Nadan v Minister for Immigration & Border Protection
[2015] FCCA 2855
•17 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NADAN & ORS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 2855 |
| Catchwords: STATUTORY INTERPRETATION – Whether as a matter of proper construction the term ‘information’ used in s.359 of the Migration Act 1958 (Cth) includes evidence. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.31, 65, 338, 353, 357A, 359, 359A, 359AA, 359C, 360, 363A, 424, 424A, 425, 474 Migration Regulations 1994 (Cth) reg.2.01, Schedule 2 – cls.890.211, 890.212, 890.213, 890.214, 890.215, 890.221 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Hasran v Minister For Immigration and Citizenship (2010) 183 FCR 413 M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 |
| First Applicant: | VISHWA NADAN |
| Second Applicant: | ROSLYN KALPANA NADAN |
| Third Applicant: | RIDGE VICTOR NADAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2195 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 19 October 2015 |
| Date of Last Submission: | 19 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Michael Jones (Parish Patience Immigration Lawyers) |
| Counsel for the Respondents: | Mr Greg Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2195 of 2014
| VISHWA NADAN |
Applicant
| ROSLYN KALPANA NADAN |
Applicant
| RIDGE VICTOR NADAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 1 August 2014 and handed down on 4 August 2014 (“the MRT”).
The second named applicant is the wife of the first named applicant. The third named applicant is the son of the first and second named applicants. The second and third named applicants were included in the first named applicant’s application for a Business Skills (Permanent) (Class DF) visa and their claims are wholly dependent on those of the first named applicant (“the Applicant”). For that reason, these reasons for judgment address only the Applicant’s claims.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s claims in support of a business skills visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.
Background
On 10 January 2012, the Applicant lodged an application for a business skills visa with the Department of Immigration and Citizenship (“the Department”).
On 24 August 2012, the Delegate refused the Applicant’s application for a business skills visa.
On 7 September 2012, the Applicant lodged an application for review of the Delegate’s decision by the MRT.
On 4 August 2014, the MRT affirmed the decision of the Delegate not to grant a business skills visa.
On 6 August 2014, the Applicant filed an application in this Court seeking judicial review of the MRT’s decision.
Legislative framework
Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Business Skills (Permanent) (Class DF) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
For the grant of a business skills visa, cl.890.221 of Schedule 2 to the Regulations required the Applicant to continue to satisfy, at the time of the MRT’s decision, the criteria in cls.890.211 and 890.215 of Schedule 2 to the Regulations.
Clause 890.211 of Schedule 2 to the Regulations provided that:
“(1) The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.”
Further, cl.890.215 of Schedule 2 to the Regulations provided that:
“The net value of the business and personal assets in Australia of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, is, and has been throughout the 12 months immediately before the application is made, at least AUD250 000.”
Under s.338 of the Act, a decision to refuse to grant a business skills visa is a decision which may be reviewed by the second respondent.
Section 359 of the Act allows the MRT, in conducting a review, to invite an applicant either orally or in writing to provide information that it considers to be relevant. If a person is invited in writing under s.359 of the Act to give information, but fails to do so within the provided timeframe, s.359C(1) of the Act provides that the MRT may make a decision on the review without taking any further action to obtain that information. Section 359 of the Act is as follows:
“359 Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.”
Section 359C of the Act enables the MRT to proceed to make a decision on review without taking any further action if the applicant has failed to provide information requested under s.359 of the Act or s.359A of the Act. Section 359A of the Act is as follows:
“359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).”
Section 359AA of the Act enables the MRT to request information that may be the reason or part of the reason for the MRT affirming the decision under review orally from the applicant at a hearing.
The requirements of the natural justice hearing rule are exhaustively stated in Part 5 Division 5 of the Act (s.357A of the Act). Part 5 Division 5 includes s.360, which provides that:
“360 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
Section 359C(1) and (2) of the Act are as follows:
“359C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.”
Further, s.363A of the Act provides as follows:
“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.”
Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The Delegate’s decision
The Delegate found that the Applicant’s business, Easy Living Painting & Home Improvements Pty Ltd (“Easy Living”), did not in the period of twelve months immediately before the Applicant’s visa application, have a net value of at least AUD100,000 and an annual turnover of at least AUD300,000. Additionally, the Delegate found that the cumulative value of the Applicant’s business and personal assets in Australia did not amount to at least AUD250,000.
Further, the Delegate found that the Applicant’s business had not provided its employees a total number of hours of employment at least equivalent to the total number of hours that would have been worked by two full-time employees.
Accordingly, the Delegate found that the Applicant did not meet the criteria in cls.890.212, 890.213, 890.214 and 890.215 of Schedule 2 to the Regulations for the grant of a business skills visa.
Accordingly, on 24 August 2012, the Delegate refused the Applicant’s application for a business skills visa.
The MRT’s review and decision
On 7 September 2012, the Applicant lodged an application for review of the Delegate’s decision by the MRT.
The Applicant did not provide further documents in support of his review application.
On 4 July 2014, the MRT wrote to the Applicant pursuant to s.359 of the Act and invited the Applicant to provide information to show:
a)that the Applicant continued to have an ownership interest in the main business, Easy Living, and that it was still operating in Australia. In this regard, the MRT noted that records of the Australian Securities and Investments Commission (“ASIC”) indicated that the business was under external administration; and
b)that the net value of the Applicant’s personal and business assets in Australia was at least AUD250,000 as required by cl.890.221 of Schedule 2 to the Regulations.
The invitation advised the Applicant that, if the MRT had not received the requested information by 18 July 2014, or within any period of extension that was sought and allowed, the MRT may make its decision without taking any further action to obtain the information, and further, that the Applicant would lose any entitlement he may otherwise have had to appear before the MRT.
As at the date of the MRT’s decision, the Applicant had not responded to the MRT’s invitation, and an extension of time had not been sought.
Accordingly, the MRT found that s.359C(1) of the Act applied and that, pursuant to s.360(3) of the Act, the Applicant was not entitled to a hearing. Further, the MRT found that the effect of s.363A of the Act was that, if the Applicant had no entitlement under the Act to attend a hearing, then the MRT had no power to permit him to appear at a hearing.
Accordingly, the MRT proceeded to make a decision without taking further steps to obtain information.
After considering ASIC records which indicated that Easy Living was under external administration, and noting that the Applicant had not provided any evidence to show that Easy Living was still actively operating, the MRT was not satisfied that the Applicant continued to have an ownership interest in one or more actively operating main businesses in Australia. Accordingly, the MRT found that the Applicant did not meet the requirements of cl.890.211 of Schedule 2 to the Regulations.
Further, the MRT found that there was no current information before the MRT in relation to the Applicant’s personal or business assets. Accordingly, the MRT was not satisfied that the net value of the Applicant’s personal and business assets in Australia was at least AUD250,000. As such, the MRT found that the Applicant did not satisfy the requirements of cl.890.215 of Schedule 2 to the Regulations.
Having determined that the Applicant did not satisfy the requirements of cls.890.211 and 890.215 of Schedule 2 to the Regulations for the grant of a business skills visa, the MRT affirmed the decision under review.
The proceeding before this Court
The Applicant was represented before this Court by Mr Michael Jones, solicitor.
On 18 November 2014, the Applicant attended a directions hearing before a Registrar of the Court. On that occasion, the matter was set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on 4 February 2015.
Subsequently, the Applicant obtained legal representation and, by consent, Orders were made setting the matter down for final hearing on 19 October 2015. The Applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit.
The solicitor for the Applicant, Mr Jones, confirmed that he relied on the grounds contained in an Amended Application, filed in Court by consent at the hearing, as follows:
“1. The Tribunal erred in determining that the Applicants were not entitled to a hearing pursuant to s 360 of the Migration Act 1958 (“the Act”) and in failing to give the Applicants such a hearing.
Particulars
On 4 July 2014 the Tribunal sent the Applicants a letter headed “Invitation to Provide Information – Mr Vishwa Nadan, Master Ridge Victor Nadan and Mrs Roslyn Kalpana Nadan” (CB 257). On the basis of the Applicants' failure to reply to that letter, the Tribunal proceeded to make a decision on the review without conducting a hearing. The letter did not provide the Tribunal with the legal basis for denying the Applicant a hearing for the following reasons:
(a) The letter was not a request for information under s 359 of the Act because it required the Applicants to provide evidence of certain matters, not information.
(b) The letter was not a notice under s 359A of the Act because it did not comply with paras 359A(1)(a), (b) or (c).
Consequently, the Tribunal was not permitted under s 359C to make a decision on the application without conducting a hearing.
2. The Tribunal failed to comply with the requirements of s 359A of the Act.
Particulars
The Tribunal obtained information from the Australian Securities and Investments Commission which it considered would be the reason, or part of the reason, for affirming the decision under review (CB 264, para 10). That information was not exempt from the operation of s 359A for any of the reasons listed in subsection 359A(4). The Tribunal failed to comply with the requirements of s 359A(1) in respect of that information.”
Ground 1
In Ground 1, it is contended that the letter dated 4 July 2014 sent by the MRT to the Applicant requesting “information in writing”, was not a request in terms of s.359 of the Act. The Applicant contends that, therefore, a failure to respond to that request for information did not have the consequence determined by the MRT that it had no power to permit the Applicant to appear at a hearing before the MRT.
The relevant parts of that letter are as follows:
“You are invited to provide the following information in writing:
Information to show that you continue to have an ownership interest in the main business, Easy Living Painting & Home Improvement Pty Ltd and that this main business is still actively operating in Australia. The Tribunal notes that ASIC records indicate that the business is currently under external administration.
Information to show that the net value of your personal and business assets in Australia is at least AUD 250,000 as required by clause 890.221 of the Migration Regulations.”
The Applicant’s solicitor, Mr Jones, contended that s.359 of the Act is confined to a request for ‘information’, and does not extend to a request for ‘evidence’. Mr Jones contended that the ‘information’ requested in the MRT’s letter was in fact ‘evidence’ rather than information.
Mr Jones submitted that to construe the ‘information’ capable of being requested in s.359 of the Act as including evidence is to undermine the Applicant’s right under s.360 of the Act to come to a hearing to give evidence and to make arguments on the relevant issues.
Mr Jones conceded that, in the event that the ‘information’ requested pursuant to s.359 of the Act can include evidence, the MRT did not err in finding that s.359C of the Act applied. In that case, the Applicant conceded that, pursuant to s.360(3) of the Act, the Applicant was not entitled to appear at a hearing before the MRT. Further, the Applicant conceded that in such a case, the effect of s.363A of the Act would be that, if the Applicant was not entitled to appear at a hearing, then the MRT had no power to permit the Applicant to appear.
The effect of s.363A of the Act was considered by the Full Court of the Federal Court of Australia in Hasran v Minister For Immigration and Citizenship (2010) 183 FCR 413 (“Hasran”). The Full Court in Hasran referred to the decision of Tracey J in M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 (“M”). In M, Tracy J stated that the language of s.363A of the Act is clear and that it operated to remove any discretion the Migration Review Tribunal may have had to allow a person to do something in circumstances where a provision of Part 5 Division 5 of the Act stated that the person was not entitled to do it (see Hasran at [26] per Jacobson, Gilmour and Foster JJ). In Hasran, the Full Court went on to state the following at [27] – [32]:
“[27]…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. 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.
[29] 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.
[30] As Tracey J said in M at [46], this approach to construction is consistent with the views of the Full Court in Sun, as well as the Explanatory Memorandum which accompanied the Migration Legislation Amendment Bill (No 5) 1994 (Cth). The contrary view expressed by a Full Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1 (Uddin) is explained by the fact that the Full Court in Uddin was not referred to s 363A of the Act and by the fact that the case was not decided on a basis which involved any consideration of s 363A.
[31] Moreover, the obiter comments in Uddin were published after the decision in Sun was handed down and there was no reference in Uddin to the contrary views stated in Sun. The explanation for this appears to be that the decision in Uddin was reserved shortly before the Full Court decision in Sun was handed down.
[32] We reject the appellant’s submission that the approach to construction we have adopted ignores the discretion conferred on the Tribunal by s 359C. That section does not confer a discretion on the Tribunal to provide a hearing. It merely enables the Tribunal to make a decision without a hearing. It is therefore irrelevant to the operation of s 363A.”
Certainly, s.360(1) of the Act is intended to provide an applicant with an opportunity “to give evidence and present arguments relating to the issues arising in connection with the decision under review.” It contemplates that such a hearing will be conducted before a tribunal makes its decision.
Section 360(2) of the Act provides that the Migration Review Tribunal’s obligation to invite an applicant to a hearing does not apply if the Migration Review Tribunal considered that it should decide the review in the applicant’s favour based on the material before it; or, the applicant consents to the Migration Review Tribunal deciding the review without appearing before it; or, relevantly, s.359C(1) of the Act applies to the applicant. Section 359C(1) of the Act provides that if a person is invited in writing under s.359 of the Act to give information and does not do so, the Migration Review Tribunal may make a decision on the review without taking any further action to obtain the information.
Counsel for the first respondent, Mr Johnson, submitted that s.360 of the Act makes clear that an applicant’s entitlement to a hearing is a qualified right only. In support, counsel for the first respondent referred to SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578, 589 per Dowsett, Bennett and Edmonds JJ (“SZKLG”).
However, SZKLG is concerned with what is involved in respect of a tribunal’s obligation to consider material which may form the reason or part of the reason for the tribunal affirming the decision under review in the course of giving such material to an applicant for comment. The Court makes clear that the obligation to proceed pursuant to s.424A of the Act arises only if a tribunal forms an opinion that particular information would be the reason or part of the reason for affirming the decision under review. The Court relevantly stated as follows at [33]:
“The conditional nature of the obligation reflects the fact that the Tribunal must consider the question in advance of its decision, considering the information upon which it would act, should it decide to affirm the relevant decision. Although the appellant asserts that the Tribunal formed the requisite opinion prior to the s 425 hearing, we see no evidence to that effect. It may have done so, but it may also have proceeded on the basis that the importance of the information could only be assessed after the appellant had given evidence”.
The issue considered by the Court in SZKLG is different to the issue in the case before this Court. SZKLG was concerned with the legitimacy of a letter being sent to an applicant pursuant to s.424A of the Act requesting information prior to the hearing of the applicant’s application for review of a delegate’s decision.
However, SZKLG suggests that the Court drew a distinction between ‘information’ requested under s.424A of the Act and ‘evidence’ that may be given by an applicant at a hearing. Whilst SZKLG is not authority for the proposition that a request for ‘information’ pursuant to s.424 or s.359 of the Act includes a request for ‘evidence’, neither does it suggest the alternative. It is simply not considered in that context.
However, SZKLG may provide some support to the first respondent’s submission that an applicant’s right to a hearing under s.360 of the Act is a qualified right. The Full Court in SZKLG at [34] suggested that the hearing pursuant to s.425 of the Act may not be the crux of the tribunal’s decision making process. The Full Court in SZKLG stated that the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 (“SAAP”) made clear that s.424A of the Act has a wider operation than simply ensuring that a hearing is “fair”. SAAP suggests that the purpose of s.424A of the Act is to ensure that the overall decision making process, of which the hearing pursuant to s.425 of the Act is only part, is “fair”.
Mr Johnson referred to Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 (“Win”), where the Federal Court of Australia per Whitlam, Tamberlin and Sackville JJ considered the effect of unsolicited adverse material being received by a tribunal prior to a hearing. In the course of its deliberations in Win, the Court rejected a contention that ‘information’ in s.424(1) of the Act (being a provision that is in similar terms to the relevant provision in the present case, being s.359 of the Act) is confined to material that is reliable or that has a sound factual basis. The Full Court stated as follows at [19] – [22]:
“[19] The appellant's contention, as we understand it, is that “information” in s424(1) is confined to material that is reliable or has a sound factual basis. The only qualification expressed in s424(1) as to the nature of “any information” that the RRT can get is that the RRT itself considered the information relevant. Moreover, the RRT cannot know whether material it obtains is sound until the material is assessed and findings are made. Some material will prove to be reliable in whole or in part; some will be unreliable or even fabricated.
[20] The point is reinforced by reference to s424A(1). The obligations imposed by that provision apply when the RRT has “information” regardless of its source, that it considers would be the reason, or a part of the reason, for affirming the decision. Permitting an applicant to comment on such information provides him or her with an opportunity to demonstrate that the information should not be relied on by the RRT: cf Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548, at 562-563, per Hill J. It follows that an applicant may be able to show that particular “information” in the possession of the RRT is completely worthless. It is hardly likely that the word “information” is used in s424A(1) in a sense different from its meaning in s424(1). Indeed, Ms Winfield conceded as much.
[21] Similarly, the Migration Act provides that an applicant may be invited to supply “additional information” to the RRT: see s424(2); s424B(1), s424B(2); s424C(1). The additional information provided in response to such an invitation may or may not have any factual basis and may or may not rise above the level of assertion. It is an everyday occurrence for the RRT to reject as fabricated “information” provided by applicants.
[22] It is not necessary for the purposes of the present case to explore the outer limits of the word “information” as used in s424(1) and s424A(1). In our view, it includes assertions made by a person (whether identified or not) that particular aspects of an applicant's account of events are untrue. It includes the assertions made in this case by the informant, each of which addressed and (as the RRT said) cast doubt on an aspect of the applicant's account of events.”
(Emphasis added)
The Full Court in Win stated that ‘information’ included assertions made by a person, whether identified or not, that particular aspects of an applicant’s account of events were untrue. As is clear, the Full Court stated that additional information provided in response to an invitation given pursuant to, inter alia, s.424(1) of the Act (being in similar terms to s.359(1) of the Act) “may or may not have any factual basis and may or may not rise above the level of assertion.” (see Win at [21]).
Counsel for the first respondent, Mr Johnson, submitted that there is no statutory indication that the term ‘information’ should be confined to exclude evidence. Mr Johnson submitted that it was contrary to the scheme of s.359 of the Act to exclude from the meaning of ‘information’ what might be asserted to be evidence of a particular matter. Further, for the purposes of s.359 of the Act, Mr Johnson submitted that there is no relevant distinction.
In particular, Mr Johnson referred to VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [24] (“VAF”) where the Full Court per Finn, Merkel & Stone JJ relevantly stated as follows:
(ii) the word “information” in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19] – [22]; …
(Emphasis added.)
Mr Johnson referred the Court to the following passage in VAF, which referred to “evidence” in the course of considering what may be information or the purposes of s.424A of the Act. The Court in VAF stated at [28]:
“In the present case the Tribunal’s subjective thought processes explain both why it isolated and referred to the evidence concerning the appellant’s behavior and why it attributed to that evidence the significance it did. It was perceived to be relevant to the decision it had to make. Those thought processes, though, did not rob the Tribunal’s knowledge of the appellant’s behavior of its character as “information”. Rather, as Allsop J suggested in the above passage, those processes indicated why the information was considered relevant.”
(Emphasis added.)
Mr Johnson also referred the Court to the following passage in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) where the majority of the High Court of Australia, in considering the consequences of s.424A of the Act, relevantly stated at [18] as follows:
“…However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself”.
(Emphasis added.)
Whilst the Court in SZBYR was not considering the existence or otherwise of any relevant distinction between ‘information’ and ‘evidence’ in the context of s.359 or s.424 of the Act, in light of the authorities referred to above, it would appear that the ‘information’ referred to has the same meaning. As such, the ‘information’ relates to the existence of evidentiary material or documentation.
I am reinforced in that view by the consideration of applicable statutory construction principles. The meaning of the word ‘information’ is to be ascertained by reference to the Act as a whole. The context of the provision to be construed is the beginning of any process of construction. In short, relevant to construing ‘information’ are the context in which it is used and the general purpose and policy of the provision (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 per McHugh, Gummow, Kirby and Hayne JJ). The MRT’s way of operating is stated in s.353 of the Act as pursuing the objective of a mechanism of review that is fair, just, economical, informal and quick. Section 353(2) of the Act, inter alia, states that the MRT is not bound by technicalities, legal forms or rules of evidence. Section 353 of the Act is found in Part 5 Division 4 of the Act relating to the exercise of the MRT’s powers. It is followed immediately by Part 5 Division 5 of the Act which addresses the conduct of a review by the MRT.
The ‘information’ requested by the MRT in its letter dated 4 July 2014, is addressed to the Applicant and requested “information” from the Applicant that his “main business is still actively operating in Australia.” The letter then noted that ASIC records indicated that the business was currently under external administration.
In any event, even if ‘information’ as used in s.359 of the Act was found to exclude ‘evidence’, in my view, the ‘information’ requested by the MRT’s letter is not evidence in the strict sense. It is not requiring the Applicant to prove that his main business is still actively operating in Australia. It is merely asking the Applicant for information about that fact, in the light of information before it that might not have been consistent with those facts.
In the absence of the MRT’s letter, the Applicant could have expected to have been invited to attend a hearing to give evidence in support of his application.
To my mind, ‘information’ relates to facts asserted, whereas ‘evidence’ is the means by which those facts are proved. The Tribunal’s letter was doing no more than requesting information related to the facts asserted. As stated above, the information requested by the MRT in its letter dated 4 July 2014 was not asking for proof of the fact asserted as to whether or not the Applicant’s main business is still operating in Australia.
Had the Applicant responded to the letter at all, the MRT was bound to consider any information provided and if not satisfied by it, would have been bound under s.360 of the Act to invite the Applicant to come to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. For whatever reason, the Applicant chose not to respond to the letter with the foreseeable statutory result that the MRT, under s.360(3) and s.363A of the Act, no longer had power to invite the Applicant to come to a hearing.
In the circumstances, there was no error in the MRT proceeding to make its decision without inviting the Applicant to come to a hearing to give evidence and make submissions on his behalf in relation to the issues arising in the matter under review.
Otherwise, the MRT’s findings were open to it on the evidence and material before it and for the reasons it gave. The MRT applied the correct law to those findings in concluding that the Applicant did not meet the mandatory requirements of the visa for which he applied.
Accordingly, Ground 1 is not made out.
Ground 2
In Ground 2, it is asserted that the MRT was obliged to give to the Applicant in accordance with s.359A(1) of the Act information received from ASIC that the Applicant’s business was in external administration.
However, I accept the first respondent’s submission that the information relied upon by the MRT was the absence of any evidence to support the requirement that the Applicant’s main business continue to be operating in Australia. It is well established that gaps in an applicant’s evidence are not information for the purposes of s.359A of the Act (see SZBYR at [18]).
In the circumstances, the obligations of s.359A of the Act were not enlivened.
Accordingly, Ground 2 is not made out.
Conclusion
The MRT made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 17 December 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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