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 |
| 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.…
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Details
- Case
- [2015] FCCA 688
- Decision Date
CaseChat Overview and Summary
This matter concerned an application for judicial review of a decision made by the Administrative Appeals Tribunal. The applicant, Mr. Nayak, sought to challenge the Tribunal's decision to proceed with a review and make a determination without obtaining further information that the Tribunal had previously invited Mr. Nayak to provide. The core of the dispute revolved around whether the Tribunal's decision to proceed in this manner was legally unreasonable.
The court was required to determine several key legal issues. Firstly, it needed to ascertain the subject matter, scope, and purpose of section 359C(2) of the relevant Act. Secondly, the court had to identify what information was relevant to the exercise of the power under section 359C(2) that the Tribunal was aware of, or ought reasonably to have been aware of, at the time it made its decision. Finally, the court had to assess whether the Tribunal's decision fell within the range of decisions a reasonable decision-maker could have made, considering the proper construction of section 359C(2) and the information available to the Tribunal.
In its reasoning, the court analysed section 359C(2) of the Act, which permits the Tribunal to make a decision on review without obtaining an applicant's comments on information previously identified in an invitation under section 359A. The court identified the purpose of this provision as enabling the Tribunal to complete reviews in a timely manner, thereby avoiding delays caused by an applicant's non-response. This aligns with the Act's aim of promoting quickness in reviews. However, the court also recognised that quickness alone could not be the sole purpose, as the provision confers discretion. The court emphasised that considerations of fairness and the need to accord substantial justice to the applicant, as also referred to in section 353 of the Act, are crucial. These principles require the Tribunal to consider whether it would be unfair or amount to a denial of substantial justice to proceed without further attempts to obtain information, particularly if the Tribunal becomes aware of circumstances, such as illness or misadventure, that prevented the applicant from responding to the invitation. The court indicated that in such circumstances, the Tribunal must consider whether to exercise its discretion under section 359C(2).
The court was required to determine several key legal issues. Firstly, it needed to ascertain the subject matter, scope, and purpose of section 359C(2) of the relevant Act. Secondly, the court had to identify what information was relevant to the exercise of the power under section 359C(2) that the Tribunal was aware of, or ought reasonably to have been aware of, at the time it made its decision. Finally, the court had to assess whether the Tribunal's decision fell within the range of decisions a reasonable decision-maker could have made, considering the proper construction of section 359C(2) and the information available to the Tribunal.
In its reasoning, the court analysed section 359C(2) of the Act, which permits the Tribunal to make a decision on review without obtaining an applicant's comments on information previously identified in an invitation under section 359A. The court identified the purpose of this provision as enabling the Tribunal to complete reviews in a timely manner, thereby avoiding delays caused by an applicant's non-response. This aligns with the Act's aim of promoting quickness in reviews. However, the court also recognised that quickness alone could not be the sole purpose, as the provision confers discretion. The court emphasised that considerations of fairness and the need to accord substantial justice to the applicant, as also referred to in section 353 of the Act, are crucial. These principles require the Tribunal to consider whether it would be unfair or amount to a denial of substantial justice to proceed without further attempts to obtain information, particularly if the Tribunal becomes aware of circumstances, such as illness or misadventure, that prevented the applicant from responding to the invitation. The court indicated that in such circumstances, the Tribunal must consider whether to exercise its discretion under section 359C(2).
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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? 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.
Ratio Decidendi
Legal Principle Established
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