Hasran v Minister for Immigration

[2010] FMCA 31

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HASRAN v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 31

MIGRATION – Review of decision of Migration Review Tribunal – effect of s.363A – whether Tribunal had discretion to allow applicant to appear at hearing where s.369C(1) and (2) applied – Sun and M followed – Tribunal did not have discretion – whether Tribunal’s s.359A letter purported to deny opportunity to provide material under s.358 – Tribunal’s letter read fairly – Tribunal did not purport to deny opportunity under s.358 – whether Tribunal had discretion to allow extension of time to respond to s.359A letter – Tribunal does not have discretion to extend time where request made after expiry of prescribed period – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.116, 358, 359, 359A, 359B, 360, 363A, 379A, 379C, 494B

Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218; (2005) 149 FCR 1
Minister for Immigration & Multicultural & Indigenous Affairs v Jing Shan  Sun [2005] FCAFC 201; (2005) 146 FCR 498
M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41
SZGME  v Minister for Immigration & Citizenship [2008] FCAFC 91
Suh v Minister for Immigration & Citizenship [2009] FCAFC 42
Usman & Anor v Minister for Immigration [2005] FMCA 966

Applicant: AHMAD FARHAN HASRAN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2213 of 2009

Judgment of: Nicholls FM

Hearing date: 3 December 2009

Date of Last Submission: 3 December 2009

Delivered at: Sydney

Delivered on: 22 January 2010

REPRESENTATION

Appearing for the Applicant: Mr R C Turner

Solicitors for the Applicant: Turner Coulson Immigration Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 11 September 2009 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2213 of 2009

AHMAD FARHAN HASRAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 11 September 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 12 August 2009, which affirmed the decision of a delegate of the respondent Minster to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 573 – Higher Education Sector) visa.

Background

1. With reference to the Court Book (“CB”), the relevant background is as follows.

2. Mr Hasran (“the applicant”) is a national of Malaysia. On 10 September 2008, he was granted a Student (Temporary) (Class TU) (Subclass 573 – Higher Education Sector) visa (“the visa”). On 1 May 2009, the University of Western Australia (“the education provider”) issued the applicant with a “Non-Compliance Notification (NCN) Letter” (the “Section 20” notice – reproduced at CB 1 to CB 7).

3. On 27 May 2009 a delegate of the first respondent issued the applicant with a Notice of Intention to Consider Cancellation of the visa (CB 10 to CB 13) on the grounds of a “possible breach” of s.116, reg.2.43(2)(b) (Student Visa Condition 8202). He attended an interview with the first respondent’s delegate on 3 June 2009. On that same day, the delegate cancelled the visa (CB 28).

4. The applicant applied for review to the Tribunal on 11 June 2009 (reproduced at CB 35 to CB 59, with attachments). The Tribunal affirmed the delegate’s decision to cancel the visa. (The decision is record reproduced at CB 111 to CB 123).

The Tribunal

1. The relevant background before the Tribunal is as follows.

   1)By letter dated 16 July 2009, the Tribunal invited the applicant to comment on, or respond to, certain information that it had received from the education provider going to the issue of his failure to achieve “satisfactory course progress” (“the section 359A letter” – see CB 84 to CB 85). It also invited him to comment on information that he had provided a “supporting statement” to the Minister’s department on 3 June 2009, in which he had provided reasons for his failure to achieve satisfactory course progress. (This statement is reproduced at CB 86.) The applicant was given until 3 August 2009 within which to provide a response.

   2)On 4 August 2009, the Tribunal received, by facsimile transmission, a letter from the applicant requesting an extension of time within which to respond to the section 359A letter. The applicant also telephoned the Tribunal on the same day to the same effect (CB 108).

   3)By letter dated 5 August 2009 the Tribunal wrote to the applicant, notifying him that as his request for an extension of time fell outside the time for making such a request, it could not grant the extension of time, and that because of his failure to respond within time, the applicant was not entitled to appear at a hearing before it.

2. The Tribunal proceeded to make a decision without inviting the applicant to appear at a hearing before it. It noted in its “Findings and Reasons” (CB 121 at [30]):

   “… As the applicant has failed to give the information requested before the time for giving it has passed, subsections 359C(1) and (2) apply and the Tribunal may make a decision on the review without taking any further action to obtain the information. Further, as subsection 359(2) applies to the applicant, subsection 360(3) sates that the applicant is not entitled to appear before the Tribunal. Under section 363A the Tribunal does not have the power to permit a person to do something he or she is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise and as the applicant has failed to give the information within the prescribed statutory period, the Tribunal will proceed to make a decision on the review without taking any further action to obtain the information in accordance with section 359C of the Act.”

3. The Tribunal found that the applicant had not achieved satisfactory course progress because of the education provider’s certification to this effect and that, therefore, he had not complied with condition 8202 attaching to his visa. It considered whether there were any exceptional circumstances, but found that the applicant’s claims did not fall within what was meant by this term, and that, in any event, the claims were not relevant to the period of the failure to achieve satisfactory course progress. Accordingly, it found that the failure to comply with condition 8202 was a ground for cancellation within s.116(1)(b) of the Act, and that no exceptional circumstances existed. In this regard, such circumstances were found to be prescribed circumstances, mandating cancellation of the visa.

The Legislation

1. The relevant legislation is as follows.

2. Section 358:

   “358  Documents to be given to the Tribunal

   (1)    An applicant for review by the Tribunal may give the Tribunal:

   (a)    a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

   (b)    written arguments relating to the issues arising in relation to the decision under review.

   (2)    The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review.”

3. Section 359:

   “359  Tribunal may seek information

   (1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   (2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   (3)    If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

   (a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

   (b)    if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

   (4)    If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.”

4. Section 359C:

   “359C  Failure to give information, comments or response in response to written invitation

   (1)    If a person:

   (a)    is invited in writing under section 359 to give information; and

   (b)    does not give the information before the time for giving it has passed;

   the Tribunal may make a decision on the review without taking any further action to obtain the information.

   (2)    If the applicant:

   (a)    is invited under section 359A to comment on or respond to information; and

   (b)    does not give the comments or the response before the time for giving them has passed;

   the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.”

5. Section 360:

   “360  Tribunal must invite applicant to appear

   (1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)    Subsection (1) does not apply if:

   (a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)     subsection 359C(1) or (2) applies to the applicant.

   (3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”

6. Section 363A:

   “363A  Tribunal does not have power to permit a person to do something he or she is not entitled to do

   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.”

Before the Court

1. Before the Court, the applicant was represented by Mr R C Turner.

2. Mr T Reilly of counsel appeared for the respondent Minister.

3. The applicant was granted leave to file an amended application in Court. No objection was taken by the respondent. The grounds are in the following terms:

   “1. The Tribunal misapplied the provisions of the Migration Act 1958 ss. 359(C)(1) and (2), 360 and 363A and, therefore, failed to carry out its statutory duty.

   2. The Tribunal, at paragraph 30, found that it was compelled to proceed to a decision without a hearing. In so doing the Tribunal misapplied the provision of s. 359C, 360 and 363A.

   3. While the Tribunal correctly referred to the provisions contained in s. 363A “… unless a provision expressly provides otherwise” it confined its search for such provision to s. 360. By so doing, the Tribunal ignored the discretions contained in s. 359C which are a provision expressly providing otherwise as envisaged by s. 363A.

   The Tribunal, therefore, continued to have a discretion under s. 359C(2) to invite the Applicant to a hearing.

   By failing to exercise the discretion contained in s. 359C(2) the Tribunal failed to carry out its statutory duty.

   2. The Tribunal denied the Applicant procedural fairness.”

   [Particulars omitted.]

4. Grounds two and three appear to relate to the same issue as ground one. That is, that the Tribunal misapplied ss.359C(1) and (2), 360, and 363A, and thereby failed to carry out its statutory duty.

5. The “second” ground two asserts that the Tribunal denied the applicant procedural fairness because it denied the applicant the opportunity pursuant to s.358 of the Act to provide further documents to the Tribunal.

The Sections 359C, 360, and 363A Issue

1. I understood the applicant’s argument to be:

   1)Section 360(1) provides that the Tribunal must invite the applicant to a hearing to give evidence and make arguments.

   2)Section 360(1) does not apply if s.359C(1) and (2) applies to the applicant.

   3)Section 359C(1) and (2) provide that if a person is invited under s.359 to give information, or invited under s.359A to comment on information, and the applicant does not do so before the time for responding has passed, then the Tribunal, in either case, may proceed to make a decision on the review without taking further action to obtain the information, or the comments on the information.

   4)In the current case, the Tribunal wrote to the applicant by letter dated 16 July 2009 and sent pursuant to s.359A (“the s.359A letter”), inviting him to comment on certain information. He was invited to do so by 3 August 2009.

   5)The applicant did not provide his comments by that time.

   6)The Tribunal found that as the time for the giving of the information had passed, s.359C(1) and (2) applied.

   7)It further found that as s.359C(2) applied to the applicant, because of s.360(3), the applicant was not entitled to appear at a hearing before the Tribunal.

   8)It relied on s.363A to find that the Tribunal did not have the power to permit a person to do something that he or she is not entitled to do.

   9)It concluded that as s.360 does not provide otherwise, the applicant lost his entitlement to a hearing when he failed to provide his comments to the s.359A letter within the time given.

   10)Section 363A provides that the Tribunal has no power to permit a person (relevantly, here, the applicant) to do something that they are not entitled to do, except if some provision of the Act “expressly provides otherwise”.

   11)Relevant to the current circumstances of this case, s.359C(2) “otherwise provides” as allowed in s.363A (“… the Tribunal may …”).

   12)The entitlement to a hearing therefore continued until the Tribunal made its decision.

2. The applicant referred to Full Federal Court authority, Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218; (2005) 149 FCR 1 (“Uddin”) at [61]:

   “61 We accept that the Tribunal was free, had it wished to do so, to accord the appellant an oral hearing …”

3. The applicant relied on Uddin, therefore, to argue that the Tribunal had the discretion to provide the applicant with a hearing. Its finding that it did not have such a discretion, and its failure to consider this, was a misapplication of the relevant provisions of the Act.

4. Mr Reilly’s response to this ground was to refer the Court to Minister for Immigration and Multicultural & Indigenous Affairs v Jing Shan  Sun [2005] FCAFC 201; (2005) 146 FCR 498 (“Sun”), a later Full Court authority to Uddin, and to M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247 (“M”). His submission was that the law was clear and that, notwithstanding what the applicant sought to draw from Uddin, Sun was later Full Court authority, and as such, is clearly binding on this Court. That while M was the judgment of a single judge sitting in the Federal Court’s original jurisdiction, it should be followed.

5. In relation to this latter point, I note what was said in Minister for Immigration & Multicultural And Indigenous Affairs v SZANS [2005] FCAFC 41 at [35] - [39], SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91 at [42] and, although obiter, what was directly relevant in Suh v Minister for Immigration and Citizenship [2009] FCAFC  42 at [29]:

   “29 The Federal Magistrate thought that the decision in Kim should be followed in preference to that in Tvarkovski because Lander J was ‘sitting as the Full Court of the Federal Court on appeal from [the FMCA]’. There is no tension between Tvarkovski and Kim and it was therefore not necessary to approach the matter that way. Furthermore in Kim, although Lander J was exercising the appellate jurisdiction of the Court, he was sitting as a single judge and not as the Full Court (see Federal Court of Australia Act 1976 (Cth), s 25(1AA)). The Federal Magistrate was correct to regard herself as bound by Kim. That would be so whether it was a judgment of a single judge or a Full Court. However, we wish to enter a general caveat against any notion that the authority of judgments of single judges of the Court waxes and wanes according to whether they are sitting as single judges in the Court’s appellate jurisdiction or in the Court’s original jurisdiction and, if the former, on appeal from any particular court or judicial officer. The matter was not the subject of argument and we will, accordingly, do no more than register our concern that the true position may have been misunderstood.”

6. In dealing with the applicant’s ground, I agree with Mr Reilly that Sun and M provide a complete answer to the applicant.

7. In Sun the Full Court dealt with the effectiveness of a number of invitations given by the Tribunal in that case pursuant to ss.359 and 359A. Relevant to the current matter, the Court said (at [49] to [50]):

   “49 Indeed, the Tribunal may be obliged to give two or more notices under s 359A of the Act. It is not uncommon for information which would be the reason or part of the reason for affirming the decision under review to emerge at different times, and from different sources. The circumstances addressed by the High Court in SAAP (in respect of the similar provisions of the Act as they apply to the Refugee Review Tribunal) provide an illustration. The need to give a second or subsequent notice under s 359A would not however remove from a visa applicant the status of being a person to whom s 359C(2) applies, if the visa applicant had failed to respond to an earlier notice under s 359A or had done so outside the prescribed time.

   50 Section 363A would not prevent the Tribunal from acting in that way. It says the Tribunal does not have power to permit a visa applicant to do a thing in relation to a review if the visa applicant is, by a provision in Pt 5, not entitled to do that thing. Section 360(3) disentitles a visa applicant from appearing before the Tribunal if any of the circumstances in s 360(2) apply, relevantly here if s 359C(2) applies to the first respondent. Consequently, s 363A would appear to disempower the Tribunal from allowing the first respondent to appear before the Tribunal in the present circumstances …”

8. In M the Federal Court directly considered the effect of s.363A. The Court held that s.363A appeared to remove any discretion that the Tribunal might have had to conduct a hearing ([39] - [49]).

9. The Court in that case considered ss. 359, 359C(1), 360(2)(c), and 360(3) (at [39]) in the context where the Tribunal held that the: “… applicant was not entitled to appear before it and pursuant to s.363A cannot be permitted to do so” ([40]). That is, the same circumstances as the current case.

10. The issue for consideration in M was the effect of s.363A ([41]).

11. The Court in M reviewed relevant authorities, including Uddin at that part relied on by the applicant now (at [42]), and noted that the Full Court in Uddin had not been referred to s.363A (at [43]). The Court referred to Sun (particularly as set out above) and noted that in that case: “…the effect of s 363A of the Act was dealt with” (at [45]).

12. The Court in M also considered the Explanatory Memorandum accompanying the Bill which introduced s.363A to the Act in 1995 (Migration Legislation Amendment Bill (No 5) 1994 (Cth) – [45]) and concluded (at [46]):

    “46 In my view s 363A of the Act has the effect contended for by the Minister. Section 360(3) of the Act provides that a consequence of an applicant failing to provide information to the Tribunal in a timely way following an invitation to do so is that the applicant ceases to have an entitlement to appear before the Tribunal. Section 363A of the Act operates to remove any residual discretion the Tribunal may have had to permit an applicant to appear notwithstanding his or her loss of an entitlement to do so. The language of the section is clear. The construction which I have placed upon it is consistent with the observation of the Full Court in Sun and the terms of the explanatory memorandum. To the extent that the dictum in Sun may be said to be inconsistent with that of the Full Court in Uddin the differences are relevantly explicable by the absence of any reference to s 363A of the Act in the joint reasons in the latter case.”

1. Given the above, the applicant’s first ground, as it must be said was ultimately and fairly acknowledged by Mr Turner before the Court, is not made out.

The Procedural Fairness Issue

1. The applicant’s second ground asserts a denial of procedural fairness which the Tribunal was obliged to provide to the applicant pursuant to s.358 of the Act.

2. The applicant’s complaint derives from the Tribunal’s refusal to extend the time by which the applicant could respond to the s.359A letter. The relevant factual basis is as follows:

   1)By letter dated 5 June 2009 the Tribunal sent, pursuant to s.359A, a letter to the applicant seeking his comments on certain information (CB 84 to CB 85).

   2)The applicant was given until 3 August 2009 to provide a response. He was advised that he may seek, in writing, an extension of time within which to give his comments, but that any such request must be received by the Tribunal by 3 August 2009 (CB 85.6).

   3)The applicant telephoned the Tribunal and spoke to a Tribunal officer on 4 August 2009. He asked for an extension of time. He was told that such a request must be made in writing (CB 107).

   4)The applicant sent by facsimile transmission such a written request on 4 August 2009 (CB 108). (He claimed to have “… lost the key” to his “mailbox” while he was “away …”)

   5)The Tribunal responded by letter dated 5 August 2009 (CB 109). The relevant parts of its letter are as follows:

   “I am writing to advise you that unfortunately because your request for an extension was received after the due date the Tribunal is unable to provide an extension of time.

   In accordance with the letter dated 16 July from the Tribunal you have now lost any right you may have had under the Migration Act, to appear before the Tribunal to given evidence and present arguments.

   Accordingly, the Tribunal will now make a decision based on the material before it.”

3. Mr Turner argued that s.359 contains an entitlement to provide information (written statements and written arguments) to the Tribunal.

4. The crux of the applicant’s case was that the terms of the Tribunal’s response to the request for an extension of time (see [34] at item 5 above), indicated to the applicant (“unable to provide an extension of time” and “… the Tribunal will now make a decision based on the material before it”) that he could not put any further information to the Tribunal. The argument was that this was contrary to the provision in s.358.

5. The applicant’s attack posits two areas of error made by the Tribunal, both of which are said to be discerned from the Tribunal’s letter of 5 August 2009. (See CB 109. See also [34] at item 5 above.)

6. The first is that the Tribunal did have the power to grant the applicant an extension of time within which to respond to the matters raised in its s.359A letter. The applicant relies on Sun for that proposition. He argues that by the relevant terms of its letter the Tribunal did not understand that it had discretion in this matter (“… the Tribunal is unable to provide an extension of time”).

7. The second source of error is said to be that the applicant had the opportunity pursuant to s.358 of the Act to provide his comments, or indeed any other written statement, or written argument right up until the time of the Tribunal’s decision. Mr Turner’s submission was that, again, by the terms of its letter, the Tribunal purported to deny the applicant that opportunity.

8. In all, therefore, the applicant’s argument is that even if the applicant lost the opportunity to attend at a hearing (ground one), he did not lose the opportunity to put written material before the Tribunal (s.358). Further, the Tribunal should not have considered that it did not have the discretion to extend the time to respond to the s.359A letter.

9. In relation to the latter, Mr Turner relied on the remainder of the paragraph extracted from Sun at [50] (see [26] above):

   “But there is no provision disentitling the visa applicant from providing such information to the Tribunal as that visa applicant considers to be pertinent. And notwithstanding that s 359C(2) applies to that visa applicant, such information may include information provided belatedly pertaining to information referred to in an invitation under s 359A …”

The Respondent’s Submissions

1. In reply, Mr Reilly relied on M at [52]:

   “52 In any event, it may be doubted that there was scope for the Tribunal, even if it had been minded to do so, to extend time to comply with the request made on 28 February 2005, after the period stipulated for compliance in that letter had passed. Section 359B(4) of the Act is cast in the present tense (‘If a person is to respond ...’ and ‘the response is to be made ...’). This, as the Full Court noted in Sun (at 509-510) suggests that any application for an enlargement of time must be made while the time stipulated in the original letter of request is still running. The Full Court did not find it necessary to determine the question (see at 510) but, in Usman v Minister for Immigration and Multicultural Affairs [2005] FMCA 966 at [44], Pascoe CFM held that the power granted by s 359B(4) of the Act could only be exercised within the period allowed when the original request was made. Had it been necessary to do so I would have held that the Tribunal could not have enlarged time pursuant to s 359B(4) of the Act after, at the latest, 6 April 2005.”

2. The submission was that the current case involved an invitation to comment pursuant to s.359A, and that the Tribunal certainly does have the power to extend the time within which the comments can be provided, pursuant to s.494B(4). But that in the current case the request for an extension of time was received out of time. That is, after the expiry of the period provided. Notwithstanding that in M Tracey J did not have to consider that point to resolve the case before him, his Honour commented that if it had been necessary, he would have held that the Tribunal would not have discretion to extend the time for the making of the comments, where a request to do so was presented after the expiry of the prescribed period set out initially in the s.359A letter.

3. Mr Reilly also submitted that in the current case it was important to distinguish between the situation where there has been a request to extend time in relation to a s.359A letter, and the situation where an applicant may, in any event, provide written information pursuant to s.358.

4. The respondent’s position was that in Sun the Tribunal had sent a s.359A letter, and no response within time was made. The Tribunal then sent another letter with particular wording, which was found by a Federal Magistrate to constitute an extension of time pursuant to s.359B(4), and in those circumstances, found that the right to a hearing had not been lost.

5. On appeal the Full Court found that the right to a hearing in that case had been lost, but that the Tribunal still had a general discretion to consider any material put to it by an applicant up to the time of the making of its decision.

6. The issue in the current case, therefore, is to be resolved by a fair reading of the Tribunal’s letter of 5 August 2009. Although contending for a different reading, Mr Turner agreed that a fair reading of the Tribunal’s letter will provide the solution to this case.

Consideration

1. The Tribunal’s letter of invitation to comment on, or respond to, certain information was dated 16 July 2009 (CB 84 to CB 85). Given the specific reference to s.359A in the letter, it is clear that the Tribunal was proceeding pursuant to this section of the Act. The applicant was given until 3 August 2009 to provide his comments or response (CB 85.6). He was advised that he could request an extension of this time, but that any such request must be received by the Tribunal by 3 August 2009 (CB 84.7). The Tribunal advised that it would consider any such request made within this time (CB 85.7).

2. The letter put the applicant on notice that if the comments were not received within the period allowed, or as extended, the Tribunal may make a decision without taking any further action. The letter specifically noted that in those circumstances the applicant would lose any entitlement to a hearing (CB 85.8).

3. On the best evidence available to the Court, the letter was sent to the applicant at the last address nominated by the applicant for this purpose. (See CB 29.9 and CB 84.2.) It was also sent to his residential address (CB 36.1). It was sent by registered post (CB 84.2).

4. On the best evidence available (and there was no contention by the applicant to the contrary) the letter was sent by one of the methods by which such a letter could be dispatched. That is, by prepaid post, within three days of its date to the last address provided by the applicant for this purpose, which was also his residential address (s.379A(4)).

5. By virtue of s.379C(4) the applicant is taken to have received the letter within seven working days of its date, given that it was sent from an address within Australia to another address within Australia.

6. Section 359B sets out certain requirements relating to invitations sent out by the Tribunal, relevantly, pursuant to s.359A. Section 359B(2) provides that the comments in response to the invitation must be made within the period specified in the invitation, and that this must be (where there is a prescribed period) the prescribed period.

7. The decision which was the subject of review before the Tribunal was a decision to cancel the applicant’s student visa. In these circumstances, the prescribed period is to be found in reg.4.17(3). That is, the prescribed period starts when the applicant received the invitation, and ends five working days after the date on which it was received.

8. In the current case, therefore, the period by which the applicant is taken to have received the invitation is seven working days from its date, and the prescribed period ends five working days after the date on which it was received.

9. The time provided by the Tribunal in its letter of invitation, therefore, complied with these requirements.

10. There was no dispute between the parties that the opportunity available to the applicant to put before the Tribunal any written material continued up until the date of its decision.

11. The issue is whether the language of the Tribunal’s letter of 5 August 2009 (CB 109) purported to deny the applicant that opportunity.

12. In my view, any plain (let alone fair) reading of the Tribunal’s letter, particularly if read in context with the invitation letter itself, and the applicant’s letter of 4 August 2009 (CB 108), reveals that it did not do so.

13. The Tribunal’s letter of invitation was sent pursuant to s.359A. It clearly sought to draw comment on, or response to, specific information which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The time limit by which the applicant was to provide his comments was 3 August 2009. Any plain reading of that letter of invitation reveals that the time limit was imposed in relation to his providing comments specifically in relation to the information, reference to which was made in the letter, and the attachments to the letter.

14. The applicant’s request for an extension of time was dated, and received by the Tribunal on, 4 August 2009, the day after the time by which the comments were to have been received.

15. Importantly, for current purposes, the applicant’s request for an extension of time was clearly so that he could: “… respond to the invitation sent by the … Tribunal.”  Further, he emphasised that he hoped that the Tribunal: “… would grant an extension to allow me to prepare a response to the invitation” (CB 108).

16. The Tribunal’s letter of 5 August 2009 (CB 109) needs to be read in that context. When the Tribunal said it was “… unable to provide an extension of time” it was clearly said in response to the applicant’s request for an extension of time to respond to the invitation to comment on the information in the s.359A letter.

17. There is nothing in this language, particularly when properly read in context, to suggest that the Tribunal was seeking to exclude any opportunity that the applicant may otherwise have had pursuant to s.358 to provide a written statement or any arguments “… in relation to any matter …” and “… in relation to the issues …” (s.358(1)(a) and (b)).

18. The Tribunal and, given the applicant’s own letter, the applicant were clearly focussed on the opportunity pursuant to s.359A.

19. Nor, in the same light, do I see that the Tribunal’s words (“… Accordingly, the Tribunal will now make a decision based on the material before it …”) sought to convey to the applicant that the Tribunal would not consider anything else that the applicant may choose to put before it.

20. In my view, Mr Reilly was correct to submit that the letter “says what it says”. That is, in relation to the opportunity to comment on the information in the s.359A letter, no extension of time could be granted. In context, the words following, that it would proceed to a decision on the material before it, were reflective of a situation that the applicant had only sought more time to give his comments in relation to the information in the Tribunal’s first letter. There is nothing in the applicant’s letter to show that he sought an opportunity to put any other matter, or indeed that he had any other matter that he wished to put, before the Tribunal.

21. The limb of the applicant’s complaint that relies on s.358, therefore, is not made out.

22. The other limb is also not made out. The applicant argues that the Tribunal’s discretion to extend the time to respond to the s.359A letter, and its language was such as to deny that discretion.

23. Mr Turner relied on Sun to argue that even if in the circumstances s.360(3) disentitles the applicant from appearing at a hearing, given that s.363A ultimately would disempower the Tribunal from allowing him to appear, there is, on the authority of Sun (at [50]), no provision disentitling him from providing any information that he considers pertinent.

24. Mr Reilly submitted that the Court should follow M at [52] for the proposition that the Tribunal did not have a discretion in the circumstances. Mr Turner submitted that M was “not technically binding” on this Court.

25. I am clearly mindful of relevant authorities as cited above (at [24]). The applicant relies on Full Federal Court authority binding on this Court. The respondent relies on a subsequent single judge authority, whose judgment (according to Suh at [29]) should not be seen as “waning” because he was not sitting as a single judge in the appellate jurisdiction of the Federal Court.

26. Happily, I do not need to enter into this area of consideration. At the very least, even if what was said was obiter, I follow what was said by Tracey J in M because what is said in M at [52] is the only statement by a Federal Court judge put before me by the parties which goes directly to the factual issue in the current matter and is directly on point.

27. As Mr Reilly, in my view, correctly submitted, what was said in Sun relates generally to the Tribunal’s discretion to consider material put to it at any time up to the making of its decision, and the discretion to invite the applicant to provide further information. These discretions certainly exist. Remembering also that the circumstances before the Court in Sun involved a number of invitations given to the applicant, in that case, pursuant to s.359 and s.359A.

28. What was said in M, however, is directly relevant and focussed on a similar set of circumstances as in the current case.

29. Here, there was only one invitation to comment on certain information. The applicant sought an extension of the time allowed, but only did so after the time for the making of the comments had expired. The applicant argues that the Tribunal should not have said that it was “unable” to give the extension of time. That is, that it should have considered whether the extension was warranted in the circumstances.

30. The Court in Sun raised the question underpinning the applicant’s complaint (at [51]):

    “That suggests that s 359B(4) is intended to give the Tribunal a general discretion to extend the time to respond to an invitation under s 359A even though the initial prescribed time has expired. Nonetheless, there are some textual indications pointing to the opposite conclusion, including the present tense used in s 359B(4).”

31. The Court went on to say (at [52]):

    “52 However, in view of our findings … it is unnecessary to determine the question of whether the Tribunal has a power to extend the time under s 359B(4) of the Act even after the initial prescribed period has expired …”

32. Whatever else therefore may have been said, or even suggested, in Sun, the Court in that case did not consider the question that is directly relevant to the factual circumstances in the current case.

33. The Court in M did. Even though its comments were said to be obiter, they should be followed by this Court in the current case for that reason.

34. I note also that such an approach is consistent with what was held, directly on this point, by the Chief Federal Magistrate in Usman & Anor v Minister for Immigration [2005] FMCA 966 (“Usman”) at [44]. The Court in that case held that the power in s.359B(4) to extend the time for the giving of comments in response to an invitation, relevantly under s.359A, could only be exercised within the period given in the invitation to comment.

35. Having regard to the reasoning in Usman, I follow what was said, at the very least, as a matter of comity, and given that I cannot see that it is plainly wrong.

36. The Tribunal’s relevant language in its letter of 5 August 2009 was consistent with this view of the meaning and effect of s.359B(4) in the circumstances of what was before it.

37. What the Tribunal plainly told the applicant was that (CB 109.4):

    “… because your request for an extension was received after the due date the Tribunal is unable to provide an extension of time.”

38. This, in my view, reflects the preferred view of s.359A(4) that there is no discretion in circumstances where the request for the extension of time to comment on certain, and specific, information was made after the expiry of the prescribed period as stated in the letter of invitation.

Conclusion

1. With the benefit of legal assistance, the applicant has, in effect, put two grounds before the Court. Neither of the grounds, nor the various elements in the grounds, reveal jurisdictional error on the part of the Tribunal. This application, therefore, is dismissed.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date: 22 January 2010