Nayak v Minister for Immigration
[2015] FCCA 688
•26 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAYAK v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 688 |
| Catchwords: MIGRATION – Application for review of decision of the Migration Review Tribunal (MRT) – MRT decides pursuant to s.359C(2) of the Migration Act 1958 (Cth) to make a decision on the review without taking any further action to obtain the applicant’s views on the information – whether the occasion for the exercise of the power under s.359C(2) arose – whether the MRT was under a duty to exercise the power reasonably – whether the MRT exercised the power unreasonably – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.353, 353(1), 359A, 359A(1), 359A(2), 359C(1), 359C(2), 360(1), 360(2), 360(2)(c), 360(3), 379A, 379A(4), 379A(4)(c), 379C(4)(a), 441A Migration Regulations 1995 (Cth), reg.4.39 |
| Aneja v Minister for Immigration and Border Protection [2014] FCA 572 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353 City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 Dunsmuir v New Brunswick [2008] 1 S.C.R. 190 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Sharp v Wakefield [1891] AC 173 Swan Hill Corporation v Bradbury (1937) 56 CLR 746 |
| Applicant: | KRUNAL NANDKISHOR NAYAK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2961 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 16 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Respondents: | Ms S Given of Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2961 of 2013
| KRUNAL NANDKISHOR NAYAK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of India, claims the second respondent (Tribunal) made a number of jurisdictional errors in affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa (Student visa).
Although the applicant relies on five grounds, all grounds turn on whether the Tribunal was entitled to affirm, as it did, the delegate’s decision without first inviting the applicant under s.360(1) of the Migration Act 1958 (Cth) (Act) to appear before it to give evidence and present arguments. For reasons that will become apparent later in these reasons, the determination of that issue depends on the resolution of three other issues: whether the conditions for the exercise of the power under s.359C(2) of the Act were satisfied; if those conditions were satisfied, whether the Tribunal was under an obligation to reasonably exercise that power; and, if so, wether the Tribunal did exercise reasonably the power under s.359C(2) of the Act.
To properly comprehend the applicant’s grounds of review, and the issues to which they give rise, it will be necessary first to set out the events out of which the questions arise.
Events before Tribunal’s decision
On 15 June 2011 the applicant applied for a Student visa. A delegate of the Minister rejected that application on 22 December 2011 and, on 30 December 2011, the applicant applied to the Tribunal for a review of the delegate’s decision.
The approved form by which the applicant applied for review of the delegate’s decision required the applicant to state where the applicant wanted the Tribunal to “send correspondence about your application”. The form provided three choices, one of which was that the correspondence be sent to the applicant. The applicant elected that correspondence be sent to him at an address at “5/96-98 Wigram St., Harris Park, Sydney NSW 2150”.[1]
[1] CB59
The approved form of application also required the applicant to specify the applicant’s “[r]esidential address in Australia”. The applicant specified “G01/1 Griffith St., Blacktown NSW 2148” as his residential address.[2] A Tribunal case note records that on 4 January 2012 the applicant “has advised residential address as G01/1 Griffith Street, BLACKTOWN, NSW 2148”.[3]
[2] CB58
[3] CB63
According to the applicant, on 16 April 2013 he visited the Parramatta office of the Department for Immigration and Citizenship[4] (Department) to apply for a bridging visa B. The applicant says he completed a form in which he indicated an address at “4/82 Weston Street, Harris Park 2150”, and requested an officer of the Department to “update your records with my new address appearing on this form”.[5] The applicant also says that during his visit the officer from the Department said she had to ask the Tribunal about the status of the applicant’s file, and in particular “whether it is about to [be] opened or could be open very soon”.[6] The applicant deposes that he heard the officer speak to an officer from the Tribunal by telephone during which the officer from the Tribunal said it was fine for the applicant to be given a bridging visa. The applicant overheard the Departmental officer also say “there is new address to change”. The Departmental officer then handed the telephone to the applicant, and the applicant had a conversation with the Tribunal officer. The Tribunal officer asked the applicant for details of his new address. After providing those details, the applicant said to the Tribunal officer:[7]
I am sending letter as why I am going and my air tickets and bridging visa which would have my new address. I will also provide you with an email address for contact whilst I am overseas. Please use this new address or email to contact me.
[4] As the Department of Immigration and Border Protection was then known.
[5] Applicant’s affidavit 5.06.14, [8]-[9]
[6] Applicant’s affidavit 05.06.14, [10]
[7] Applicant’s affidavit 11.06.15, [13]
There is a Tribunal case note that is consistent with the applicant’s recollection of his conversations at the Parramatta office of the Department. The case note records:[8]
DIAC phoned, RA [review applicant] has seriously ill family member, wishes to travel for 3 months from 28 April 2013. RA to provide details in writing, also an email address for any possible Tribunal contact.
[8] CB64
The applicant’s evidence that on 16 April 2013 he informed the Department of a new address at “4/82 Weston Street, Harris Park 2150” is supported by a letter dated 16 April 2013 the Department sent to the applicant, confirming the granting to the applicant of a bridging visa. The letter is addressed to the applicant at “4/82 Weston Street, Harris Park NSW 2150”.[9]
[9] CB99
The applicant sent an undated letter to the Tribunal which the Tribunal received on 23 April 2013 (23 April letter).[10] In that letter the applicant informed the Tribunal the applicant’s brother was ill and he requested the Tribunal give the applicant time to visit his brother in India. The letter continued:
[10] CB66
Sir If you want to contact me, I can give you my E-mail add and phone number which are bellows [sic].
E-mail: [the applicant included here an email address]
Phone No: [the applicant included here one Australian mobile telephone number and two Indian telephone numbers]
Add: G01/1, Griffiths st [sic], Blacktown, NSW 2148
NayakNi Khadki, Kalyanpura, Kalol, Gujarat. 382721
A Tribunal case note dated 23 April 2013 records the Tribunal had received a letter from the applicant stating that he wished to travel.[11] The case note further records the applicant “gave an email and phone number for us to contact him during his stay in India”. The note then set out the email address the applicant described in his letter. On the envelope in which the applicant sent the 23 April letter, the applicant was noted as the sender, but the address of the applicant was “Unit 6, 17-21 Bruce Street, Blacktown, Sydney NSW 2148”.[12]
[11] CB65
[12] CB97-98
The applicant departed Australia on 25 April 2013 and returned on 6 June 2013.[13] In the meantime, on 29 April 2013, the Tribunal received an undated fax (29 April fax) purportedly from the applicant which stated:[14]
[13] Applicant’s affidavit, 07.07.14, annexure “KN1-1”
[14] CB71
Please find enclosed updated detail of my client;
1.Address: G01/1 Griffith Street, Blacktown, NSW 2148
2.Contact number: [mobile number]
Thanking you
Krunal Nayak
The applicant has deposed he did not send this fax to the Tribunal.[15] The applicant’s evidence was not challenged in cross-examination.
[15] Applicant’s affidavit, 05/06/14, [32]
On or about 27 September 2013 the Tribunal sent by registered post a letter to the applicant.[16] The letter was addressed to the applicant at “G01/1 Griffith Street, Blacktown NSW 2148”. In its letter the Tribunal identified various particulars of information, and noted that the information was relevant to the applicant’s application for review to the extent that it might lead the Tribunal to affirm the delegate’s decision. The information of which the Tribunal gave particulars included information that the applicant was not enrolled in any course. The Tribunal stated that this information may indicate the applicant is not a genuine applicant for entry and stay in Australia as a student and, therefore, might lead the Tribunal to conclude the applicant did not satisfy cl.572.223(1) of Schedule 2 to the Migration Regulations 1995 (Cth). The letter stated that the applicant was “invited to give comments on or respond to the above information in writing”.
[16] CB76-78
The Tribunal’s letter was not claimed and, shortly after 17 October 2013, it was returned to the Tribunal. The Tribunal, presumably relying on s.359C(2) and s.360(2) of the Act, “determined to proceed to a decision on the information available”.[17] On 24 October 2013 the Tribunal made a decision affirming the delegate’s decision. The Tribunal sent its decision to the applicant by registered post again addressed to “G01/1 Griffith Street, Blacktown NSW 2148”, but the envelope containing the decision was returned to the Tribunal.[18]
[17] CB84, [9]
[18] CB86
Events after Tribunal’s decision
For reasons that will appear later, what occurred after the Tribunal’s decision is relevant to the credibility of the applicant’s evidence that he did not send the 29 April fax to the Tribunal.
The applicant deposes that at about 1 pm to 2 pm on 4 November 2013 he telephoned the Tribunal to enquire about the status of his review application. The applicant was informed the Tribunal had already made its decision, and that its decision had been sent to the applicant on 25 October 2013.[19] The applicant was informed the decision was sent to him at G01/1 Griffith Street, Blacktown.[20] The applicant deposes that the following words were then spoken:[21]
Applicant:I haven’t got any letter and/or call or email for that how come you say that my decision has been made already?
Officer:It’s been send [sic] to you at G01/1 Griffiths St, Blacktown. Please go quickly to collect it; if it’s not there, it’s [sic] must be at local Post Office.”
[19] Applicant’s affidavit, 05.06.14, [21]
[20] Applicant’s affidavit, 05.06.14, [21]
[21] Applicant’s affidavit, 05.06.14, [22]
An officer of the Tribunal prepared a case note which confirmed the applicant’s evidence that he telephoned the Tribunal on 4 November 2013:[22]
The applicant called regarding a new address for correspondence. I noted that we would typicaly [sic] require a notice in writing but he could tell me over the phone and he noted the following – Unit Number 54, 31-35 Third Avenue, Blacktown, 2148 NSW. I noted that the case had been finalised and that the decision had been posted to his previous address. I noted that it was sent on 25/10/2013 and that he should attend his old local post office to collect it. I stated that if there were any issues he should call after checking.
[22] CB87
The case note does not entirely match the substance of the applicant’s account of the telephone conversation. The case note does not record the applicant inquiring about the status of his case; it records the applicant called regarding a new address for correspondence. The applicant, in his evidence, does not refer to his making any such inquiry. Further, the case note does not record the applicant asking how the Tribunal officer could say the decision had already been made in view of the applicant’s not having been notified.
According to the applicant, the following then occurred:
a)The applicant telephoned the Tribunal again and requested that the Tribunal’s decision be sent to him by email. He “told the staff member that I went both place and found nothing”.[23]
b)After he received the Tribunal’s decision by email, the applicant went to see his migration agent who advised him to “go to MRT for explanation”, noting that if the applicant advised the Tribunal to change his address the Tribunal “should explain why the correspondence was not sent in the manner you had instructed them to”.[24] The applicant deposes that the name of his migration agent is “Prashant Nayak”.[25]
c)The applicant then called a Tribunal officer “to ask for the reason I had not informed any other way when I already had been updated my detail”. The Tribunal officer said, according to the applicant, that if the applicant had “updated please bring it to me, we may open the file again because I haven’t got any of letter that says that you changed your address or any explanation letter”.[26] The applicant deposes he “then sent copy of the file that was kept with me”.[27]
[23] Applicant’s affidavit, 05.06.14, [23]
[24] Applicant’s affidavit, 05.06.14, [24]
[25] Applicant’s affidavit, 05.06.14, [24]
[26] Applicant’s affidavit, 05.06.14, [25]
[27] Applicant’s affidavit, 05.06.14, [26]
There is in evidence case notes prepared by officers of the Tribunal recording conversations with the applicant that do not coincide with the applicant’s account. According to those case notes, the following occurred:
a)At around 3 pm on 4 November 2013 the applicant telephoned the Tribunal and requested a copy of the Tribunal’s decision be emailed to him.[28] The Tribunal emailed the decision at 14:59 on 4 November 2013.[29]
b)At around 11:17 on 5 November 2013 the applicant telephoned the Tribunal and inquired if he could submit documentation and have it considered. The officer noted the Tribunal had finalised the case and that was no longer possible. The officer suggested that the applicant’s next move would be to get in touch with the Department and discuss his options.[30]
c)On 22 November 2013 the applicant telephoned the Tribunal. The case note records:[31]
The applicant called regarding his case and an updated change of address. They stated that they submitted documentation on 23/4/2013 via post outlining a change of address. I looked at the file and noted a submission made 29/4/2013 with a change of address which was then used for correspondence. I noted that if they had information that was contradictory to that then they are welcome to submit it. I then stated that if they wished then they should discuss the matter with a legal professional to understand his options at this point.
d)On 25 November 2013 the applicant contacted the Tribunal “wanting to explain his refusal decision from the tribunal and how he had not received any letters from the tribunal and was advised by his case officer that the letters had been returned to the tribunal as returned to sender”. The applicant asked if he could submit an explanation. The officer said he could but said there was “no guarantee that the member will reopen the case”.[32]
e)On 25 November 2013 the applicant attended the Tribunal registry. The case note records:[33]
RA came to counter, said had not put in the COA of G01/1 Griffith St. Blacktown on 29/04/13 - he was overseas at the time, said may have come from DIAC. RA said had put in a COA on 23/04/213 [sic] to: 4/82 Weston St. Harris Park NSW 2150. File unable to be found. I asked RA to send in copy of COA.
[28] CB88
[29] CB89
[30] CB90
[31] CB91
[32] CB92
[33] CB93
The last case note appears to refer to the 29 April fax.
On 26 November 2013 the applicant sent an email to the Tribunal attaching what the applicant stated was a letter that “was almost similar what I sent you on 23/04/2013”.[34] The letter the applicant attached to his email[35] is quite different from the letter the Tribunal received on 23 April 2013.[36] One significant difference is that the applicant did not include G01/1 Griffiths Street, Blacktown, NSW 2148 as the address, but instead included “4/82 Weston st Harris Park 2150”.
[34] CB94
[35] CB95
[36] CB66
On 26 November 2013 the Tribunal sent the following email to the applicant:[37]
[37] CB96
Your file has been found.
Attached is a copy of a letter you sent to the Tribunal on 23 April 2013.
The envelope of the letter has a Bruce St. Blacktown address.
Part 2 of the letter is the Bridging Visa grant with a Weston St. Harris Park address
Part 1 shows a notification of address from yourself of: G01/1 Griffiths St. Blacktown NSW 2148.
This was the address that all correspondence was sent to you, from 23/04/2013.
You have been notified of all correspondence correctly, as this was the last address you provided to the Tribunal.
I find that the letter referred to in the third sentence of the Tribunal’s email is intended to refer to the 23 April letter. The reference to “[p]art 2 of the letter” is a reference to the Department’s letter dated 16 April 2013 notifying the applicant of the Department’s decision to grant the applicant a bridging visa.[38] And the reference to “[p]art 1” is also a reference to the 23 April letter.
[38] CB99
Grounds of application
As I say at the beginning of these reasons, the applicant relies on five grounds of review. These are as follows.
a)The Tribunal denied the applicant procedural fairness in breach of s.360 of the Act when the applicant was denied the opportunity to appear before and present arguments to the Tribunal.[39]
b)The Tribunal failed to serve the applicant with an invitation to comment and other documents in accordance with s.441A of the Act.[40]
c)The Tribunal failed to carry out its statutory duties when it was under a duty to make further enquiries to ensure that the applicant could participate in the review process.[41]
d)The Tribunal constructively failed to exercise its jurisdiction as a result of third party fraud owing to some unknown person purporting to be a migration agent of the applicant changing the address for service. This ground relates to the 29 April fax.[42]
e)The Tribunal’s decision not to invite the applicant to appear was unreasonable in the legal sense.[43]
[39] Ground 1
[40] Ground 2. This appears to be an error. Section 441A applies to the Refugee Review Tribunal. An equivalent provision applies to the Tribunal, and that is s.379A of the Act.
[41] Ground 3
[42] Ground 4
[43] Ground 5
The five grounds of review on which the applicant relies give rise to three issues: was the power conferred by s.359C(2) of the Act engaged? If engaged, was the Tribunal obliged to exercise that power reasonably? If so, did the Tribunal fail to exercise the power reasonably?
Was s.359C(2) of the Act engaged?
Whether or not s.359C(2) of the Act was engaged requires me first to set out the relevant statutory provisions.
Statutory provisions
Under s.360(1) of the Act the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. That obligation, however, is qualified by s.360(2)(c) of the Act: s.360(1) of the Act does not apply if s.359C(1) or (2) apply to the applicant.
Subsection 359C(2) provides that if an applicant is invited under s.359A of the Act to comment on or respond to information, and the applicant 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, if, because of s.359C(2), the Tribunal is not required to invite an applicant under s.360(1) to appear before it to give evidence and present arguments, s.360(3) provides that the applicant is not entitled to appear before the Tribunal.
Subsection 359A(1) of the Act applies when the Tribunal considers there is information that would be the reason, or a part of the reason, for affirming the decision under review. Where the Tribunal considers there is such information, the Tribunal must do three things: it must give to the applicant, in the way the Tribunal considers appropriate in the circumstances, clear particulars of the information; it must ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the Tribunal’s relying on it in affirming the decision under review; and it must invite the applicant to “comment on or respond to” the particulars of the information the Tribunal gives to the applicant. Further, when s.359A(1) applies, and where the applicant is not in detention, s.359A(2) of the Act provides that the Tribunal must give to the applicant the information and invitation by one of the methods specified in s.379A of the Act.
One of the methods is specified in s.379A(4) of the Act. Where the person is not a minor, that method consists of four elements:
a)the Registrar, a Deputy Registrar or another officer of the Tribunal must date the document;
b)such officer must then dispatch the document within three working days of the date of the document;
c)the document must be dispatched by prepaid post or by other prepaid means; and
d)the document must be dispatched to one of two addresses, namely:
i)the last address for service provided to the Tribunal by the recipient in connection with the review, or
ii)the last residential or business address provided to the Tribunal by the recipient in connection with the review.
What is the issue?
The parties do not disagree the Tribunal intended to prepare and send to the applicant the letter dated 27 September 2013 pursuant to s.359A of the Act. The parties accept the letter gave particulars of the information the Tribunal considered may be the reason or a part of the reason for affirming the delegate’s decision; that by drafting and sending the letter, the Tribunal ensured as far as was reasonably practicable, that, if the applicant read the letter, he would understand why the information would be relied on in affirming the delegate’s decision; and that the letter contained an invitation to the applicant to “comment on or respond to” the particulars of the information identified in the letter. The issue between the parties is whether, by posting the letter to the applicant at “G01/1 Griffith Street, Blacktown NSW 2148”, the Tribunal gave the letter to the applicant according to the method specified in s.379A(4) of the Act. That issue turns on whether “G01/1 Griffith Street, Blacktown NSW 2148” is either the last address for service the applicant provided to the Tribunal in “connection with the review”, or the last residential or business address the applicant provided to the Tribunal in “connection with the review”.
This issue, as I have framed it, assumes that where a person has provided to the Tribunal an address for service “in connection with the review” and has provided to the Tribunal a residential or business address “in connection with the review” which is different from the address for service, the Tribunal will give a document to the person if the Tribunal posts the document only to one of those addresses. That follows from the word “or” appearing between the two addresses to which s.379A(4) provides the Tribunal is permitted to post the document.
Was the Tribunal entitled to send the letter to the Griffith Street address?
A useful way to approach this question is by considering chronologically the evidence of the applicant’s notification of addresses to the Tribunal.
First, there is the form of application for review. The applicant recorded two addresses – one as the address to which correspondence about the application should be sent, and one - “G01/1 Griffith St., Blacktown NSW 2148” - as the applicant’s residential address in Australia. If that is the only information that was available to the Tribunal at the time it sent the letter dated 27 September 2013, the Tribunal would have been entitled to send the letter to “G01/1 Griffith St., Blacktown NSW 2148” because that would have been the last residential address the applicant would have provided to the Tribunal in connection with the review.
The second item of evidence, or class of evidence, relates to the applicant’s attending the Department’s Parramatta office on 16 April 2013. He there provided to the Department a new address for service, namely, 4/82 Weston Street, Harris Park. The applicant asserts that this is the address to which the Tribunal should have sent its letter dated 27 September 2013.[44] I cannot accept that assertion. The applicant provided this address in connection with his application for a bridging visa; he did not provide that address in writing to the Tribunal or, if he did, he did not provide it in connection with his application for review. Further, the applicant did not provide that address in the 23 April letter.
[44] Applicant’s affidavit 05.06.14, [32]
The third item of evidence is the 23 April letter. The Minister submits that this letter arguably constituted the lodgement by the applicant of “a new address for service” in the review within the meaning of reg.4.39 of the Migration Regulations 1995 (Cth) (Regulations). Under that regulation, the expression “lodge an address for service” in relation to an applicant for review is defined to mean the giving of notice to the Tribunal “in writing of an address at which documents relating to a review may be sent to the applicant”.
It is doubtful the 23 April letter constituted the lodgement of “a new address for service” within the meaning of reg.4.39 of the Regulations. The regulation refers to the giving of “an” address for service. The 23 April letter, however, gives two addresses, one in Australia – “G01/1 Griffiths St. Blacktown NSW 2148” - and one in India. It also provides an email address. If reg.4.39 is to be construed as permitting the notification of more than one address for service, then the 23 April letter provided the Tribunal with at least two addresses for service. In my opinion, the better view is that the 23 April letter did not constitute the lodgement of a new address for service.
There is another aspect of the 23 April letter that bears on its being a notification of a new address for service. The applicant provided the addresses and email address in connection with his informing the Tribunal he was travelling to India. In my opinion, the applicant provided those addresses as addresses at which he could be contacted while he was in India. If, therefore, the 23 April letter constituted the lodgement of a new address for service, the addresses the applicant provided were addresses for service only during the period for which the applicant was in India.
Finally, I turn to the 29 April fax. The applicant deposes he did not send that fax, and he did not authorise anyone else to send the fax to the Tribunal on his behalf. He says he is “uncertain where the fax originated from whilst” he was in India.[45]
[45] Applicant’s affidavit 05.06.14,[32]
Although the applicant was cross-examined, he was not cross-examined about this aspect of his evidence. That does not mean, however, I must accept the applicant’s evidence. Whether or not a court or administrative tribunal is bound to accept uncontradicted evidence that has not been the subject of cross-examination has been considered in a number of cases. A leading authority is Ellis v Wallsend District Hospital where the New South Wales Court of Appeal rejected the proposition that a trial judge makes an error if he or she does not act on evidence that was not challenged in cross-examination.[46] Samuels JA said the following:[47]
In a later case, Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 507, in a judgment in which Hutley and Priestley JJA agreed, I said: “. . . While I do not think that it would be right to conclude that the absence of cross-examination entails the acceptance of the evidence given, it certainly enables that evidence to be regarded by any tribunal of fact with a greater degree of assurance than might otherwise have been the case.”
However in Levinge v Director of Custodial Services (1987) 9 NSWLR 546, McHugh JA. . . at 560 said: “The rule in Browne v Dunn . . . prevents a court from refusing to act on or disbelieving evidence which has not been the subject of cross-examination. However, one exception to the rule in Browne v Dunn is the case where the evidence is inherently improbable: cf Precision Plastics Pty Ltd v Demir...”
It is not entirely clear to me whether his Honour intended to advance a rule of law or merely to emphasise that in many cases it may be wrong, unreasonable or perverse to reject unchallenged evidence. If the former, then, with every respect, I cannot regard that view as correct or consistent with Australian authority.
[46] (1989) 17 NSWLR 553
[47] (1989) 17 NSWLR 553 at 587-588
There are authorities that have held that where testimony is unchallenged and is not inherently improbable, the tribunal of fact can only reject the evidence with reason. For example in Hardy v Gillette the Court said:[48]
“On general principles, where uncontradicted evidence, which is inherently reasonable, probable, and conclusive of the matter, has been given, the court is bound to accept it.”
[48] [1976] VR 392 at page 396
It is highly improbable that the 29 April fax was written without the knowledge of the applicant. The fax specifies the case number the Tribunal assigned to the applicant’s matter, it identifies the applicant’s date of birth and the applicant’s mobile telephone number, and it includes as an address the address the applicant specified as his residential address in the form of application for review. To the extent the applicant intends to say he did not compose the 29 April fax or that he was unaware of who composed the 29 April fax, I do not accept that evidence.
Additionally, according to the case note of the applicant’s conversation with a Tribunal officer on 25 November 2013, the applicant suggested the 29 April fax may have been sent to the Tribunal by the Department. There is no evidence, however, the applicant provided the fax to the Department. That is not surprising. The 29 April fax only refers to the applicant’s application for review before the Tribunal. There would have been no reason for the applicant to provide the fax to the Department. There is also no evidence that the applicant provided to the Department the address “G01/1, Griffith Street, Blacktown, NSW 2148”. In his application for a Student visa the applicant nominated an address in Sarsfield Street, Blacktown, as his residential address in Australia and as his address for correspondence;[49] and the delegate posted the decision refusing the grant of a Student visa to the address in Sarsfield Street, Blacktown.[50] For these reasons alone, I do not accept the applicant did not send the 29 April fax to the Tribunal.
[49] CB2
[50] CB45
Even if the Tribunal received the 29 April fax from the Department, the only inference that can be drawn from its contents is that the author intended the fax to be delivered to the Tribunal. Its only apparent purpose was to inform the Tribunal of the applicant’s change of address for service. That purpose was achieved because the 29 April fax reached the Tribunal, the intended destination.
There are two additional, and separate reasons, I do not accept the applicant’s evidence he did not send or cause to be sent the 29 April fax to the Tribunal. First, in his email to the Tribunal on 26 November 2013 to which I refer in paragraph 23 of these reasons, the applicant reproduced what the applicant said “was almost similar [to] what I sent you on 23/04/2013”.[51] What the applicant reproduced was a letter that did not include “G01/1, Griffiths st, Blacktown, NSW 2148”, but instead included “4/82 Weston st Harris Park 2150”. I do not make any finding that in his email of 26 November 2013 the applicant wilfully stated that in the 23 April letter he provided the “4/82 Weston st Harris Park 2150” address rather than the “G01/1, Griffiths st, Blacktown, NSW 2148” address. However, the error is of such magnitude that it prevents me from accepting the applicant’s evidence on any matter without the support of evidence that is independent of the applicant.
[51] CB94
Second, the applicant, in his account of his dealing with the Tribunal, does not refer to the Tribunal officer mentioning to the applicant that on 29 April 2013 the Tribunal had received a change of address. According to the Tribunal case note, on the other hand, the Tribunal officer informed the applicant of that matter on 22 November 2013. The Tribunal case note does not record any statement from the applicant that he was not aware of any change of address having been received by the Tribunal on 29 April 2013. That is so even though, according to the case note, the Tribunal officer “noted that if they had information that was contradictory to that then they are welcome to submit it”. Further, the applicant does not say anything in the email he sent the Tribunal on 26 November 2013 about the Tribunal’s having received a change of address on 29 April 2013. The only thing the evidence reveals the applicant said about that topic is what is recorded in the Tribunal case note of 25 November 2013; and he there only said that the change of address may have come from the Department.[52]
[52] CB93
Counsel for the applicant submitted that the 29 April fax was a fraud on the applicant. Given the findings I have made in relation to the fax, I do not accept that submission. Counsel for the applicant also submitted that the 29 April fax is unsigned. Reg.4.39 only requires a change in address for service to be in writing; it does not require the writing to be signed.
I find the 29 April fax constituted the lodgement by the applicant of a new address for service within the meaning of reg.4.39 and, for that reason, the Tribunal was entitled to send its letter dated 27 September 2013 by post to the address specified in the 29 April fax, namely “G01/1, Griffith Street, Blacktown, NSW 2148”. Even if, however, the 29 April fax was not sent by the applicant, and could not otherwise be treated as the lodgement of a change in address for service, given that I have found the 23 April letter did not constitute the lodgement of a new address for service, the Tribunal was entitled to send its letter to the address the applicant stated in the form of application to be the applicant’s residential address in Australia, namely “G01/1 Griffith st., Blacktown, NSW”. Finally, the position would be the same even if the 23 April letter constituted a change in address for service because that letter nominated “G01/1, Griffiths st, Blacktown, NSW 2148” as one of the addresses at which correspondence may be sent to the applicant.
It follows, therefore, that, because of s.379C(4)(a) of the Act, the applicant is deemed to have received the Tribunal’s letter dated 27 September 2013 seven working days after the date of the letter. Given the date of the letter is 27 September 2013, the applicant is deemed to have been given the letter seven working days after that date, namely, on 8 October 2013.
In its letter dated 27 September 2013 the Tribunal specified 23 October 2013 as the date by which the applicant should respond. The applicant did not respond by that day, or at all. The consequence of that is that the occasion had arisen for the Tribunal to consider whether it should make a decision on the review without taking any further action to obtain the information. The Tribunal did make that decision. If it was entitled to so decide then, under s.360(2) of the Act, the Tribunal was not required to invite the applicant under s.360(1) of the Act to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review; and, because of s.360(3) of the Act, the applicant was not entitled to appear before the Tribunal.
Duty to reasonably exercise power under s.359C(2)?
Subsection 359C(2) of the Act applies when the Tribunal invites an applicant to comment on or respond to particulars of information the Tribunal has given to the applicant under s.359A of the Act, and the applicant had not given comments or provided a response within the time the Tribunal specified in its invitation. If that occurs, the Tribunal has a choice: it may make a decision on the review without taking any further action to obtain the applicant’s views on the information; or, the Tribunal may take further action to obtain the applicant’s views. In other words, the Tribunal has a discretion about whether it should or should not take further action to obtain the applicant’s views on the information. One consequence of s.359C(2) being a discretionary power is that the legislature is taken to have intended that it will be exercised reasonably.[53] What does that mean? To answer that question, it is necessary to note some preliminary matters.
[53] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at page 362 ([63]) (Hayne, Kiefel, and Bell JJ)
First, “reasonableness” is a standard.[54] One set of related meanings of “standard” is a “rule, principle, or means of judgement or estimation; a criterion, measure”.[55] Reasonableness, as a standard in this sense, is employed in many areas of law to describe the conduct a person must follow to avoid a legal liability. Standing alone, however, the expression “reasonableness” has no content. A court gives it content in particular litigious contexts for the purpose of applying a legal rule that requires the court to assess a person’s conduct by reference to the standard of reasonableness. In that sense, reasonableness is a kind of fact – it is something a court must explicitly find is the standard against which a particular person’s conduct in a particular case is to be measured for the purposes of the application of a particular legal rule. Such facts are sometimes referred to as “normative facts”.[56] To say, therefore, that a decision-maker is under an obligation to reasonably exercise a statutory power in the particular circumstances of a case presupposes the formulation of a rule of conduct that a decision-maker who is authorised to exercise the power ought to follow in the circumstances of that case.
[54] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at, among other places, [63], [66], [67] (Hayne, Kiefel, and Bell JJ)
[55] Oxford English Dictionary, online, accessed on 13 March 2015.
[56] D A Binder and P Bergman Fact Investigation From Hypothesis to Proof West Publishing Co 1984, pages 6-7: “Sometimes, disputes . . . involve what might be termed “normative facts” and/or “legislative facts.” In such cases, factfinders are called upon not only to determine what occurred in the past in relation to the parties, but also to determine the criteria to be used in judging the past events.”
Second, the rule of conduct a decision-maker ought to follow in any given case to discharge a duty to exercise a statutory power reasonably is directed to two classes of conduct. One is the outcome of the exercise of the power; in other words, the decision itself. The other is the reasoning the decision-maker employs in arriving at the decision. The duty to exercise a power reasonably, therefore, presupposes a rule that specifies the type of decisions a decision-maker may or may not make in the circumstances of a particular case; or the reasons for which the decision-maker may make or not make those decisions; or both.
This distinction was recognised by the Full Federal Court in Minister for Immigration and Border Protection v Singh where the Court referred to: [57]
the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of the power.
[57] (2014) 308 ALR 280 at page 290 ([47]) (Allsop CJ, Robertson and Mortimer JJ).
The distinction was also recognised in the reasons for judgment of Bastarache and LeBel JJ of the Supreme Court of Canada in Dunsmuir v New Brunswick:[58]
A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[58] [2008] 1 S.C.R. 190 at page 220-221 ([47]). In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at page 375 ([105]), Gageler J quoted part of this passage with approval.
Third, the standard of reasonableness a decision-maker should follow in any given case is always a rule of conduct that is derived from two sources. The first is the subject matter, scope, and purpose of the statutory power pursuant to which the decision in question is made, properly construed. The second source is the facts relevant to the proper exercise of the statutory power that were known to or which ought reasonably to have been known to the decision-maker. It is only after the subject matter, scope, and purpose of the statutory power have been ascertained, and after the relevant facts have been identified, that a court is in a position to formulate the decisions the decision-maker ought to have made or ought not to have made, and the reasons for which the decision could or could not have been made.
Fourth, the conduct in any given case that would satisfy the standard of reasonableness is the conduct that would be undertaken by a hypothetical decision-maker, given the subject matter, scope and purpose of the statutory power in question, and the facts relevant to the proper exercise of the power known or which ought reasonably to have been known to the decision-maker. The hypothetical decision-maker has been given different names, and the conduct the decision-maker should undertake or not undertake have been described in different ways. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation[59] Lord Greene MR referred to the hypothetical decision-maker as the “reasonable authority”, and the conduct such decision-maker would not undertake as conduct that is “so unreasonable that no reasonable authority could ever come to it”. In Sharp v Wakefield the hypothetical decision-maker was described as “an honest man competent to the discharge of his office”, and the only decision he was held capable of making was one that fell “within the limit, to which an honest man competent to the discharge of his office ought to confine himself”.[60] And in Secretary of State for Education and Science v Tameside Metropolitan Borough Council Lord Diplock referred to the hypothetical decision-maker as a “sensible authority acting with due appreciation of its responsibilities”, and the conduct such decision-maker could not take is conduct that no “sensible authority acting with due appreciation of its responsibilities” could have taken.[61] Further, conduct that is unreasonable has been described in other ways. Unreasonableness will be present if there is an “arbitrariness about the decision”,[62] or where the decision is one that “lacks an evident and intelligible justification”,[63] or where the decision does not fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.[64]
[59] [1948] 1 KB 223
[60] Sharp v Wakefield [1891] AC 173 at page 179 referring to Wilson v. Rastall 4 T. R. at p. 757
[61] Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at page 1064
[62] In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at page 352, [31] (French CJ)
[63] In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at page 367, [76] (Hayne, Kiefel and Bell JJ)
[64] Dunsmuir v New Brunswick [2008] 1 S.C.R. 190 at page 220-221 ([47]) quoted with approval by Gageler J in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at page 375, [105]
Fifth, the standard of reasonableness, once formulated in a given case, rarely requires the decision-maker to make a particular decision, or to make a particular decision for a particular reason or for particular reasons. In most cases, the standard, when formulated, assumes that, in the circumstances of the particular case, there is a range of decisions it is permissible for the decision-maker to make, and a range of reasons for which it is permissible to make those decisions. Generally, courts do not identify each of the decisions it is permissible for the decision-maker to have made, or the reasons for which a decision-maker could make decisions. The application in any given case of the principle that a decision-maker must reasonably exercise a statutory discretion is manifested by a court making one of two findings. One is that the decision the decision-maker made, or the reasons for which the decision-maker made the decision, was a decision it was open to the decision-maker to make, or were reasons for which the decision-maker could rely for making the decision. The other is that the decision was not one it was open to the decision-maker to make, or the reasons on which the decision-maker relied were not reasons on which it was open for the decision-maker to rely.
This feature of the standard of reasonableness – that it usually assumes that, in any given case, there is a range of decisions a decision-maker may permissibly make, and a range of reasons for which the decision-maker may permissibly make those decisions – reflects the nature of discretionary power. In general terms “discretion”:[65]
refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”
[65] Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 at page 204-205 ([19]) (per Gleeson CJ, Gaudron and Hayne JJ)
It also reflects the legitimacy of discretionary power in our system of government. As Dixon J (as his Honour then was) observed in Swan Hill Corporation v Bradbury,[66] legislatures may leave the ambit of discretion undefined because:
legislative foresight cannot trust itself to formulate in advance standards that will prove apt and sufficient in all the infinite variety of facts which may present themselves. On the other hand, it may be because no general principles or policy for governing the particular matter it is desired to control are discoverable, or, if discovered, command general agreement.
[66] (1937) 56 CLR 746 at page 757
Sixth, the standard of reasonableness applies to statutory powers that are not discretionary in the sense discussed above. A familiar example is statutory powers whose proper exercise depends on the decision-maker’s being satisfied that certain facts and circumstances exist. In these cases, the decision-maker’s state of satisfaction is a jurisdictional fact.[67] That state of satisfaction, however, must be arrived at reasonably.[68]
[67] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at page 998, [37]-[38] (Gummow and Hayne JJ)
[68] R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at page 432 (Latham CJ); City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at page 150 ([34]) (Gleeson CJ, Gummow, Kirby and Hayne JJ)
Seventh, the operation of the standard of reasonableness has the potential to overlap with the operation of other distinct grounds for invalidating the purported exercise of a statutory power. If for no other reason than clarity of analysis, the scope of the standard of reasonableness as a ground affecting the lawfulness of the exercise of a particular statutory power should be distinguished from the scope of these other distinct grounds. And there are two grounds that should particularly be distinguished.
One is the central principle that a discretionary power, however broadly conferred, must be exercised for purposes that fall within the subject matter, scope and purpose of the statutory provision conferring the discretionary power. An apparently unreasonable exercise of a power may indicate that the decision-maker did not understand the statutory tasks the decision-maker was required to undertake. Here, the ground for which the power may be held to have been invalidly exercised would not be unreasonableness per se; it would be the decision-maker’s failure to correctly undertake the statutory task required of him or her. The decision-maker’s failure to comply with the relevant standard of reasonableness would only serve as a basis for inferring that the decision-maker failed to correctly understand the statutory tasks he or she was required to undertake.[69]
[69] See Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353 at page 360
Irrationality is the second ground that may potentially overlap with unreasonableness. It is natural these two grounds should have the potential for being confused with each other. Irrationality, as a ground of review concerns a particular subject of reasoning, namely, the inferring of facts and conclusions on the basis of other facts or conclusions. Outside the rather limited field of deductive reasoning, the drawing of inferences is itself largely based on standards of reasonableness. Nevertheless, if, as appears to be the case, reasonableness is a distinct ground for reviewing the exercise of a statutory power, the scope of unreasonableness should be considered to be distinct from that of irrationality.
One suggested scope of the unreasonableness ground of review is that recently offered by Professor Craig in his paper “The Nature of Reasonableness Review”:[70]
[R]easonableness is concerned with review of the weight and balance accorded by the primary decision-maker to factors that have been or can be deemed relevant in pursuit of a prima facie allowable purpose. This is what reasonableness review is about and if it were not about this it would have no role.
[70] Downloaded from on 14 March 2015, published in (2013) Current Legal Problems 1 at page 2
Although elements of this approach are reflected in the judgments in Minister for Immigration and Citizenship v Li,[71] no case in Australia has attempted to demarcate on this basis the boundaries of the unreasonableness ground of review, and its relationship with other grounds of review concerning the exercise of discretionary powers.
[71] (2013) 249 CLR 332
Having considered these preliminary matters, the elements of the unreasonableness ground of review may now briefly be stated as follows.
a)The unreasonableness ground of review applies where a decision-maker is under an obligation to exercise a particular statutory power reasonably.
b)The obligation to reasonably exercise a statutory power is an obligation to conform to a particular standard of conduct in terms of the decisions that may be made in the exercise of the statutory power, and in terms of the reasons for which those decisions may be made.
c)The particular standard of conduct that must be followed is that which would be followed by a reasonable decision-maker who is aware of the subject matter, scope and purpose of the statutory power pursuant to which the decision is made, properly construed, and who is also aware of the facts relevant to the proper exercise of the statutory power which were known or which ought reasonably to have been known to the decision-maker who in fact exercised or who purported to exercise the statutory power in question.
d)The exercise or purported exercise of a statutory power will be held to have been exercised unreasonably if:
i)the decision is one that would not fall within the range of decisions that a reasonable decision-maker would make, given the subject matter, scope and purpose of the statutory power, and knowledge of the facts and circumstances that were known, or which ought reasonably to have been known by the actual decision-maker in question; or
ii)the decision is one that is arbitrary or which lacks an evident and intelligible justification.
Did the Tribunal act unreasonably?
Having explored the nature of the unreasonableness ground of review, I now consider whether the Tribunal’s decision (Decision) to make a decision on the review without taking any further action to obtain the information the Tribunal by its letter dated 27 September 2013 invited the applicant to provide was unreasonable. To answer that question, it is necessary to consider the following questions:
a)What is the subject matter, scope and purpose of s.359C(2)?
b)What was the information relevant to the exercise of the power under s.359C(2) of which the Tribunal was aware or of which the Tribunal ought reasonably to have been aware, at the time it made the Decision?
c)Is the Decision one that falls within the range of decisions a reasonable decision-maker could have made, assuming the decision-maker was aware of the subject matter, scope and purpose of s.359C(2), properly construed, and was possessed of the information of which the Tribunal knew or ought reasonably to have known at the time it made the Decision?
Subject matter, scope, and purpose of s.359C(2) of the Act
The subject matter of s.359C(2) of the Act is the making of a decision on a review without the Tribunal’s taking any steps to obtain an applicant’s comments on information the Tribunal had previously identified in an invitation the Tribunal gave to the applicant under s.359A of the Act. The scope of s.359C(2) is limited: it empowers the Tribunal to make a decision on a review where the Tribunal has not received an applicant’s views on such particulars of information in response to the invitation the Tribunal gave the applicant under s.359A(1) of the Act in the manner prescribed by the Act.
What of the purpose or purposes of the power conferred by s.359C(2)? One purpose is readily apparent; and that is to permit the Tribunal to complete a review in a timely manner. The power conferred by s.359C(2) eliminates as a potential cause of delay an applicant’s not responding to an invitation under s.359A(1) within the time the Tribunal specified in the invitation. This way s.359C(2) supports one of the aims s.353(1) of the Act identifies the Tribunal should pursue when undertaking a review, namely, quickness.
This purpose must be considered in the light of another purpose manifested by the Act, and which supports the purpose of quickness in the disposition of applications for review. That purpose is to provide certainty in the means by which the Tribunal may be taken to have communicated with an applicant for the purposes of a review. This purpose is to be inferred from the requirement under s.359A(2) of the Act that a notice under s.359A(1) must be given in the manner prescribed by s.379A of the Act.
But quickness, per se, and certainty of the means of communication, cannot be the only purposes for which the power under s.359C(2) can be exercised. If that were so s.359C(2) of the Act would not have conferred any discretion on the Tribunal. There are also considerations of fairness, and the need to accord substantial justice to the applicant – matters also referred to in s.353 of the Act - that may have a bearing on the purposes for which the power conferred by s.359C(2) may be exercised. These considerations may come into play where the Tribunal, before it makes its decision, becomes aware of some circumstance which would render it unfair or which would amount to the denial of substantial justice to the applicant if the Tribunal were to decide the application for review without making any further attempts to obtain the information from the applicant. For example, the Tribunal may become aware of circumstances which indicate the applicant suffered from some illness or has suffered some misadventure that prevented the applicant from responding to the notice issued under s.359A(1). If the Tribunal becomes aware of such circumstances, it would have to consider whether it should exercise its discretion under s.359C(2) of the Act.
Given the purposes of quickness and certainty of communication, however, the fact the Tribunal may become aware before it makes a decision on the review that an applicant has not in fact received a notice that has been given to an applicant in the manner required by s.379A would not by itself be a circumstance the Tribunal would be required to take into account when considering whether to exercise its discretion under s.359C(2). Alternatively, if it were a matter which, by itself, the Tribunal would be obliged to consider, given the purposes of quickness and certainty of communication, it would always be open to the Tribunal to exercise its discretion to decide an application for review without taking any further action to contact the applicant.
What I have said is supported by a number of authorities on which the Minister relies. One is the following passage from the judgment of Spender J in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs:[72]
In my view this provision [i.e., s.494B of the Act] manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.
[72] (2004) 135 FCR 550 at page 566 [69]. As the Minister notes, this passage has twice been approved by the Full Federal Court: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [14] and Swee Yen Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 at [17]-[19]
It would undermine the intended purpose of s.379A of the Act to construe provisions such as s.359C(2) of the Act which depend on documents being given to applicants in accordance with s.379A as requiring the Tribunal, when exercising the power under s.359C(2) of the Act, to consider as a relevant factor an applicant’s not having in fact received a document which has been given in accordance with a method prescribed by s.379A of the Act.
Relevant information before the Tribunal
Before it made the Decision, the Tribunal was aware, or ought reasonably to have been aware, of a number of matters. The applicant may not have received the Tribunal’s letter dated 27 September 2013. The applicant had nominated in his form of application an address for service that was different from his residential address. On 16 April 2013 the applicant informed the Tribunal he was travelling to India for a few months. On 23 April 2013 the Tribunal received a letter from the applicant in which he confirmed to the Tribunal he was travelling to India and in which he listed contact details, one of which was the address which, in his application for review, he gave as his residential address. And on 29 April 2013 the Tribunal received an unsigned fax apparently from the applicant that included as one of the “updated detail[s]” of the applicant the address the applicant gave as his residential address in the application for review the applicant filed with the Tribunal.
Would a reasonable decision-maker have made the Decision?
The Tribunal does not in its reasons for decision refer to s.359C(2) of the Act. After noting the applicant did not respond to its letter dated 27 September 2013, the Tribunal simply said that it “has determined to proceed to a decision on the information available”.[73] I nevertheless find that the Tribunal made this determination pursuant to s.359C(2) of the Act. On that finding, the question is whether the decision the Tribunal made falls outside the range of decisions that a reasonable decision-maker could have made, assuming that the decision-maker correctly understood the subject matter, scope and purpose of s.359C(2) of the Act, and knew the information of which I have found the Tribunal in this case was aware or ought reasonably to have been aware.
[73] CB84, [9]
A reasonable decision-maker, knowing that the Tribunal’s letter of 27 September 2013 had been returned, could not reasonably have assumed the applicant had actually received it. The reasonable decision-maker would have enquired from the Tribunal file whether the address to which the letter was addressed was either an address for service the applicant had provided to the Tribunal, or, if the applicant had provided a new address for service, the address to which the letter dated 27 September 2013 was sent was the last address for service the applicant provided to the Tribunal. On making that inquiry of the Tribunal’s file, it would have been reasonably open to the decision-maker to conclude that the 29 April fax constituted a change in address for service, and that the address specified in the 29 April fax was the last address for service for the applicant. That would be so even if the 29 April fax was not sent by the applicant.
Is there anything in the evidence that should lead me to conclude the Tribunal’s decision to take no further action to contact the applicant was one that no reasonable decision-maker could have taken? In my opinion, there is none. Although the Tribunal may be taken to have been aware its letter dated 27 September 2013 had been returned, given the subject matter, scope and purpose of s.359C(2) which I have discussed above, that by itself was not a factor the Tribunal was required to take into account when considering whether to exercise its power under s.359C(2) of the Act. Even if by itself it was a matter the Tribunal was required to take into account, given the subject matter, scope and purpose of s.359C(2) of the Act – quickness and the need for certainty in communication – it would have been reasonably open to a decision-maker to decide the application for review without making any further attempt to obtain information from the applicant.
My conclusion that the Tribunal did not act unreasonably does not depend on my finding that the 29 April fax constituted the lodgement of a change of address for service. The address specified in the 29 April fax, namely, G01/1 Griffith St, Blacktown, is the same as the residential address the applicant specified in his form of application for review, and, apart from the addition of the letter “s” at the end of the word “Griffith”, is the same as the address the applicant specified in the 23 April letter. The Tribunal would still have been entitled to send its letter dated 27 September 2013 to G01/1 Griffith St, Blacktown. In other words, even if, as the applicant submits, the 29 April fax was sent to the Tribunal in fraud of the applicant, the Tribunal would have remained entitled to send its letter dated 27 September 2013 to the address at which it was sent, namely, G01/1 Griffith St, Blacktown. And, as I have already found, it would have been open to a reasonable decision-maker to regard the 29 April fax as a change of address for service that the applicant lodged, even if it was lodged in fraud of the applicant.
Counsel for the applicant submitted that it would have been easy for the Tribunal to contact the applicant by email. That, however, is not to the point. Although the Tribunal was entitled to make inquiries on its own initiative if it chose, it was not obliged by the Act to make some roving inquiry to the end of trying to locate the applicant.[74]
[74] Aneja v Minister for Immigration and Border Protection [2014] FCA 572 at [25] (Logan J)
Conclusion and disposition
The Tribunal sent a letter under s.379A of the Act to the applicant to an address the Tribunal was entitled to send under s.379A of the Act. Given the applicant did not respond to the letter within the time prescribed in the letter, the Tribunal could exercise the power conferred on it under s.359C(2) of the Act to decide the application for review without attempting to obtain further information from the applicant. The Tribunal did not act unreasonably in exercising its power under s.359C(2) of the Act in that way, even though it was aware the applicant may not have in fact received the letter.
I propose, therefore, to dismiss the application, and order that the applicant pay the Minister’s costs.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 26 March 2015
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