Diallo v Minister for Immigration

[2009] FMCA 642

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DIALLO v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 642

MIGRATION – Review of MRT decision – applicant’s prospective marriage visa cancelled under s.116 – where applicant not granted a hearing because he failed to respond to Tribunal’s invitation to provide information – where invitation sent via facsimile to migration agent but never received – whether Tribunal considered its residual discretion to take further action to obtain applicant’s views on the information – whether Tribunal exercised its discretion unlawfully.

Migration Act 1958 (Cth), ss.116, 359, 359C, 360(2)(c), 363A, 368, 379A

M v Minister for Immigration [2006] FCA 1247
Khant v Minister for Immigration [2009] FMCA 328
MZXRE v Minister for Immigration [2009] FCAFC 82
Ramnares v Minister for Immigration [2004] FMCA 683
Uddin v Minister for Immigration [2005] FCAFC 218
Sharma v Minister for Immigration [2006] FMCA 20
Nisha v Minister for Immigration [2005] FMCA 441

Applicant: AMMAR DIALLO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3393 of 2008

Judgment of: Raphael FM

Hearing date: 1 July 2009

Date of Last Submission: 1 July 2009

Delivered at: Sydney

Delivered on: 14 July 2009

REPRESENTATION

Counsel for the Applicant: Mr R Nair

Counsel for the 
First Respondents: Mr P Reynolds

Solicitors for the
First Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3393 of 2008

AMMAR DIALLO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This application raises the interesting question of the existence, nature and exercise of a residual discretion under s.359C Migration Act 1958 (the “Act”) after a person has been barred by the provisions of ss.360(2)(c), 360(3) and s.363A from appearing at a hearing of the Tribunal; M v Minister for Immigration [2006] FCA 1247; Khant v Minister for Immigration [2009] FMCA 328. Although the Full Bench of the Federal Court have suggested that there remains in the Refugee Review Tribunal a discretion to reopen its procedures and permit the appellant the hearing; MZXRE v Minister for Immigration [2009] FCAFC 82 at [30], there is a distinction between the two Tribunals in that there is no equivalent in respect of the Refugee Review Tribunal to s.363A of the Act which applies only to the Migration Review Tribunal and which reinforces the provisions of s.360(2) and (3).

2. Mr Ammar Diallo is a citizen of the Republic of Guinea. On 24 April 2008 he was granted a Sub-class 300 (Prospective Marriage) visa. On 3 September 2008 Mr Diallo was informed by a delegate of an intention to consider cancellation of that visa on the grounds that the relationship between Mr Diallo and his sponsor, Ms Mariama Jalloh, had ended and the marriage would not take place. The applicant did not respond to that notification. On 26 September 2008 the delegate wrote to the applicant advising him of the cancellation of his visa under s.116 on the grounds that the circumstances which permitted the grant of the visa no longer existed. Mr Diallo sought review of that decision from the Migration Review Tribunal on 3 October 2008. On 20 November 2008 the Tribunal wrote to the applicant care of his migration agent inviting him to comment on certain information that might be the reason or part of the reason for affirming the decision under review. While there was no reference to the statutory provision under which the letter was written it would appear to be a letter which combined the provisions of ss.359 and 359A. Mr Diallo was asked to respond to the letter by 27 November or ask the Tribunal in writing for an extension of time.

3. The letter was sent to the migration agent by fax [CB 114]. The giving of a letter in this way is prescribed by s.379A(5) and it is not disputed that the migration agent, Ms Kirkpatrick, was the authorised recipient. On 10 December 2008, having received no response to the facsimile, the Tribunal proceeded to dispose of the application. In its Findings and Reasons it stated at [33] and [34] the relevant law under which it acted:

   “The Tribunal is satisfied that the applicant was sent an invitation to comment on information under section 359A of the Act and to give additional information under section 359(2) of the Act. The invitation, dated 20 November 2008, was sent to the fax number of the applicant’s representative provided by the applicant in connection with his application for review. The applicant had nominated his representative in his application for review and requested that all correspondence in connection with the review be sent to his representative whom he nominated as his authorised recipient. The applicant was notified in Section F of the application for review that “all correspondence will be sent to your representative as given in Section E”. Under Section E of the application for review the fax number for the applicant’s representative was listed. The Tribunal is satisfied that the invitation was duly sent by one of the methods specified by section 379A of the Act. An examination of the Tribunal’s file shows that the applicant did not provide comments or a response to the Tribunal within the prescribed period allowed.

   Where an applicant is invited to comment on or respond to information under section 359A and fails to provide those comments or the response within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information (section 359C(2) of the Act). In these circumstances, the applicant is not entitled to appear before the Tribunal (section 360(3) and section 363A of the Act). The Tribunal finds that the applicant did not provide comments or a response within the prescribed period. The Tribunal will therefore proceed to make a decision on the review without taking further action to obtain the comments or a response from the applicant and without inviting the applicant to appear before the Tribunal.”

4. The Tribunal considered in some detail the various discretionary matters set out in PAM 3: General Cancellation Powers [32.2] which provides a list of matters that, where relevant, should be taken into account when considering whether or not to exercise the discretion to cancel the visa under s.116 of the Act. The Tribunal concluded at [56] and [57]:

   “In this matter the applicant was granted a visa allowing temporary entry to Australia for a period of nine months (clause 300.511). The purpose of this travel was to allow for his marriage to the sponsor. This will no longer occur. It is the case, however, that in the ordinary course of events such a visa leads ultimately to permanent residence in Australia once the marriage has occurred and if it continues. It is reasonable therefore that the applicant would have anticipated that he would settle in Australia.

   It is also the case that even were the visa not cancelled, the applicant would only have a short period of time remaining on his visa. He would then be required to leave Australia in any case. Taking all of these matters into account, it is the view of the Tribunal that it is the correct and preferable decision that the visa which was held by the applicant be cancelled. The basis for the grant of that visa no longer exists and it is appropriate that he now make arrangements for return to his home country. As a result, it is the view of the Tribunal that the decision of the delegate to cancel the applicant’s visa was the correct decision and that this should be affirmed.”

5. When the agent received a copy of the decision she realised that the Tribunal had proceeded without inviting her client to a hearing because of the failure to respond to the letter of 20 November. She did not recall receiving that letter. She made enquiries and was advised that the letter had been sent by fax. On 18 December she caused a printout to be made of the journal entries in her facsimile machine. These are contained in annexures to her affidavit of 22 December 2008. The journal entries show that on 20 November at approximately 2.05 p.m. a facsimile was received from the telephone number 9276 5555. An additional page of the journal entitled “Power Failure Report 21. Nov. 2008” indicated that the facsimile that was received on 20 November numbered 419 was cleared due to a power failure on 21 November at 9.14 [p.m.]. Ms Kirkpatrick swore an affidavit to this effect which was filed together with the application for review in this Court on 22 December 2008. On or about 15 May 2009 Mr Diallo’s lawyers sent a letter to the Tribunal enclosing a copy of an advice from Mr Radha Nair, Barrister, requesting the Tribunal to reopen the application and invite Mr Diallo to a hearing. On 22 May 2009 the Tribunal determined not to reopen the case. The Minister submits, and I accept his submission, that the Tribunal was correct in that decision for two reasons. The first was that the matter was now the subject of proceedings in this Court which would determine whether or not the Tribunal had lawfully made its decision. It would be presuming upon the jurisdiction of this Court for the Tribunal to unilaterally reopen the hearing on the basis that it had not completed its statutory functions. That was a matter for the Court to decide. The second reason was that if the Tribunal had completed its statutory functions then it would be functus and unable to reopen the matter in any event.

6. Mr Diallo was represented at the hearing and filed an amended application on 1 July 2009. Ground 1 of the application is in the following form:

   “The second respondent (“the Tribunal”) failed to exercise its jurisdiction in that it failed to exercise the discretion vested in it by section 359C of the Migration Act 1958 to determine whether the Tribunal should proceed to make a decision on the review without taking any further action to obtain relevant information or the applicant’s views on relevant information. This failure also constitutes a denial of natural justice and procedural fairness.”

   Ground 2 is in a similar form and grounds 3 and 4 relate to the failure by the Tribunal to reopen the matter. I have already dealt with that aspect of the case. The application was argued before me on the basis that the applicant accepted that the Tribunal had no power to invite him to a hearing but that there remained a residual discretion to take some other action to obtain the applicant’s views upon the information (s.359C(1) and (2)). The applicant argued that the Tribunal had either failed to exercise its discretion or alternatively its exercise was non-judicial.

7. The Court heard evidence from Ms Kirkpatrick. The purport of that evidence was to support Mr Diallo’s submissions that:

   i)The facsimile letter had not been received.

   ii)The failure to receive was not the fault of the migration agent being caused by a power failure.

   iii)There was no way the agent would have been alerted to the fact that a facsimile had been received from the MRT that would cause her to contact the MRT and enquire because the fax number utilised by the MRT in that instance was not the normal fax number which appears on the MRT letterhead and which is accompanied in the fax log with a heading “MRT”.

   iv)The Tribunal should have known that the fax was not received.

   v)The Tribunal should have known that by sending the facsimile through the particular fax number the migration agent would not have been alerted that the facsimile came from the MRT.

8. I am satisfied from the oral evidence given by Ms Kirkpatrick and of that contained in her affidavit that her facsimile machine was not used extensively. I am satisfied that she did not regularly cause printouts of logs to be made. I am satisfied from the indication on the log “ok” in respect of the MRT facsimile that it was received in the machine. This is confirmed by the evidence of the MRT transmission log contained as an annexure to the affidavit of Bernadette Ruddy filed by the respondents. Ms Kirkpatrick agreed that it was possible that when the facsimile was sent that the machine had run out of paper therefore the message itself was held in the machine for a period of one day and then wiped as a result of the power failure. In my view this is the most plausible explanation of what occurred, because if both sender and receiving machines indicate that the message was sent and received properly then I was provided with no other reason why it would not have been printed out on the day and at the time it was sent. I am satisfied from the evidence of Ms Ruddy that the fax number utilised by the MRT on this occasion is used as a number from which to transmit facsimiles from the MRT. In any event, on the basis of the facts which I have found, Ms Kirkpatrick did not do anything which would have caused her to know that any facsimile had been sent on 20 November because she did not call for a log to be printed and because the memory of the machine was wiped in the power failure that occurred the next day.

9. I am satisfied that the facsimile was properly sent and that the Tribunal complied with its statutory obligation in relation to the sending of the letter and that even though it was not received, the Tribunal was entitled to proceed to make a decision without inviting the applicant to a hearing. Although I make the above finding this does not exclude the possibility that the Tribunal could have taken some further action to obtain the applicant’s views on the information. For example, the Tribunal could have written again to the applicant, telephoned the migration agent or the applicant or communicated with him in some other way requesting a written response whilst indicating that it could not grant him a hearing. I expressed the view in Khant supra that I believed that the Tribunal did have this residual discretion and thus it is appropriate for the applicant to ask the two questions he does in relation to it.

10. I cannot accept the applicant’s submissions that the Tribunal did not consider the exercise of its discretion. At [34] of its decision, reproduced at [3] of these reasons, the Tribunal set out the relevant provisions of s.359C and made a determination. There is substantial authority to suggest that such a statement is sufficient to establish that the Tribunal considered the exercise of its discretion. Presented with the exact same statement in Ramnares v Minister for Immigration [2004] FMCA 683 at [21], Smith FM made the following comments:

    “This is not easy to decide, since the Tribunal's reasoning in relation to the procedures it followed are cryptic, and it does not discuss why it decided to proceed with the review without taking further action to obtain the applicants' views on the three points upon which it had invited comment. The use of the word "therefore" in [16] (see above) might suggest an opinion that a summary approach was required by the Act, but on the other hand in the first sentence of that paragraph the Tribunal uses the word "may" and there is no reason to believe that it was not aware that this word ordinarily confers a discretion.”

    His Honour was not persuaded that the Tribunal had misconceived its power under s.359C by believing that it was obliged to make a decision without taking any further action. A similar conclusion was reached in Uddin v Minister for Immigration [2005] FCAFC 218 and Sharma v Minister for Immigration [2006] FMCA 20. Admittedly, these cases were decided without the benefit of s.363A of the Act and the assumed discretion was whether or not to allow the applicant a hearing. More recent cases have established that the Tribunal does not have such a discretion under s.359C; cf M v Minister supra; Khant supra. Despite this, the reasons for the refusal to infer a failure on the part of the Tribunal to turn its mind to the exercise of its discretion in those cases apply equally to the instant case where the relevant discretion concerned whether or not to obtain the applicant’s views on the information in some way other than granting him a hearing. It is also clear that the Tribunal is not obliged to provide reasons for a procedural decision as the obligation is limited under s.368 of the Act which requires reasons only for “the decision of the Tribunal on review”; Ramnares supra; Nisha v Minister for Immigration [2005] FMCA 441 at [33]. In the absence of discussion by the Tribunal, I am simply not in a position to infer that the Tribunal did not consider the exercise of its procedural discretion under s.359C. I say this notwithstanding the applicant’s submission that I should compare the detailed report of the exercise of the Tribunal’s discretion in relation to the PAM 3 matters contained at [CB 133 – 135] with the silence of the Tribunal on the s.359C discretion.

11. The applicant says that if it is found that the Tribunal did exercise its discretion, in other words, did consider whether or not it had the power to take any other steps under s.359C, then by declining to do so it exercised that discretion unlawfully. He argues that the exercise was unlawful because the Tribunal failed to take relevant considerations into account. He alleges that there are four such relevant considerations. Firstly that at the time of decision not to take any steps the Tribunal did not take into account the prior record of the migration agent, secondly it did not take account of its own knowledge that the fax number which was utilised in this case did not cause the receiving fax to recognise that it had come from the MRT and that therefore there would be no intimation that the fax came from the Tribunal until the fax was itself printed out. I am unable to support either of these contentions. In respect of the first there is really no evidence, other than assertion, of what the Tribunal may have known or thought about the efficiency of this migration agent. In regard to the second, if the Tribunal had caused the fax record sheet to be looked at it would not have seen anything amiss as the Tribunal’s record sheet indicates that the fax was received. Even if the Tribunal thought that the agent had an exemplary record of responding there is nothing in the objective evidence that would cause it to believe that anything had gone wrong with the fax and that the non-response had anything to do with non-delivery. More importantly however, it mattered not what fax number was used because the agent did not cause a log to be printed and was therefore not aware that any fax had been sent on that day until she printed the log following receipt of the decision.

12. The third ground upon which the applicant alleged a failure to take relevant considerations into account was that at the time of filing and service of the application for judicial review the migration agent’s affidavit was filed and the Tribunal informed that the fax had not been received and didn’t reopen the case. I have dealt with this complaint as part of a substantive ground of application. I repeat that I am of the view that once an application had been filed in this Court, it was not appropriate for the Tribunal to reopen the matter. In any event, the exercise of the discretion under s.359C was an exercise at the time the Tribunal decided to proceed not one following the making of its decision.

13. The fourth ground was that at the time the Tribunal was requested in writing by the new migration agent to reopen the case it effectively failed to complete the review. The new migration agent took over from Ms Kirkpatrick at the time the application was filed in this Court. I do not think that this ground takes the applicant’s case any further. The question of whether the review had been completed was one for this Court not the Tribunal.

1. As I have been unable to support the applicant’s grounds as put before me at hearing I must dismiss the application and order the applicant to pay the respondent’s costs assessed in the sum of $5,500.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  14 July 2009