Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 441
•17 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 441
File number: SYG 1446 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 17 May 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) Subclass 590 visa – whether Tribunal fell into jurisdictional error – applicant not enrolled in a registered course of study – whether invitation to comment by Tribunal is valid – whether applicant was misled – application dismissed Legislation: Migration Act 1958 (Cth) ss 56, 65, 357A, 359, 359B, 359C, 360, 363A, 425, 435
Migration Regulations 1994 (Cth) cl 500.202, 500.211, reg 4.17,
Cases cited: AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037
BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Hamod v New South Wales [2011] NSWCA 375
Ikupu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 169 ALD 140
LPTD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188
Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109
Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62
Nathanson v Minister for Home Affairs (2022) 403 ALR 398
P119/2002 v Minister for Immigration [2003] FCAFC 230
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Reisner v Bratt [2004] NSWCA 22
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZOYU v Minister for Immigration and Citizenship [2012] FCA 936
VBAB v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of last submission/s: 9 May 2024 Date of hearing: 9 May 2024 Place: Parramatta Counsel for the Applicants: Mr Jones Solicitor for the Applicants: Turner Coulson Immigration Lawyers Counsel for the Respondents: Mr Kaplan Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 1446 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAJBIR KAUR
First Applicant
AMRIT SINGH
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
17 MAY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicants, Ms Kaur and Mr Singh are citizens of India. The applicants applied for a Student (Temporary) (Class TU) Subclass 590 visa (“Student visa”) under s 65 of the Migration Act 1958 (Cth) (“the Act”) on 21 November 2018. Ms Kaur is the primary applicant and prospective student. Mr Singh is the secondary visa applicant, being part of her family unit.
On 25 March 2019, the delegate of the first respondent (“the delegate”) refused to grant the visas on the basis that the applicants did not satisfy the requirements of cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate was not satisfied that the first applicant was a genuine temporary entrant as a student. The delegate was not satisfied with Ms Kaur’s study history, having regressed from a Bachelor’s level of study to a Diploma level of study. As Ms Kaur’s visa was refused by the delegate, Mr Singh’s application was consequently also refused.
Ms Kaur subsequently sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). The first applicant provided the Tribunal a certificate of enrolment for a Diploma of Project Management course, commencing on 19 November 2018 and ending on 17 November 2019.
On 23 April 2020, the Tribunal wrote to the applicants by email, inviting them to provide further information by 7 May 2020 (“the invitation”). That correspondence informed the first applicant that if she did not respond the Tribunal may not take any further action to obtain information, and that “[she] will also lose any entitlement [she] might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments” (emphasis omitted). The applicants did not provide any further information. On 15 May 2020, the Tribunal affirmed the decision of the delegate.
The applicants now seek judicial review of that decision.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal’s decision is relatively short spanning twelve paragraphs. After setting out the background at [1] - [4], the Tribunal then considered the Application at paragraphs [5] - [11], affirming the decision under review at [12].
The Tribunal instructed itself as to the relevant legislative requirements contained in cl 500.211 of the Regulations at [5]. In relation to a ‘Course of Study’ and ‘Registered Course’ at [7], the Tribunal stated the following:
Course of study’ is relevantly defined in cl.500.211 of the Regulations as a ‘full-time
registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services forOverseas Students Act 2000, to provide the course to overseas students.The Tribunal found at [8] that the first applicant had not provided any evidence that, as at the time of the Tribunal’s decision, she was enrolled in a registered course of study. Due to this lack of evidence, the Tribunal was unable to find that the applicant met the requirements of cl 500.211 of the Regulations. Accordingly, the Tribunal affirmed the decision under review at [10].
As the criteria was not met for the primary applicant Ms Kaur, the Tribunal found at [11] that the secondary applicant Mr Singh’s application must also fail.
GROUND OF REVIEW
The applicants initially relied on three grounds of judicial review. These were abandoned and the applicants sought leave to amend their application to be as follows (less particulars):
1.The Tribunal committed jurisdictional error by failing to invite the applicants to appear before the Tribunal to give evidence and present arguments as required by s360(1) of the Migration Act 1958 (Cth) (the Act).
This was not opposed by the respondent and the Court granted leave to rely upon the new sole ground of review.
APPLICANTS’ SUBMISSIONS
The applicants submitted that the Tribunal erred in failing to lawfully invite the applicants to appear before the Tribunal to give evidence and present arguments pursuant to s 360(1) of the Act.
The applicants submit that the invitation purportedly issued by the Tribunal pursuant to s 359 of the Act, was invalid, thus obliging the Tribunal to hold a hearing pursuant to s 360(1) of the Act and falling into jurisdictional error by not doing so. Applying Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62 at [74] (“Parata”):
…proof of the erroneous denial of jurisdiction is sufficient, without more, to demonstrate jurisdictional error…
At paragraph [7] of their submissions, the applicants identified three reasons provided by the Tribunal as to why the applicants were not invited to attend a hearing. First, because there was no “valid invitation” pursuant to s 359 of the Act issued, the Tribunal was under the obligation to conduct a hearing pursuant to s 360(1) of the Act. It was submitted that the invitation was invalid as it misled the applicants as to the consequences of not complying with the invitation.
The applicants rely upon the definition of an “invitation” in accordance with Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188 (“Mazhar”), Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 (“SCAR”), and Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 (“Cho”). Thus, the word “invitation” used in s 359 of the Act “must not be a hollow shell or an empty gesture”, per Mazhar at [31], and the concept of invitation must import a requirement for a “real and meaningful” invitation, per SCAR at [37].
It was submitted that an invitation is not “real and meaningful”, and therefore invalid, where the decision-maker makes a misleading statement which may discourage the applicant from proceeding down a certain path in a proceeding, per Cho at [33]. Giving an invitation that is misleading constitutes a denial of procedural fairness, and thus being beyond the powers of s 359 of the Act. This is particularly so in circumstances where the applicants are unrepresented. The Tribunal is required to give some assistance to the applicant: (see; AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037 at [22] (“AYX15”); Hamod v New South Wales [2011] NSWCA 375 at [311]; and Reisner v Bratt [2004] NSWCA 22 at [4]). This obligation extended to ensuring that an unrepresented litigant “has sufficient information about the practice and procedure of the court” (see; AYX15 at [21]).
These principles apply to proceedings in a Tribunal as much as they do for a Court, as Division 5 of Part 5 of the Act does not address the assistance the Tribunal should give to unrepresented litigants, such as to displace the common law rules of procedural fairness on this matter by reason of s 357A of the Act (see: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421).
It was submitted that it is impossible to see how the Tribunal could comply with its obligation to ensure that the applicants in the present case, who were unrepresented, understood how to pursue their rights in circumstances where it had misled them about the nature and consequences of such rights.
The applicants submit that the purported invitation given pursuant to s 359 of the Act was misleading and therefore invalid as it did not accurately describe the consequences on non-compliance with the notice. The letter stated the following:
If we do not receive the information within the period allowed or as extended, we
may make a decision on the review without taking any further action to obtain the
information. You will also lose any entitlement you might otherwise have had
under the Migration Act 1958 to appear before us to give evidence and present
arguments.(emphasis in original)
It was conceded that this statement is consistent with the effects of ss 359C and 360(2) of the Act.
It was submitted that the use of the word “right” in its ordinary meaning did not convey to the applicants that the Tribunal would not and did not have the power to give them the opportunity to appear at the hearing and give evidence. It was submitted that the effect of s 363A of the Act was not conveyed to the applicants, instead suggesting to the applicants that the Tribunal retained a power which it did not have. Thus, the letter was misleading and not a valid “invitation” pursuant to s 359 of the Act.
In the Reply Submissions, the applicants argued that the first respondent is misconceived as to the operation of the materiality test and the context of this matter. It was submitted that the respondent argued that the error made by the Tribunal is immaterial, as at the time of the Tribunal’s decision the first applicant was not enrolled in any course of study. In Parata, it was found that a jurisdictional error occurs, where the Tribunal erroneously concluded that it did not have the power to hold a hearing, where it was obliged to do so. Reliance was placed on Kiefel CJ, Keane and Gleeson JJ in Nathanson v Minister for Home Affairs (2022) 403 ALR 398 at [33]:
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity...To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.
Lastly, the applicants submitted that it is permissible for visa applicants to seek to satisfy a particular visa requirement during the hearing process, including seeking adjournments. Reliance was placed on the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [3] and [101].
In their Submissions in Reply, the applicants accept that they should pay the costs thrown away due to the amendment to their application.
The applicants approach the respondent’s submissions under two headings, “The Scope of Power in Section 359 of the Act” and “Whether the Invitation Issued was Misleading”. Each issue will be dealt with separately.
The Scope of Power in Section 359 of the Act
The applicants acknowledge at paragraph [6] of their Submissions in Reply that the respondent’s Submissions at [5] – [8] regarding s 359 does not in express terms dictate that an invitation issued pursuant to s 359 of the Act should not be objectively misleading as to the consequences of non-compliance. However, the applicants submit that:
Such a limitation is inherent in the concept of an “invitation” being provided under that provision and implicit in s 359 on a proper construction of that provision.
The applicants also disagrees with the respondent’s reliance on Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 (“EFX17”). It was submitted that EFX17 is not authority for the proposition that the word “invite” “requires nothing more than the performance of the formal act of requesting information” as set out in paragraph [10] of the respondent’s submissions. Rather it was submitted that:
…High Court held at [23] that the verb “to invite” connotes only the “performance of an act”, “rather than the consequences of that performance such as the recipient’s capacity to comprehend the content of the…English invitation made”.
This matter is only concerned with that nature of the “act” of requesting information contemplated by s 359 of the Act, not the subjective capacity of the applicants to understand the invitation. A request for information from the Tribunal cannot be described as an invitation in accordance with s 359 of the Act if it is objectively misleading as a consequences of non-compliance.
The applicants disagrees with the respondent’s contention that s 360 of the Act has no application to s 359 of the Act. In accordance with EFX17 at [29], s 359 of the Act is inextricably linked to s 360 of the Act because non-compliance with s 359 of the Act has significant repercussions as the applicant is prevented from participating in a hearing, “that is part of the “core function” of the Tribunal.”
The applicant relies on Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 (“SZKTI”), and Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 (“SZNAV”), stating that:
It is hard to imagine that the legislature would have intended that a request could be made that is misleading as to the consequences of non-compliance with the request in circumstances where the effect of non-compliance with a s 359 invitation is that the applicant is prohibited from obtaining a hearing from the Tribunal pursuant to s 360 of the Act. Analogously, in Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 at 325 (endorsed by the High Court in EFX17 at [22]), Sundberg J endorsed the proposition that for a person to be “notified” of something, the communication must be given in such a way that a recipient is altered to “its potential significance”. A communication that is misleading about the significance of non-compliance does not do this.
The applicants do not dispute at [14] that the respondent’s reliance on the fact that the purposes of ss 359 and 360 of the Act are different, and that s 359 of the Act confers a discretion on the Tribunal rather than an obligation per s 359A of the Act. The applicant further asserts that the respondent’s contention that the giving of an invitation under s 359 of the Act and that a misleading invitation does not constitute a denial of procedural fairness, is not supported by the authorities it cited. The respondent’s reliance on the fact that s 359 of the Act is not a “statutory formulation of any aspect of the natural justice hearing rule” does not result in a constraint of any requirement to act fairly in communication. The powers such as those in s 359 of the Act “may be used to further procedural fairness”, it would then be “surprising” if the Act in its proper construction inhibited procedural fairness: (see; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [40] per French CJ, Gummow, Hayne, Crennan and Kiefel J (“Saeed”).
The applicants assert that the respondent failed to address issues raised by the applicants in that:
…The question is not whether the applicants should be assisted in advancing their case, but rather whether they have been fairly appraised of the procedures to which they are subject. Moreover, the Minister’s attempt at MS, [23] to distinguish Jagot J’s reasoning in Ikupu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 169 ALD 140; [2020] FCA 74 should not be accepted. Jagot J held (accepting a concession by the Minister) that he fact that the applicant was unrepresented was a relevant factor in considering the requirements of procedural fairness.
In response to the respondent’s contention that the applicants relied on s 357A of the Act, the applicants assert that this is incorrect, as they were merely noting that s 357A of the Act does not exclude the ordinary rule that the fact that a party is unrepresented may inform the Tribunal of what is required for them to act in a procedurally fair way.
The applicants then addressed the respondent’s contention that the Tribunal is not required to draw attention to an applicant as per the terms of s 363A of the Act:
…As an abstract position divorced from the facts of the present case, that is correct. But the Tribunal is not entitled or empowered to mislead a review applicant. That is what it did in the present case.…
Stating the fact that a particular matter may be clear from the terms of the legislation, it does not mean an applicant is assumed to be aware of the terms and their legal effect.
The applicants concluded this subject by asserting that if the respondent’s approach is adopted by the Court:
…it would be a valid exercise of the Tribunal’s powers in s 359 of the Act to request information from an applicant for review, but at the same time (wrongly) assure the applicant that if information is not provided in response to the request…
It was submitted that the above approach would be inconsistent with the proper construction of s 359 of the Act.
Whether the Invitation Issued was Misleading
The applicants contend that that the respondent’s assertion at [26] that the invitation “was not apt to mislead” the applicants is incorrect. They respond that the invitation communicated to the applicants that they would lose their “entitlement” to a hearing if they did not provide further information. Such a statement is inconsistent with the proposition that the Tribunal would be prohibited from conducting a hearing pursuant to s 359 of the Act if the information was not provided. Thus, the invitation was misleading.
Affidavit of Rajbir Kaur dated 7 March 2024
In an Affidavit of Ms Rajbir Kaur dated 7 March 2024, Ms Kaur admits that she was not enrolled in any course of study at the time she was invited to provide evidence by the Tribunal on 23 April 2020, or when the Tribunal made its decision on 15 May 2020. She contended that she expected that she would be asked to give evidence at the hearing and that she was expecting to enrol in a Diploma of Community Service before the Tribunal hearing. Ms Kaur enrolled in the course on 19 April 2021, almost a year after the Tribunal made their decision, and invited Ms Kaur to provide further information. Ms Kaur also indicated in her affidavit that she is now working as a Residential Care Officer at NDIS, a role she was able to get as a result of the Diploma of Community Service. She states at paragraph [7]:
I intend to continue to study and upgrade my skills in my field of work as I am passionate about serving in this field.
RESPONDENT’S SUBMISSIONS
The respondent submits that the invitation was valid in that the Tribunal complied with s 359(2) of the Act as it “invited” the applicants to give certain information in writing. In this context, the word “invite” bears its ordinary meaning. Thus, it requires nothing more than the performance of the formal act of requesting information (see; SZKTI at [25] (French CJ, Heydon, Crennan, Kiefel and Bell JJ); SZNAV at [21] (Stone, Jacobson and Jagot JJ)). Further, quoting the High Court in EFX17 at [23] in relation to the analogue in s 501CA(3)(b) of the Act.
The starting point is the common or ordinary meanings of the verbs “give” and “invite” in s 501CA(3). Those common meanings are, respectively, to deliver or hand over and to request politely or formally. … The verbs “give” and “invite” connote only the performance of an act rather than the consequences of that performance such as the recipient’s capacity to comprehend the content of the English notice given or the English invitation made.
It was submitted that the invitation letter was given to the applicants was by a method specified by s 379A and s 359(3) of the Act, it specified the way in which the information requested may be given, per s 359B(1) of the Act, and allowed 14 days for the information to be provided per s 379C(5). Thus, the invitation complied with s 359B(2) of the Act and reg 4.17(4) of the Regulations.
Further, there were no other requirements of the Tribunal to comply with in relation to this invitation: (see; SZKTI).
The respondent submitted that the invitation was not misleading, as it did not state the effect of s 363A of the Act.
First, the Act nor the Regulations require an invitation issued pursuant to s 359 of the Act to state the effect of s 363A of the Act, or the consequences of not responding to the invitation within the relevant period per s 359 of the Act.
Secondly, the applicants have conflated the requirements of s 359 of the Act with those in s 360 of the Act, or in the alternative seek to import obligation appertaining to s 360 of the Act, which is an incorrect approach (see; Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 (“Applicant A125”) at [88] (Emmett, Weinberg and Lander JJ)).
Further s 360 of the Act is a statutory formulation of the aspect of the common law hearing rule that requires an administrative decision-maker to disclose to a person who may be affected by their decision the critical issues that the decision may turn: (see; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at [29]).
The respondent submitted that the Federal Court has construed that s 360(1) of the Act, and the analogue in s 425(1) of the Act, bring provisions that impose a substantive obligation concerned with more than the simple issue of an invitation to attend a hearing. Whether that obligation is discharged turns on whether the applicant can adequately give evidence and present argument. It was submitted that there is a breach of s 360 of the Act if the applicant is not provided with adequate interpretation services, if they were not in a fit state to participate in a hearing, or they were misled as to the issues that are likely to arise before the Tribunal (see; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; SCAR; VBAB v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100 at [57]-[59] (Ryan J) referring to Cho). Essentially, there will be a breach of s 360 of the Act if the applicant is not given a meaningful opportunity to present their case (see; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [61] (Hayne, Kiefel and Bell JJ); Mazhar at [31]; SCAR AT [37]). As a result, even if there is a misleading statement made by the Tribunal, which the respondent does not concede there was, this will not result in a breach of ss 360 or 425 of the Act, unless it resulted in the applicant not having been afforded sufficient opportunity to present their case.
Further submissions were made as to the difference of the purpose of s 359 of the Act. The obligations imposed on the Tribunal by ss 359A and 360 of the Act confer a discretion in the Tribunal to invite the applicants to give further information. This is unlike s 359 of the Act and its analogue s 56 of the Act, where, importantly, s 359 of the Act, per Saeed at [40]:
…may be used to further procedural fairness but it does not mandate procedures which may be taken as a substitute for the requirements of the rule…
It was submitted that s 357A of the Act is not addressed to s 359 of the Act, just as “[s] 51A is not addressed to s 56” or s 357A of the Act is not addressed to s 359 of the Act: (see; Saeed at [40]).
It was submitted that s 359 of the Act does not impose a procedural fairness requirement on the Tribunal. It was asserted that a misleading invitation would constitute a denial of procedural fairness and is therefore beyond the power of s 359 of the Act. The applicants reliance on s 357A(1) of the Act is misplaced, as s 359 of the Act is not a statutory formulation of any aspect of the natural justice hearing rule. The exercise of a discretion to invite someone to provide information is not subject to any procedural fairness obligations that may be found in other areas of Division 5 of Part 5 of the Act.
Thirdly, the respondent submits that the applicants incorrectly contends and relies on transposing procedural fairness principles that are applicable to curial hearings to administrative decision-making. The respondent asserts that the question of whether the applicants’ natural justice is denied is answered by reference to the framework for decision-making under Division 5 of Part 5 of the Act, where there is no general obligation on the Tribunal to assist the applicant in making their case. Not, as asserted by the applicants, that natural justice was not afforded by references to cases decided in curial contexts, or by the fact that the applicants were unrepresented at the time. For example, s 435 of the Act, does not require the Tribunal to identify the significance of questions, or the ultimate issues that those questions pertain to the applicant (see; Applicant A125; Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [22] (Keane CJ)).
The respondent also submits that there is no right to legal representation in administrative proceedings, including as a matter of procedural fairness. It was submitted that that there is no obligation on the Tribunal to ensure that the applicants understand the contents of invitations made.
The respondent relies on Ikupu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 169 ALD 140 (“Ikupu”), and the applicants’ assertions at [11] – [13] of their submissions. The respondent submits that Ikupu cannot apply in this matter as in that case the Tribunal had prevented the applicant from presenting his case at a hearing by giving him a direction that he could not contend that certain police reports were inaccurate. Given the inaccuracy of the reports was a crucial issue that the applicant was prevented from addressing. The respondent asserts that this case is not applicable as there was not hearing in this matter. The respondent also submits that the decision in Ikupu does not turn on any principle which allows an unrepresented litigant greater assistance than one that is represented.
On this third issue, the respondent submits that there is no general law rule of procedural fairness which requires the applicants to be informed on “how to pursue their right” or the “nature and consequences of such rights”.
The respondent finally submit that the applicants contentions “fails on the facts”, and that the invitation issued under s 359 of the Act was not apt to mislead them. The respondent submits that it is not necessary for the Tribunal in the invitation to address the terms and effects of s 363A of the Act in order to put the applicants on notice of the consequences of not responding to the application.
CONSIDERATION
It is apparent from the parties’ submissions that there is an agreement that if the Court finds there was no valid invitation, the Tribunal fell into jurisdictional error. As a result the sole issue for the Court to determine is whether the invitation issued by the Tribunal pursuant to s 359 of the Act was within its powers.
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In order for there to be jurisdictional error there must be evidence before the Court, for example, that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence to the Tribunal, or that the errors made in interpretation at the Tribunal were material to the conclusion of the Tribunal and adverse to the applicant (see; P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16] – [17] and SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [29] – [30]., citing with approval Perera v Minister for Immigration (1999) 92 FCR 6). Other matters might include the Tribunal wrongly instructing itself on the law or asking a wrong question, exceeding the bounds of reasonableness or ignoring relevant material. Any error, however, must be material in that but for the error the decision could have been different (see; LPTD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [2] - [7]).
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [50], Abrahams J said the following:
In order for an error to be jurisdictional, it must be material, in the sense that compliance could realistically have resulted in the making of a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (SZMTA); MZAPC at [2]-[4]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 (Nathanson) at [32]. Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact, of which, in an application for judicial review on the ground of jurisdictional error, the appellant bears the onus of proof: MZAPC at [2]-[4]; SZMTA at [46]; Nathanson at [32]. The onus of proving, by admissible evidence on the balance of probabilities, facts necessary to satisfy the Court that the decision could realistically have been different had the breach not occurred lies with the appellant: MZAPC at [39], [60]; Nathanson at [32].
The review was conducted pursuant to Division 5 of Part 5 of the Act. That part needs to be read as a whole, as it provides a guide map to the conduct of reviews.
First, s 357A of the Act states that the “Division is to be an exhaustive statements of the requirements of the natural justice hearing rule in relation to the matters it deals with”.
Section 359(1) and (2) read as follows:
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.
A failure to provide information requested has the following consequences pursuant to s 359C of the Act:
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.
Section 360 of the Act states:
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.
The invitation issued to the applicant was in the following terms:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also loose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
(emphasis added)
In this matter there is no dispute that the applicants was issued with a written invitation pursuant to s 359 of the Act to provide information in the above terms. That invitation included a time limit for the provision of that information. The Court is satisfied all other procedural requirements contained within Part 5 of the Act were followed, including those in s 359B of the Act. It is not in dispute that the applicants did not respond to the invitation.
The Court is satisfied that the invitation complied with all the relevant procedural requirements in that it was delivered in writing by one of the prescribed means to the applicants and provided a 14 day-time period for the provision of the information requested.
It was put to Counsel appearing for the applicant in what manner the invitation issued to the applicant was misleading and what needed to be added to it to rectify the issue.
Counsel responded that the following words (or the like) should have been included immediately after the final words of the invitation set out above:
…and the Tribunal has no power to allow you to appear before it, to give evidence and present arguments.
These additional words reference s 363A of the Act which provides as follows:
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 the power to permit the person to do that thing, or to be assisted or represented by another person.
It was submitted that there is a difference between a lack of entitlement and a prohibition. It was incomplete and misleading in that the invitation as framed and sent to the applicants suggest that the Tribunal has the power to allow the applicants to appear rather than the applicants have lost the right.
The Court does not accept that submission or the construction sought to be placed on what are to the Court are clear words of the various sections. In so doing the Court has considered both the text of the words of the section and the overall context of the words within both the section and Division 5 of Part 5 of the Act.
The Court is not satisfied that there is any requirement within the text of s 359 of the Act to reference s 360 of the Act either as a matter of construction or as a matter of procedural fairness, noting the effect of s 357A of the Act, noting the proceedings under review are administrative in nature and not curial.
It matters not to an applicant by what mechanism an applicant loses the right to appear, other than the fact that they are made clearly aware the impact of failing providing the information within the time frame set.
The fact that the Tribunal has no residual power to allow an applicant to appear once the conditions under s 359C of the Act are satisfied is not a matter that is required to be bought to the attention of an applicant in order to ensure the Tribunal does not mislead. The Court finds that the invitation was not misleading.
CONCLUSION
The application should be dismissed with costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 17 May 2024
0
31
2