and the request for an extension did not specify otherwise. Contrary to what the applicant appears to suggest in his Court application and submissions, the request for an extension of time did not include, as reasons for why the extension was sought, any reference to the applicant’s medical condition or any need to obtain documents in respect of the delegate’s decision or Artistiling. The Tribunal’s view that it was open to the applicant to obtain a new sponsor, regardless of whether or not an extension to respond to the s.359A letter was granted, was open and was, the first respondent submits, an appropriate matter to be taken into account. It is not established that the Tribunal’s exercise of its discretion under s.359B(4) miscarried.
Further, no unfairness resulted from the refusal to grant the extension of time sought. The invitation to attend the Tribunal hearing made it clear that the hearing was an opportunity for the applicant to give evidence and present arguments relating to the issues arising in relation to his application. That would included any new sponsorship he had obtained or was seeking to obtain. The hearing was scheduled for 30 May 2006, over five weeks after the request for an extension of time for a period of 28 days was received by the Tribunal. It should be inferred that the applicant could have provided to the Tribunal at the hearing any information, evidence or other material that he had wished to provide in response to the s.359A letter. Instead, the applicant opted not to attend the Tribunal hearing. In those circumstances, no unfairness resulted from the Tribunal’s refusal to grant the extension of time sought and the refusal does not establish jurisdictional error.
Ground 3 - breach of natural justice by not giving the applicant a copy of the delegate’s decision made in 1998 and an address for Artistiling
The applicant has not identified the source of the requirement on the part of the Tribunal to provide these things, details of any request made for these things, nor the Tribunal’s response to any such request.
[24] SZGUP v MIMA [2006] FMCA 1130 at [40], [41]
[25] SZGUP v MIMA [2006] FMCA 1130 at [43]
In these circumstances, no breach of natural justice is established.
Both parties also made oral submissions at the trial of this matter on 21 February 2007. Relevantly, the Minister submits that:
a)the applicant did not request an extension of time to respond to the invitation to comment within the prescribed time period[26] and accordingly, the applicant was not entitled to any extension of time[27];
b)even if the applicant did request an extension of time within the prescribed time period, his request was considered on its merits and no jurisdictional error is disclosed;
c)the Tribunal is not expected to provide applicants with legal advice and the Tribunal properly declined to respond to the applicant’s question whether he could obtain another sponsor;
d)the applicant was aware that his request for an extension of time had been refused and elected not to attend a hearing before the Tribunal; and
e)in the circumstances, no jurisdictional error is disclosed.
[26] This assumes the application of the deemed receipt provisions relating to correspondence in the Migration Act and Regulations.
[27] Usman & Anor v Minister for Immigration [2005] FMCA 966 at [43]-[44]
Mr Chebat made brief oral submissions in which he stated that he had been confused about what was expected of him in responding to the invitation to comment and wanted to get an answer to his question whether he could look for a new sponsor. He submits that he reasonably required time in order to sort out that issue.
In the course of argument I stated that there appeared to be two issues, namely whether the Tribunal fell into jurisdictional error in dealing with the request for an extension of time to respond to an invitation to comment and, secondly, whether the Tribunal met its obligation in the s.359A letter (read by reference to the surrounding circumstances) to ensure that Mr Chebat, as far as is reasonably practicable, understood why the information disclosed was relevant to the review[28]. I invited additional written submissions from the parties on those issues.
[28] s.359A(1)(b)
In additional written submissions filed on 6 March 2007 Mr Chebat submits as follows:
a)when the Tribunal wrote to him on 10 March 2006 it referred to a decision made on 12 May 1998 and he was given no relevant documents to assist him to respond;
b)he was confused as he had sought Ministerial intervention and made clear to the Tribunal that he was confused in a conversation with a tribunal officer on 20 March 2006, and he requested more time to respond;
c)he made a written request for an extension of time of 28 days on 21 April 2006 and gave reasons for the request;
d)the Tribunal should have provided relevant documents to enable him to understand the invitation to comment;
e)the hearing invitation was “not open” without relevant documents being made available, including the reasons for the sponsor’s refusal on 1998;
f)there were compelling and exceptional circumstances due to his illness;
g)the Tribunal misunderstood the substance of his request for more time and acted unfairly and unreasonably; and
h)the exercise of discretion under s.359B(4) miscarried in that the Tribunal failed to explain the particulars and details of the Artistiling nomination.
In further written submissions filed on 30 March 2007 the Minister relevantly submits as follows:
It would appear there is no question surrounding the issue of the application being referred to the Migration Internal Review Office (MIRO) and the subsequent referral by the Department to the Migration Review Tribunal (Tribunal). This occurred on the basis that the applicant had not been properly notified under ss 343(3)(d)(ii) and 347 of the Migration Act 1958 (the Act), which caused the Tribunal to accept that it had jurisdiction to review the delegate’s decision of 12 May 1998: see RD 27 and reasons given by Tribunal at [2] - [14][29]).
[29] RD 47 – 48
Accordingly, although the Tribunal received the application on or around 3 March 2006,[30] the application for review of the 12 May 1998 decision of the delegate was taken to have been made to the Tribunal on 1 June 1999.[31]
[30] RD 27
[31] RD 47 and decision of Tribunal at [5]
On 21 February 2007 the Court raised two issues concerning the application for review, namely:
i)whether the MRT committed jurisdictional error by refusing an extension of time to comment upon information in breach of s 359A; and
ii)whether the MRT met its obligations under s 359A to ensure the applicant understood why the information sought was important.
These submissions address those issues.
No breach by refusing the extension of time to respond to s 359A letter
The written submissions filed by the Minister on 20 February 2007 set out the facts in connection with the refusal by the Tribunal to extend the time in which the applicant could reply to the s 359A letter at [4] – [8].
Importantly, the letter pursuant to s 359A inviting the applicant to comment upon information in the possession of the Tribunal stated a very simple proposition; namely that there was no approved business sponsor and the visa criteria included that there be an approved business sponsor. Since the applicant had applied for a visa on the basis of there being a business sponsor, the Tribunal correctly notified the applicant that ‘without there being an approved business sponsor, the visa criteria can not be met’: see RD 29.8.
The applicant was reminded of the deadline for the response to the 10 March 2006 letter by a Tribunal Officer on 20 March 2006: RD 32 . This was still within the prescribed period for a response to the s 359A letter, which expired at the end of Wednesday 19 April 2006. On 4 April 2006 the same Tribunal officer told the applicant to put a request for an extension of time in writing together with reasons and forward to the Tribunal: RD 33. (The Minister notes that the Case Notes at RD and 34 and RD 33 at first blush read as if they were made on 4 May 2006 and 4 June 2006 respectively. However it is submitted that it should be accepted that the Case Notes were made on 5 April 2006 and 6 April 2006 respectively – it being evident that the Case Note at RD 34 was made on 6 April 2006 (see reference to the date in ‘Comments’ section).
As it turned out the request by the applicant for the extension of time was received by the Tribunal just outside the time limit permitted for a response. The applicant apparently wrote a letter seeking the extension of time on 13 April 2006 (RD 36) but it was not received by the Tribunal until 21 April 2006 by facsimile transmission at 10.15 am: RD 36.1. (On the day before the applicant had enquired about the extension of time application and the Tribunal officer advised him that it had not been received, and requested that the applicant send it: RD 35).
On 1 May 2006 the Tribunal member instructed the Tribunal officer to advise the applicant that the extension of time had not been granted and that the matter would be set down for hearing: RD 36A.[33] On the same day the applicant was invited in writing to attend a hearing one month later on 30 May 2006.
[33] See also RD 50 at [24] – [25]. It may be noted that there is no suggestion that the extension of time was not granted because there was a view by the Tribunal that the extension was not able to be granted because the application to extend time had been received out of time.
The question is whether the conduct of the Tribunal in these circumstances not to grant the applicant an extension of time amounts to jurisdictional error.
There is no issue (save with respect to the issues that have been raised by the Court and addressed below) that the letter dated 10 March 2006 complies with sections 359A and 359B.[34] As the Tribunal had given the applicant an opportunity to respond within the correct prescribed period, s 359B(4) is invoked. Section 359B(4) provides the Tribunal with a discretion to extend the prescribed period. In the event that the discretion to extend time is granted under s 359B(4), then the applicant must respond within a further prescribed period. However, no question arises as to the existence of a further prescribed period here – it being the case that the Tribunal did not allow the extension of time in the first place.
[34] This is so, despite the mandatory nature of s 359A and the strictness with which it has been interpreted: see for example Bachir v MIMIA [2007] FMCA 115 per Lucev FM at [42] – [43].
In order to determine the question of jurisdictional error in connection with the refusal by the Tribunal to extend the period of time in which to provide comments to the s 359A letter, it is important to note:
a)the question as to whether to extend the time was an entirely discretionary one. This carries with it all the features inherent in a discretionary decision, the hallmark of which is that the Tribunal may weigh competing considerations and arrive at its own decision. In this respect, it is trite to observe that the mere fact that the Court might have made a different decision does not bear the result that the discretionary decision is ‘wrong’, let alone a decision affected by jurisdictional error;
b)the decision not to grant the extension of time was made by the Tribunal member on 1 May 2006, and must be assessed by the information before the Tribunal at that time - the result being that any further conduct of the Tribunal which post dates the decision on 1 May 2006 not to extend time could have no bearing on any question of jurisdictional error in connection with the decision not to extend time under s 359B(4)[35];
[35] That is not to suggest that any conduct of the Tribunal could be the subject of criticism – only to make the point that the question of jurisdictional error in connection with the refusal to extend time to respond to the s 359A letter must be assessed as at the time of the decision.
c)no written reasons were given for the 1 May 2006 decision not to grant the extension of time. Clearly, no reasons are required for such a decision, it merely being a procedural step taken by the Tribunal in connection with its range of statutory obligations in conducting a review. In circumstances where there is an absence of written reasons given for not grating the extension of time it is very difficult to establish jurisdictional error because it is impossible to know what was taken into account and how the various competing factors were weighed by the Tribunal;
d)as at 1 May 2006, the Tribunal proposed to (and did on that day) invite the applicant to attend an oral hearing in any event, where it can be inferred that the Tribunal member would have expected that the applicant would have had an opportunity to address the question already raised by the Tribunal in the s 359A letter. This is evident from the instructions given to the Tribunal officer on 1 May 2006 at RD 36A;
e)the Tribunal did not take the much harsher route (as it was entitled) to proceed to make a decision on the review under s 359C without taking any further action to obtain the applicant’s views on the information: see s 359C(2)(b). In this sense it can not be said that the applicant was deprived by the Tribunal of a hearing;[36]
[36] Accordingly none of the substantive issues that arose in Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201 arise here. Sun’s case was primarily about the loss of an opportunity to attend a hearing pursuant to s 359C/360(2).
f)in setting the hearing date, there was material before the Tribunal which suggest the Tribunal knew that the applicant understood that in order to address the matter raised in the s 359A letter, he needed to obtain a new employer sponsor (see RD 34 and 36). Further, the time period which had been requested [by the] applicant for the extension of time to provide the information/comment would have expired before the proposed hearing date in any event; and
g)importantly, it is arguable that the Tribunal had no power to extend the time where the application to extend time pursuant to s 359B(4) was received by the Tribunal outside the prescribed time period.[37]
[37] Ibid. In Sun’s case the Full Federal Court at [52] found it unnecessary to address the question of whether the Tribunal has the power to extend time under s359B(4) after the initial time period has expired. However, see also comments in SZEXZ v MIMIA [2006] FCA 449 per Jacobson J at [49] where the applicant received more time than he was entitled to under s 424B(2). The Tribunal’s decision was not taken to have been invalid as a result of the applicant having more than he was entitled to. This is similar reasoning to that expressed by Tracey J in M v MIMA [2006] FCA 1247 at [36] – [37]. The Minster notes that it does not appear that the late response to the s 359A letter was a reason for the refusal to extend time, so it is unnecessary to decide this issue in the present case: see RD 36A.
It is difficult to conceive of an instance where jurisdictional error could be made out on the basis of a refusal to extend the time in such circumstances. As a practical matter, as at 1 May 2006, the Tribunal was not depriving the applicant of an opportunity to present his case and address the issue raised in the s 359A letter. The Tribunal merely decided to set the matter down for hearing a month later on 30 May 2006 – and after the expiry of any further prescribed period which the applicant might have been given to reply to the s 359A letter had the extension of time been given.
Assuming it was open to the Tribunal under s 359B(4) to grant the extension of time sought (the application for an extension of time being outside the prescribed period in which to seek an extension),[38] it is respectfully submitted a decision not to extend time could not amount to jurisdictional error.[39]
[38] Ibid. In Sun’s case the Court at [47] noted that the provisions do not disempower the Tribunal from conducting the review in a manner not inconsistent with the provisions. However, as noted in the above footnote, at [52] found it unnecessary to address the question of whether the Tribunal has the power to extend time under s359B(4) after the initial time period has expired.
[39] Again, the Minster notes that it does not appear that the late response to the s 359A letter was a reason for the refusal to extend time, so it is unnecessary to explore this issue in the present case: see RD 36A.
In another case a question might arise as to whether there could be jurisdictional error merely for a decision not to extend time under s 359B(4).[40] However that question need not be addressed here, because clearly the decision made in this case was so clearly open to the Tribunal having regard to the above factual matters. In this respect is noted that this case can be distinguished from SZGUP v MIMA [2006] FMCA 1130 per Driver FM. In SZGUP:[41]
[40] See submissions below which seek to distinguish SZGUP in this respect.
[41] It is noted that the Minister’s submissions filed 20 February 2007 provide a detailed summary of the decision in SZGUP.
a)the information contained in the s 424A letter in SZGUP was requested after the hearing and bore directly upon the applicant’s credibility (see at [29](d)). That is not the case here where the information goes directly to the an essential visa criterion;
b)the Tribunal gave written reasons in the substantive decision for refusing the extension of time, which reasons were immediately and obviously flawed (see SZGUP at [37] – [42]);
c)the relevant information in SZGUP which was the subject of the s 424A letter (and upon which the Tribunal relied) was at best ambiguous and at worst incorrect. It was also capable of being clarified by the Tribunal (see at [41]). In SZGUP the Tribunal was on notice that the information was possibly not reliable. That is not the case here;
d)the ‘exercise of the discretion to extend time under s 424B(4)’ in SZGUP resulted in a ‘constructive failure to comply with s 424A(1)(c)’. In other words, the improper or ‘unlawful’ exercise of the discretion resulted in a breach of s 424A(1)(c). It would appear that the conclusion reached by the Court in SZGUP was that the jurisdictional error arose when the discretion not to extend time ultimately caused a breach of s 424A(1)(c) (see at [37] and [42]). It could not be said here that the refusal to extend time resulted in an effective breach of s 359A(1)(c), because the applicant still had an opportunity to address the issue orally at the hearing; and
e)in SZGUP the request for the extension of time was made within the prescribed period (see at [29] and [30]).
It is respectfully submitted that for the above reasons, and upon close analysis, there could be no jurisdictional error in connection with the Tribunal’s decision to refuse to extend time to respond to the s 359A letter in the present circumstances.
No error in connection with information (or its importance) given in the s 359A letter
There is no question that a failure to properly or adequately appraise an applicant of the relevance, significance or importance [of] the information in a s 359A letter can amount to jurisdictional error: see Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138; SZGUP per Driver FM at [35] – [36]. See also Elrifai v Minister for Immigration & Multicultural & Indigenous Affairs (2005) ALR 307 at [30], [40] – [47].
The Act requires that an applicant must, as far as it is reasonably practicable, understand why the information is relevant to the review: s359A(1)(b). Section 359A(1)(b) must be construed so as to achieve the practical object that the applicant will have a sufficient appreciation of the relevance of the information. The letter must not mislead the applicant: Elrifai at [40] – [43].
However, this case bears no resemblance to the above cases. In the present case the s 359A letter stated precisely what the applicant’s difficulty was; namely that he did not have an employer sponsor: see RD 29. The Tribunal stated the fundamental proposition that without there being an approved sponsor, the visa criteria can not be met. Of course, the absence of an approved employer sponsor had also been the basis for the rejection of the visa by the delegate in 1998: RD 13 – 14. In other words, this was not something which was thrust upon the applicant by the Tribunal at the last minute.
There is nothing on the face of the 10 March 2006 letter which is unclear or misleading. Rather, the proposition could not have been stated more clearly.
The applicant can be taken to have understood why the absence of a business sponsor was important for the review for two reasons. Firstly, because the simple and clear language of the 10 March 2006 letter makes the difficulty the applicant faced unambiguous. It clearly states why the information in the possession of the Tribunal was relevant to the review. Secondly, the applicant’s subsequent conduct and dialogue with the Departmental Officer demonstrate that the applicant understood why the information was relevant to the review: RD 33, 34 and 36. He clearly appreciated that in order to meet the visa criteria he needed to obtain a business sponsor. Further, by 13 April 2006 he appreciated and was apparently in the process of obtaining another business sponsor (RD 36) having been advised by the Departmental Officer on 6 April 2006 that if he wished to apply for a new employer sponsor he needed to ‘advise us within the statutory period of the s 359A letter that we have sent you’: RD 34.
Therefore, there is every reason to conclude that s 359A(1)(b) has been complied with.
As it turned out, the applicant decided not to attend the hearing which was set down on 30 May 2006. There is no question of the applicant’s knowledge of the proposed hearing. The hearing invitation dated 1 May 2006 stated that the applicant was entitled to give evidence and present arguments, or ask the Tribunal to take evidence from other people, or obtain written material. The hearing invitation was issued pursuant to and in compliance with s 360: see Tribunal decision at [28]. On the face of the hearing invitation, it was clear that the applicant could have addressed the issue raised by the s 359A letter at the hearing.
A choice was made by the applicant not to attend the hearing. That decision was advised to the Tribunal by the applicant upon a telephone enquiry made by a Departmental Officer at 1pm after the 10am ‘no show’ to the hearing: RD 42. Whether that choice was a wise choice on the part of the applicant is [debatable] and may depend on whether the applicant had actually taken steps to obtain an employer sponsor – there being no evidence of this. However, the applicant’s choice in this regard has no bearing on the conduct of the Tribunal which did everything it was required to do to comply with its obligations under the Act. The Tribunal can not be expected to know or even inquire as to what was in the applicant’s mind as to why he decided not to attend the hearing.
The Tribunal was entitled to proceed under s 362B of the Act to make a decision without taking further action to enable the applicant to appear before it: see Tribunal decision at [28]. The Tribunal was not required - as a matter of logic, law or even fairness - to give advice to the applicant on or prior to 30 May 2006 that it was (or might have been) in his interests to have attended the hearing, or to provide another opportunity to applicant to attend a further hearing.
Further, the Tribunal decision was made on the ground articulated in the 10 March 2006 letter pursuant to s 359A. The Tribunal correctly noted that ‘there is no evidence before the Tribunal to show that an application for approval by another proposed employer has been approved, or has been made: see Tribunal decision at [33]. As at the date of the decision, the applicant (and apparently his advisor) had been aware for some weeks that the applicant needed to obtain a business sponsor in order to meet the visa criteria. There was nothing before the Tribunal to demonstrate that this had been done, or that meaningful steps had been taken to make an application. The Tribunal’s conduct can not be criticised in such circumstances.
Reasoning
It is common ground that s.357A has no application in this case. Accordingly, it is necessary to consider not only whether the Tribunal met its statutory obligations, but also whether the procedure followed by the Tribunal was fair under the general law. The issues to be resolved are first, whether the Tribunal met its obligations under ss.359A and 359B of the Migration Act and, secondly, whether the procedure was fair.
The latter question can be dealt with shortly. The Tribunal wrote to Mr Chebat to invite comment on potentially adverse information. It considered and rejected a request for more time to respond to that invitation. The circumstances in which that decision was taken were materially different from the circumstances in SZGUP. In that case, there was an outstanding freedom of information request which, the Tribunal was on notice, needed to be resolved before the applicant could properly respond to the invitation to comment. In this case, the applicant had merely asked for an answer to his question whether he was entitled to obtain a new sponsor. He did not get that answer but nevertheless told the Tribunal that he needed more time because he and his agent were seeking another sponsor. It follows that, at the time the Tribunal made its decision on the extension of time request, the problem identified by the applicant was not the failure of the Tribunal to answer his question, but his inability at that point to find another sponsor. The Tribunal was not obliged to grant a further period during which the applicant might or might not succeed in finding a sponsor so that he could refer to the existence of such a sponsor in his reply to the invitation to comment. As the Tribunal noted[43], Mr Chebat was entitled to seek to obtain another sponsor at any time and there was nothing preventing him from doing so. The fact was that he had not found one. Mr Chebat was given a further opportunity to provide information or make submissions to the Tribunal at an oral hearing. He declined that opportunity. I find that the Tribunal did all that could be reasonably expected of it in order for Mr Chebat to respond to the essential issue in the review, which was the absence of a sponsor.
[43] RD 50
The next issue is whether the Tribunal met its obligation under s.359A(1)(b) to ensure, as far as was reasonably practical, that the applicant understood why the information disclosed was relevant to the review. The letter dated 10 March 2006 sent to Mr Chebat pursuant to s.359A clearly identified the relevant information as the case file from the Department disclosing a decision made on 12 May 1998 to reject the application made by Artistiling for approval of a business sponsor. The letter continued:
The basis upon which you had applied for the visa is that you would be employed by an approved business sponsor. Without there being an approved business sponsor, the visa criteria cannot be met.
On its face, the letter clearly explains the relevance of the information. What Mr Chebat appears to have been uncertain about was whether he could subsequently meet the visa criteria by obtaining another sponsor. That is the question he put to the Tribunal orally which the Tribunal declined to answer. That request, of itself, establishes that Mr Chebat understood the problem. He simply did not know whether he could overcome it. Notwithstanding the failure by the Tribunal to answer his question, it appears that he and his agent were able to work out that it would be desirable if he did obtain a new sponsor. In his letter dated 13 April 2006 to the Tribunal requesting an extension of time to respond, Mr Chebat said:
The company that sponsored me back in 1998 can no longer sponsor me at this time, therefore I am organising another sponsor[44]. (emphasis added)
[44] RD 36
It follows, and I find, that the Tribunal did not need to answer Mr Chebat’s question for him to understand the significance of the information on which he was invited to comment. At the time of his written request for an extension of time he knew the significance of the issue. He requested more time not because of any inability to understand the issue but, rather, because at that time, he was unable to say anything in order to deal with it.
I find that the Tribunal met its obligation under s.359A(1)(b).
The remaining issue is whether the Tribunal fell into error in dealing with the extension of time request. I reject the Minister’s contention that the request for an extension of time was itself made out of time and therefore could not have been considered on its merits. On the basis of the Minister’s submissions, the time for requesting an extension of time or for responding to the request expired on 18 April 2006. On 5 April 2006[45] the applicant contacted the Tribunal by telephone and asked about obtaining a new sponsor. In the same conversation he alerted the Tribunal to the fact that he wished to apply for an extension of time to respond to the s.359A invitation[46]. He was told to put his request in writing. On 20 April 2006 the applicant contacted the Tribunal by telephone to refer to a written request for an extension of time he said had been posted on 13 April 2006[47]. Pursuant to s.160 of the Evidence Act 1995 (Cth) there is a rebuttable presumption that that letter was received on that day. The Tribunal asserts that the letter was in fact received the following day. That assertion is corroborated by the facsimile receipt at the top of the copy letter reproduced at RD 36. I find that the letter was received by the Tribunal on 21 April 2006. I further find that Mr Chebat is taken to have received the invitation to comment seven days after the date which it bore, pursuant to Migration Regulation 4.18A . He needed to either reply to the invitation or seek an extension of time by 18 April 2006. There is no requirement in the Migration Act or Regulations that an extension of time request be in writing. The Tribunal is entitled to ask for a request to be put in writing but it is not entitled to disregard a request until it is confirmed in writing. Mr Chebat had done enough to enliven a request for an extension of time before 18 April 2006 and that request required consideration on its merits.
[45] The Tribunal file note records the date as 4/5/2006 in the American fashion.
[46] RD 33
[47] RD 35
The request was considered on its merits and rejected. I accept the Minister’s submissions that this case is distinguishable from SZGUP and that the decision on the request was open to the Tribunal on the material before it. Given the lapse of time since the sponsorship decision, the Tribunal might have taken a more generous attitude to Mr Chebat’s request, but the issue raised in the invitation to comment was a simple one, and called for a simple answer. There would have been no point in Mr Chebat seeking to debate the sponsorship decision, as his supplementary submissions suggest he thinks he might have been able to do if he had been given documents about that decision. Mr Chebat and his migration agent managed to understand the problem he needed to address, namely the absence of a sponsor. Mr Chebat’s request for more time to respond was not on its face a persuasive one, as it was really directed to his need to attempt to comply with the visa criterion, rather than comment on the issue raised.
In the circumstances, no jurisdictional error is disclosed. The application will be dismissed with costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 May 2007
[32] The prescribed periods for the purposes of s 359B(2) of the Act are set out in regulation 4.17, which relevantly requires that the period starts when the person receives the invitation (in this case 7 working days after the date of the 10 March 2006 letter, which is Wednesday 19 April 2006) and ends at the end of 28 days after the day upon which the invitation is received: see reg 4.17 (4).
[42] It is noted that even now the applicant does not assert this fact – although such an assertion and/or evidence would be irrelevant to the question of whether the Tribunal had, at the time of making the decision, committed jurisdictional error.
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