Minister for Immigration and Border Protection v Singh
[2017] FCA 1297
•9 November 2017
FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Border Protection v Singh [2017] FCA 1297
Appeal from: Singh v Minister for Immigration & Anor [2016] FCCA 3343 File number: NSD 135 of 2017 Judge: CHARLESWORTH J Date of judgment: 9 November 2017 Catchwords: MIGRATION — finding that review applicant had not been honest with Tribunal about times for sitting English competency test – Tribunal refused to grant applicant further time to sit test – whether review applicant denied procedural fairness in respect of dishonesty finding — whether common law rule of procedural fairness apply in respect of a review conducted under Pt 5 of the Migration Act 1958 (Cth) – unnecessary to decide question of construction — unnecessary for Tribunal to expressly foreshadow dishonesty finding in any construction Legislation: Migration Act 1958 (Cth), ss 45, 65, 357A, 359A, 360, 363, 476
Migration Regulations 1994 (Cth), reg 1.15C, cl 885.213,
Cases cited: Berenguel v Minister for Immigration and Citizenship [2010] HCA 8, (2010) 264 ALR 417
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration and Citizenship v Li (2012) 202 FCR 387
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Singh v Minister for Immigration & Anor [2016] FCCA 3343
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Date of hearing: 10 May 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 56 Counsel for the Appellants: Mr GT Johnson SC with Mr BD Kaplan Solicitor for the Appellants: Clayton Utz Counsel for the Respondent: The Respondent appeared in person ORDERS
NSD 135 of 2017 BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Appellant
ADMINISTRATIVE APPEALS TRIBUNAL
Second Appellant
AND: SULTAN SINGH
Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
9 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The judgment and orders of the Federal Circuit Court of Australia made on 21 December 2016 in proceedings SYG 2446/2014 be set aside and, in lieu thereof, there be an order that the application for judicial review commenced by Mr Sultan Singh on 1 September 2014 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
The respondent, Mr Singh, is a citizen of India. On 15 June 2011, he lodged an application for a Skilled (Residence) (Class VB) (Subclass 885) visa. The visa was refused by a delegate of the Minister for Immigration and Border Protection because Mr Singh failed to show that he had competent English. Mr Singh applied for a review of the delegate’s decision before the then-named Migration Review Tribunal. The Tribunal affirmed the delegate’s decision after affording Mr Singh a number of opportunities to sit an English competency test and to provide evidence of his test results.
Mr Singh made an application for judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia (FCC). The primary judge quashed the Tribunal’s decision on the ground that the Tribunal did not comply with the rules of procedural fairness when it determined that Mr Singh should be given no further opportunity to sit and pass the test: Singh v Minister for Immigration & Anor [2016] FCCA 3343. The Minister appeals from that decision.
The appeal should be allowed for the reasons given below.
THE VISA CRITERIA
Mr Singh applied for the visa under s 45 of the Migration Act 1958 (Cth). In order for the visa to be granted, it was necessary that the Minister be satisfied that the statutory criteria for the grant of the visa were satisfied: s 65 of the Act.
The criteria for the visa included a requirement that Mr Singh provide evidence that he had “competent English”: cl 885.213 of Sch 2 to the Migration Regulations 1994 (Cth) as then in force. The expression “competent English” was, at that time, defined in reg 1.15C(1)(a) relevantly as follows:
1.15C Competent English
If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfied the Minister that the person:
(a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i)an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
…
The test specified in reg 1.15C(a)(i) of the Regulations is that conducted in accordance with the International English Language Testing System (IELTS).
BACKGROUND
The criteria prescribed in cl 885.21 (including as to English competency) are to be satisfied at the time of the visa application. In respect of reg 1.15C, however, the High Court has held that the IELTS test does not need to be conducted before the visa application is made, but can be undertaken during the decision-making process: Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417 at [24] – [27] (French CJ, Gummow and Crennan JJ).
At the time of his visa application, Mr Singh did not provide evidence that he had achieved a competent score in an IELTS test within two years prior to his visa application being lodged. Although he provided the delegate with a notice confirming that he had been booked to undertake the test, he did not provide the test results to the delegate. The delegate refused Mr Singh’s visa application on that basis.
Mr Singh’s application for review of the delegate’s decision was listed for hearing before the Tribunal on 14 April 2014. About a month prior, the Tribunal wrote to Mr Singh requesting that he provide evidence of his English competency. Nothing was provided in response to that request. At the hearing Mr Singh told the Tribunal that he had sat for an IELTS test two days prior and that the results of the test would be available on 28 April 2014. The Tribunal granted Mr Singh until 30 April 2014 to provide evidence of competent English. Argument on the appeal proceeded on the basis that in providing Mr Singh additional time, the Tribunal exercised its discretion, conferred by s 363(1)(b) of the Act, to “adjourn the review from time to time”. The adjournment granted on 14 April 2014 was the first of three such adjournments granted to Mr Singh pursuant to s 363(1)(b).
Mr Singh’s migration agent wrote to the Tribunal member on 30 April 2014. His letter stated that Mr Singh suffered from hearing and stammering problems and that he had only just become aware that these problems were considered a “minor disability” by the authority responsible for administering the IELTS test. The agent said that special arrangements could be made for Mr Singh to undergo a test that accommodated his disabilities. The letter continued:
We believe [Mr Singh] did not realize that he is eligible to sit for IELTS with special arrangements by [the testing authority] hence he continued to take test and could not score. We believe he deserves at least 1 chance at IELTS with special setting at [the testing authority].
The Tribunal responded by letter dated 30 April 2014 confirming that it had agreed to grant an extension of time until 13 June 2014. That letter stated that Mr Singh must book an IELTS test before that date, and that if no information was received by the Tribunal it would proceed to make its decision. This was the second adjournment granted by the Tribunal.
The migration agent wrote again to the Tribunal on 13 June 2014 confirming that an IELTS test had been booked for 6 September 2014. The agent said:
The lengthy delay in getting the date is due to special arrangement being made to meet the special needs of the applicant.
You may recall the applicant has a stammering problem which had affected his capacity to take the test. The applicant submitted the Medical report to IELTS body which has advised it takes couple of months for the arrangements to be made for special needs requirement hence the delay in getting the test date.
The Tribunal member sought further information from the migration agent. It required an original letter from the IELTS administration stating when Mr Singh had made a request to sit a test that accommodated his stammer, when he had provided the authority with a medical report, how often tests were conducted to meet Mr Singh’s special needs, when the first available test to meet his special needs was scheduled, when the last available test to meet his special needs had been held, and whether it was possible to move the test from 6 September 2014 to an earlier date. The migration agent was given four days to provide the testing authority’s response. Nothing was provided.
It appears that the Tribunal then caused a member of its staff to make direct enquiries of the testing authority. Neither Mr Singh nor his agent was copied in the correspondence passing between the Tribunal and the authority. In response to the staff member’s question as to when was the first available test to accommodate special needs (stammer), the testing authority said that ordinarily five weeks’ notice was required, however, for a disability in the nature of a stammer, the time would be shortened because special arrangements would need to be made only for the speaking aspect of the test.
On 25 June 2014, the Tribunal member wrote to Mr Singh. The letter states:
The Tribunal has made some inquiries with the IELTS Test Centre at Macquarie University and has been informed that you undertook an IELTS test on 21 June 2014 and that after the test you presented a Medical Certificate in relation to your medical condition. The Tribunal has been informed that not much notice is required to make special arrangements for a candidate with a stammer to undertake an IELTS test as the candidate just needs to be allocated to a Senior Examiner and allowed extra time for the speaking component of the test. The Tribunal was informed that no special consideration would be given for the listening, reading and writing modules of the test. The Tribunal was informed that the next available IELTS test at Macquarie University is on 12 July 2014 and that it is possible for you to make arrangements to bring forward your IELTS test scheduled on 6 September 2014 to 12 July 2014.
This information from the IELTS Administration is not consistent with the information provided by your migration agent to the Tribunal. We note that on 16 June 2014 the Tribunal requested you to provide evidence including when you provided the IELTS Administration with a Medical Report and when you requested the IELTS Administration to allow you to sit an IELTS test that accommodated your stammer and to date we have not received the requested information.
The Tribunal stated that it would give Mr Singh time to make arrangements to have the date of his test brought forward to 12 July 2014. The Tribunal noted the results of that test would be available on 25 July 2014 and provided Mr Singh further time until 28 July 2014 to provide evidence of competent English. The letter informed Mr Singh that if he did not wish to undertake the test on 12 July 2014, or if he did not respond by 27 June 2014, the Tribunal would proceed to make a decision on his case on or after 30 June 2014 based on the evidence it had before it at that time. This was the third adjournment granted by the Tribunal.
Mr Singh replied by letter dated 27 June 2014 thanking the Tribunal for arranging an earlier date for him to sit the test. He enclosed notices showing that he had made bookings to sit the test on 12 July 2014 and then again on 19 July 2014. He requested that he be permitted to sit the test on both dates even though one date would, he said, be sufficient. The letter does not state why that request was made. Mr Singh was informed by telephone that he would be given until 28 July 2014 to provide the Tribunal with evidence of his English competency.
Mr Singh did not sit the IELTS test on 12 July. By letter dated 21 July 2014 his migration agent informed the Tribunal he was medically unfit on the day, that he had sat the test on 19 July 2014 and that the result would be provided to the Tribunal as soon as it came to hand. A medical certificate was enclosed. It did not state the nature of Mr Singh’s medical condition.
Mr Singh personally wrote to the Tribunal again on 25 July 2014 stating that he was not well when he sat the test on 19 July 2014. He said that he expected his sickness to have affected the test results and although another test could be sat on 2 August 2014 he had been advised by his doctor not to sit it. Medical documents enclosed with the letter stated that Mr Singh was suffering from a respiratory condition and weakness. By that letter, Mr Singh should be understood as requesting a fourth adjournment of the review until sometime after August 2014. It is the rejection of that fourth application that formed the basis of his application for judicial review.
THE TRIBUNAL’S REASONS
The Tribunal affirmed the delegate’s decision on 29 July 2014. In its written reasons the Tribunal correctly noted that the requirement of cl 885.213 was a “time of application criterion”. It said that Mr Singh had not satisfied the criterion at the time that he lodged the application for the visa and that he had been granted a further three months to provide evidence of competent English. It continued (at [27]):
The applicant has not been honest with the Tribunal in relation to information provided to him by the IELTS Administration with respect to the timeframe for sitting a special needs IELTS test and he has sought to delay this review for as long as possible. The applicant has had three and a half months since the hearing on 14 April 2014 to book a special needs IELTS test, sit the test and provide the Tribunal with the results. The Tribunal is of the view that this is a more than reasonable amount of time for him to do so.
The Tribunal concluded that as no evidence of English competency had been provided, Mr Singh did not satisfy the criterion in cl 885.213 and, accordingly, the delegate’s decision was affirmed. In so deciding, it is implicit that the Tribunal refused to grant any further adjournment of its hearing.
REASONS OF THE PRIMARY JUDGE
The jurisdiction of the FCC to review the decision of the Tribunal is conferred by s 476(1) of the Act and equates to that jurisdiction conferred on the High Court under s 75(v) of the Constitution. The remedies under s 75(v) are only available where jurisdictional error is shown: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Mr Singh appeared self-represented in the judicial review proceedings before the primary judge. Although he specified only two grounds for review in his originating application, the reasons of the primary judge indicate that a number of additional grounds were fairly raised in written and oral submissions, each of which was considered and dealt with. His Honour identified the questions arising before him as follows (at [24]):
(a)Did the Tribunal consider the applicant’s medical condition when considering whether to give the applicant time to undertake a further IELTS test (Issue 1)?
(b)To the extent the Tribunal did consider the applicant’s medical condition, did the Tribunal act unreasonably in deciding not to grant the applicant further time (Issue 2)?
(c)Was the Tribunal obliged to deal with the information it received from the Macquarie University IELTS Test Centre in the manner required by s.359A of the Act (Issue 3)?
(d)Assuming (c) is answered in the negative, was the Tribunal under a duty to give notice to the applicant that it might find that the applicant was not being honest, but the Tribunal failed to do so (Issue 4)?
The first three issues were decided against Mr Singh. Although there is no notice of contention filed on this appeal in relation to those issues, it is necessary to refer briefly to them so that the fourth issue, which was determined in Mr Singh’s favour, may be considered in the context of the reasons as a whole.
As to the first issue, the primary judge concluded that the Tribunal did refer to two of the three medical certificates provided by Mr Singh, but gave the certificates little or no weight. A third medical certificate was not considered but that failure, the primary judge held, did not constitute jurisdictional error.
In relation to whether the Tribunal acted unreasonably, the primary judge noted that the Tribunal had the power under s 363(1)(b) of the Act to “adjourn the review from time to time”. That power was, his Honour said, one that is to be exercised reasonably in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The primary judge continued:
36 …. the Tribunal did not grant the applicant further time because the Tribunal concluded the applicant had already had a reasonable time in which to provide the required evidence, and the applicant had not been honest with the Tribunal about the times by which the IELTS Administration could set up a test for persons who suffered from a stammer.
37 In my opinion, assuming the Tribunal did not deny the applicant procedural fairness or otherwise did not make any jurisdictional error by not notifying the applicant that it might find the applicant did not act honestly (these being matters I consider below), it was reasonably open to the Tribunal to rely on these two reasons for not granting the applicant further time, notwithstanding the applicant’s medical condition. …
The primary judge further found that it was open to the Tribunal to find that Mr Singh had not been honest with the Tribunal in reporting the length of time it would take for a test to be arranged to accommodate his disability. The Tribunal had, his Honour found, notified Mr Singh of the contradictory information it had received from the testing authority and Mr Singh had not contradicted or addressed it. It should be emphasised that this aspect of the reasoning of the primary judge was heavily qualified. His Honour observed that the question of whether the finding of dishonesty was open to the Tribunal depended upon whether the Tribunal had afforded Mr Singh a fair opportunity to be heard on the question.
The information the Tribunal obtained from the testing authority was not, the primary judge held, information to which s 359A of the Act applied. That provision requires the Tribunal to give clear particulars of information the Tribunal considers “would be the reason, or a part of the reason, for affirming the decision that is under review”. The Minister submitted before the primary judge that the information in question was not information the Tribunal considered would be a reason for affirming the decision under review. That submission was accepted.
Procedural fairness
In the proceedings before the primary judge, this issue was limited to whether the Tribunal denied Mr Singh procedural fairness in relation to its finding that he “was not being honest”.
In determining that issue the primary judge construed the provisions of Div 5 of Pt 5 of the Act, particularly the interrelation between ss 357A, 360 and 363. Those provisions relevantly provide:
357A Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
…
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
…
360 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
…
363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
…
(b) adjourn the review from time to time;
The primary judge concluded that the Tribunal was under a duty to observe the rules of procedural fairness before deciding not to grant the applicant further time, that is, before deciding that no further adjournment would be granted in the exercise of the discretion conferred by s 363(1)(b) of the Act. The rules of procedural fairness were not displaced by s 357A(1) of the Act because of the express requirement in s 357A(3) that the Tribunal act in a way that is fair and just. The learned primary judge continued (at [59]):
… The next question, then, is whether the Tribunal accorded the applicant procedural fairness when it made a finding based, in part, on its conclusion that the applicant had not been honest with the Tribunal. That, in the first instance, depends on what, in the circumstances of this case, the Tribunal was required to do to accord the applicant procedural fairness. In my opinion, the Tribunal was required, at the very least, to identify to the applicant any issue that was critical to its decision not to grant the applicant further time that was ‘not apparent from its nature or the terms of the’ Act under which the Tribunal made its decision; and it was required to ‘advise of any adverse conclusion which’ it may have arrived at ‘which would not obviously be open on the known material.
(footnote omitted, original emphasis)
His Honour cited Commissioner forAustralian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 — 592 and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29].
The conclusion of dishonesty was, the primary judge said, critical to the Tribunal’s decision not to grant Mr Singh another opportunity to take the IELTS test and the proposed conclusion was one that ought to have been notified to Mr Singh so that he might have an opportunity to make submissions in respect of it.
The learned primary judge rejected the Minister’s submission that the obligation to accord Mr Singh procedural fairness had been discharged by the Tribunal sending its letter dated 25 June 2014 in which it informed Mr Singh of the information it had received from the testing authority and stated that the information was not consistent with information provided by Mr Singh’s migration agent. The primary judge observed that the letter of 25 June 2014:
(1)said nothing further about the information the Tribunal had received from the testing authority;
(2)did not state that the information the migration agent had provided was the result of any dishonest instructions given by Mr Singh or the product of any other dishonesty on his part; and
(3)was not reasonably capable of being interpreted as signalling to Mr Singh that the Tribunal was considering whether it might conclude that the applicant was not being honest.
The conclusion that the Tribunal committed jurisdictional error was expressed as follows (at [62]):
By not notifying the applicant of that issue, and by relying on its finding that the applicant was not honest with the Tribunal about the times by which the IELTS Administration could set up a test for persons who suffered from a stammer, the Tribunal failed to accord the applicant procedural fairness when exercising its power under s 363(1)(b) of the Act not to grant the applicant further time. And by exercising its power without according the applicant procedural fairness, the Tribunal denied the applicant the opportunity to give evidence and present arguments, as provided for by s 360 of the Act. For these reasons, the Tribunal’s decision affirming the delegate’s decision is affected by jurisdictional error.
THE APPEAL
The Minister relied on a single ground of appeal:
1.The primary judge made an appealable error in holding that the Tribunal, in refusing to grant an adjournment to the first respondent to provide evidence of competent English, and despite not having exercised its power under section 363(1)(b) of the Act unreasonably, failed to comply with the requirements of the natural justice hearing rule, and/or made a jurisdictional error, because:
(a)it did not give notice to the first respondent of the possibility of its finding that he was not being honest with the Tribunal as to the time by which those administering the International English Language Testing System could arrange a test for persons suffering from a stammer; and/or
(b)it did not put the first respondent on notice that an issue that it considered relevant to whether to grant the applicant an adjournment was whether he had been honest with the Tribunal as to the issue identified in paragraph (a) above.
Submissions in support of these grounds may be distilled into three propositions:
(1)the primary judge erred in determining that the common law natural justice hearing rule applied with respect to a decision under s 363(1)(b) of the Act not to grant an adjournment;
(2)section 357A(3) of the Act was an exhortative provision that did not give rise to any substantive obligation or duty, the breach of which would result in the Tribunal acting in excess of jurisdiction; and
(3)even if the common law natural justice hearing rule applied, the primary judge erred in concluding that the Tribunal did not give Mr Singh adequate notice of its finding that he had not been honest with the Tribunal about the time it would take for a test to be conducted that accommodated his stammer.
It is not necessary, the Minister submitted, to determine the first two propositions. That is because, in the Minister’s submission, the practical content of any substantive obligation imposed by s 357A(3) of the Act in the present case could be no more rigorous than the ordinarily implied obligation to afford a review applicant procedural fairness in any event. As those obligations had been complied with, the appeal should be allowed and consideration of the proper construction of s 357A may be left for a case in which the outcome turned upon the question.
It is convenient to determine the issues arising on the appeal in the order urged by Counsel for the Minister. I will turn first to the question of whether Mr Singh was given adequate notice of the dishonesty finding and a fair opportunity to respond. For that purpose, I will proceed on the assumption that the content of the obligation is the same as that which would exist had s 357A of the Act not been enacted. I accept the Minister’s submission that to the extent that s 357A of the Act imposes a substantive obligation to act in a manner that is “just and fair” the content of the obligation in the circumstances of the present case would rise no higher than the ordinarily implied obligation to afford procedural fairness to Mr Singh in the exercise of the Tribunal’s functions and powers.
CONSIDERATION
Some preliminary observations should be made about the consequences of the Tribunal’s finding that Mr Singh “was not being honest”. As the primary judge correctly held, the finding was critical to the outcome of the review. From the premise that Mr Singh had been dishonest, the Tribunal reasoned that Mr Singh had sought to delay the outcome of the review for as long as possible. Implicitly, the Tribunal held that Mr Singh’s stated purposes for seeking the earlier three adjournments, and then in requesting the fourth adjournment, had not been genuine. Its conclusion that Mr Singh had been provided with a “more than reasonable amount of time” to provide evidence of his English competency is to be read in the context of the dishonesty finding. Implicitly, the Tribunal rejected Mr Singh’s claim to have genuine medical reasons supporting the grant of a fourth adjournment. Although the Tribunal did not expressly make a finding that Mr Singh did not suffer from a stammer as he had claimed, the Tribunal’s finding that he had been afforded sufficient time is to be understood as giving little or no weight to the circumstance of the disability.
As I have mentioned, Mr Singh appeared self-represented on the Minister’s appeal. For the most part, his submissions were directed at the merits of the Tribunal’s finding that he had acted dishonestly. He insisted that the testing authority had in fact given him information that was inconsistent with the information the authority had provided to the Tribunal and that there was no dishonesty on his part in the information he had imparted to the Tribunal (both personally and through his migration agent) about the available testing times. The submissions of Mr Singh fairly reflect the submissions he might have made in connection with his honesty had the Tribunal expressly invited him to do so. The submissions do not directly engage with the questions of law now arising on the appeal. It is sufficient to note that there were submissions Mr Singh could have made to the Tribunal concerning his honesty that, if accepted, were capable of affecting the outcome.
The content of the obligation to afford a review applicant procedural fairness was identified in broad terms by the Full Court (Northrop, Miles and French JJ) in Alphaone. The Full Court said (at 591 — 592):
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
(Footnotes omitted, my emphasis)
In the application of these principles to credit findings, the High Court said in SZBEL (at [47] and [48]):
47 … there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
48 Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry,
‘the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
(Footnotes omitted, original emphasis)
In the Minister’s submission, the conclusion of the primary judge offended these principles. It was sufficient, the submission goes, for the Tribunal to identify to Mr Singh that there existed an inconsistency between the information conveyed by the testing authority to it, and the statement made by Mr Singh’s migration agent concerning the information that had been conveyed to him by the testing authority. That, the Minister submitted, was sufficient to put Mr Singh on notice of the factual foundation upon which the finding of dishonesty was subsequently made. It was said that to require the Tribunal to do any more than it did would be tantamount to requiring the Tribunal to disclose to Mr Singh its reasoning processes, particularly in relation to his genuineness or credibility.
On the objective facts, the Tribunal did notify Mr Singh that it had obtained information from the testing authority that was inconsistent with the information that had been provided to the Tribunal by his migration agent. That was done by way of its 25 June 2014 letter. The primary judge was, in my respectful opinion, wrong in his conclusion that the letter said nothing about the information the Tribunal had received from the testing authority. The letter disclosed that the authority had informed the Tribunal that “not much notice” was required to arrange the test and that the next available test accommodating Mr Singh’s stammer was scheduled for 12 July 2014. That is an accurate and adequate summary of the information the Tribunal had received from the testing authority.
The primary judge was nonetheless correct in his observation that the letter did not expressly state that the migration agent had provided inconsistent information that was a result of dishonest instructions given by Mr Singh. It does not follow from that conclusion that the Minister’s appeal should be dismissed.
The question of whether Mr Singh was afforded a fair opportunity to address the question of his honesty is not to be answered by reference only to the express words of the Tribunal’s letter of 25 June 2014. Nor is the content of the letter to be examined in isolation from the surrounding circumstances.
In all of the circumstances, a visa applicant in Mr Singh’s position ought fairly to have understood from the outset of the review process that upon making his multiple requests for further time to sit the IELTS test, the genuineness of his stated purpose in seeking each adjournment would be in issue. The Tribunal’s correspondence with Mr Singh, read as a whole, fairly discloses that the Tribunal was minded to grant limited adjournments to Mr Singh for the purpose of enabling him to sit the next available IELTS test and to promptly provide the Tribunal with the results. The first three adjournments were not granted for the purpose of allowing Mr Singh more time to improve his English competency so as to enhance his prospects of achieving the prescribed score. The language of the Tribunal ought reasonably to have put Mr Singh on notice that the Tribunal would not accept his explanations for the various delays without careful scrutiny. Indeed, the Tribunal went behind Mr Singh’s explanation for the proposed delay in respect of the third adjournment by making its own enquiries of the testing authority.
By the time of his fourth application for an adjournment, the genuineness of the whole of his conduct ought fairly to have been anticipated by Mr Singh as being in issue. He was not, in my view, entitled to assume that each subsequent adjournment application would be considered in isolation from everything that had transpired before.
It is to be acknowledged that the Tribunal’s observation concerning the inconsistent information it had received was not relied upon by the Tribunal as the basis for a finding of dishonesty justifying a refusal of the third adjournment request. The inconsistency was, on that occasion, referred to as the basis for the Tribunal allowing Mr Singh to sit an IELTS test on 12 July 2014, but not on 6 September 2014 as his migration agent had requested. Notwithstanding that circumstance, by the time of his request for a fourth adjournment, Mr Singh ought fairly to have had in his contemplation that his genuineness would be assessed and that the inconsistency may be taken into account on a subsequent adjournment application. Mr Singh appears to have subjectively appreciated that the inconsistency might be considered by the Tribunal as a basis for concluding that Mr Singh had deliberately misinformed the Tribunal. In his email of 27 June 2014 Mr Singh positively adverted to the question by stating that the testing authority had in fact provided him with different information. Consistent with what was said in SZBEL it was open to the Tribunal to reject that explanation for the inconsistency without first foreshadowing to Mr Singh its intention to do so.
Contrary to the conclusion of the primary judge, it was not necessary for the Tribunal to alert Mr Singh in express terms to the possibility that he might be found to be a person who had not been honest with the Tribunal and who had “sought to delay [the] review for as long as possible”. The question decided by the Tribunal was a live one throughout the review process and Mr Singh had an opportunity to address the Tribunal in respect of all of the relevant issues at the time that he sought the fourth adjournment. If, when applying for the fourth adjournment, he subjectively presumed that his honesty was not in issue, that presumption was neither induced by nor encouraged by the Tribunal.
It follows that, on the assumption that s 357A of the Act had not been enacted, the Tribunal discharged its obligation to afford Mr Singh procedural fairness in respect of the dishonesty finding. The primary judge erred in concluding otherwise.
I otherwise accept the Minister’s submission that if s 357A(3) imposes a substantive requirement that the Tribunal act in a way that is “just and fair”, that obligation would have been discharged in all of the circumstances and the Minister’s appeal should, accordingly, be allowed.
In the result, it is unnecessary to decide whether s 357A(3) is, on its proper construction, a merely “exhortative provision” such that any departure from its terms would not result in the Tribunal acting in excess of its jurisdiction. There is, as Counsel for the Minister acknowledged, some tension in the judgments of the Full Court of this Court bearing on that question: see Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404 (Emmett, Kenny and Jacobson JJ) at [15]; Minister for Immigration and Citizenship v Li (2012) 202 FCR 387 at [20] — [22] and [28] — [29] (Greenwood and Logan JJ). The issue was the subject of some obiter consideration in the various judgments of the High Court in Li, however no crisp answer to the question emerges from the various judgments in that case: see French CJ at [18] (his Honour concluding that the common law hearing rule of procedural fairness applies to the exercise of the discretion conferred under s 363(1)(b)); Hayne, Kiefel and Bell JJ at [60] — [62] and [86] (their Honours noting it was not necessary to determine what s 357A(3) required, nor what might flow from a breach) and Gageler J at [97] (his Honour concluding that s 357A(3) is couched broadly in exhortatory and aspirational language, such that its “mere erroneous application” would not necessarily constitute jurisdictional error).
The questions of construction raised in the Minister’s single ground of appeal are to be resolved in a case in which the outcome necessarily turns upon it. This is not that case.
The parties should be heard as to costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.
Associate:
Dated: 9 November 2017
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