Lokuwithana v MIBP

[2017] FCCA 176

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOKUWITHANA & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 176

Catchwords:
MIGRATION – Whether the Tribunal made a decision or purported decision on 9 April 2014 or whether the Tribunal made a decision or purported decision on 11 August 2014 – whether the Tribunal acted without jurisdiction inviting the Applicants to a hearing on 1 August 2014 – whether the decision made following this hearing was affected by jurisdictional error – held that the Tribunal made a decision on 11 August 2014 which was affected by jurisdictional error – writs issued.

Legislation:

Australian Citizenship Act 2007 (Cth), s.24
Migration Act 1958 (Cth), ss.5(9)(a), 36(2)(a), 65, 140GB, 359C, 347, 348, 349, 358, 359, 359A, 360, 362A, 363A, 368A, 379A, 379B, 477, pts.5, 7

Migration Regulations 1994 (Cth), reg.2.75(2)(b), cl.1223A of Sch.1, cl.457 of Sch.2, cl.457.223 of Sch.2

Cases cited:
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
Ghimire v Minister for Immigration [2014] FCA 899
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Jadwan Pty Ltd v Department of Health & Aged Care (2003) 145 FCR 1
Lee Sang Bong v Minister for Immigration and Citizenship [2007] FMCA 1802
Minister for Immigration v SZQOY (2012) 206 FCR 25
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY [2013] FCAFC 104
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Mora (Migration) [2016] AATA 4198
MZYIC v Minister for Immigration and Citizenship [2010] FCA 1368
Plaintiff S157/2002 v Commonwealth [2003] HCA 2
Re Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82
Sandhu v Minister for Immigration and Multicultural Affairs [2000] FCA 83
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231
SZEXZ v Minister for Immigration and Indigenous Affairs [2006] FCA 449
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

First Applicant: CHAMITHA LOKUWITHANA

Second Applicant: THISARI CHAMILANI SIRIMANNE

Third Applicant: SANTHUL LOKUWITHANA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1774 of 2014

Judgment of: Judge Jones

Hearing date: 18 February 2016 and 17 October 2016

Date of Last Submission: 17 October 2016

Delivered at: Melbourne

Delivered on: 2 February 2017

REPRESENTATION

Counsel for the Applicants: Mr Poynder

Solicitors for the Applicants: Asia Pacific Lawyers

Counsel for the Respondents: Mr Wood

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 11 August 2014.

2. A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the Applicants for review of the delegate of the First Respondent’s decision.

3. The First Respondent pay the Applicants’ costs in a fixed amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1774 of 2014

CHAMITHA LOKUWITHANA

First Applicant

THISARI CHAMILANI SIRIMANNE

Second Applicant

SANTHUL LOKUWITHANA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Expressed simply, the Applicant’s Further Amended Application for judicial review requires the Court, as a preliminary matter, to determine when the Second Respondent, the (then) Migration Review Tribunal (“the Tribunal”), made a decision. The Applicant submits that the Tribunal made its decision on 9 April 2014 and that a purported decision made subsequently, on 11 August 2014, is of no effect. The First Respondent (“the Minister”) submits that the Tribunal made a purported decision on 9 April 2014 and, recognising that this purported decision was affected by jurisdictional error, proceeded, following an invitation to and the conduct of a Tribunal hearing, to make a decision on 11 August 2014.

2. For the purposes of deciding this matter, I shall refer to the two events at which the parties allege a decision/purported decision or decision with no effect was made as the “April decision” and the “August decision” respectively. This is intended to enable a reference point which is neutral for the purpose of determining the preliminary point; namely, at which point in time was a decision finally made under the Migration Act 1958 (Cth) (“the Act”).

3. In both the April decision and the August decision, the Tribunal affirmed a decision of a delegate of the Minister (“the delegate”) under s.65 of the Act to refuse to grant the Applicants a Temporary Business Entry (Class UC) visa (“the visa”).

4. In circumstances where I find that the Tribunal made its decision on 9 April 2014, with the consequence that the August decision is of no effect, then the Court’s jurisdiction to entertain the Applicants’ application for judicial review filed on 29 August 2014 can only be engaged where I decide to grant the Applicant an extension of time pursuant to sub-s.477(2) of the Act.

5. In circumstances where I find that April decision was a purported decision and the Tribunal’s decision on the Applicants’ Application for merits review was finally made on 11 August 2014, the Applicants, having filed the application within the 35 day period provided for under sub-s.477(1) of the Act, do not require an extension of time in order to engage the jurisdiction of this Court.

Background and visa criteria

1. On 13 July 2012, the Applicants, who are citizens of Sri Lanka, applied for the visa, on the basis that they satisfied the requirements for the grant of Subclass 457 visas. The First Applicant (“the Applicant”) was the primary Applicant, whilst the Second and Third Applicants are secondary applicants as members of the family unit.

Visa criteria

1. The Migration Regulations 1994 (“the Regulations”) relevantly prescribed:

   a)Temporary Business Entry (Class UC) as a class of visa;

   b)Subclass 457 (Business (Long Stay)) as a subclass of that class: cl.1223A of Sch.1 to the Regulations; and

   c)criteria for the grant of a Subclass 457 visa: cl.457 of Sch.2 to the Regulations.

2. One ‘time of decision’ criterion for the grant of a Subclass 457 visa was that the Applicant met the requirements of one of the various subclauses: cl.457.223 of Sch.2 to the Regulations. The relevant subclause in this case was sub-clause (4), which dealt with ‘Standard business sponsorship’. Relevantly, sub-clause (4) provided that the Applicant meets the requirements of the subclause if:

   (a)     each of the following applies:

   (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

   …

   (d)     the Minister is satisfied that:

   (i) the applicant’s intention to perform the occupation is genuine; and

   (ii)     the position associated with the nominated occupation is genuine; and

Relevant Facts

1. In 2012, the Applicant was nominated by an approved sponsor, Prime Group (Int) Pty Ltd as trustee for the Lokuwithana Family Trust (“the sponsor”), for the occupation of ‘Sales and Marketing Manager’ (CB 558-565). On 18 July 2012, a delegate of the Minister approved this nomination under s.140GB of the Act (CB 566). In accordance with reg.2.75(2)(b) of the Regulations, the nomination ceased 12 months later, on 18 June 2013.

2. On 25 October 2012, the delegate refused the application for the subclass 457 visa, on the ground that the position associated with the nominated occupation (Sales and Marketing Manager) was not genuine (CB 101-109, 126-133).

3. On 13 November 2012, the Applicant lodged his own application for review of the decision with the Tribunal (CB 110-120).

4. On 28 June 2013, a delegate approved a further nomination by the sponsor of the Applicant, this time for the position of Contract Administrator (CB 137 and 587 at [20]).

5. On 30 January 2014, a Tribunal officer wrote a case note to the effect that the review Applicant was currently offshore, that the sponsorship had been cancelled on 24 January 2014 and that the nomination had been refused on 2 November 2012 (CB 136). The Minister’s Integrated Client Services Environment (“ICSE”) electronic records indicated that the Applicant had a nomination approved on 28 June 2013, which would have been valid for a 12 month period; namely, until 28 June 2014 (CB 137). There is no dispute that the case note, which conflicted with the ICSE records, was erroneous.

6. On 12 February 2014, the Tribunal wrote to the Applicants and invited them to provide certain information under s.359(2) of the Act. It relevantly stated (CB 141):

   Subclause 457.223(4)(a) requires the first named visa applicant to demonstrate that at the time the Tribunal comes to deciding the application, the first named visa applicant must be the subject of an approved nomination by a standard business sponsor, in relation to an occupation specified for the purpose of the Migration Regulations …

   You are invited to provide the following information in writing:

   ·   information that the first named visa applicant meet the cl.457.223(4)(a) of the Regulations.

   The information should be received at the tribunal by 7 March 2014 …

   If you cannot provide the information by 7 March 2014, you may ask the tribunal for an extension of time in which to provide the information. If you make such a request, it must be received by the tribunal before 7 March 2014 and you must state the reason why the extension of time is required.

   The tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If the tribunal does not receive the information within the period allowed or as extended, the tribunal 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 the tribunal to give evidence and present arguments.

   (emphasis in original)

7. On 13 March 2014, at the Applicant’s request (CB 145), the Tribunal agreed to extend the deadline to 7 April 2014 (CB 147).

8. On 26 March 2014, the Applicant provided the Tribunal with a request for access to material held by the Tribunal, pursuant to s.362A of the Act (CB 148-149). Section 362A of the Act provides that an Applicant is entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.

9. On 3 April 2014, the Applicant appointed Asia Pacific Lawyers (“Asia Pacific”) to represent him (CB 151-152). A completed ‘Appointment of Representative’ form was sent by facsimile to the Tribunal on 3 April 2014 (CB 151-154), along with a further request for access to material held by the Tribunal, under s.362A of the Act (CB 155-156).

10. At 9.53am on 9 April 2014, an administrative assistant at Asia Pacific, Sissi Thi Nguyen[1], spoke by telephone with a Tribunal officer called Sisi Pan. Ms Pan recorded in the ‘Case Note Details’ as follows (CB 157):

    [1] Affidavit of Sissi Thi Nguyen affirmed on 29 August 2014 at [3]-[4].

    Rep telephoned stating that she has just recently been appointed to act on the PRA’s behalf. The rep advised that she had requested for access to docs. I confirmed that it has been received and not yet processed – possibly today or tomorrow. She asked what she will need to do now. I informed her that the PRA was requested to provide information to the tribunal which is now 2 days overdue and we have not received a response from him.  She indicated that the PRA was unsure of what to provide. I stated that the PRA had requested for an ext of time which was granted, and yet no response had been received. The rep requested for a copy of the letter. I informed her that I will send her a copy by email.

    She then asked whether a further ext of time can be requested, to which I stated that only one can be granted and especially now that it is overdue and no response has been received. I added that any supporting evidence or documents can still be provided which will be considered by the member, however it will not be taken as a response.

    The rep understood.

11. At 10.14am on 9 April 2014, Ms Pan sent an email to Asia Pacific attaching copies of correspondence that they had previously sent to the Applicant (CB 158).[2]

    [2] Affidavit of Vu Hoang Nguyen affirmed on 29 August 2014 at [13].

12. The Tribunal Member proceeded to make the April decision (CB 163‑168). In that decision record, the Tribunal Member stated that, as the Applicants had failed to provide information requested under sub‑s.359(2) of the Act within the (extended) prescribed period, pursuant to sub-s.360(3) of the Act, the Applicant is not entitled to appear before the Tribunal. The Tribunal Member stated that “the Tribunal has decided to proceed to decision without taking further steps to obtain the information requested” (CB 165 at [12]).  At [15] of the April decision record, the Tribunal said:

    Based on the evidence before it, the Tribunal is not satisfied that the first named applicant is, at the time of decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the first named applicant that has not ceased.  The Tribunal finds that the first named applicant does not satisfy cl.457.223(4)(a).

13. As will become immediately apparent below, the evidence relied on by the Tribunal was the erroneous case note and not the Department’s ICSE (see [13] above).

14. The Tribunal found  that (CB 165 at [17]):

    As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second and the third named applicants do not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

15. The Applicant was notified of the April decision by a facsimile on 9 April 2014 (CB 160-161). The Minister was likewise notified electronically of the April decision on the same date (CB 172).

16. On 10 April 2014, a Case Note recorded by a Tribunal officer, Mr Lan Chan (CB 169) stated that it had come to his attention, whilst completing the request for information request under s.362A of the Act, that the Tribunal records contained incorrect information that the Applicant’s sponsorship had been cancelled and his nomination had been refused. He noted that ICSE printouts in the Tribunal file “provide the correct information in that the sponsorship and nomination are both currently valid.” The Tribunal officer stated:

    I spoke to the member and he has indicated that technically he has requested the applicants provide certain information that they have not provided to date. Legally the member is of the opinion that this decision could still stand. However, as it appears that he may have evidence before him that the applicants do have an approved nominator and sponsor, the member has decided in this instance it would be unfair to the applicants not to reopen the case. The member has agreed to have the case reopened and for the applicants and the DIBP for [sic] be notified as such.

17. Later that day, the Tribunal officer passed on his previous case note to the Team Leader, Business Team of the Tribunal, Deidre King, requesting her to “facilitate the reopening of the case” (CB 170).

18. Ms King then sent an email to Felicity Ketelaar (position not identified) stating that “[we] have made a jurisdictional error and the member has agreed that the case should be re-instated” and requesting that “Data Management re-open this case” (CB 170).

19. After unsuccessfully attempting to contact Asia Pacific by telephone that day, Ms King then the sent an email to Asia Pacific on 10 April 2014 advising that the Member had decided to re-open the case and stating that (CB 175):

    As such the decision notified to you yesterday (9 April 2014) has been vacated and the member will be in contact in the near future to inform you of the next steps on this case.

20. On 11 April 2014, the Tribunal provided Asia Pacific with a copy of the Tribunal’s file relating to the Applicants by means of a Compact Disc (CB 176).

21. On 11 April 2014, the Tribunal wrote to the Applicants again, and invited them to provide certain information under sub-s.359(2) of the Act. It relevantly stated (CB 179):

    In considering whether the applicant meets the requirements of cl.457.223(4)(d), the Tribunal needs to be [sic] the applicant’s intention to perform the occupation is genuine; and that the position associated with the nominated occupation is genuine.

    ·   Accordingly, the tribunal invites you to provide information in writing that demonstrates that the first named applicant meets the requirements of cl.457.223(4)(d) of Schedule 2 to the Migration Regulations.

    The information should be received at the Tribunal by 28 April 2014 …

    If you cannot provide the information by 28 April 2014, you may ask the tribunal for an extension of time in which to provide the information. If you make such a request, it must be received by the tribunal before 28 April 2014 and you must state the reason why the extension of time is required.

    The tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If the tribunal does not receive the information within the period allowed or as extended, the tribunal 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 the tribunal to give evidence and present arguments.

22. On 28 April 2014, Asia Pacific provided certain financial reports and statements relating to the Applicant and the sponsor (CB 182).

23. On 1 May 2014, the Tribunal sent an email to the Department of Immigration and Border Protection (“the Department”), requesting the related nomination and sponsorship files for the Applicant (CB 336).

24. On 16 May 2014, Asia Pacific provided a submission to the Tribunal, and some attached documents (including certain financial reports and statements) (CB 357 to 446).

25. Asia Pacific’s submission stated that “[t]he applicant’s intention to occupy and perform the nominated position and the position created are genuine and instrumental to the commercial success of the standard business sponsor”. In particular, the submission took issue with the finding of the delegate that the “tasks and duties of the visa applicant were inconsistent with the nominated occupation of Sales and Marketing Manager … but instead were parallel to the occupation of Retail Manager (General)” (CB 337).

26. On 20 May 2014, the Tribunal invited the Applicants to attend a hearing scheduled for 17 June 2014 (CB 355). In its letter, the Tribunal also requested that the Applicants provide any additional documents or information that they may wish to rely on at the hearing to be provided by 10 June 2014.

27. On 13 June 2014, Asia Pacific provided a further submission to the Tribunal, and some further attached documents, including certain financial reports and statements (CB 447-531).

28. At 4.11pm on 16 June 2014, the Tribunal sent an email to the Department, noting that the Department had provided the incorrect file in relation to the Applicant’s nomination by the sponsor. The Tribunal stated that it required the decision relating to the nomination by the sponsor on 18 July 2012 for the position of Sales and Marketing Manager (CB 540).

1. At 4.18pm on 16 June 2014, an officer of the Tribunal telephoned Asia Pacific to advise that the hearing scheduled for 17 June 2014 had been cancelled, as the Tribunal Member did not have the Department’s file (CB 539). An email confirming this telephone conversation with Asia Pacific was sent by an officer at the Tribunal at 4.33pm that day (CB 541).

2. At 7.53am on 17 June 2014, an officer of the Tribunal received the relevant file (CB 542-543).

3. On 30 June 2014, the Tribunal wrote to Asia Pacific advising that the hearing had been rescheduled to Friday, 1 August 2014 (CB 572-573). The invitation to the rescheduled hearing stated that “[t]he applicant should provide evidence that he is subject of an approved nomination for the purposes of cl.457.223(4)(a)” (CB 572).

4. The Applicants attended the hearing on 1 August 2014, together with their representative from Asia Pacific (CB 577). At the end of the hearing, the Tribunal made an oral decision to affirm the decision of the delegate (CB 579-581). A copy of a statement and reasons of the August decision was subsequently sent to the Applicants.

5. Referring to the previous approval of the nomination by the sponsor of the Applicant for the positions of Marketing Manager (18 July 2012) and Contract Administrator (28 June 2013), the Tribunal noted that these nominations were approved prior to legislative amendments now requiring the administrative decision maker to be satisfied that the position was genuine (CB 588 at [29]).

6. The following paragraphs of the August decision are relevant to this review.

7. At [30] to [31] of the August decision record, the Tribunal stated (CB 588):

   30. At the hearing, the first named applicant gave evidence that he is employed by the sponsoring business as a Sales and Marketing Manager, that the business does not employ any administrative staff and that he (as the owner of the business) undertakes other administrative tasks. He conceded that the business in the past lodged business nomination applications for two different nominated occupations.

   31.    Based on the evidence before it and taking into consideration legislative changes introduced on 1 July 2013, the Tribunal is of the view that the new business nomination application, if lodged by the applicant with the Department, is unlikely to be successful.

8. In its ‘Findings and Reasons’, the Tribunal relevantly stated (CB 589‑590):

   40.    Based on the evidence before it, the Tribunal finds that the first named applicant is the sole director and shareholder of Prime Group (Int) Pty Ltd.  Although the company does have a separate legal identity, the absence of other directors and shareholders means that the first named applicant is capable of exercising total control over Prime Group (Int) Pty Ltd. Based on the evidence before it, including the first named applicant’s oral evidence given at the hearing, the Tribunal finds that the first named applicant was nominated by the sponsoring legal entity for two different positions within the business (Sales and Marketing Manager in 2012 and Contract Administrator in 2013). In his oral evidence, the first named applicant stated that he is Managing Director and the owner of the sponsoring business. When asked by the Tribunal as to what is his position in the business, he stated that he works as a Sales and Marketing Manager but also undertakes other administrative duties as he currently does not employ any administrative staff, save for bookkeeping.

   …

   42.   Based on the evidence before it, including the evidence that the first named applicant is the sole director and shareholder of Prime Group (Int) Pty Ltd; that he currently does not employ any administrative staff, and that he performs all administrative tasks within the organisation (save for the book keeping) the Tribunal finds that the role of the first named applicant is one of the Managing Director/General Manager of the business. The Tribunal further finds that there is therefore not a genuine need for either of the other two specialised roles (Sales and Marketing Manager or Contract Administrator) as to the extent that they are undertaken by the first named visa applicant in his capacity as Managing Director/General Manager.

   43.    This leads the Tribunal to conclude that the position has been created to secure the stay of the applicant in Australia. Accordingly, cl.457.223(4)(d)(ii) is not met.

Grounds of Judicial Review

1. The Applicant’s Amended grounds of judicial review are as follows:

   1. The manner in which the second respondent conducted its review and arrived as the decision made on 9 April 2014 to affirm the refusal of a visa to the applicants was unreasonable because the second respondent unfairly denied the applicants an opportunity to provide a submission and documents in support of their claims.

   Particulars

   a) On 12 February 2014 the second respondent, pursuant to s 359 of the Act, invited the first applicant to provide information demonstrating that he was the subject of an approved nomination by a standard business sponsor, which was a required criterion for a subclass 457 Business (Long stay) visa which the applicants had sought. The second respondent extended time to allow the applicants to provide the information by 7 April 2014.

   b) On 3 April 2014 the second respondent because aware that the applicants had appointed Asia Pacific Lawyers (Asia Pacific) as their representative.

   c) On 9 April 2014 an officer of the second respondent advised an employee of Asia Pacific that the due date for the applicants to provide the requested information had passed, but that Asia Pacific could still provide a submission and documents for the second respondent which would be considered.

   d) On 9 April 2014 the second respondent affirmed the decision to refuse a visa to the applicants without providing the applicants with any reasonable opportunity to provide a submission and documents for the consideration of the second respondent.

   1A. The second respondent failed to comply with its obligation to give the applicant clear particulars of information that it considered would be the reason or a part of the reason, for affirming the decision under review.

   Particulars

   The second respondent failed to give the applicant evidence in its possession that the applicant’s sponsorship had been cancelled and his nomination approval refused.

   2. The manner in which the second respondent conducted its review and arrived as the decision made on 9 April 2014 to affirm the refusal of a visa to the applicants was unreasonable because the second respondent made an erroneous finding of fact that vitiated its core function of review.

   Particulars

   a) The second respondent affirmed the decision to refuse a visa to the applicants on the ground that the first applicant was not the subject of an approved nomination by a standard business sponsor.

   b) In fact the first applicant was the subject of an approved nomination by a standard business sponsor which was valid until 28 July 2014.

   c) The second respondent failed to provide the applicants with a reasonable opportunity to provide the information that the first applicant was subject of an approved nomination by a standard business sponsor which was valid until 28 July 2014.

   d) Further, the second respondent failed to make a reasonable inquiry as to whether the first applicant was the subject of an approved nomination by a standard business sponsor, such inquiry being readily available through the first respondent’s Integrated Client Services Environment (ICSE) electronic records. Had the second respondent made that inquiry it would have ascertained that the first applicant was the subject of an approved nomination by a standard business sponsor.

   3. Further and in the alternative, the manner in which the second respondent conducted its review and arrived as the decision made on 1 August 2014 to affirm the refusal of a visa to the applicants was unreasonable.

   Particulars

   a) On 16 June 2014 the second respondent vacated a hearing date of 17 June 2014 on the basis that the Tribunal did not have the file of the first respondent.

   b) The second respondent re-scheduled the hearing of the applicant’s application on 1 August 2014, at a time when the second respondent knew – or should have known – that the first applicant’s approved nomination by a standard business sponsor would have expired.

   c) At the hearing on 1 August 2014 the second respondent unreasonably refused a request by the first applicant to adjourn the application until such time as he had obtained a new approved nomination by a standard business sponsor.

   4. The Tribunal misconstrued its power to conduct a hearing in circumstances where s 360(3) of the Act applied to the applicants, thereby falling into jurisdictional error.

   Particulars

   a) The error of the Tribunal caused it to delay making a decision on the review until after a time when the first applicant’s nomination had expired, thereby providing the Tribunal with a ground upon which to affirm the decision under review.

   b) The error of the Tribunal also caused it to take into account oral evidence given by the first applicant in a hearing that was conducted by the Tribunal without power.

2. It will be apparent from these grounds that the preliminary question to be determined is when the Tribunal made its decision.

3. Following communication by the Court to the Applicant and the Minister’s legal representatives, the Court invited submissions on an issue which had not been raised by the parties during the substantive hearing but which arose, in the Court’s view, upon consideration of the proceedings.

4. The communication from my Chambers to the parties was expressed thus:

   An issue has arisen during her Honour's consideration of Grounds 1 & 2 of this matter, which was not raised by either party at the hearing and in relation to which her Honour extends an opportunity to the parties to make written submissions. Her Honour characterises the issue thus. In doing so, her Honour refers to the two events in the circumstances of this case as the “9 April 2014 decision” and “1 August 2014 decision”.

   
   
   

   The following circumstances preceded the 9 April 2014 decision:

   - on 12 February 2014, the Tribunal wrote to the Applicants pursuant to s.359(2) of the Migration Act 1958 (“the Act”) inviting them to provide information (CB141);

   - for reasons which are not necessary to set out, the Applicants did not provide the information within the prescribed period;

   - section 359C(1) of the Act has effect and consequently pursuant to s.360(3) of the Act the Applicants were not entitled to appear before the Tribunal;

   - section 363A of the Act has effect and provides: 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.

   - Consequently, the Tribunal had no power to permit the Applicants to appear: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.

   If the Court accepts the Minister's submissions (and it has NOT decided this point) that the 9 April 2014 decision had no legal effect and that the Tribunal was both entitled and obliged to resume its statutory task, the following questions in her Honour's opinion arise:

   1) Did s.363A of the Act have continuing effect so that the Tribunal did not have power to invite the Applicants to attend a hearing before the Tribunal, as it did by correspondence on 30 June 2014 (CB572)?

   2) If the answer to 1) is that s.363A of the Act had continuing effect and the Tribunal lacked power to act in the way it did, what effect, if any, does this have on the validity or legal effect of the 11 August 2014 decision?

   (emphasis in original)

5. Both the Applicant and Minister filed supplementary submissions on this issue. The Minister requested an oral hearing in addition on this point. A further hearing was held by this Court on 17 October 2016. At that hearing, Counsel for the Applicant sought and was granted leave for the Applicant to include a further ground 4 of review:

   4. The Tribunal misconstrued its power to conduct a hearing in circumstances where s 360(3) of the Act applied to the applicants, thereby falling into jurisdictional error.

   Particulars

   a) The error of the Tribunal caused it to delay making a decision on the review until after a time when the first applicant’s nomination had expired, thereby providing the Tribunal with a ground upon which to affirm the decision under review.

   b) The error of the Tribunal also caused it to take into account oral evidence given by the first applicant in a hearing that was conducted by the Tribunal without power.

When did the Tribunal make its decision?

The Applicant’s submissions

1. In their Outline of Submissions, the Applicants submit that the operative decision of the Tribunal, made in accordance with s.5(9)(a) of the Act, was the decision dated 9 April 2014. This occurred, the Applicants submit, when the Tribunal took the requisite action in accordance with the provisions of s.368A of the Act. The Applicant argues that the decision was beyond recall because the decision had been provided both to the Applicants’ solicitor and to the Secretary of the Department. It relies on the following:

   a)On 9 April 2014, the Tribunal notified the Applicant of the decision by a facsimile letter sent to his appointed representative, Asia Pacific (CB 159). In so doing, the Tribunal complied with its obligation under sub-s.368A(1) of the Act to notify an Applicant of a decision by giving a copy of the written statement by one of the methods specified in s.379A of the Act; namely, by facsimile transmission under sub-s.379A(5)(a) of the Act; and

   b)On 9 April 2014, the Tribunal also notified the Secretary of the Department of the decision by email sent to the First Respondent (CB 172). A reference to the notification of the decision by email is contained in a Case Note (CB 169) to the First Respondent that the case was to be re-opened. Accordingly, the Tribunal complied with its obligation under sub-s.368A(2) of the Act to notify the Secretary of the Department of the decision by giving a copy of the written statement by one of the methods specified in s.379B of the Act; namely, by email transmission under sub-s.379B(4)(b) of the Act.

2. The Applicants submit that once the decision had been sent to the Applicant and to the Secretary of the Department on 9 April 2014, the Tribunal had no power to recall the decision. For this proposition they rely on the decision of the Full Federal Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY [2013] FCAFC 104. In this decision, the majority (Griffiths and Mortimer JJ; Buchanan J dissenting) found that a delegate’s decision to refuse a visa (in that case, a protection visa) was “finally determined” for the purposes of sub-s.5(9)(a) of the Act, when the Tribunal had notified both the Applicant and the Secretary. The Applicant notes that, in the course of their judgement, the majority, at [89]-[91], accepted the observations of Logan J and Barker J in Minister for Immigration v SZQOY (2012) 206 FCR 25 (“SZQOY”) as to the effect of such finality.  In SZQOY, Logan J said at [40]:

   … It is only when the decision of the RRT as constituted by the particular member has either been pronounced orally or, if given in writing, sent to the applicant and to the Secretary in accordance with the notification obligation that the core function of review is complete. Before then, the member is entitled to have second (or more) thoughts perhaps on the basis of further reflection on all of the material hitherto to hand, perhaps stimulated by further material…

3. Barker J said at [57]:

   The Act, as Logan J, with respect, demonstrates in some detail, indicates communication to a party — and probably to the Secretary too — as a critical point in the process by which the decision arising from the review process is “beyond recall”. …

4. The Minister, in its written Outline of Submissions, argued that the Applicants’ written submissions do not overcome the principles enunciated in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”).

5. The Minister submits that in Bhardwaj, the High Court held that the making and communication by the (then) Immigration Review Tribunal of a purported decision that was affected by jurisdictional error, did not discharge the statutory function of the body. Further, the Court held that, in circumstances where the Tribunal realised that it had made a jurisdictional error, the Tribunal had the power to disregard its previous purported ‘decision’ and to proceed to continue to perform its statutory function. Justices Gaudron and Gummow stated the general principle as follows at [53] of Bhardwaj:

   53. … a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all.  Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed.  Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. 

6. The Minister argued that Bhardwaj is plainly applicable and binding, and that the principle in Bhardwaj has been applied by the Courts on numerous occasions, including in circumstances where the Migration Review Tribunal or the Refugee Review Tribunal has realised that it has made a jurisdictional error. The Minister cites Sandhu v Minister for Immigration and Multicultural Affairs [2000] FCA 83 as an example.

7. The analysis of the principles arising from the decision Bhardwaj and its application to this matter assumed a significant part of the oral submissions in the substantive hearing.

8. The facts in Bhardwaj are summarised by Gleeson CJ as follows at [2]:

   The respondent, whose student visa was cancelled by a delegate of the appellant, applied to the Immigration Review Tribunal (“the Tribunal”) for a review of the decision.  The application was received on 21 August 1998.  The Tribunal proposed to deal with the matter on 15 September 1998, and invited the respondent to attend a hearing.  Late in the afternoon of 14 September 1998 the Tribunal received, from the respondent's agent, a letter stating that the respondent was ill and would be unable to attend the next day, and requesting an adjournment.  By an administrative oversight, the letter did not come to the attention of the member of the Tribunal to whom the matter had been assigned.  The Tribunal dealt with the matter on 15 and 16 September, adversely to the respondent, and notified the respondent and his agent on 17 September.  The reason given for the Tribunal's decision was that the respondent had not provided any information which suggested that the cancellation of his visa was unfair or inappropriate.  When the respondent's agent was informed of the decision, the attention of the Tribunal member was drawn to the letter of 14 September.  A new hearing date was arranged.  The Tribunal heard the respondent’s explanation of the conduct which had resulted in the cancellation of his visa, accepted the explanation, and, on 22 October 1998, revoked the cancellation. The Applicant’s arguments in relation to Bhardwaj are as follows:

9. Firstly, the Applicants submit that if the Minister’s submission is that Bhardwaj is authority for the proposition that a purported administrative decision affected by any jurisdictional error is of no effect and therefore can be recalled by the decision-maker, then it is wrong. The Applicants argue that whilst Bhardwaj is occasionally cited as authority for that proposition, there are other decisions that caution against that. The Applicant submits that the leading decision which cautions against that is a case called Jadwan Pty Ltd v Secretary (2003) 145 FCR 1 (“Jadwan”). The Applicant refers, in particular to the following extracts from the judgment of Gray and Downes JJ. At [30], their Honours said:

   30. To determine whether the High Court’s judgment is authority for the proposition that jurisdictional error causes an administrative decision to be regarded as a nullity, it is necessary to examine carefully what was said in the different judgments. …

   Their Honours further stated at [40]:

   40. This analysis shows that the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function.  All six judges who formed the majority did so on that basis.  Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect.  Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition.  Kirby J in his dissenting judgment clearly did not.  Gaudron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect.  They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another.  Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if any challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party.  Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the Court has declined to grant relief in relation to the decision by reason of discretionary considerations.  The facts of Bhardwaj did not call for pronouncement upon these issues.  The IRT had itself chosen to ignore its previous decision.  The validity of that decision was in issue in the very proceeding with which the High Court was dealing.

   At [42]:

   42. In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever.  All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. 

1. Kenny J said at [64]:

   64. For the reasons stated by Gray and Downes JJ, the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”) is authority for the limited proposition that the consequences of a decision, which is affected by jurisdictional error, depend primarily on the statute pursuant to which the decision-maker purported to make the decision.  I reject the appellant’s submissions in so far as they are to the contrary effect.

2. Secondly, the Applicants submit that the decision in Bhardwaj is distinguishable from the circumstances in this case. In Bhardwaj, the Applicants argue, the Tribunal failed to perform its statutory task as it was required to do under s.360 of the Act. Reference is first made to the judgment of Gleeson CJ in Bhardwaj at [13] to [15], where his Honour states:

   13. I would accept that it is inconsistent with the scheme of the Act to conclude that the Tribunal, upon being persuaded that it has denied procedural fairness, at any time after it has made or purported to make a decision, and regardless of what a person affected by the decision has done or failed to do, may treat that decision as legally ineffective and consider afresh the matter that was originally before it….

   14. … If the Tribunal was not prepared to decide in the respondent's favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The Tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the Tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The Tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard…

   15. In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.

3. The Applicants submit that it is evident from these extracts that the relevant facts in Bhardwaj were that the Tribunal intended to provide natural justice to the Applicant and allow him an opportunity to be heard, and that the Applicant intended to have the Tribunal hear his request for an adjournment. Through an administrative oversight, the intentions of both parties were not carried out. The Applicants submit that this can be contrasted with the present case, where the Tribunal clearly had no intention to provide the (erroneous) information about the cancellation of the sponsorship and the refusal of the nomination to the Applicants. Further, the Applicants had no intention in relation to that information, because the Applicant did not have that information. The Applicants argue that in this case, the Tribunal proceeded to make a decision based on the material that was before it, and then notified that decision to the Applicant and to the Secretary. There was no administrative oversight that amounted to the Applicants being denied procedural fairness.

4. Thirdly, the Applicants submit that jurisdictional error does not have the necessary consequence that a decision so affected is a nullity. The Applicants refer to the following passages in Bhardwaj from the joint decision of Gaudron and Gummow JJ, at [41] and [44]:

   41.    It was not disputed by the Minister that the September decision was made in circumstances in which Mr Bhardwaj was denied a reasonable opportunity to answer the case against him. It, thus, involved a breach of the rules of natural justice and may be set aside by this Court pursuant to s 75(v) of the Constitution[3]. Further, as was contended on behalf of Mr Bhardwaj, the September decision was not a “decision on review” for the purposes of ss 367 and 368 of the Act.

   [3]     See Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

   …

   44.   To say that the September decision was not a “decision on review” for the purposes of ss 367 and 368 of the Act is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness…

5. The Applicants submit, in circumstances where the Tribunal completed its statutory task, the mere fact that the decision of the Tribunal is affected by jurisdictional error – for example acting on wrong evidence which was dispositive to the decision made – does not render that decision a nullity. In Bhardwaj, the Tribunal failed to complete its statutory task of review when, by administrative oversight, it denied the Applicant the opportunity to attend, give evidence and make arguments at a Tribunal hearing in relation to its application for review.

6. The Applicant submits that the other members of the majority (Kirby J dissenting), generally agreed with Gaudron and Gummow JJ, but did not address the particular issue of the Tribunal’s completion of its statutory task. He submits that Hayne J’s judgment is relevant, in terms of his Honour’s characterisation of the question to be determined. The Applicants make reference to that part of his Honour’s judgment at [141] and [142], where in his Honour says:

   141. … In my opinion, the issue that arises is more accurately described as being when did the Tribunal perform its statutory task? If it performed that task by making and publishing the September decision, the steps which the Tribunal took during October, and which culminated in it making and publishing its October decision, were done without statutory authority. By contrast, if the Tribunal did not perform its statutory task by making and publishing the September decision, it did so when it made and published its October decision…

   142. … To ask whether the Tribunal has “power to reconsider its decision” makes no reference to the circumstances in which the September decision was made. It obscures the fact that it is necessary to examine what, if any, legal significance should be attached to those circumstances. In particular, it poses the issue in a way that hides the existence of the question whether what happened in September 1998 should be found to be an exercise of the powers given to the Tribunal under the Act, and a performance of the duties imposed on the Tribunal by the Act. That is, asking whether the Tribunal has power to reconsider its decision hides the necessity to ask whether the events which happened in September constituted the Tribunal making a decision to which legal consequences should be attributed.

7. The Applicants argue that the circumstances in the present case are akin to those described by Hayne J at [149]:

   … In particular, a jurisdictional error of the kind made in relation to the September decision is fundamentally different from a case where, for whatever reason, a decision-maker has second thoughts about such matters as findings of fact.

8. The Applicant argues that Callinan J also distinguishes between the two types of administrative decisions at [162] and [163]:

   162.  In my opinion, whether the Tribunal’s October decision is good depends upon whether the September decision was bad in a jurisdictional sense: and whether it was bad in that respect will depend in turn upon whether the respondent has demonstrated that what occurred in connexion with its making was something more than a breach of the rules of natural justice, for that it surely was because the respondent was effectively denied a hearing of both his application for an adjournment, and, in consequence, his substantive case, in September 1998.

   163.  I have formed the opinion that what happened in September 1998 was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise. If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made[190] as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister’s decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis, that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the Court.

9. The Applicants submit that the High Court decision in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 is an example whereby fraud by the migration agent on the Applicant (informing him that it was not necessary to respond to an invitation from the Tribunal to attend a hearing) stultified the process of review envisioned by pt.7 of the Act, thereby preventing the Tribunal from performing its statutory task. The Applicants point out that in that decision there was a reference to the decision in Bhardwaj, at [51] to [52]:

   51.    No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud “on” the Tribunal.

   52.    The consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. The authorities were collected in Bhardwaj.

   (footnotes omitted)

First Respondent’s submissions

1. The Minister commenced his oral submission by noting that the arguments of the Minister in Bhardwaj mirrored those of the Applicants in these proceedings, and were rejected by the High Court.

2. The Minister concedes that the judgement of Gleeson CJ was qualified in accepting that on the facts of Bhardwaj, the Tribunal was able to recognise the particular jurisdictional error made in that case. The Minister recognises that his Honour did appear to contemplate that not necessarily all circumstances involving jurisdictional error would be able to be recognised by the Tribunal. 

3. The Minister submits, however, that it is apparent from the joint judgment of Gaudron and Gummow JJ, and those of McHugh J and Hayne J, there was clear unanimity that a decision affected by jurisdictional error, at least in relation to the scheme of the Migration Act, is a nullity and that the Tribunal is capable of recognising this. The Minister submitted that once this is recognised by the Tribunal, it is not only open to the Tribunal to resume its statutory task, but that the Tribunal is obliged to do so.

4. Commencing with the joint judgment of Gaudron and Gummow JJ at [42], the Minister notes that their Honours said:

   42. The function of the Tribunal was to conduct a review of the delegate's decision in accordance with the Act. In particular, the Tribunal was required to give Mr Bhardwaj an opportunity to attend the hearing, to give evidence and put argument…

   And at [43]:

   43. The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a “decision on review” for the purposes of ss 367 and 368 of the Act.

   And at [44]:

   To say that the September decision was not a “decision on review” for the purposes of ss 367 and 368 of the Act is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness…

5. The Minister refers to the consideration by their Honours of the position of administrative decisions at general law, and then within the statutory framework the Migration Act. The Minister notes that at [51] in Bhardwaj, their Honours state that there is no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside, stating:

   51. …A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all….

   And at [53]:

   … As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so…

6. Reference is then made to the consideration by Gaudron and Gummow JJ in Bhardwaj from [54] to [60], as to whether Parliament has manifested an intention in the Act to give a decision affected by jurisdictional error such force, that the Tribunal is precluded from resuming its task of making a decision until quashed by a Court. The Minister submits, correctly, that their Honours rejected the contention that Parliament had manifested a contrary intention to the position at general law.

7. McHugh J agreed with Gaudron and Gleeson JJ at [63] stating:

   63. Subject to two matters, this appeal should be dismissed for the reasons given by Gaudron and Gummow JJ. In my view, neither matter affects the essential basis of the reasoning that leads their Honours to conclude that the September decision was of no force or effect because of jurisdictional error on the part of the Tribunal. Nor does either matter affect their Honours’ conclusion that the Tribunal was authorised to revoke the cancellation of Mr Bhardwaj’s visa.

8. The Minister submits that, although Hayne J gave a separate judgement, his Honour’s reasoning was consistent with the reasoning evident in the joint judgement of Gaudron and Gummow JJ. The Minister notes that at [141] (see [64] above), Hayne J characterised the issue before the Court as whether the Tribunal had performed its statutory task. The Minister submits that, notwithstanding Hayne J’s characterisation of the issue, his Honour made no distinction between the failure to perform its statutory task and jurisdictional error. The Minister submits that this is apparent from his Honour’s conclusion in Bhardwaj at [149], wherein he stated:

   The error committed by the Tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act…

9. This conclusion, the Minister argues, treats the jurisdictional error as a failure by the Tribunal to perform its statutory task. Thus, the Minister submits, these two concepts are one and the same.

10. The Minister submits that his Honour proceeded to make a fundamental statement relevant to these proceedings in that same paragraph when he said:

    149. … In particular, a jurisdictional error of the kind made in relation to the September decision is fundamentally different from a case where, for whatever reason, a decision-maker has second thoughts about such matters as findings of fact. No doubt the word “error” can be applied to the circumstances last mentioned, but the legal significance of such an error is, for the reasons given by Brennan J in Attorney-General (NSW) v Quin, radically different from the significance of a jurisdictional error. As his Honour said:

    “The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. ... The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

    An “error” about the findings of fact that are made, which does not constitute or reveal a jurisdictional error, concerns the merits of administrative action, not its legality.

11. The Minister submits that the equivalence with which Hayne J treats jurisdictional error and failure to perform statutory task is evident in his Honour’s consideration of the difference between a decision made by a Court and an administrative decision at [150] and [152] where his Honour states:

    150. … to attribute legal consequences to the September decision of the Tribunal because, on its face, it purported to be a decision made under the Act, not only begs the question that is presented about its legal consequences, it impermissibly confuses administrative decisions with the particular and peculiar features accorded to decisions of superior Courts of record…

    And:

    152. … It is to recognise that, if a Court would have set the decision aside, what was done by the Tribunal is not to be given the same legal significance as would be attached to a decision that was not liable to be set aside. In particular, it is to recognise that if the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised…

12. Emphasising the use of the word “would”, the Minister asserts that his Honour is stating, in effect, that if the Tribunal’s decision would be set aside for jurisdictional error, then the statutory task has not yet been performed. 

13. The Minister submits that Hayne J in Bhardwaj reaches the same conclusion as that reached in the joint judgment of Gaudron and Gummow JJ, when his Honour said at [155]:

    155. That is why, in the present case, I consider the issue to be when the Tribunal exercised its powers and performed its duties to review the delegate's decision. Once it is recognised, as it must be in the present case, that in September 1998 the Tribunal had not performed the duty imposed on it (to review in accordance with the statutory procedures, including allowing the respondent to be heard) it is clear that not only was there no bar to the Tribunal completing its task by the steps it took in October, it was duty bound to do so.

14. The Minister notes that the judgement of Callinan J  in Bhardwaj is brief. His Honour relevantly states at [161] to [162]:

    161.  In my opinion, whether the Tribunal’s October decision is good depends upon whether the September decision was bad in a jurisdictional sense: and whether it was bad in that respect will depend in turn upon whether the respondent has demonstrated that what occurred in connexion with its making was something more than a breach of the rules of natural justice, for that it surely was because the respondent was effectively denied a hearing of both his application for an adjournment, and, in consequence, his substantive case, in September 1998.

    162.  I have formed the opinion that what happened in September 1998 was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise. If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister’s decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister’s decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis, that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a Court would be in deciding a case in favour of a defendant without looking at the plaintiff’s initiating document and pleading, or even knowing that they had been filed in the registry of the Court.

    (footnotes omitted)

1. The Minister observes that the circumstances in which a Tribunal, having decided it had committed jurisdictional error and then resumed the hearing of the matter, would be rare. This, the Minister submits, is because the Tribunal, unlike a Court, in purporting to recognise there was a jurisdictional error does not make an enforceable or binding decision.  Consequently, a Tribunal commonly makes the decision and then the matter is left to the parties and, ultimately, to the Court to decide. The wisdom or otherwise of the Tribunal resuming its hearing was referred to by Hayne J at [150], where his Honour said:

   150. … It is, therefore, not to the point to ask whether the Tribunal was wise to make its October decision without first having the comfort and certainty of a Court Order holding the September decision to have been not a lawful performance of the Tribunal's duties any more than it is to the point to ask about the efficiency of adopting the course that was followed in this matter….

2. The Minister argues that its analysis of the various judgements in Bhardwaj is supported by the decision of the High Court in Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (“Plaintiff S157”), where the majority (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ) stated at [76]:

   …This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”…

   citing the decision in Bhardwaj at [51] per Gaudron and Gummow JJ, [63] per McHugh J and [152] per Hayne J.

3. The Minister does not dispute the Applicants’ analysis of the Full Court decision in Jadwan, that the statutory scheme may well displace the general law position in relation to administrative decisions. The Minister submits, however, that the decision in Bhardwaj is an authoritative and binding decision that the Migration Act does not evince an intention, either express or implied, that a purported administrative decision should be given force and effect.

4. The Minister submits that the decision is in SZQOY and SZRNY are to be distinguished from the present case. In SZQOY, the Applicant provided further evidence after the hearing and after the Tribunal had notified its decision to the Applicant and Minister. The issue became, therefore, whether the Tribunal was functus officio. The Full Court held that it was not, and Logan J (with whom Barker J agreed) said at [49]:

   The position in the present case is to be contrasted with Bhardwaj.  In that case, what purported to be the decision of the Tribunal was communicated, but it was later appreciated that making that decision had been attended by jurisdictional error.

The Applicant’s submission in reply

1. The Applicants’ submission in response was that the majority in Bhardwaj identified in their judgments different species of jurisdictional error. Counsel for the Applicants submits that the term “species” was used by Hayne J in Re Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82 at [163]. Counsel for the Applicants argued that the first species of jurisdictional error are those that have the consequence that the Tribunal fails to carry out its statutory task, and in this case, there would be no decision at all and the Tribunal can recall the decision. Counsel for the Applicants submitted that the second species of jurisdictional error are those where the Tribunal cannot recall the decision or, in the words of Gaudron and Gummow JJ, “[i]t is mere jurisdictional error”:  Bhardwaj at [44]. Counsel for the Applicants again referred to the observation by Hayne J, with respect to errors of fact: Bhardwaj at [149]:

   … a jurisdictional error of the kind made in relation to the September decision is fundamentally different from a case where for whatever reason the decision-maker had second thoughts. 

2. In these latter species of jurisdictional error, the Applicants submit that, once the Tribunal has made its decision, once it has carried out its statutory task, it cannot recall the decision. 

3. The Applicant submits that, in the circumstances of the present case, the Tribunal could not have been more explicit in its intention. It intended to make a decision on the same day that it knew that the Tribunal officer had told the Applicant’s representative that further evidence could be provided. It was not until the next day that the Tribunal realised that it had relied on an inaccurate case note, which it had had on the file for about two and a half months. However, the Applicants argue, there can be no doubt that the Tribunal intended to rely on that (erroneous) case note and that it intended to make and hand down a decision at the time and in the manner that it did.

4. In other words, the Applicants argue, by comparison to the circumstances in Bhardwaj, there was no intention by the Tribunal to invite the Applicant to a hearing, and the Tribunal acted entirely consistently with its own intention. 

Consideration

1. In my opinion, the distinction made by the Applicant between the circumstances of these proceedings and those in Bhardwaj and species of jurisdictional error does not assist the Applicants’ case.

2. There is no dispute that the decision in Bhardwaj creates a universal proposition to be applied irrespective of the relevant statute.

3. In BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530, the relevant provision was s.24 of the Australian Citizenship Act 2007 (Cth). The question before the Court was whether the Minister’s decision to refuse to exercise his power under s.24 of the Australian Citizenship Act 2007 (Cth) to approve or refuse an Applicant becoming an Australian citizen was unreasonable. Bromberg J relevantly said at [150] to [151]:

   150. A number of decisions of the Full Court of this Court have expressed the view that whether jurisdictional error will render a decision nugatory for all purposes may depend upon the statute pursuant to which the decision was made.  Bhardwaj has not been regarded as establishing a “universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever”: Jadwan v Department of Health (2003) 145 FCR 1 at [42] (Gray and Downes JJ, with whom Kenny J agreed). Their Honours considered that the legal and factual consequences of such a decision “will depend upon the particular statute”. Those observations have been followed in Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 at [27] (Lander J, with whom Mansfield and Siopis JJ agreed); SZKUO v Minister for Immigration and Citizenship (2009) 180 FCR 438 at [26] (Moore, Jagot and Foster JJ); Yu v Minister for Health and Others (No 2) (2013) 216 FCR 188 at [4] (Jessup J); Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30 at [44] (Flick and Foster JJ with whom Katzmann J relevantly agreed) and see Lansen v Minister for Environment (2008) 174 FCR 14 at [159]–[165] (Moore and Lander JJ).

   151. I respectfully agree with Muir JA (with whom Holmes JA and Lyons J agreed) who, at [66] of BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors (2013) 1 Qd R 228, stated that “absent statutory provisions necessitating a contrary conclusion”, the general principle identified in Bhardwaj applies. There is no provision that I can see in the Act which necessitates a conclusion that a decision made under s 24 which is vitiated for jurisdictional error is not nugatory for all purposes. I think that was common ground. No submission to the contrary was made by the Minister.

4. However, Bhardwaj is a decision made with respect to an administrative decision under the Act. In particular, Bhardwaj concerned the duty of the Tribunal upon the making of a valid application to review a reviewable decision. In Bhardwaj, and in these proceedings, the reviewable decision was that of a delegate of the Minister to refuse to grant a visa. The relevant statutory scheme was, and is presently, located under pt.5 of the Act.

5. Section 347 of the Act specifies the requirements for an application for review of ‘Part 5 – reviewable decisions’. Section 348 of the Act relevantly provides:

   Tribunal to review Part 5-reviewable decisions

   (1)  Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision.

(2)  The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.

1. Section 349 of the Act provides:

   Tribunal powers on review of Part 5-reviewable decisions

   (1)  The Tribunal may, for the purposes of the review of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

   (2)  The Tribunal may:

   (a)  affirm the decision; or

   (b)  vary the decision; or

   (c)  if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

   (d)  set the decision aside and substitute a new decision; or

   (e)  if the applicant fails to appear--exercise a power under section 362B in relation to the dismissal or reinstatement of an application.

   (3)  If the Tribunal:

   (a)  varies the decision; or

(b)  sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4)  To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

1. The remaining provisions of pt.5 of the Act set out in detail the manner in which, and the obligations upon which, the Tribunal must review the decision.

2. In Bhardwaj, Gaudron and Gummow JJ said at [42] to [44]:

   42.    The function of the Tribunal was to conduct a review of the delegate's decision in accordance with the Act. In particular, the Tribunal was required to give Mr Bhardwaj an opportunity to attend the hearing, to give evidence and put argument. And it is implicit from the terms of s 368(1) detailing the matters to be recorded in the written statement embodying a decision that the Tribunal was to reach a decision only after considering the evidence and the argument advanced against the cancellation of Mr Bhardwaj’s visa.

   43.    The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a “decision on review” for the purposes of ss 367 and 368 of the Act.

   44.    To say that the September decision was not a “decision on review” for the purposes of ss 367 and 368 of the Act is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness …

3. In Bhardwaj, the Tribunal failed to perform its statutory task to conduct a review, because it failed to provide Mr Bhardwaj with an opportunity to attend a hearing, give evidence and make submissions. It did not provide this opportunity because it proceeded on a mistaken understanding that Mr Bhardwaj did not seek the opportunity to be heard. In these proceedings, as the Applicants properly concede, the Applicants, having failed to respond to a request from the Tribunal for information about whether the Applicant had an approved nomination by a sponsor that had not expired, the Tribunal was entitled to proceed to make its decision without inviting the Applicant to attend. However, what is critical in the particular circumstances in these proceedings is that, although the Department’s electronic ICSE files correctly recorded that the Applicant met this criteria for the visa, and the Applicant was most certainly aware he met this criteria, the Tribunal took into account an erroneous case note for which there was no evidence. This case note wrongly stated the Applicant did not have a current approved nomination by a sponsor. It is no small step to conclude that the Tribunal proceeded on a mistaken understanding that the Applicant did not wish to be heard which arose because the Applicant mistakenly understood the Tribunal had before it evidence that he had an approved nomination by a sponsor, which had not expired.

4. In my opinion, the Applicants’ distinction between jurisdictional error and the performance of its statutory task is likewise to be rejected. In my opinion, the statutory task of review is not performed where a purported decision is affected by jurisdictional error. A purported decision affected by jurisdictional error is not a decision made under the Act: Plaintiff S157. It follows that if a purported decision is affected by jurisdictional error and not a decision at all, the Tribunal cannot be said to have performed the statutory task imposed by the relevant provisions of the Act, which were to conduct a review and make a decision. Although the decision in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 concerned the statutory task imposed on the Tribunal in satisfying itself whether an Applicant met the criteria in s.36(2)(a) of the Act, the following observation of the Full Court is apt. At [31], the Full Court said:

   31. Before both the Federal Magistrates Court and this Court the asserted error in the Tribunal’s decision was often described as a “failure to consider more recent information”. That description might suggest as a corollary some kind of freestanding legal obligation on the Tribunal to consider the most recent information. In our opinion, while those descriptions may explain the path leading to error, the error itself is a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Migration Act.

5. In these proceedings, there can be no doubt that the Tribunal was entitled to proceed to make a decision without inviting the Applicant to a hearing in or around April 2014. The April decision, however, involved a finding of fact for which there was no evidence. This finding of fact was that the nomination of the Applicant by the sponsor had expired. This finding of fact was critical to the Tribunal’s conclusion that the Applicant did not satisfy the criteria for the visa. The Department’s ICSE records, which were available to the Tribunal, revealed that the nomination of the Applicant by the sponsor had not in fact expired at the time of the April decision. Clearly, the Tribunal fell into jurisdictional error: MZYIC v Minister for Immigration and Citizenship [2010] FCA 1368 at [23], citing the decision of the Full Court in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19]. This jurisdictional error had the effect that the Tribunal failed to perform its statutory function of review, which required it to satisfy itself as to whether the Applicant met the relevant criteria for the visa.

6. As the Minister points out in its written submissions at [38]:

   The applicants do not appear to disagree that the Tribunal made a jurisdictional error in connection with its purported ‘decision’ on 9 April 2014. Indeed, one of the applicants’ proposed grounds of judicial review is that the Tribunal’s purported ‘decision’ on 9 April 2014 ‘was unreasonable because the [Tribunal] made an erroneous finding of fact that vitiated its core function of review’.

7. In circumstances where the April decision was affected by jurisdictional error, and this fact became known to the Tribunal member after the decision was made, it was, in my opinion, open to the Tribunal Member to treat the April decision as a purported decision and to continue to perform its statutory task. It was also open, of course, to the Tribunal Member, having appreciated his decision was affected by jurisdictional error, to take no steps and allow the Applicant to correct this error through the appeal process provided for under the Act.

8. I reject the Minister’s submission that a Tribunal is obliged, where it forms an opinion that its decision has been affected by jurisdictional error, to treat its decision as a nullity and to continue to proceed with the review. Indeed, I concur respectfully with the opinion of Haynes J in Bhardwaj that, whilst it may be lawful for a Tribunal Member to re‑open a case, in circumstances where it appreciates its decision is affected by jurisdictional error, taking this step may not be the wise course: Bhardwaj at [150] (see [82] above for a partial extract of that paragraph). I agree with the observations by the AAT in Mora (Migration) [2016] AATA 4198 at [13] that a Tribunal must consider whether it would be wise to use the power to re-open a case. I agree that one of the considerations in deciding whether to exercise this power would be fairness to the parties: [17].

9. In these proceedings, the decision by the Tribunal Member to re-open the review, upon appreciating the fact that the April decision was affected by jurisdictional error, was, in my view, unwise. I have formed the view that the decision operated unfairly to the Applicants and the re‑opening was administratively unnecessarily inefficient for the following reasons:

   a)the day after its April decision (that is, on 10 April 2014), the Tribunal Member was aware that the Applicant’s nomination would expire on 28 June 2014;

   b)the Applicants were informed by email, through Asia Pacific, that the Tribunal Member had decided to re‑open the Applicants’ case and that the decision notified to them on 9 April 2014 had been vacated;

   c)on 11 April 2014, the Applicants were requested to provide certain information under sub-s.359(2) of the Act; namely, whether the Applicant met the requirements of cl.457.223(4)(d) of sch.2 to the Regulations that the Applicant’s intention to perform the occupation is genuine, and the position associated with the nominated occupation is genuine. The Tribunal requested that this information was to be provided by 28 April 2014. On 28 April 2014 and 16 May 2014, Asia Pacific responded to this request;

   d)some 19 days later, the Tribunal sent an email dated 1 May 2014 to the Department, requesting the relevant nomination and sponsorship files for the Applicant, and on 20 May 2014, around 39 days after deciding to re-open the case, invited the Applicants to attend a hearing to be held on 17 June 2014. The hearing was scheduled to take place more than two months after the Tribunal re-opened the case;

   e)on 13 June 2014, Asia Pacific provided further submission and documentation;

   f)on 16 June 2014, the Tribunal sent an email to the Department, noting that it had provided the incorrect file in relation to the Applicant’s nomination by the sponsor. The correct file was sent by the Minister on the morning of 17 June 2014 to the Tribunal;

   g)on 16 June 2014, the Tribunal advised Asia Pacific that the hearing scheduled for 17 June 2014 had been cancelled. No information was provided about a rescheduled hearing date by the Tribunal; and

   h)on 30 June 2014, after the Applicant’s nomination had expired, the Tribunal wrote to Asia Pacific advising that the hearing had been rescheduled to 1 August 2014, and informed the Applicant that he should provide evidence that he is subject of an approved nomination. The rescheduled hearing took place almost four months after the re-opening of the case.

10. As will be apparent in the later part of this decision, the Tribunal had no power to invite the Applicants to attend a hearing. The failure of the Tribunal and/or Department to ensure relevant documentation was before the Tribunal in a timely manner clearly operated unfairly to the Applicants. However, even at 17 June 2014, the Tribunal was clearly in a position to make a decision. It had been provided with information from Asia Pacific in response to its requests for information, and it apparently had all relevant internal documentation. Nevertheless, in the conduct of its re-opening of this case, it informed the Applicant on 30 June 2014, around 13 days after it had obtained the information, of a rescheduled hearing date on 1 August 2014. In this invitation, it is requested that the Applicant provide evidence that he is the subject of an approved nomination, knowing that this nomination had expired two days before.

1. In my opinion, an objective assessment of this process can only result in one conclusion; that the decision of the Tribunal Member to re‑open the case was unwise and it operated unfairly to the Applicants. I reject the Minister’s submission that the Applicants were on notice about the expiration date of the Applicant’s nomination by the sponsor. No reasonable person could have anticipated, after being informed by the Tribunal on 10 April 2014 that a decision on review would not be finalised without a hearing, that the hearing would not be scheduled until 1 August 2014, almost 4 months later.

2. Notwithstanding the lack of wisdom, in my opinion, exercised by the Tribunal member in re‑opening the case, I find, for the reasons set out above, that the decision on review was made by the Tribunal on 11 August 2014.

3. This finding dispenses with the preliminary matter identified at the commencement of this decision. As a consequence of this finding, it follows that grounds 1, 1A, 2 do not raise jurisdictional error, leaving grounds 3 and 4 for consideration. I shall deal with ground 4 first.

Ground 4

1. Section 359C of the Act relevantly provides

   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. Section 360 of the Act relevantly provides:

   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)  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.

3. Section 363A of the Act provides:

   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.

4. In Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 (“Hasran”), the Full Court said with respect of the interaction of these provisions:

   25. In our view, the proper construction and application of s 363A of the Act and the related provisions of Part 5 were correctly stated by the Full Court in Sun and explained by Tracey J in M.

   26. As Tracey J observed in M at [46], the language of s 363A is clear. It operates so as to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do it.

   27. Here, the appellant’s failure to respond to the Tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.

   28. This was because the appellant was invited by the Tribunal’s letter under s 359A to comment or respond to the information stated in the Tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied.

   30. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the Tribunal.

   31. The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing.

5. The Applicants’ submissions are that the Tribunal, in this case, exceeded its jurisdiction when it held the hearing. The Applicants argue that two consequences flow from this. First, the delay between the time when the Tribunal “vacated” the April decision and vacated the unnecessary hearing date of 17 June 2014 had the effect that the Applicant was deprived of the required nomination which expired on 28 June 2014, almost 3 months after the Tribunal should have been in a position to make a decision. The second consequence is that the evidence that was provided by the Applicant at the hearing on 1 August 2014, which was conducted without jurisdiction, was material to the decision of the Tribunal to affirm the refusal of the visa. The Applicants argue that one of the reasons given for the refusal of the request for an adjournment was the Tribunal’s finding that, even if it gave the Applicant an opportunity to lodge a further nomination, it was unlikely to succeed, and this was based on the discussion in the hearing summarised at [27] to [31] of the August decision. The Applicant submits that the Tribunal’s finding, at [42], that there was no genuine need for either of the nominated positions, was also based largely on the evidence given at the hearing. The Applicants contend that the Tribunal was not empowered to take any of this evidence into account.

6. The Minister properly concedes that the Tribunal had no power to invite the Applicants to appear at a hearing after it re-opened the review on 10 April 2014. The Minister, however, submits that this does not warrant a conclusion that the decision made on 1 August 2014 should be quashed. The Minister relies on the following:

   a)the Tribunal was still able to receive information from the Applicants: Hasran at [33]-[41]; Ghimire v Minister for Immigration [2014] FCA 899 at [7];

   b)in particular, the Applicant remained able to provide written statements and arguments to the Tribunal (s.358 of the Act) and the Tribunal remained entitled to ‘get’ any information that it considered relevant (sub-s.359(1) of the Act). Further, the Tribunal remained able to invite the Applicant to provide further information (sub-s.359(2) of the Act), or to comment or respond to information (s.359A of the Act);

   c)the Tribunal expressed two independent bases for its decision. First, the Tribunal was not satisfied that the Applicant met the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations, because it was not satisfied that the Applicant was the subject of an approved nomination by a standard business sponsor that had not ceased. Secondly, and independently, the Tribunal was not satisfied that the Applicant met the requirements of cl.457.223(4)(d) of sch.2 to the Regulations, because the Tribunal was not satisfied that the position associated with the nominated occupation was genuine. Accordingly, the Applicants must persuade the Court that both of the Tribunal’s reasons for affirming the decision on review are vitiated, and that it is appropriate for the Court to exercise its discretion to grant relief accordingly.

Consideration

1. I find, for the reasons expounded in Hasran, that the Tribunal did not have jurisdiction to invite the Applicants to attend a hearing before the Tribunal to give evidence and make submissions. The Tribunal acted outside its jurisdiction in inviting the Applicants to the hearing scheduled for 17 June 2014, and to the rescheduled hearing scheduled for 1 August 2014. Further, the Tribunal lacked the power to conduct the hearing on 1 August 2014, during which the Applicants gave evidence and made submissions.

2. The decision made by the Tribunal, conveyed orally on 1 August 2014 and in written form on 11 August 2014, was a decision made by a Tribunal following the exercise of jurisdiction that it did not have. It is relevant that the decision was made directly as a consequence of the Tribunal acting outside its jurisdiction.

3. It is likely that the Tribunal was entitled, after it had decided to continue to perform its function of review, to invite the Applicant on 11 April 2014, under sub-s.359(2) of the Act, to provide written submissions or evidence. I say likely, because the Applicants had already passed the extended time period permitted by the Tribunal for responding to the Tribunal’s request made on 12 February 2014, under sub-s.359(2) of the Act. In Hasran, the Full Court said, in relation to the appellant’s complaint that the Tribunal failed to extend the time period for responding after the initial extension of time had passed, at [48]:

   … If an applicant does not give the comments or response “before the time for giving them has passed” the Tribunal’s power to make a decision without taking further action to obtain the applicant’s views is enlivened. This is a further indication that the Tribunal’s discretion to extend time is spent if a request is made after the expiry of the prescribed period. The effect of this subsection, when read with s 360(2), s 360(3) and s 363A is that the gate closes on an applicant who fails to respond to a letter under s 359A within the prescribed time. There is simply no discretion to extend the time to respond.

4. It is unnecessary to decide this issue and I note that, in the letter dated 11 April 2014, the Tribunal requested information in relation to a different criteria the Applicant was required to meet. This was cl.457.223(4)(d) of sch.2 to the Regulations.

5. I am satisfied that, in circumstances where the Tribunal acted outside its jurisdiction in holding a rescheduled hearing on 1 August 2014, there are two consequences:

   a)the evidence and/or submissions given by the Applicants at that hearing was not evidence permitted to be given under the Act and the Tribunal was not entitled to take that evidence into account; and

   b)the findings of fact made and the reasoning engaged in by the Tribunal as a consequence of holding that hearing, can only have been made without jurisdiction.

6. In my opinion, it is an artificial and impermissible exercise to attempt to glean from the decision record of 11 August 2014, those parts which concern evidence or submissions provided by the Applicants in response to the Tribunal’s correspondence dated 11 April 2014, and those parts which concern evidence or submissions provided by the Applicant during the course of a hearing, in respect of which the Tribunal was not entitled to make findings of fact or engage in the process of reasoning based on these findings of fact.

7. I am not satisfied that the Tribunal’s request to the Applicant dated 30 June 2014, in its invitation to the Applicants to attend a rescheduled hearing and to provide evidence that he was subject of an approved nomination, is one which the Tribunal had power to do. It seems to me that this request was inextricably linked to an act (an invitation to attend a hearing) which was beyond the Tribunal’s power. This does not detract from the fact that, at the date of the Tribunal hearing, the Applicant’s nomination had expired.

8. The Minister submits, correctly, that the Tribunal expressed two independent bases for its decision (see [114(c)] above). The Tribunal found that the Applicant did not satisfy the requirements of cls.457.223(4)(a) and (d) of sch.2 to the Regulations. The Minister argues that the Applicant must satisfy the Court that the Tribunal’s reasons are vitiated on both grounds, before the Court can find that the Tribunal engaged in jurisdictional error. The Minister submits that the undisputed fact that the Applicant did not satisfy cl.457.223(4)(a) of sch.2 to the Regulations prevents the Court from reaching a conclusion that the August decision was affected by jurisdictional error. In my opinion, this argument is misconceived. It assumes that the August decision was one made by a Tribunal acting within power. I have already found that this decision was a decision made by a Tribunal acting outside its jurisdiction. It is relevant, in my view, that on 1 August 2014, the Applicant could not satisfy cl.457.223(4)(a) of sch.2 to the Regulations in circumstances where the hearing which led to, and at which the hearing announced, its decision to affirm the decision under review was a hearing conducted without jurisdiction.

9. Somewhat ironically, the Minister contends that the Applicant was not denied procedural fairness because the Applicant was able, at the hearing, to give evidence about relevant matters. I say ironically, because it is my opinion that the conduct of the Tribunal member, in re‑opening the case, operated unfairly to the Applicants (see [104] to [106] above). In any event, I reject the submission on the basis that the Tribunal was not permitted to make a decision based on evidence impermissibly given.

10. I reject the submission of the Minister that the Applicant was on notice at all times, that he was required to satisfy a criteria of the visa that he have a nomination by the sponsor which was approved and which had not expired. For the reasons I have already set out, this argument fails to grasp the effect of the decision the Tribunal purported to make in August 2014, in circumstances where that decision was a direct consequence of the Tribunal acting outside its jurisdiction.

11. For the reasons set out above, I find that the Tribunal failed to perform its statutory task on review because it acted outside its jurisdiction when it conducted the hearing on 1 August 2014. The decision made in August 2014, was a decision made as a consequence of the Tribunal acting without jurisdiction. The decision made orally by the Tribunal on 1 August 2014, and in writing on 11 August 2014, were thus affected by jurisdictional error.

12. The Minister argues that, in the event I find that the Tribunal engaged in jurisdictional error, I should not exercise my discretion to grant relief to set aside that decision. The reasons for this are, firstly, the Minister describes the conduct of the Tribunal in acting outside its jurisdiction as a technical deficiency. Secondly, the Minister relies on the fact that on 1 August 2014, the Applicant failed to satisfy cl.457.223(4)(a) of sch.2 to the Regulations, despite being given every opportunity to do so. Thirdly, the Minister relies on the fact that the Applicants, rather than being denied procedural fairness, were able to give further evidence in support of their application for review at the hearing held on 1 August 2014.

13. It will be apparent from my reasoning above, that I am not persuaded by any of those reasons that I should not exercise my discretion to grant relief as sought by the Applicants. As I have earlier stated, I reject any argument that the Applicants were afforded procedural fairness. I do not accept that it is mere speculation to presume that, absent the Tribunal’s clumsy error and attempts to hold a hearing and obtain the documentation it required, a decision may have been anticipated prior to the expiry of the approved nominations. In any event, an argument that the Applicants were allowed to give evidence, at a hearing for which there was no jurisdictional basis, is to be rejected. Finally, I do not accept that the error was a mere technical error. Part 5 of the Act prescribes in some detail the way in which reviews of reviewable decisions are to be conducted. The assertion that, in circumstances where which a Tribunal acts outside its jurisdiction or without jurisdiction is a mere technicality, is rejected.

14. I should note for completeness that the decisions relied on by the Minister - Lee Sang Bong v Minister for Immigration and Citizenship [2007] FMCA 1802 and SZEXZ v Minister for Immigration and Indigenous Affairs [2006] FCA 449 - have not persuaded me that I should not grant relief sought. These decisions concern the refusal of the Tribunal to grant an extension of time beyond the prescribed period allowed by a Tribunal to an Applicant to respond to requests for information.

15. I am satisfied that I should exercise my discretion to set aside the Second Respondent’s decisions dated 1 August 2014 and 11 August 2014 and direct it to determine the matter according to law.

Ground 3

1. In circumstances where I have upheld ground 4 of the application for judicial review, it is unnecessary to deal with ground 3.

Conclusion

1. For the reasons set out in this judgment, a writ of certiorari will be issued setting aside the decision of the Second Respondent and remitting the matter to the Second Respondent to be determined according to law. A further Order will be made requiring the First Respondent pay the Applicants’ costs in these proceedings.

I certify that the preceding one-hundred-and-thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date:     2 February 2017