Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 793

Federal Circuit and Family Court of Australia

(DIVISION 2)

Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 793

File number(s):

MLG 1718 of 2018

Judgment of:

DEPUTY CHIEF JUDGE MERCURI

Date of judgment:

28 September 2022

Catchwords:

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – partner visa – interpretation of section 395B of the Migration Act 1958 (Cth) – whether the invitation to provide information failed to specify how to provide that information – whether the request was for ‘information’ as that term is defined in section 359 of the Act – no jurisdictional error established – consideration of whether any breach of section 359 and related provisions is sufficient to establish materiality – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss 359, 359A, 359B, 359C, 360, 363, 363A

Migration Regulations 1994 (Cth), cls 820.221, Sch 3

Cases cited:

DVO16 v Minister for Immigration and Border Protection (2021) 95 ALJR 375

Hasran v MIAC (2010) 183 FCR 413

Hossain v Minister for Immigration (2018) 264 CLR 123

Minister for Immigration and Border Protection v CED16 (2020) 94 ALJR 706

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2

SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1

Division:

Division 2 General Federal Law

Number of paragraphs:

67

Date of last submission/s:

27 April 2022

Date of hearing:

27 April 2022

Place:

Melbourne

Counsel for the Applicant:

Mr A Aleksov

Solicitor for the Applicant:

Clothier Anderson & Associates

Counsel for the Respondent:

Mr J Barrington

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

MLG 1718 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ANH DUNH NGUYEN Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	28 September 2022

THE COURT ORDERS THAT:

1.The applicant’s application be dismissed.

2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

DEPUTY CHIEF JUDGE MERCURI:

Introduction

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 25 May 2018.  By that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), to refuse to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (‘partner visa’).

   Background

2. The applicant is a Vietnamese citizen.  He came to Australia on 26 August 2010 on a subclass 456 Business (Short Stay) visa.  After the expiry of his visa, he remained in Australia unlawfully from 7 June 2011 to 17 March 2016.[1]

   [1] Court book at page 658.

3. The applicant met his future wife in 2010.  The applicant and his wife moved in together in July 2012 and then married on 5 August 2013.[2]  The applicant states in his statutory declaration dated 6 March 2018 that after they married, they spoke to a migration agent and were advised that he had to leave Australia and apply for a partner visa from abroad.[3]  They were also advised that if they had a child together they could apply for the visa without the applicant having to return to Vietnam.

   [2] Court book at page 659.

   [3] Court book at page 660.

4. The applicant said that at the time, he was aware that his wife suffered from depression and was concerned for her wellbeing if he was required to leave her in Australia while he returned to Vietnam to regularise his immigration status.[4]  They decided to try and have a child first and then apply for a partner visa.  Unfortunately, the applicant and his wife had difficulty becoming pregnant.

   [4] Court book at page 660.

   Application for partner visa on 17 March 2016

5. On 17 March 2016, the applicant applied for a partner visa as the spouse of a person who was an Australian citizen or an Australian permanent resident.[5]  The applicant’s spouse sponsored the applicant’s application.  The applicant was issued a Bridging Visa E on 18 March 2016.[6]

   [5] Court book at page 12 and following.

   [6] Court book at page 660.

6. The applicant was notified of the refusal of his partner visa application on 12 July 2016.[7]

   [7] Court book at page 388.

7. The delegate found that the applicant did not meet the requirements of Schedule 3 Criterion 3001 to the Migration Regulations 1994 (Cth) (‘the Regulations’) on the basis that the visa application was not filed within 28 days after the last day on which the applicant held a substantive visa.[8]  As stated, the last day on which the applicant held a substantive visa was 6 June 2011, well in excess of 28 days prior to the lodging of the visa application.

   [8] Court book at page 389.

8. The delegate then went on to consider whether there were compelling reasons to waive the Schedule 3 criteria and found that there were not.[9]

   [9] Court book at page 391.

   Application for review at the Tribunal on 13 July 2016

9. On 13 July 2016, the applicant lodged an application for review of the delegate’s decision with the Tribunal.[10]

   [10] Court book at pages 415 to 416.

10. On 7 April 2017, after referring to the delegate’s finding that the applicant had lodged the visa application well after 28 days had passed since he held a substantive visa and the delegate had also found there were no compelling reasons to not apply the Schedule 3 criteria, the Tribunal invited the applicant to provide information, namely ‘any compelling reasons for not applying the Schedule 3 criteria’.[11]   The Tribunal requested that this information be provided by 21 April 2017.  The correspondence also stated that if the applicant could not provide that information by that date, he should seek an extension of time prior to 21 April 2017 explaining why he could not comply.[12]  Relevantly, the 7 April 2017 letter went on to say:

    If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information.  You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.[13] (emphasis in original)

    [11] Court book at page 423.

    [12] Court book at pages 423 to 424.

    [13] Court book at page 423.

11. On 24 April 2017, the applicant’s representative sought an extension of time within which to provide further information as requested, although that request was made outside the specified time frame.[14]

    [14] Court book at pages 426 to 427.

12. On 27 April 2017, the Tribunal wrote to the applicant in the following terms:

    On 7 April 2017 we sent you an invitation to provide information by 21 April 2017.

    On 24 April 2017 we received a request for an extension of time to provide the information.

    As we did not receive your request by 21 April 2017, you have lost your right to a hearing and the Tribunal will proceed to make a decision after 10 May 2017 on the available information.[15]

    [15] Court book at page 542.

13. The applicant’s representative provided further information and submissions over the course of the remainder of April and May 2017.[16]

    [16] Court book at pages 425 to 538.

14. On 14 March 2018, the Tribunal invited the applicant to a hearing to be held on 19 April 2018.[17]

    [17] Court book at pages 781 to 783.

15. On 29 March 2018, a solicitor representing the applicant’s wife and sponsor wrote to the Tribunal stating that she wished to withdraw her sponsorship of the applicant and did not wish to attend the hearing scheduled for 19 April 2018.[18]

    [18] Court book at pages 789 to 793.

16. On 18 April 2018, the Tribunal sent an email to the applicant’s representative in the following terms:

    The Tribunal advises that the Tribunal Member has cancelled the hearing due to an out of time response to a s 359 letter and also the withdrawal of sponsorship by sponsor. The Tribunal Member advises that Tribunal will write to review applicant seeking response to withdrawal of sponsor before making decision on visa application.[19]

    [19] Court book at page 794.

17. On 19 April 2018, the Tribunal wrote to the applicant and invited him to comment on the letter from his wife saying she no longer wanted to sponsor his visa application.[20]  The Tribunal set out why that information would be relevant to the Tribunal’s decision.  In that same letter, the applicant was also invited to provide comment or information on the three exceptions under which the applicant might still be eligible for a partner visa even if his relationship with the sponsor had come to an end.  The applicant was asked to provide this information by 3 May 2018.  That letter again contained the following:

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information.  You will also lose any entitlement you might otherwise have under the Migration Act 1958 to appear before us to give evidence and present arguments.[21]  (emphasis in original)

    [20] Court book at pages 805 to 806.

    [21] Court book at page 806.

18. On 1 May 2018, the applicant’s representative provided a written response and further supporting documentation, in which the applicant claimed to have been a victim of family violence during the relationship at the hands of his wife.[22]  The applicant says that the sponsor’s behaviour had ‘changed dramatically and she recently became very aggressive towards the review applicant’.[23]  The applicant referred to the sponsor yelling at him on many occasions and that she threw a glass of water at the applicant during the last argument before separation.

    [22] Court book at pages 807 to 850.

    [23] Court book at page 809.

19. It was submitted for the applicant that he meets the family violence criteria which would permit him to continue with his application for a partner visa, notwithstanding the withdrawal of sponsorship by his former wife.  He requested a hearing before the Tribunal to allow him to personally give oral evidence about these matters.[24]

    [24] Court book at pages 809 to 810.

20. The applicant’s representative also provided a copy of a report from Mr Watson-Munro, consultant forensic psychologist, dated 30 April 2018 and a ‘Letter of Expression’ from the applicant’s mother dated 26 April 2018 in which the applicant’s mother provides some information about the applicant’s relationship with his wife.[25]

    [25] Court book at pages 811 to 819; 841 to 850.

    Tribunal decision

21. The Tribunal’s decision record, dated 25 May 2018, is at pages 856 to 861 of the court book.

22. In its decision record, the Tribunal considered whether a valid claim of family violence had been established under the Regulations and concluded that it had not.

23. Relevantly, at paragraph [6] of the decision record, the Tribunal noted that as a consequence of not responding to the request for further information by 21 April 2017 within the specified time frame, the applicant had ‘lost any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments’ by reference to section 360(3) of the Migration Act 1958 (Cth) (‘the Act’).

24. The Tribunal went on to say at paragraph [7]:

    7.Given that the applicant did not provide a response within the time frame provided by the Tribunal, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC (2010) 183 FCR 413.

25. At paragraph [8] of the decision record, the Tribunal then considered whether it was appropriate to adjourn the review to allow the applicant additional time to provide further evidence in support of the review application.  After referring to a number of authorities relevant to this issue, the Tribunal concluded that it:

    8.… has proceeded to a decision without taking any further steps to obtain the information initially sought regarding compelling reasons because the issue before the Tribunal has changed in light of further information received i.e. that the sponsor has withdrawn sponsorship.

26. The Tribunal went on to say that in those circumstances the applicant has had a fair opportunity to provide relevant information and to take steps to satisfy the regulatory criteria. It therefore decided not to exercise its discretion to adjourn the review under section 363(1)(b) of the Act to allow the applicant more time to show that he continues to have a sponsor or that any of the exceptions pursuant to which a partner visa could be granted apply.

27. At paragraphs [13] to [19], the Tribunal considered whether the applicant was sponsored.  It concluded at paragraph [20] that at the time of the Tribunal decision, the applicant was no longer sponsored by his wife and therefore clause 820.221(4) was not satisfied.

28. The Tribunal then went on to consider whether one of the exceptions applied such that notwithstanding the applicant’s relationship with the sponsor having come to an end, he could still be granted a partner visa.[26]  Relevantly, the issue of family violence is considered at paragraphs [27] to [31] of the decision record.  The Tribunal noted that there was no claim or evidence of judicially determined family violence.[27]  In relation to non-judicially determined family violence, the Tribunal noted that the evidentiary requirements to make out such a claim were not met.[28]

    [26] Tribunal decision record dated 25 May 2018 at paragraphs [21] to [31].

    [27] Tribunal decision record dated 25 May 2018 at paragraph [27].

    [28] Tribunal decision record dated 25 May 2018 at paragraphs [28] to [30].

29. As such, the Tribunal found that the applicant had not established that a valid claim was made in accordance with Division 1.5 of the Regulations. Consequently, the Tribunal concluded that the applicant had not suffered family violence committed by the sponsor and did not meet the requirements of clause 820.221(3)(b)(i) of the Regulations.[29]

    [29] Tribunal decision record dated 25 May 2018 at paragraph [31].

30. At paragraph [32] of its decision record, the Tribunal noted that there was no child of the relationship between the applicant and the sponsor, and therefore the requirements of clause 820.221(3)(b)(ii) were not met.  Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a partner visa.[30]

    [30] Tribunal decision record dated 25 May 2018 at paragraph [34].

31. The Tribunal therefore affirmed the delegate’s decision to refuse the grant of a partner visa.[31]

    [31] Tribunal decision record dated 25 May 2018 at paragraph [35].

    Grounds of review

32. In his Amended Initiating Application filed on 1 April 2022 the applicant raises one ground of review. By this ground, the applicant asserts that the Tribunal erred by depriving the applicant of a hearing by relying on section 360(3) of the Act, in that the prior notice to the applicant purportedly sent under section 359 of the Act was invalid.

33. The particulars attached to this ground assert that the letter sent on 7 April 2017, whilst seeking to engage section 359, did not constitute a valid exercise of the Tribunal’s power under that section. Moreover, it is submitted for the applicant that as the Tribunal had not validly issued an invitation pursuant to section 359, the applicant cannot be taken to have failed to provide the information within the meaning of section 359C and therefore could not be prevented under section 360(3) from being offered a hearing in his review.

34. In substance, it is submitted for the applicant that the letter of 7 April 2017 did not constitute an invitation to give information within the meaning of section 359(1) for two reasons:

    (a)firstly, it did not tell the applicant how to respond to the invitation as is required by section 359B(1);[32] and

    (b)secondly, it did not request ‘information’, but rather, submissions as to why he met the criterion.  Consequently, it is submitted that the invitation did not have legal effect for that purpose.[33]

    [32] Applicant’s Outline of Submissions filed on 1 April 2022 at paragraph [3].

    [33] Applicant’s Outline of Submissions filed on 1 April 2022 at paragraph [4].

35. Moreover, it is submitted for the applicant that the question of materiality does not arise in this case and that every breach of the Tribunal’s duty to conduct a hearing under section 360(1) of the Act gives rise to a jurisdictional error.[34]

    [34] Applicant’s Outline of Submissions filed on 1 April 2022 at paragraph [9].

36. I will address each of these issues in turn.

    Method for providing information

37. Section 359B of the Act relevantly provides that if a person is invited to comment on or respond to information under section 359A, ‘the invitation is to specify the way in which the … comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances’.

38. It is submitted for the Minister that when read in context, the invitation did specify the manner in which the response was to be provided.[35]  I agree with this submission.  The letter of 7 April 2017 referred to information being received by a certain time and further provided that if the information was not in the English language it should be accompanied by an English translation from an accredited translator.  The reference to information being ‘received’, and if a translation is required, being ‘accompanied’ by a translation, in my view makes it clear that the Tribunal was indicating that the information was to be in writing.[36]  In addition, the reference to a ‘translation’ of any information not in the English language also adds weight to the inference that the Tribunal was requesting that the information be provided in writing.[37]

    [35] First Respondent’s Outline of Submissions filed on 21 April 2022 at paragraph [27] and following.

    [36] See SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1 at [129].

    [37] DVO16 v Minister for Immigration and Border Protection (2021) 95 ALJR 375 at [51] (Elderman J).

39. In addition, the fact that the letter invited the applicant to provide information by a set timeframe also indicates that it was requesting that that information be provided in writing.  Had the Tribunal wanted the applicant to provide that information orally or in person, one would have expected a specified time to be nominated, or at the very least, one would have expected that the letter would have provided contact details for a particular person with whom the applicant could speak to provide that information orally.  The absence of such details further supports the conclusion that the information was intended to be provided in writing, even though this was not explicitly stated.

1. I also note that section 359B(2) expressly provides that if the invitation is to provide information ‘otherwise than at an interview’ it is to specify the period within which the information or response is to be provided. Section 359B(3) then provides for how an interview, where required, is to take place. When viewed in the context of section 359B in its entirety, together with the observations made above, I find that the invitation provided to the applicant made it clear that the information sought was to be provided in writing.

2. Moreover, it is clear from the applicant’s actions, via his representatives, that he understood this to be the case.  A written response and request for an extension of time was indeed made in writing, albeit late.  At no point in that material is there any suggestion that there was confusion of lack of clarity about how the response or information was to be provided.

3. In the course of oral submissions it was put for the applicant that simply providing that a response was to be in writing is not enough to meet the obligations in section 359B(1). Rather, it would be necessary to specify whether it is to be by fax, by email or by letter, for example.[38] I do not, with respect, accept this is a proper reading of section 359B(1). It is readily apparent from section 359B(2) and (3) that particular considerations about the nature of the information to be provided have been expressly stated. So for example, in section 359B(3), the provision expressly deals with where and when an interview is to take place if the invitation is an invitation to provide information at an interview. If the legislature had intended to provide a greater level of specificity as to the manner in which information could be sought, it would have included that additional level of detail in the provision.

   [38] Court transcript at page 6.

4. The applicant referred the court to the Explanatory Memorandum in respect of the amendments which saw the introduction of section 359B to the Act.[39]  That Explanatory Memorandum states that one of the purposes of those amendments was to ‘prevent MRT and RRT hearings from being unnecessarily delayed where … an applicant fails to respond to an invitation to give additional information within the prescribed period (or a further prescribed period)’.[40]

   [39] Explanatory Memorandum, Migration Legislation Amendment Bill (No. 1) 1998 (Cth).

   [40] Explanatory Memorandum, Migration Legislation Amendment Bill (No. 1) 1998 (Cth) 1.

5. Similarly, in relation to sections 359 and 360, the Explanatory Memorandum further states:

   35.This item repeals existing sections 359 and 360 of the Migration Act which provide for the right to a personal appearance by the applicant unless the Tribunal is able to make a decision ‘on the papers’ that is most favourable to the applicant.

   36.This item also inserts six new sections in the Migration Act. Of these, sections 359, 359A, 359B and 359C provide a code of procedure which the Tribunal is to follow in conducting its review:

   -new section 359 will allow the Tribunal to obtain any information it considers relevant, and, having obtained that information, the Tribunal must have regard to it in making its decision;

   -new section 359A ensures that an applicant is given particulars of any information that would be the reason, or part of the reason, for affirming the decision under review, and is asked to comment on that information. …

   -new sections 359 and 359A also ensure that invitations to an applicant to:

   .         provide further information; or

   .comment on information which the MRT considers would be reason for affirming the decision under review:

   are sent to the last address for service, or residential address given by the applicant, in a way that provides evidence of the date of dispatch …

   -new subsection 359B(1) enables the Tribunal to specify the way in which additional information is given.  Additional information may be given in any way appropriate to the circumstances – for example, by telephone or by facsimile machine;

   …

   37.New section 359C provides that when a person fails to provide additional information under section 359, or an applicant fails to comment on information under section 359A, the Tribunal may make a decision without taking any further action. The purpose of the new section is to allow the Tribunal to make a decision without any delay if the applicant fails to respond to a request for further information or comment within the prescribed period.

6. I accept that the Explanatory Memorandum does refer to the capacity to specify that a response could be provided by telephone or facsimile. It is clear therefore that it was contemplated that a response or information could be provided in a number of ways, whether orally or in writing. That is a different thing, however, to the conclusion invited by the applicant in this case that a failure to specifically identify a particular means of written communication is fatal to the legality of the notice. I note that the invitation letter contained a street address, an email address and a facsimile number. It therefore provided by implication, if not expressly, that a written response by any of those means would be acceptable. There is nothing in section 359B(1) which requires the Tribunal to limit the manner in which a written response can be provided to any one of those forms of communication.

7. For each of these reasons, the first aspect of ground 1 is not made out.

   Request for ‘information’

8. As to the second point raised by the applicant, it is submitted that the invitation did not request ‘information’ in the sense that that word is used in section 359(1) of the Act. Rather, it is submitted that the 7 April 2017 letter asked that the applicant provide ‘any compelling reasons for not applying the Schedule 3 criteria’.  This, it is said, is a request, not for facts per se, but rather for the applicant’s case as to why he meets the criteria for the visa. It is submitted that the letter was framed in such broad terms that it does not amount to a request for information and therefore does not constitute a proper request under section 359(1). In this regard, the applicant makes the following submission:

   4.… If this request were to be an invitation within s 359(1), and the only response made by an applicant is to present argument based on facts already before the Tribunal (a common circumstance if the case had been well-run before the delegate), the applicant would lose the right to a hearing. That is an unimaginable result, and conclusively points up the need for particularity of the ‘information’ sought if an invitation is to engage s 359(1) and the consequential high-stakes procedure.[41]

   [41] Applicant’s Outline of Submissions filed on 1 April 2022 at paragraph [4].

9. It is not in dispute that the term ‘information’ is not defined in the Migration Act1958 (Cth). However, that term, in the context of the Act, has been the subject of significant judicial consideration. For example, in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at paragraph [28], Bell, Gageler and Keane JJ, said:

   28.… The term ‘information’ in the context of Div 4 cannot sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature.

10. Similarly, in Minister for Immigration and Border Protection v CED16 (2020) 94 ALJR 706 at [21], Gageler, Keane, Nettle and Gordon JJ said:

    21.The plurality in Plaintiff M174/2016[42] explained that ‘the term ‘new information’ must be read consistently when used in ss 473DC, 473DD and 473DE as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event’. …

    [42] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217.

11. Whilst these authorities apply to the term ‘information’ within the context of section 473 of the Act, the concept of what constitutes ‘information’ would equally apply to the use of that term in section 359.

12. Similarly, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2, which has been cited with approval in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, the Full Court of the Federal Court said:

    205.Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event …

13. So much appears to be common ground between the parties.

14. Accepting this, however, I do not agree with the applicant’s submission that the letter requested anything other than information so defined. The applicant was requested to provide information about a compelling reason why the Schedule 3 criteria should not be applied. I agree with the submissions made for the Minister that this required the applicant to provide information, in the sense of facts or other evidentiary matters, which might constitute grounds for a compelling reason.[43]

    [43] First Respondent’s Outline of Submissions filed on 21 April 2022 at paragraph [24].

15. The request of the applicant was not for ‘new information’ or ‘additional information’, it was simply for information which went to the establishment of a compelling reason not to apply the Schedule 3 criterion. A distinction is made between the reference to ‘information’ in section 359B and the reference to ‘new information’ in Part 7AA of the Migration Act.

16. For each of these reasons, ground 1 is not made out.

    Materiality

17. As to the issue of materiality, the applicant submits that a breach of section 359(2) of the Act has of its nature a material effect on the Tribunal’s conclusions, such that if a hearing was required but not afforded to the applicant, that amounts to jurisdictional error.

18. For the reasons set out above I do not find that there has been a jurisdictional error as alleged, so the issue of materiality does not fall to be considered.

19. However, if materiality was an issue, any error arising from the decision not to provide the applicant with a hearing on the understanding that the applicant had not complied with a section 359A request is not material. As noted in Hossain v Minister for Immigration (2018) 264 CLR 123 (‘Hossein’) at paragraphs [29] to [30] by Kiefel CJ, Gageler and Keane JJ:

    29.… Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition.  The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

    30.Whilst a statute on it proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which it was made. … (emphasis added)

20. It is in the context of the last sentence that the High Court referred to the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 (‘SAAP’).  The applicant relies on this reference as support for the proposition that the reasoning in SAAP is expressly preserved by the High Court in Hossain.[44]  It is submitted that applying the reasoning in SAAP to this case, the materiality bar is effectively set at zero.[45] This submission is made in the context of section 359 and the effect of section 359B(4), which effectively means that an applicant loses the right to a hearing if they do not respond to an invitation to provide information (or seek an extension of time) within the specified timeframe.

    [44] Applicant’s Outline of Submissions filed on 1 April 2022 at paragraph [14].

    [45] Applicant’s Outline of Submissions filed on 1 April 2022 at paragraph [9].

21. This submission was made in the context that the applicant does not challenge the Tribunal’s ultimate finding based on the withdrawal of the sponsor’s support for his visa application, nor does the applicant say that the Tribunal made an error in finding that a valid claim to family violence had not been made.[46]  It is submitted for the Minister that having made this concession, the applicant, in effect, concedes that the Tribunal could not have come to a different decision, even if the applicant had been afforded the opportunity of a hearing.[47]  There is much force to this submission.

    [46] Applicant’s Outline of Submissions filed on 1 April 2022 at paragraph [8].

    [47] First Respondent’s Outline of Submissions filed on 21 April 2022 at paragraph [41].

22. Indeed, the applicant does not take issue with this, but rather asserts that if the court is satisfied that the 7 April 2017 letter did not meet the requirements of section 359, then the failure to provide the applicant a hearing is a jurisdictional error and the effect of the statutory scheme is such that the materiality requirement is set at zero. That is, any departure from the procedure set out in section 359A is to be regarded as a jurisdictional error.

23. It was further conceded by the applicant that on the material before the Tribunal, the Tribunal could not come to any other conclusion.[48] However, that is not the end of the matter as far as the applicant is concerned. Counsel for the applicant submitted that a hearing itself is part of the procedural fairness codified in section 359 and following.[49]  It is submitted that through a hearing process, it is possible that an alternative outcome might become apparent.  The denial of the hearing in this case, it is therefore submitted, leads to the conclusion that there is jurisdictional error.

    [48] Court transcript at page 14.

    [49] Court transcript at pages 14 to 15.

24. With respect, I do not agree with this analysis.  While the High Court in Hossain clearly referred to SAAP and noted that the particular statutory scheme will be relevant to determining what level of materiality is required, it does not, in my view, limit the principles established by Hossain.  SAAP must be read subject to Hossain and the other High Court authorities which have followed.  Moreover, it is also relevant that the issue in SAAP was not a question of materiality.  Rather, the submission in SAAP was that the breach was a trivial one, and one which did not justify the exercise of the court’s discretion to grant the relief sought.  In those circumstances, on the question of materiality, I am bound by the decision and reasons in Hossain.   Furthermore, and relevantly, in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, the court said at paragraph [44]:

    44,… Applying the principle of construction recently explained in Hossain v Minister for Immigration and Border Protection … the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.

25. The Court then went on to say at paragraph [45]:

    45.Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error.  A breach is material to a decision only if compliance could realistically have resulted in a different decision.

26. In this case, it is conceded that on the material before the Tribunal, no other decision could have been made.  This is a case where there were evidentiary requirements which the applicant had to meet.  He did not meet them.  He does not say in this court that he could have met them or that it was unreasonable for the Tribunal not to adjourn the proceedings so as to allow him time to get that evidence.  There is no suggestion on the evidence before the court that any different conclusion could, ‘as a matter of reasonable conjecture’, have been reached.[50]

    [50] MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at [38].

27. Therefore, even if I am wrong and materiality does arise, any breach in this case is not material.

    Conclusion

28. For these reasons, I make the orders set out at the commencement of these reasons.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       28 September 2022