Kaur v Minister for Immigration
[2012] FMCA 438
•29 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 438 |
| MIGRATION – Application for review of decision by Migration Review Tribunal – failure to invite the applicant to respond to information – failure to consider adjournment – jurisdictional error – application granted. |
| Migration Act 1958 (Cth), ss.116, 119, 359A, 359AA, 359C, 360, 424A, 424AA, 476, Div.5 Migration Regulations 1994 (Cth), r.2.43, Sch.8 Education Services for Overseas Students Act 2000 (Cth), s.20 |
| SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 MZYHF v Minister for Immigration and Citizenship [2010] FCA 1250 |
| Applicant: | NAVPREET KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2081 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 3 April 2012 |
| Date of Last Submission: | 3 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2012 |
REPRESENTATION
| Appearing for the Applicant: | Mr N Dobbie |
| Solicitors for the Applicant: | Dobbie & Devine Immigration Lawyers |
| Appearing for the Respondents: | Mr O Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ in the nature of certiorari quashing the decision of the second respondent made on 11 August 2011.
A writ in the nature of mandamus compelling the second respondent to reconsider the application according to law.
The first respondent pay the applicant’s costs set in the amount of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2081 of 2011
| NAVPREET KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 15 September 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 11 August 2011, to affirm the decision of the Minister’s delegate to cancel the applicant’s visa.
Background
Background to this case is contained in the bundle of relevant documents filed by the Minister (Court Book – “CB”).
Ms Navpreet Kaur (“the applicant”) was granted a Student (Temporary) class TU subclass 572 Vocational Education and Training Sector visa (“the visa”) on 3 June 2010. On 13 December 2010 her education provider (Sapphire International Pty Ltd, trading as Lamart College of Technology (“Lamart”)) certified that the applicant had not achieved satisfactory course attendance as required by sub-condition 8202(3)(b) of Sch.8 of the Migration Regulations 1994 (Cth) (”the Regulations), a condition attached to her visa (CB 1 to CB 6).
Lamart issued a notice pursuant to s.20 (“the s.20 notice”) of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”). In response, the applicant attended at an office of the Minister’s department. She was subsequently given a notice pursuant to s.119 of the Act, notifying of the intention to cancel her visa pursuant to s.116 of the Act (CB 7 to CB 10).
The Delegate
On 24 January 2011 the Minister’s delegate cancelled the visa (CB 16 to CB 23). The delegate found that the applicant had not complied with condition 8202 and that her non-compliance was not due to exceptional circumstances beyond her control. The cancellation of the visa was therefore mandated by law (CB 23).
The Tribunal
The applicant sought review by the Tribunal on 4 February 2011 (CB 24 to CB 30). She was assisted in her application by a registered migration agent (CB 27). That agent made submissions on her behalf on 9 August 2011 (CB 35 to CB 39). Those submissions were essentially directed to the matter of exceptional circumstances beyond the applicant’s control. That is, that the explanation for her non-attendance was due to medical problems and a failure by Lamart to warn her that her attendance was not satisfactory prior to certifying the relevant breach of the condition.
The applicant attended a hearing before the Tribunal on 10 August 2011 (CB 59). The Tribunal’s account of what occurred at that hearing is set out in its decision record ([40] at CB 59 to [46] at CB 60).
The Tribunal was satisfied that the applicant had not complied with condition 8202. Further, that the non-compliance was not due to exceptional circumstances beyond her control (see [47] at CB 61 to [54] at CB 62 for the Tribunal’s analysis).
As revealed in part of that analysis, the Tribunal relied on the following ([53] at CB 62):
“The Tribunal has taken into account Direction No.38. There is no policy advice before the Tribunal from the relevant area of the Department regarding political upheaval or natural disaster in the applicant’s home country. There is also no written advice from the Department of Education, Employment and Workplace Relations or the education provider regarding concerns or omissions or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting. As indicated above, the applicant has claimed that she did not receive a warning letter or the notice of intention to report letter. As discussed with the applicant pursuant to s.359AA at the Tribunal hearing, the Department’s records and the PRISMS records indicate that the applicant was issued with a warning letter, a notice of intention to report letter that included advice on her appeal rights at the address that she provided. The applicant’s education provider also advised the Department that it was sent to the applicant at the address that she provided. The applicant does not dispute that she resided at any other address. The Tribunal is satisfied, on the basis of the PRISMS records and the Department’s inquiries, that there is no evidence that her education provider failed to accurately monitor her attendance or has failed to give her access to a relevant complaints handling and/or appeals process.”
[Emphasis added.]
Before the Court
At the hearing of this matter Mr N Dobbie appeared for the applicant. Mr O Jones appeared for the first respondent. The affidavit of Ms Rosario Xiella Devine, solicitor, of 21 October 2011, annexing a transcript (“T”) of the hearing before the Tribunal, was taken into evidence.
The sole ground of the application is in the following terms:
“3. The Tribunal failed to comply with s359A of the Migration Act 1958
Particulars:
(a) The Tribunal committed jurisdictional error by failing to comply with s359A of the Migration Act 1958.
(i) The Tribunal found that the Applicant had not complied with Condition 8202 of the Migration Regulations 1994 (‘the regulations’), to which her student visa was subject.
(ii) After finding that the Applicant had not complied with Condition 8202, the Tribunal had to consider whether the non-compliance was not due to exceptional circumstances beyond the Applicant’s control.
(iii) In considering whether the non-compliance was not due to exceptional circumstances beyond the Applicant’s control for the purpose of r2.43(2) of the regulations, the Tribunal relied on information, not given to it by the Applicant or in relation to the student visa cancellation by the Minister’s delegate, being:
· Department records and the PRISMS records indicated that the Applicant was issued with a warning letter and a notice of intention to report letter issued by her education provider, and sent to her residential address provided.
(iv) The adverse information set out at subparagraph (iii) was not given to the Applicant in accordance with s359A or s359AA of the Act.”
The Minister conceded that the records referred to by the Tribunal are “information” for the purposes of s.359AA of the Act as they contain: “… in their terms a rejection, denial or undermining …” of the applicant’s claims (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609)
In the circumstances, it can only be assumed that the Minister implicitly made that concession in relation to s.359A of the Act. The issue is therefore directed to the Tribunal’s comment in its decision record that it purported to deal with that information at the hearing in the manner contemplated by s.359AA of the Act ([53] at CB 62). That section contains the mechanism by which the Tribunal can orally comply with its obligation in s.359A (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”)).
Section 359AA is in the following terms:
“ Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”
The applicant’s attack is directed to, and derives from, s.359AA(b)(ii), (iii) and (iv).
The following parts of the transcript are relevant to understanding the applicant’s case.
1)At T 2:
“Q8 [The Tribunal] O.K. Now I’m also going to be discussing information with you today, some adverse information.
A O.K.
Q9 [The Tribunal] O.K. Now that information is subject to any comments you make, may be the reason or part of the reason for me agreeing with the Department’s decision to cancel the visa. O.K …”
2)At T 3:
“ Q 15 [The Tribunal] O.K. Now the student visa that you were granted was subject to a number of conditions. O.K. So that visa was a sub-class 572 visa, which was granted on the 3rd of June, 2010. O.K. Now that visa was granted on the basis of your enrolment in a Diploma of Accounting course at Lamart College.
A O.K.
Q16 [The Tribunal] O.K. Now that course was due to commence on the 11th of October, 2010 and to end on the 6th of April, 2012.
A O.K.
Q17 [The Tribunal] O.K. Now on the 13th of December, 2010 your education provider certified that you had not made satisfactory course attendance. O.K. And you were sent what’s called a section 20 notice to the address that you had notified your education provider, which was … Blacktown. O.K. You were sent a warning letter on the 27th of October 2010 and you were sent an intention to report letter on the 10th of November, 2010. O.K. Now information from Lamart also indicates that you were offered counselling but you did not, you did not request it and you didn’t access the appeals process. O.K. Now what that information means is that I may find that you’ve breached condition 8202 in relation to attendance. O.K. Now what I have to do is consider whether there’s any exceptional circumstances beyond your control for the breach. If I’m not satisfied that there are any, then I’ll agree with the Department’s decision to cancel the visa. O.K. So you’re invited to comment on that information and you’re entitled to request a further opportunity to comment on that information.
A O.K. Can I comment now?
Q18 [The Tribunal] Yes.
A (I) I will speak in Punjabi.
Q19 [The Tribunal] O.K. That’s fine.”
[Emphasis added in the applicant’s written submissions.]
3)At T 6:
“Q34 [The Tribunal] O.K. But the course had started on the 11th of October, so why would you wait until, if you couldn’t do the course why would you wait until November to do that?
A: (I) Because I was sick.
Q35 [The Tribunal] O.K. Well Ms Kaur, as I’ve explained I’m not satisfied that there’s any evidence indicating that you were sick at that time. You seem to have obtained documentation a couple of days ago to cover that period. And there’s nothing to indicate that you were sick at that time.
A What should I do?
Q36 [The Tribunal] It’s, it’s not really up to me to tell you what you should do. I’m just explaining to you what my concerns are.
A: Yeah.
Q37 [The Tribunal] O.K. Ms Kaur, was there anything more that you wanted to add today?
A: (I) No.
Q38 [The Tribunal] O.K. Now do you remember that I said you were entitled to request a further opportunity to comment.
A: (I) Yeah.
Q39 [The Tribunal] O.K. Well are you requesting further time?
A: (I) Now?
Q40 [The Tribunal] Yes, you’re entitled to request to ask for a further opportunity to comment.
A: (I) Yes, I request for that.
Q41 [The Tribunal] O.K. Well what would you like to do?
A: (I) I would like to explain it in a better way.
Q42 [The Tribunal] O.K. Well please go ahead.”
The Applicant’s Case
The applicant’s first attack arises from s.359AA(b)(ii) of the Act. That is that the Tribunal did not orally invite the applicant to respond to the subject information. A distinction is drawn between the invitation to “comment on” and to “respond to” the information.
Mr Dobbie’s submission was that the Tribunal did not appreciate that s.359AA imposed two obligations on the Tribunal. One is to invite the applicant to comment, the other is to invite a response. The Tribunal, it was said, only understood the first. A failure to understand and then misapply the law is said to constitute jurisdictional error.
The applicant relied on Saba Bros Tiling Pty Ltd v Minister for Immigration & Anor [2010] FMCA 598 at [36] to [38] per Driver FM:
“[36] In the absence of a statutory definition of ‘comment’ or ‘response’ the words should be given their ordinary or natural meaning. The third edition of the Macquarie Dictionary includes in the definition of ‘comment’:
to make comments or remarks on; furnish with comments.
[37] To ‘respond’ means, relevantly:
to answer; give a reply in words: to respond briefly to a question.
[38] It seems to logically follow, in my view, that an invitation to provide comments anticipates a reply which is responsive to the invitation. However, an invitation to respond is more general. It is simply seeking a reply. In the present case, as is common in such invitations, the applicant’s solicitor was invited to give comments on or to respond to the information provided. The applicant’s solicitor elected, in the facsimile transmission dated 22 February 2010 to respond but not to comment. The solicitor was entitled to do so. The applicant had not been compelled to respond and to provide comments or to respond with comments. The content of the reply was left to the applicant to determine. I conclude that the reply given on behalf of the applicant, which noted the purportedly adverse information and sought an oral hearing to deal with it, was a ‘response’ for the purposes of ss.359A, 359B and 359C of the Migration Act. The Tribunal was wrong to conclude that the applicant had not responded within the time given and therefore fell into jurisdictional error in denying the applicant a hearing by reason of non response.”
[Footnote omitted.]
On appeal, in Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233 (“Saba Bros”), the Minister was unsuccessful. Relevantly, Jagot J said:
“[30] Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: ‘comment on or respond to’ the information in the case of s 359A(1)(c), and ‘the comments or the response’ in the case of s 359C(2)(b). This indicates that an applicant may either ‘comment on’ or ‘respond to’ the information in the invitation, or both comment on and respond to the information. The choice – to comment, respond or both – is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines ‘to comment’ as ‘to make comments or remarks [upon]’; by contrast, ‘to respond’ is simply ‘to answer in speech or writing; to reply’. An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.
[31] It is true that s 359C(2)(b), read with s 359A(1)(c), requires a response to the information in the invitation. But beyond that the Migration Act imposes no minimum requirement of content for a response or a comment. Accordingly, on the face of the provisions, any reply or answer directed to the information itself will constitute a response.
[32] Nothing in the context of or purpose underlying the relevant provisions indicates that the word ‘respond’ should be given other than its ordinary and natural meaning of ‘to answer’ or ‘to reply’. As Saba Bros submitted, the option of responding to (as opposed to commenting on) information under s 359A was inserted into the Migration Act by the Migration Amendment (Review Provisions) Act 2007 (Cth). If, as the Minister contended, a ‘response’ requires an applicant expressly to state a position in relation to the information, the distinction between comment and response introduced by Parliament in 2007 would be rendered redundant.”
In short, the submission was that Jagot J distinguished “comment on” and “respond to”, and that the language in s.359A(1)(a) and s.359C(2)(b) are identical to s.359AA(b)(ii). By not inviting the applicant to “respond to” the information, the Tribunal denied the applicant the opportunity created by the section, and therefore denied her procedural fairness.
The applicant argues that this failure by the Tribunal is apparent when regard is had to the transcript of the hearing (see relevant excerpts set out above at [16]).
In relation to s.359AA(b)(iii) of the Act, the applicant submits that, also flowing from the above, there was no advice to the applicant that she could seek additional time to both comment on, or respond to, the information.
In relation to s.359AA(b)(iv), the applicant relied on SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 (“SZNKO”) per Flick J for the proposition that the Tribunal had a positive obligation to consider an adjournment to allow the applicant to comment on, or respond to, the information. In that case Flick J found that relevant parts of the transcript of the hearing, that is with reference to the facts and circumstances of that case, disclosed that the Tribunal member reversed the requirement imposed, in that case, by s.424AA(b)(iii) (noting that s.424AA(b)(iii) and (iv) of the Act mirrors the relevant provisions in the current case).
The duty imposed, relevantly, by s.359AA(b)(iv), is that an applicant be positively advised that he or she may seek additional time within which to comment on or respond to the relevant “adverse” information (see SZNKO at [30] to [31]).
In the current case, Mr Dobbie submitted that the information in question was information relied upon by the Tribunal, at least in part, for the purpose of affirming the decision to cancel the applicant’s visa. As such, in the circumstances, the Tribunal failed to comply with s.359AA(b) in relation to the obligation imposed by s.359A and the relief sought should be granted.
The Minister’s Reply
In reply Mr Jones explained that the Minister’s case contained three elements:
1)The Tribunal was not required to use the exact words of the legislation, specifically “comment on” and “respond to”, to meet its obligations under s.359AA(b) of the Act.
2)Additional time to comment was offered by the Tribunal to the applicant and she declined that opportunity.
3)The Tribunal’s obligation under s.359AA(b)(iv) of the Act, to consider an adjournment, did not arise as the applicant did not seek additional time.
The first is that the Tribunal was not required to use the exact words of the legislation. That is, it was not required to actually use the word “respond” in addition to the word “comment” in complying with the relevant obligation. The Minister’s position was that Saba Bros was distinguishable from the present circumstances because, in that case, a written invitation pursuant to s.359A of the Act was issued to the applicant to “comment on” or “respond to” certain information (at [13] of Saba Bros).
In reply to that letter the applicant’s representative in Saba Bros stated that they noted the adverse information, but pressed for the opportunity of an oral hearing. The Tribunal in that case found that to be a failure to comment on or respond to the information, and proceeded to a decision without conducting a hearing. This case, it is said, relates to s.359AA of the Act. Both this Court, and the Federal Court on appeal, distinguished between “comment on” and “respond to”, and found that while there had not been a comment on the substance of the adverse information, there nonetheless had been a response to it.
The Minister’s position was that, in the current case, the Tribunal, unlike in Saba Bros, made no finding that the applicant had neither commented on nor responded to the invitation. The Minister argued that, in the current case, the Tribunal was in the process of “addressing” a different provision at a hearing, namely s.359AA, and seeking an exchange with the applicant in relation to the information. The thrust of the Minister’s response was that the Tribunal did not preclude the applicant from commenting on, or responding to, information and that it was quite unlike the situation in Saba Bros.
The Minister’s two other elements in response flow from the above. In relation to the applicant’s attack claiming she was denied additional time to comment and respond, the Minister presented essentially the same arguments as above. In relation to s.359AA(b)(iv) of the Act, concerning consideration of adjourning the review, the Minister said that it did not arise as the applicant did not seek any additional time to comment on, or respond to, the information.
Consideration
The Minister’s reliance on a distinction between s.359A and s.359AA of the Act as providing a basis for distinguishing the current case from Saba Bros must be rejected. Of course the two are different sections of the Act, but there is a clear and close relationship between the two that argues against the Minister’s position. Section 359AA is a facilitative mechanism through which the obligation in s.359A may be met by the Tribunal (SZMCD).
The essence of the applicant’s case, which it must be said did not appear to be addressed by the Minister, is that both s.359A and s.359AA of the Act are directed to the same procedural fairness obligation. That is, the Tribunal must give to an applicant clear particulars of any information that it considers would be the reason, or part of the reason, for affirming the delegate’s decision.
Section 359A, when understood in light of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162 (“SAAP”), obliges the Tribunal to give an applicant the opportunity to comment on, or respond to, such information. Further, it must do so in writing. However s.359AA permits the Tribunal to discharge that obligation orally.
I agree with Mr Dobbie that in the current case, as with Saba Bros, the focus must be on the procedural fairness obligation envisaged by the scheme of the Act. It is the discharge of the Tribunal’s obligation in that regard, set out in s.359A, either through the mechanism set out in s.359A or through the facility afforded by s.359AA, that joins the circumstances of this case to Saba Bros and argues against the Minister’s submission.
The distinction therefore which the Minister seeks to make between a written invitation, pursuant to s.359A, and an oral exchange with the applicant at a hearing, pursuant to s.359AA, is, in my view, a “false” distinction. The distinction misunderstands the very nature of the relevant statutory scheme, its plain objectives and the different mechanisms designed to achieve the same procedural fairness outcome.
The Minister also submits that the applicant was in error in submitting that the exact words “comment” or “respond” must be used for an invitation under s.359AA of the Act to be valid.
The Minister relied in this regard, also, on SZNKO at [29]:
“[29] Compliance with s 424AA(b)(iii) and/or (iv), does not require a Tribunal Member to repeat the very words employed in s 424AA(b)(iii) in some ritualistic or ‘parrot-like recantation’. Indeed, cases may be envisaged where to do so may not meaningfully convey to an applicant the opportunity sought to be secured by those provisions. Compliance with those provisions must necessarily depend upon the facts and circumstances of the claims being advanced before the Tribunal, the ability of any particular applicant to properly avail himself of the opportunity to be heard before the Tribunal, and the limited procedural protections prescribed by the Commonwealth legislature.”
[Emphasis added.]
The Minister focuses on the first part of that paragraph. In my view, regard must be had to that part emphasised above. The question now therefore is to ask what are the facts and circumstances of this case to which regard must be had to ascertain if the Tribunal complied with its obligations?
First, as Mr Dobbie submits, attention must be given to the circumstances which gave rise to the Tribunal having regard to the Department’s records and the “PRISMS” records (see at [53] at CB 62 and [9] above).
The applicant maintained at all times that she was a “genuine student” (see, for example, CB 35.9). She maintained that while she received the s.20 notice, she did not receive earlier communications from Lamart relevant to the circumstance that led to the issuing of the s.20 notice (see for example CB 37.3). The import being that she was denied the opportunity to address Lamart’s concerns at a time prior to the issuing of the s.20 notice.
The delegate’s decision did make reference to having received information from Lamart as to their claimed attempts at contacting the applicant to offer counselling to her about attendance (CB 21.6) and information “over the phone” that “the warning letter” and “notice of intention to report” were all sent to the applicant at the same address as the s.20 notice (CB 21.7). In relation to that issue, the Tribunal reported on the applicant’s relevant submission made through her representative ([37] at CB 58 and [42] at CB 60).
However unlike, for example, the discharge of the Tribunal’s obligation pursuant to s.360 of the Act to raise dispositive issues at the hearing unless such issues arise from the delegate’s decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592), the obligation under s.359A, and if engaged s.359AA, is not addressed by any reference to the delegate’s decision. The obligation in s.359A and s.359AA relies exclusively on action taken by the Tribunal during the conduct of the review.
In this regard the transcript of the hearing, and indeed the Tribunal’s own account of the hearing, reveal that no reference was made to the “PRISMS” records by the Tribunal, whatever these may be. (They remained unexplained before the Court and, for that matter, by the Tribunal, although general reference was made to information concerning letters sent by Lamart to the applicant.)
It may be allowed that the transcript reveals that some particulars (dates of relevant letters said to have been sent to the applicant’s address) were given to the applicant about the remainder of the information (see T 3).
The importance of this information to the Tribunal’s decision is that it was part of the Tribunal’s consideration in answer to the applicant’s submission that the non-receipt of counselling and other relevant letters from Lamart was part of the exceptional circumstances beyond her control which were relevant to the Tribunal’s consideration of the cancellation of her visa (see r.2.43(2)(b)(ii)(B) of the Regulations and condition 8202(3)).
In answer to the Minister’s position, a number of things must be brought together. First, as Flick J found, compliance with, relevantly, s.359AA(b)(ii) does not require a “ … ‘a parrot-like recantation’ …” of the language of the legislation. On its own, therefore, the absence of the words “respond to” from the Tribunal’s utterances at the hearing is not, in itself, fatal to the Minister’s cause.
Second, the terms “comment on” and “respond to” are not wholly
co-extensive. While there may be come overlap, as Jagot J explained (at [30] of Saba Bros), an invitation to respond is broader than an invitation to comment.
In the current circumstance what must be borne in mind is the importance in the Tribunal’s analysis of its assumption, if not finding, that the applicant received certain correspondence from Lamart. The applicant’s capacity to respond to (broader than comment on) the information that she had received the communications, as opposed to commenting on it at the hearing, reveals the very distinction contemplated by the legislation, and indeed parallels the distinction in the circumstances found in Saba Bros.
While the question of the temporal dimension of the Tribunal’s stated invitation is more fully explained below in the consideration in relation to s.359AA(b)(iii) and (iv), for the purposes of s.359AA(b)(ii) the circumstances of this case, as referred to above, required the Tribunal to invite the applicant to “respond to” that information and to have made clear to the applicant that such a response could be given after the hearing.
The applicant may then have chosen to provide, for example, some documentary evidence to seek to explain, or support, her assertion that she did not, contrary to the information relied on by the Tribunal, receive the earlier correspondence from Lamart. That, for example, could have been in the form of a Statutory Declaration from some person who had actual knowledge of, say, postal deliveries to her address for service, or knowledge of Lamart’s administrative postal procedures.
What that response may have been is not important for current purposes. Indeed, the applicant may have chosen not to respond at all. As Jagot J found in Saba Bros (at [30]): “… the choice – to comment, respond or both – is vested in the applicant to whom the invitation is given.” That is, also, that it is not for the Tribunal to act in such a way as to deny the applicant the (procedurally fair) opportunity to consider her election.
In the current case the invitation to respond, let alone to respond in a meaningful way, was not given to the applicant by the Tribunal. The absence of the word “respond” in the invitation actually issued is not relevant. What is relevant is what was said by way of invitation by the Tribunal (see at [16] above), and that invitation did not invite the applicant to make any response of the kind exemplified immediately above. Therefore, that limb of the applicant’s attack is made out.
The applicant also argued that the Tribunal failed to comply with the requirement in s.359AA(b)(iii) by failing to advise her that she may seek additional time to comment on, or respond to, the adverse information. The applicant again relied on the extracts of the transcript of the hearing (set out at [16] above). As a consequence, the applicant says she was denied the opportunity to seek additional time to comment or respond, leading to the Tribunal’s failure to consider whether the review should be adjourned for that purpose pursuant to s.359AA(b)(iv) of the Act.
To the extent that the Minister argued that the reasoning behind his submission in relation to the complaint arising in s.359AA(b)(ii) applied to answer this complaint, this fails for the same reasons as set out above.
What is left is the Minister’s assertion that, at two points during the hearing, the Tribunal “clearly distinguished” between an opportunity to comment at the hearing and to request additional time to do so on a subsequent occasion. In essence, the Minister’s argument is that additional time was offered to the applicant and that she declined that opportunity.
I do not agree with the Minister that additional time was offered by the Tribunal and was declined by the applicant.
At “Q17” of the Transcript (at T 3), the Tribunal set out some of the relevant factual matters and referred to the adverse information in question. It explained the relevance of that information to the questions it was required to address. (Was there a breach of condition 8202 and, if so, whether there were any exceptional circumstances outside the applicant’s control to explain that breach.)
At the conclusion of that explanation the following appears (at T 3):
“Q17 [The Tribunal] … So you’re invited to comment on that information and you’re entitled to request a further opportunity to comment on that information.
A O.K. Can I comment now?
Q18 [The Tribunal] Yes.”
The Minister argues that, with her answer, the applicant clearly understood the options available to her and that this exchange is sufficient for the Tribunal to have complied with its obligation.
Further, that although not obliged to do so, the Tribunal returned to this question (at T 6):
“Q37 [The Tribunal] O.K. Ms Kaur, was there anything more that you wanted to add today.
A: (I) No.
Q38 [The Tribunal] O.K. Now do you remember that I said you were entitled to request a further opportunity to comment.
A: (I) Yeah.
Q39 [The Tribunal] O.K. Well are you requesting further time?
A: (I) Now?
Q40 [The Tribunal] Yes, you’re entitled to request to ask for a further opportunity to comment.
A: (I) Yes, I request for that.
Q41 [The Tribunal] O.K. Well what would you like to do?
A: (I) I would like to explain it in a better way.
Q42 [The Tribunal] O.K. Well please go ahead.”
The Minister reads this exchange as revealing that the Tribunal reminded the applicant of the distinction between commenting on information at a hearing or doing so on a subsequent occasion.
I understood the Minister’s argument to emanate from the use, by the Tribunal, of such phrases as “… request a further opportunity to comment …” and “… are you requesting further time …”. [Emphasis added.]
On balance, I do not accept the Minister’s reading of these exchanges as being a fair reading of what occurred. In my view, and with particular reference to T 6, the Tribunal misled the applicant, at least by omission, as to what exactly she was being invited to do. More precisely, when the “further” opportunity to comment was to be exercised.
Regard must be had to the hearing as a whole, as well as its various constituent parts. In this regard, the Tribunal commenced the hearing by explaining the process (Q6 at T 1 to T 2). It is the case that the Tribunal told the applicant it would have regard to all the evidence already before it, the evidence provided on the day of the hearing and “… anything that’s provided up until the time I make my decision …” (T 2.2).
However, it is what immediately follows that, in my view, leads to the “misunderstanding” by the applicant which is at the heart of the complaint now before the Court (at T 2):
“ Q 7[The Tribunal] O.K. So Ms Kaur, what will happen today is I’ll explain to you what the relevant legislation is.
A O.K.
Q8 [The Tribunal] O.K. Now I’m also going to be discussing information with you today, some adverse information.
A O.K.
Q9 [The Tribunal] O.K. Now that information is subject to any comments you make, may be the reason or part of the reason for me agreeing with the Department’s decision to cancel the visa. O.K …”
[I note the absence of “(I)” in the applicant’s answers. See further at [70] below.]
On its own, this exchange, in my view, sets the parameters for the applicant’s opportunity to comment on the adverse information. The Tribunal was plainly explaining “what will happen today” (Q 7 at T 2). That included a discussion about “… some adverse information” “… with you today …” (Q 8 at T 2). [Emphasis added.]
What follows immediately at T 3 (and as relied on now by the Minister) must be seen in light of the parameters established by the Tribunal at the beginning of the hearing. The Tribunal’s invitation at T 3.8 was an invitation to immediately comment on that information and an expression of an entitlement to “request a further opportunity to comment.”
The applicant sought clarification as to whether she should “comment now”. I do not agree with the Minister that this can be read, on balance, as the applicant understanding that she had the option of either commenting now or commenting at some later time after the hearing. In context, commenting “now” was, and can, reasonably be understood as commenting immediately. The election offered was between that and commenting later in the hearing (that is, “today”).
It must be remembered that exchanges between the Tribunal and the applicant at a hearing are usually conducted through the medium of an interpreter. In this case an interpreter in the Punjabi language (T 1.5). However this part of the hearing was conducted without the applicant’s responses to the Tribunal’s questions being interpreted. That is, she responded in English. (See the distinction: In the transcript “(I)” plainly denoted answers given through the interpreter. The absence of “(I)” at each point of the applicant’s answers can only properly be understood as her answering in English.)
However, even with this caution in mind, the applicant’s response to the Tribunal’s question at the end of “Q 17” (at T 3) is not a positive statement indicative of a clear understanding that she had two options as to answering now or at a later time after the hearing. While it may be allowed that the applicant may have thought that she could comment on the information later, in context, this appears to be a reference to later during the hearing, not at a time after the hearing. The applicant’s uncertainty can be seen in her response being a question, not a statement.
At no time during the hearing does the Tribunal’s, relevant, references to a further opportunity to comment import any clear notion that this opportunity extends to a time after the hearing. It may be that, with its greater experience of such matters, that is what the Tribunal meant to say at T 3. But I am not satisfied that that is what came across, or that is how it was understood by the applicant. In the absence of any express reference to the possibility of an adjournment of the review to allow for subsequent comment or response, and in light or the parameters and context of the Tribunal’s introductory and explanatory comments, it was reasonable for the applicant to understand, and on balance, it is not reasonably open to find otherwise, that the invitation made by the Tribunal did not extend to encompass, at least, the consideration of any adjournment as contemplated by s.359AA(b)(iv).
This finding is reinforced, if not confirmed, by what transpired towards the end of the hearing as set out at T 6 (see [16](3) above).
First, the Tribunal’s relevant reference is clearly linked to what had occurred at the beginning of the hearing (Q38 at T 6: “… do you remember that I said …”).
Second, the response to the Tribunal’s question (Q39 at T 6: “… Well, are you requesting further time?”) was not a positive statement but again another question (“Now?”). Given what had transpired earlier, this reasonably should have alerted the Tribunal to, at least, the strong possibility that the applicant did not truly understand the actual options available to her, nor the extent of the option to seek further time for comment.
Third, what immediately follows (Q40 to Q42 at T 6) reveals that the Tribunal misled the applicant, at least by omission. It is not only that the Tribunal was silent on the possibility of adjourning the review to allow a further comment or response but, in light of the applicant’s uncertainty as to when she could comment (she was always clear that she had comments to make) the Tribunal’s question at Q 41 (at T 6) (“… Well what would you like to do?”) is disingenuous.
The Tribunal did not properly fulfil its obligation in s.359AA(b)(iii) to invite the applicant to comment on, or respond to, the adverse information by seeking additional time for that purpose as that is properly understood in the context of s.359AA(b) of the Act. Nor, as a consequence and for the same reasons, did the Tribunal consider adjourning the review or consider whether the applicant reasonably needed more time to comment or respond. In the circumstances, it is also disingenuous for the Minister to now say that the applicant did not request such additional time. The applicant’s failure in this regard must be seen in light of the Tribunal’s conduct. In this light the Tribunal, also, did not properly fulfil its obligation pursuant to s.359AA(b)(iv) of the Act.
Conclusion
The Tribunal did not lawfully comply with the facility available to it, through s.359AA of the Act, to orally invite the applicant to comment on, or respond to, information which it plainly considered would be the reason, or a part of the reason, for affirming the cancellation of the applicant’s visa. Given that the Tribunal still had the obligation to put such an invitation to the applicant in writing, pursuant to s.359A of the Act, and it did not do so, such a failure constitutes jurisdictional error. That is, a failure to comply with a mandatory legislative provision (SAAP, Minister for Immigration & Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [22] – [26], SZNKO v Minister for Immigration & Anor [2009] FMCA 978 at [27] – [31] and MZYHF v Minister for Immigration and Citizenship [2010] FCA 1250 at [31]).
The Exercise of the Court’s Discretion
The relief the applicant seeks is discretionary. The applicant relies on SAAP at [83] per McHugh J, at [174] per Kirby J and at [211] per Hayne J to submit that jurisdictional error is evident in the Tribunal’s decision and that, given the “strict compliance” necessary with the procedures set out relevantly at Div.5 of Pt.5 of the Act, the relief should not be refused.
The Minister submitted that even if some failure to observe the requirements of s.359AA had occurred, the applicant had provided “no evidence” that she suffered any “practical injustice” as a result. Her failure, in particular, to have indicated how she would have responded differently if she had sought, and been granted, additional time was said to be important in this regard.
The Minister relied on the Full Federal Court in SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1 (“SZLPO”) at [144] (as set out in the Minister’s submissions at [22]):
“[The Appellant] has pointed to no practical injustice that he suffered as a consequence of the making of the decision … He contends that this does not matter. It does: where jurisdictional error is established, the granting of relief remains discretionary … We would refuse relief on discretionary ground”
There is of course strength in the arguments of both sides. The importance of the breach of the requirements set out in s.359A of the Act, and the failure to properly utilise s.359AA to discharge them, cannot be underestimated. The High Court has said so (SAAP).
However, the Minister says that Full Federal Court authority (SZLPO) reminds this Court that the relief sought is discretionary and that that relief should be refused where no “practical injustice” had been indentified in face of the breach. However, in my respectful view, the direction provided in SZLPO must be understood in the context of the circumstances from which it sprang. That part of the judgement in SLZPO relied on by the Minister now dealt with the case of another applicant for a protection visa whose matter was heard, and considered, at the same time as SZLPO (SZLQH). Both were applicants for protection visas before the Refugee Review Tribunal.
The relevant circumstances were that, amongst other things, SZQLH gave two documents to the Tribunal. One was a copy of the certificate of death of his brother, the other was a “reference” from a provincial council in his home country of Pakistan (at [40] and [42] of SZLPO).
The Tribunal pointed out to the applicant its concerns, arising from the face of that document, about the death certificate. It told the applicant that (at [41] of SZLPO):
“… if he had any more information or evidence that the death certificate was a genuine document, the Tribunal could consider it if it was received prior to the handing down of the decision which would not be before 28 days.”
Even though the relevant prescribed period was shorter, the Court found that, having allowed a period of 28 days, the Tribunal was bound by considerations of procedural fairness to allow that period. The Court found that SZQLH was denied procedural fairness when the Tribunal signed its decision 21 days later, even though there was no evidence that SZLQH would have given the Tribunal additional information or evidence if he had been allowed the full 28 days ([137] of SZLPO).
However, it is important to note that in SZLPO the central part of the Minister’s submission was that, notwithstanding the finding of a denial of procedural fairness, relief should be denied because its grant would be futile in the circumstances ([138]).
The circumstances included that the Tribunal in that case was not bound to seek the additional information from the applicant and, if the matter were remitted to the Tribunal, it would not be “… bound to invite SZLQH under s.424(2) to give it the additional information” (at [138] of SZLPO).
Further, when regard was had to the Tribunal’s findings in that case, the Tribunal considered that even the assumption that the death certificate was a genuine document, did not assist SZLQH. That finding was not challenged before the Court. The applicant had been asked to provide information as to the genuineness of the document. Even if any such information or evidence could have been provided, there would have been no difference in the result ([142] – [143] at SZLPO).
It is in that context that that part of SZLPO (at [144]) relied on by the Minister now needs to be understood. I do not respectfully understand the Full Court in SZLPO to be saying that discretionary relief should be denied simply because, and only for the reason that, the applicant did not, before the Court, point to any “practical injustice” that he suffered.
In my respectful view the essence of the Full Court’s reasoning is that to have returned the matter to the Tribunal would be an exercise in futility. The reference to SZLQH’s failure to point to any “practical injustice” was, in my respectful view, a confirmation that the applicant himself in that case had not raised any matter to say that the grant of relief would not be futile.
The grant of the relief sought in the current case would not be an exercise in futility. The relevant question for the Tribunal was whether the breach of the visa condition was due to exceptional circumstances beyond the applicant’s control.
At the hearing, the Tribunal discussed a number of matters arising from the applicant’s circumstances that were relevant to that consideration. Those include the information relating to the claimed communication from Lamart to the applicant prior to the issuing of the s.20 notice.
It is not for this Court to make any finding as to whether exceptional circumstances beyond the applicant’s control existed. That is for the Minister initially and then, relevantly, for the Tribunal to determine.
In this determination the Tribunal invited the applicant to provide comment on the information it had from “PRISMS” and the Department’s records. It itself linked that information to its consideration of the central question it was required to answer (see at T 3.7).
In the circumstances, the applicant should be given the opportunity, otherwise envisaged in s.359AA(b), to bring forward any such information. If she does bring forward relevant information it may indeed change the outcome. That there remains the possibility that the outcome might not change, even in the face of information being provided, does not make the granting of the relief sought an exercise in futility.
I will grant the relief sought and make orders accordingly.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 29 May 2012
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