Nam v Minister for Immigration

[2011] FMCA 340

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAM v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 340

MIGRATION – Migration Review Tribunal – whether the Tribunal is prohibited from conducting hearing when applicant failed to respond to invitation to respond to information within time – whether a reasonable apprehension of bias arose in the circumstances of this case.

Migration Act 1958, ss.116, 359A, 359C, 360(1), 360(3), 363A

Giri v Minister for Immigration [2011] FMCA 282
Hasran v Minister for Immigration & Anor (2010) 183 FCR 413; [2010] FCAFC 40
Kumar v Minister for Immigration& Citizenship [2010] FMCA 614
M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; (2006) 91 ALD 629; [2006] FCA 1247
Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201

Applicant: LE HOANG NAM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 138 of 2011

Judgment of: Riley FM

Hearing date: 9 May 2011

Date of last submission: 9 May 2011

Delivered at: Melbourne

Delivered on: 26 May 2011

REPRESENTATION

Counsel for the Applicant: Roz Germov

Solicitors for the Applicant: Migration Partners Australasia

Counsel for the First Respondent: Sharon Burchell

Solicitors for the First Respondent: DLA Piper Australia

Solicitors for the Second Respondent: DLA Piper Australia

ORDERS

1. The application filed on 7 February 2011 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $5,865..

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 138 of 2011

LE HOANG NAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application to review a decision of the Migration Review Tribunal. The Tribunal affirmed a decision of the delegate to cancel the applicant’s Higher Education Sector visa under s.116 of the Migration Act 1958. 

2. In conducting its review, the Tribunal did not give the applicant an opportunity to appear before it to give evidence or present arguments relating to the issues arising in relation to the decision under review. That was apparently because Tribunal considered that, pursuant to s.360(3) of the Act, the applicant was not entitled to a hearing because he had not responded to an invitation under s.359A of the Act within the specified time.

3. The issues before the court are whether:

   a)the Tribunal was obliged to give the applicant a hearing; and

   b)the Tribunal’s refusal to give the applicant a hearing raises a reasonable apprehension of bias.

Background

1. The history of the matter is set out in the particulars to ground 1 of the application filed on 7 February 2011.  Those particulars are as follows:

   (a)The Applicant is a Vietnamese national who held a student visa that was cancelled by the First Respondent’s delegate on the grounds that the Applicant had failed to comply with a mandatory condition of his visa; namely condition 8202 (“the primary decision”).

   (b)On 13 December 2010, the Tribunal forwarded two faxes to the Applicant’s migration agent.

   (c)The first fax was transmitted at 1.09pm and contained an invitation to comment on information pursuant to section 359A(1) of the Act. The information was provided by a third party and was specifically about the Applicant. The information was described in the Tribunal’s fax as information that could be the reason or part of the reason for affirming the primary decision although the Tribunal’s invitation stated that it had not made up its mind about the information. The invitation to comment stipulated that the Applicant was required to respond before 20 December 2010, failing which the Applicant would lose his right to appear before the Tribunal (“the first fax”).

   (d)The second fax was transmitted at 1.22pm and invited the Applicant to attend a hearing at 9.30 am on 7 January 2011 (“the second fax”).  The second fax stated that the Tribunal was unable to make a favourable decision on the basis of the information provided.

   (e)At 10.43 pm on 13 December 2010, the Applicant’s migration agent faxed the Tribunal seeking an extension of time to reply to the invitation to comment and an adjournment of the hearing.

   (f)On 15 December 2010 at 2.21 pm, the Tribunal forwarded a fax to the Applicant’s representative stating that it refused to adjourn the hearing.

   (g)On 17 December 2010 at 10.12 am, the Tribunal forwarded a fax to the Applicant’s representative that stated that the Applicant had until 24 December 2010 to respond to the invitation to comment.

   (h)The Tribunal proceeded to make a decision affirming the primary decision on 31 December 2010 asserting that the Applicant had lost his right to a hearing before the Tribunal because of his failure to respond to the invitation to comment by 24 December 2010.

   (i)On 7 January 2011, the Applicant and his legal representatives attended the Tribunal to appear at the hearing but were informed by a Tribunal officer that the Tribunal had made a decision on 31 December 2010 and notified it by fax on 4 January 2011 at 12.35 pm.

   (j)The Applicant’s migration agent did not actually receive the Tribunal’s fax notifying the decision.

   (k)The Applicant’s counsel delivered a letter by hand to the Tribunal’s Melbourne Registry on 11 January 2011 requesting the Tribunal to vacate the decision and allocate the review to another Member of the Tribunal.

   (l)On 21 January 2011, the Principal Member of the Tribunal forwarded a letter to the Applicant’s counsel refusing to vacate the decision.

Legislation

1. Section 360 of the Act provides as follows:

   (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.

2. Subsection 359C(2) of the Act provides as follows:

   (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.

3. Section 363A of the Act provides that:

   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.

Ground 1

1. The first ground of review in the application filed on 7 February 2011 is:

   The decision was made in breach of an essential pre-condition to the exercise of the power conferred by sections 347, 348 and 349 of Act because the Tribunal failed to provide the Applicant with an opportunity to attend a hearing as required by section 360 of the Act.

2. It was common ground that the applicant had not responded within the specified time to an invitation under s.359A of the Act. However, the applicant argued that, because the Tribunal had invited the applicant to appear at a hearing pursuant to s.360(1) of the Act, the Tribunal was obliged to proceed to conduct that hearing.

3. The applicant based his argument on the decision of Driver FM in Kumar v Minister for Immigration & Citizenship [2010] FMCA 614. His Honour said in that case that:

   50.It is true that s.360(3) states that an applicant is not entitled to appear before the Tribunal if s.360(2) applies. However, as I have already noted, s.360(2) bears on the obligation to the Tribunal to invite an applicant to a hearing, not on any power or obligation to conduct a hearing to which an applicant is invited. It is also true that s.363A provides that the Tribunal does not have the power to permit a person to do something that he or she is not entitled to do. It follows that if the Tribunal is not authorised to issue a hearing invitation, and an applicant is not entitled to attend the hearing, then the Tribunal has no discretion to issue an invitation or permit such attendance. It does not follow, however, in my view that an applicant is not entitled to attend a hearing to which he or she has been lawfully invited. The Tribunal was required to issue the hearing invitation at the time it was issued because the Tribunal had determined that it could not make a favourable decision on the papers. At the time the hearing invitation was issued s.360(2) did not apply. That was because, at that time, the time for responding to the invitation to comment and request for information had not expired.

   51.The hearing opportunity afforded by (and in the case of the Refugee Review Tribunal, s.425) is the central element of the review process. It is a fundamental guarantee of procedural fairness. By depriving the applicant of a hearing, the Tribunal caused actual unfairness because Mr Kumar was deprived of the opportunity of persuading the Tribunal that there existed exceptional circumstances bearing on the discretion to cancel his visa. …

   52.   …

   53.Sections 360(3), 359C and 363A read in combination are a punitive restriction on a fundamental element of the review process. Having that character, the sections should be interpreted strictly. In my view, on a strict reading of those sections, the Tribunal is not prevented from issuing a hearing invitation before the time for compliance with an invitation to comment or request for information has expired, and after that period has expired, while the Tribunal would be prevented from issuing a further hearing invitation, it is not required to cancel a hearing to which an applicant had already lawfully been invited.

   …

   55.I conclude that the Tribunal was in error in finding that it was required to cancel the hearing to which Mr Kumar was invited and the cancellation of the hearing was a breach of because it frustrated the process of review that was a consequence of the lawful invitation. I distinguish the Federal Court decisions in Sun, M and Hasran on the basis that those cases all concerned the inability of the Tribunal to invite an applicant to attend a hearing where there had been a failure to respond to an invitation within the prescribed period. That issue was conclusively resolved by the Full Federal Court in Hasran. However, in that case at [6] the Court noted that no hearing invitation had been issued. Neither could an invitation be issued after the operation of s.360(3) was attracted. However, in the unusual circumstances of this case, the Tribunal invited the applicant to a hearing before the operation of s.360(3) was attracted because the Tribunal had determined that it could not make a favourable decision on the papers. It followed that the hearing to which the applicant was invited was the only means by which the applicant could obtain a favourable outcome and the Migration Act did not operate to deprive him of the benefit of the invitation lawfully extended to him. The invitation and request for more written material only served to augment what the Tribunal had decided was the essential element of the review process (ie the hearing).

   56.The applicant should receive relief in the form of the constitutional writs of certiorari and mandamus. I will so order.[1]

   [1] Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201; M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; (2006) 91 ALD 629; [2006] FCA 1247; Hasran v Minister for Immigration & Anor (2010) 183 FCR 413; [2010] FCAFC 40.

4. A more recent consideration of this issue was provided by Federal Magistrate Cameron in Giri v Minister for Immigration & Citizenship [2011] FMCA 282. His Honour noted that the facts in Giri were as follows:

   9.On 21 September 2010, as part of its review, the Tribunal wrote to the applicant pursuant to s.359A of the Act and invited him to provide written comments on information that it considered would be part of the reason for affirming the decision under review. On 23 September 2010 the Tribunal wrote to the applicant again, this time inviting him to appear before it on 14 October 2010 to give evidence and to present arguments relating to the issues arising in relation to his case.

   10.The s.359A notice of 21 September 2010 required that any response which the applicant wished to make to it had to be made by 28 September 2010. The applicant did not provide a response by the specified deadline and this led the Tribunal to conclude that, by reason of s.360(3), he was not entitled to appear before it at the hearing which had been notified in the letter of 23 September 2010. By a further letter, dated 29 September 2010, the Tribunal advised the applicant that the hearing which it had previously notified was cancelled although subsequently it did allow him to provide further written arguments and submissions.

5. In Giri, Federal Magistrate Cameron referred to Kumar and said: 

   19.With respect, I cannot agree with the analysis of the operation of the relevant provisions set out in Kumar. In my view, s.360(3) operates independently of the Tribunal’s obligation under s.360(1) to invite an applicant to a hearing. Although s.360(2) affects the operation of both s.360(1) and (3), it does not have the effect of linking the operation of those two subsections which are concerned with distinct, if related, matters. If any of the circumstances described in s.360(2) exist then two consequences flow: first, the Tribunal is not obliged to invite an applicant to a hearing and, second, an applicant is not entitled to appear before the Tribunal. These are different concepts. In particular, s.360(3) can operate even if the Tribunal has already issued a valid hearing invitation.

   20.It was said in Kumar that although the consequence of a failure to respond to a s.359A notice is that “the Tribunal may make a decision without taking any further action to obtain the applicant’s views on the information”, s.359A does not authorise the Tribunal “to make a decision without having regard to action already taken to obtain the applicant’s views on the information” (at [49]) (emphasis included). In that case, the action “already taken” was identified to be ss.359 and 359A requests and a hearing invitation which had been issued to Mr Kumar.

   21.Although it was said in Kumar that ss.360(3) and 363A do not operate to deprive an applicant of the benefit of a hearing invitation which has lawfully been issued, in my view that is exactly how the two provisions do operate. Section 360(3) is unconcerned with whether a hearing invitation has been issued or not, its sole concern being to prevent the applicant from attending a hearing. Because s.360(3) removes any entitlement to attend a hearing, s.363A has the effect of preventing the Tribunal from permitting the applicant to attend a hearing.

   22.In this case, the applicant’s failure to respond to the Tribunal’s s.359A notice 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 with the effect that he was not entitled to appear before the Tribunal: Hasran at 417 [27] and [28].

   23.The applicant submitted that Tracey J’s decision in M’s case was authority for the proposition that the Tribunal does not have power to cancel a hearing to which a valid invitation has been issued. In that case the Tribunal invited the applicant to a hearing, then vacated that date and then issued a s.359 notice requesting further information from the applicant. That notice imposed a deadline for reply which the applicant failed to observe and the Tribunal proceeded to determine the review application without permitting the applicant to appear before it. It did this on the basis that, pursuant to s.360(2)(c), the applicant was not entitled to appear and that, pursuant to s.363A, he could not be permitted to appear. The applicant referred to an argument advanced in M’s case that the Tribunal did not have the power to cancel the oral hearing which it had scheduled and submitted that Tracey J implied that this submission was correct. I do not agree that such an implication can be discerned in his Honour’s reasons. Tracey J did not need to decide whether the submission in question was correct because he concluded, on the facts, that the Tribunal had not actually cancelled the hearing, merely postponed it pending the receipt of further information.

   24.Nevertheless, M’s case does have important relevance to this matter. Although it was said in Kumar that M’s case was distinguishable from the circumstances in the matter then before the Court, whose facts are similar to the facts in this case, a closer analysis of the cases does not bear out this conclusion. In both Kumar and this case the Tribunal issued a hearing invitation at a point prior to the respective applicants’ failures to respond to the Tribunal’s notices within their stipulated time limits. In each case the Tribunal concluded, in light of the applicant’s failure to respond to the notice, that the combined effect of ss.360(3) and 363A was that the applicant was no longer entitled to appear before it and, on that basis, it cancelled the hearings. In M’s case, the Tribunal had issued a hearing invitation at a point prior to the applicant failing to respond to the Tribunal’s notice within its stipulated time limit. Again, the Tribunal concluded that in light of the applicant’s failure to respond to the notice the combined operation of ss.360(3) and 363A had the effect of preventing the applicant appearing at a hearing before it.

   25.The only relevant difference between the cases is that in M’s case the Tribunal did not take the additional step of advising the applicant that it was not proceeding with a hearing and it can be assumed that it did not take that step because, by the time the applicant failed to comply with the s.359 request, the hearing date which had originally been advised had been vacated so there was no hearing date whose cancellation needed to be advised. In Kumar and in this case, there had been no such postponement of the hearing and thus it was necessary for the Tribunal to let the applicant know in each case that the hearing which had been advised would not be proceeding.

   26.In Kumar, and in this case, the Tribunal’s advice that the hearing was cancelled was no more than an administrative manifestation of the outcome produced by the combined operation of ss.360(3) and 363A. It did not represent the Tribunal being “required to cancel the hearing” but was simply a recognition of the fact that the hearing could not proceed because the applicant was, by force of the operation of the Act, not permitted to attend it.

   27.Far from being distinguishable, the facts in M’s case are relevantly identical to the facts in this case. As a consequence, with respect I agree with Tracey J’s conclusion that:

   When that information was not suppled in a timely manner the Tribunal was deprived of any power to conduct the hearing by operation of the Act (at 348 [57])

   and am of the view that it is applicable to this matter.

   28.Further, although the facts in Hasran’s case were different to the facts in this case, in that a hearing invitation had not been issued, their Honours’ reasoning need not be confined to the facts of that case and, with respect, provides important guidance to this Court in deciding this matter. I have concluded that, even though the applicant in this matter had been issued with a hearing invitation prior to his failure to comply with the s.359A notice, once he did fail to respond to that notice:

   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. (Hasran’s case at 417 [29])

   29.In the circumstances, the Tribunal was required in the present case to deny the applicant a hearing before it, even though it had initially invited him to one.

1. With respect to Federal Magistrate Driver, I find myself in agreement with Federal Magistrate Cameron.  It seems to me that Federal Magistrate Cameron’s analysis is in accordance with legislation and authority.  The facts of Giri in relevant respects are identical to the facts of this matter. 

2. Consequently, for the reasons explained by Federal Magistrate Cameron, I consider that the Tribunal had no power to proceed with the hearing to which it had invited the applicant.  The Tribunal did not err by not conducting such a hearing.  Indeed, the Tribunal would have been in error if it had conducted such a hearing.  Ground 1 of the application is not made out.

Ground 2

1. The second ground of review in the application filed on 7 February 2011 is:

   The Tribunal failed to exercise its jurisdiction because it misconstrued its powers under sections 359A, 395C(2) and 360 of the Act and consequently deprived itself of receiving evidence that it was bound to take into account for the purposes of making a lawful decision.

   Particulars

   The Applicant repeats and refers to the particulars to ground 1 above.

2. For the reasons set out in relation to ground 1, ground 2 cannot succeed.

Ground 3

1. The third ground of review in the application filed on 7 February 2011 is:

   The Tribunal’s conduct raises a reasonable apprehension of bias.

   Particulars

   (a)The Tribunal’s issuing of an invitation to comment and an invitation to attend a hearing at the same time suggests that the Tribunal could not be persuaded to come to a favourable decision regardless of the Applicant’s response to the invitation to comment.

   (b)The Tribunal’s refusal to extend the time to respond to the invitation to comment to adjourn the hearing until after the Applicant’s representatives returned from Christmas leave when there was no urgency to the review was unreasonable and indicative of the Tribunal’s determination to find against the applicant.

2. The applicant was granted a subclass 573 Higher Education Sector visa on 20 August 2007.  It was cancelled on 4 August 2008.  It was alleged that the applicant had not achieved satisfactory course attendance.  The Tribunal affirmed the cancellation on 30 December 2009.  This court set aside the Tribunal’s decision on 16 September 2010.  The matter was remitted and reheard by the Tribunal differently constituted. 

3. By letter dated 1 November 2010, the reconstituted Tribunal invited the applicant to a hearing on 15 November 2010: CB185.  The applicant’s agent sought an adjournment of the hearing on the grounds that the applicant was overseas: CB187.  A Tribunal officer notified the agent by telephone that the hearing had been postponed: CB188.  It seems that a new date was not set at that time.

4. An invitation to comment and a second invitation to a hearing, both dated 13 December 2010, were sent to the applicant by fax on that day: CB201 and CB214.  The invitation to comment set 20 December 2010 as the date by which the applicant was to provide comments.  It stated that, if the applicant requested an extension of time, he should state the reasons.  The hearing invitation set 7 January 2011 as the hearing date.

5. The applicant’s agent wrote back to the Tribunal on 13 December 2010: CB217.  He sought a postponement of the hearing until the end of February 2011 because “we will not be available on 7 January 2011”.  He also sought an extension of time to provide comments, but did not give any reason for the request.  The applicant’s letter noted that the applicant would be represented by a particular barrister at the hearing and that barrister would also provide the response to the invitation to comment.  The barrister who was mentioned is not the barrister who represented the applicant at the hearing.

6. In relation to the hearing, the Tribunal replied by letter dated  15 December 2010 and sent by facsimile: CB223.  The Tribunal refused to postpone the hearing for a second time.  It said that the request had been carefully considered and:

   The hearing will not be rescheduled unless there are medical reasons.  The Tribunal does not see the need to delay this matter for such a period of time as requested.

7. In relation to the provision of a response to the s.359A letter, the Tribunal replied by letter dated 17 December 2010 and sent by facsimile: CB228. The Tribunal extended the time from 20 to 24 December 2010.

8. The test for apprehended bias is well established.  It is that, before a hearing is concluded, a fair minded and properly informed lay observer could reasonably consider that there was nothing that could be done to change the decision-maker’s view.

9. In my view, the circumstances of this case do not give rise to a reasonable apprehension of bias.  The Tribunal adjourned the hearing from 15 November 2010 to 7 January 2011 in response to the applicant’s request for an adjournment.  It was not unreasonable for the Tribunal to refuse a further adjournment for the reason offered.  There is a public interest in matters before the Tribunal being brought to a reasonably prompt conclusion, whether that be in the applicant’s favour or otherwise.

10. The Tribunal extended the time for the applicant to respond to the s.359A letter. Granted, that extension was only for four days. However, that is in the context that the applicant had not given a reason for the extension of time, had not said how long he sought for the extension, and the hearing was still scheduled for 7 January 2011.

11. It is true that the Tribunal issued on the same day both the second hearing invitation and the invitation to comment on information.  The applicant submitted that that circumstance indicated that the Tribunal could not have been persuaded to come to a favourable decision irrespective of any response to the invitation to comment.  If the response to the invitation to comment had satisfied the Tribunal’s concerns, it could have decided the matter in the applicant’s favour and cancelled the hearing.  If the response to the invitation to comment had not entirely satisfied the Tribunal’s concerns, it could have proceeded with the hearing and thus given the applicant a further opportunity to satisfy its concerns (subject to the applicant losing that right by not proving a timely response to the invitation to comment).  In the circumstances of this case, I do not consider that the issuing of the two invitations on the same day is indicative of pre-judgment.

12. This ground is not made out. 

Conclusion

1. As none of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riley FM

Date:  26 May 2011