Nisha v Minister for Immigration

Case •

[2005] FMCA 441

•

17 May 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NISHA v MINISTER FOR IMMIGRATION [2005] FMCA 441
MIGRATION – Review of Migration Review Tribunal decision – refusal of a Partner (Temporary) (Class UK) visa or a Partner (Residence) (Class BS) visa – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss.359A, 359B(4), 359C, 360, 474
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), Sch 2, Cl.820.211(2), 820.221(1), 820.221A

Acts Interpretation Act 1901 (Cth), ss.13, 15AA

Legislative Instruments Act 2003 (Cth), s.13

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Haque v Minister for Immigration & Multicultural Affairs (2001) 116 FCR 313
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 298
Fothergill v Monarch Airlines Ltd [1981] AC 251
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Pyneboard Pty Ltd v Trade Practices Commission & Bannerman (1982) 39 ALR 565
Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187
Sun v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 582
Ramnares v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 683

Applicant: MEHRUL NISHA
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File No: SYG 2619 of 2004
Delivered on: 17 May 2005
Delivered at: Sydney
Hearing date: 9 March 2005
Judgment of: Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant: Mr M Robinson
Solicitors for the Applicant: Harish Prasad & Associates
Solicitors for the Respondent: Mr A Markus of Australian Government Solicitor

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2619 of 2004

MEHRUL NISHA

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

  1. This is an application for a review of the decision made by the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) made on 19 August 2003 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.

  2. Mrs Mehrul Nisha (the applicant), who claims to be a national of India, born on 6 January 1944 applied for permanent residence on spouse grounds on 13 May 2002.  The visa application form completed by the applicant incorporated an application for a permanent visa, a Partner (Residence) (Class BS) visa, which normally cannot be granted until a period of two years has elapsed since the lodgment of the application, and an application for a temporary visa, a Partner (Temporary) (Class UK) visa, which can be granted immediately to permit stay until a decision is made on the permanent visa.  This process is intended to test whether a relationship is continuing two years after the application before permanent residence is affirmed.  The delegate’s decision to refuse to grant the visa was made on 19 August 2003.

Background

  1. On 7 March 1998 the applicant arrived in Australia as a holder of a 686 (Tourist Long Stay) visa and departed Australia on 5 August 1998.  On 10 January 1999 the applicant re-entered Australia, again on a 686 (Tourist Long Stay) visa.  This visa expired on 10 July 1999.  On


    15 June 1999, whilst onshore and the holder of a substantive visa, the applicant applied for a Retirement (Temporary) visa.  This application was refused on 21 July 2001 and the applicant lodged an application for review on 15 June 2001.  Between 14 April 2000 and 3 December 2001 the applicant travelled in and out of Australia on two occasions on Bridging B visas.  The applicant then remained in Australia until she lodged the visa application that is the basis of this review on


    13 May 2002.  The applicant currently holds a subclass 030 Bridging visa C (Court Book p.134) (“CB”).

  2. The applicant was nominated in connection with her visa application by Mr Parbhubhai Thakorbhai Patel (“the nominator”), an Australian permanent resident, who was born in India on 15 March 1949.  The nominator first arrived in Australia on 5 May 1989 and was granted permanent resident status on 23 March 1998.  The nominator has no children and his siblings and parents all reside in India.  The applicant has one son, Nausad Ali, born 8 January 1969, who is an Australian citizen.  She has four sibilings, all of whom are married and reside in Fiji.  The applicant’s parents are deceased (CB p.135).

  3. The applicant claimed she met the nominator in August 1999 at a relative’s home.  She stated that the nominator lived in the same building as her relative.  The applicant claimed that after meeting the nominator they became fond of each other and started meeting regularly.  She claimed the nominator proposed to her at the beginning of 2001, and she accepted his proposal after discussing it with her son.  The applicant claimed that she and the nominator began living together as a couple in October 2001.  On 13 November 2001 the couple were married (CB p.135).

  4. On 13 May 2002 the applicant lodged an application for a Spouse (Subclass 820) visa. At the time of lodgment the applicant did not hold a substantive visa but held a bridging visa. As the applicant did not meet the requirements of Criterion 3001 of Schedule 3 to the Migration Regulations 1994 (Cth) (“the Regulations”), the decision maker had to decide if there was a “compelling reason” for not applying those criteria. The delegate refused to grant a visa and stated he was not satisfied there was sufficiently compelling reasons to exercise a waiver of Schedule 3 criteria.

The Tribunal’s findings and reasons

  1. The Tribunal’s decision, under the heading of “Findings and Reasons”, stated that at the time the application was lodged, Class UK contained two subclasses and the claim was only advanced in respect of subclass 820 (Spouse). The Tribunal found that there was no evidence to suggest that the applicant met the key criteria of that other subclass. The criteria of a subclass 820 visa relevant to this review are set out in subclauses 820.211(2) and 820.221(1) and clause 820.221A of the Regulations. As the Tribunal found that the applicant failed to meet the requirements of item 820.221(2)(d) it meant the applicant could not satisfy the requirements of clause 820.211 and the time limits imposed. The applicant was not a holder of a substantive visa at the time of the application and did not make the application within 28 days of the expiry of a substantive visa.

Application for review of the Tribunal’s decision

  1. On 24 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). Subsequent to that date a number of amended applications were filed. At the hearing a document identified as the Second Further Amended Application was filed in Court and contained the following grounds:

    “1.The respondent made a jurisdictional error in that the respondent did not comply with section 359C or section 360 of the Migration Act 1958 (Cth) (“the Act”)

Particulars

i)Section 359C of the Act vests the respondent with a discretion. The respondent did not exercise, or exceeded, the respondent’s jurisdiction under section 359C.

ii)As the respondent did not exercise, or exceeded, the respondent’s jurisdiction under section 359C, the respondent had a duty under section 360 of the Act to invite the applicant to appear before the respondent. The respondent failed to so invite the applicant.

2.The respondent made a jurisdictional error in that the respondent misinterpreted and misapplied the relevant law.

Particulars

i)Relevantly, the Migration Regulations 1994 (Cth) (“the Regulations”) (Schedule 2, paragraph 820.211(2)) provides that an applicant who does not hold a substantive visa at the time of application must satisfy “Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria”.

ii)The Tribunal erred in construing this legislation as requiring that “the compelling reasons must have been in existence at the time the visa applicant lodged the visa application”.

3.There was a denial of procedural fairness and/or the Tribunal exceeded its powers in that the Tribunal failed to comply with section 360(1) of the Act in that the Tribunal did not invite the applicant to appear before the Tribunal to give evidence and present arguments by reason that subsection 359C(2) did not apply to the applicant as:

a.The Tribunal in fact extended the time for permitting the applicant to provide additional information or comments pursuant to section 359B(4) of the Act by reason of the fact that the Tribunal took the submissions of the applicant’s advisers dated 21 June 2004 (CB 126) into account in its decision on the papers (in its reasons for its decision at paragraphs [29] and [45]) without first informing the applicant; and,

b.Further, or in the alternative, the Tribunal in fact took “further action” in accordance with that expression in section 359C(2) of the Act by reading and considering the submissions of the applicant’s advisers dated 21 June 2004 (CB 126) (in its reasons for its decision at paragraphs [29] and [45]) and, accordingly, section 359C(2) no longer applied to the applicant (and section 360(1) thereby applied). The Tribunal did this without first informing the applicant

4.The decision was affected by jurisdictional error by reason that the Tribunal failed to take into account relevant considerations that it was required to take into account, namely, evidence going to the genuine nature of the relationship of the applicant and her husband/nominator (decision at para [47], CB page 140) which was or should have been part of the Tribunal’s consideration of the applicant’s application pursuant to regulation 820.211(2)(d) of Schedule 2 of the Migration Regulations 1994. Such an issue was stated by the Tribunal to be of relevance (but not determinative on its own) in its letter to the applicant dated 6 May 2004 (especially at CB 122, third paragraph).

5.There was a denial of procedural fairness in that the Tribunal mislead the applicant into believing that evidence going to the genuine nature of the relationship of the applicant and her husband/nominator would be taken into account by the Tribunal as relevant material (but would not be sufficiently compelling in itself as to satisfy the waiving of the Schedule 3 requirements – Items 3001, 3003 and 3004) in its letter to the applicant dated


6 May 2004 (especially at CB 122, third paragraph).  However, in its decision, the said evidence was considered by the Tribunal not to be of relevance at all and it was not examined (decision at para [47], CB page 140).  The applicant was denied the opportunity of adducing evidence or making submissions as to this proposed course of conduct by the Tribunal.

6.There was a jurisdictional error in that Tribunal misunderstood and/or exceed its powers in that it issued the applicant a purported ‘Invitation to Comment on Information’ dated 6 May 2004 (CB 121) that was ultra vires as it impermissibly mixed up two different sections of the Act – s 359 (the Tribunal may seek information) and s 359A (Applicant must be given certain information) and it did not set out in the said invitation a period specified for the receipt by the Tribunal of any additional information purportedly requested within the meaning of section 359B(2) of the Act.”

The law

  1. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith:  S157/2002 at [76] and S134/2002 at [15].

  2. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power:  Craig v South Australia (“Craig”) per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Applicant’s submissions

  1. Counsel for the applicant filed submissions, supplementary submissions and second supplementary submissions, all of which were filed prior to the hearing.  Collectively, the applicant’s submissions contained the following contentions.

  2. In respect of Ground 1 – Jurisdictional error – the respondent did not comply with s.359C or s.360 of the Act

    a)It was clear from the Reasons for Decision that the Tribunal, before making its decision on 6 August 2004, took into account evidence that included the evidence provided by the applicant, on and after 16 June 2004 in response to the s.359A invitation.

    b)In his facsimile of 21 June 2004, the applicant’s solicitor stated that the delegate “[accepted the nominator] suffered from [a] medical condition but found against such a factor due to the fact the applicant did not provide any evidence to substantiate the claim of his medical condition.”.  The solicitor stated that “the applicant is in a position to provide such evidence to the Tribunal” (CB p.126).  This was highly relevant evidence of “compelling circumstances”.  The Tribunal made its decision without holding a hearing, and thereby denied the applicant the opportunity to present what clearly was relevant evidence.

    c)Section 360 provides that the Tribunal must invite the applicant to a hearing unless s.359C (1) or (2) applies. Section 359C does not allow the Tribunal to simply decide to proceed without conducting a hearing if the comments requested were not received within the specified time. To the contrary, s.359C imposes a statutory obligation on the Tribunal to exercise its discretion, to engage in a proper determination of whether it should proceed without taking any further action to obtain the applicant’s views. It was clear from its stated Reasons for Decision that the Tribunal made no attempt whatsoever to exercise its statutory discretion. There was nothing in these Reasons to suggest why the Tribunal decided to proceed without a hearing and there was nothing to even suggest that the Tribunal gave any regard as to why and how it should exercise its discretion. The Tribunal appeared quite simply to have proceeded on the basis that once the response was not received, within the time specified, the Tribunal could, without further notice, proceed to a determination on the papers alone.

    d)When read with s.360, it was clear that this failure to carry out the statutory obligation was a serious breach of natural justice and procedural fairness mandated by the Act and was constructive failure to exercise jurisdiction: Plaintiff S157/2002.

    e)The respondent rightly conceded in the written submissions filed 25 February 2005 (at [10]) that there was a discretion in s.359(C)(2). However, the respondent attempted to draw highly technical and artificial distinctions between the decision to go on to “make a decision on the review” and the final decision itself. No such distinction was appropriate in this case, where the only reason the Tribunal wrote to the applicant in the first instance pursuant to s.359A was that the Tribunal considered there was a factor that “would be a reason or part of the reason” for refusing her visa application (s.359A(1)). In other words, the Tribunal was already on a path to refuse the applicant’s visa application. It was plainly crucial for applicant to respond to the stated issues in the invitation as the decisions were bound together from the Tribunal’s perspective.

    f)In any event, or in the alternative, the s.359(C)(2) discretionary decision was a separate decision that was provided for in the legislation and, as such the exercise or non-exercise of the power was plainly justiciable: Australian Broadcasting Tribunal v Bond per Mason CJ at 337.3. As the decisions under review were so close together in time and process, the Court may infer that if the Tribunal did in fact have reasons for exercising the discretion here (so as to conduct a hearing), it would have said so in the primary statement of reasons for decision. It did not do so. The Count may comfortably find that the Tribunal failed to exercise its relevant discretion.

    g)Alternatively, the Court should find that the Tribunal in fact extended the relevant time since it took the final submission of the applicant’s advisers into account (see ground 3(a) of the application). Having done this, the Tribunal was plainly in error in not according the applicant a hearing pursuant to s.360(1) (which provides that the Tribunal “must invite the applicant to appear”).

    h)The applicant is now alive to the Federal Court authority in Haque v Minister for Immigration & Multicultural Affairs per Branson J. The Court held that in the circumstances of that case, which is factually similar to the present case, the words in s.359(C)(1) that state “the Tribunal may make a decision on the review without taking any further action to obtain the additional information” did not add anything to the “class” of the applicant to which the section applied (at [13] & [14]).  Therefore, it did not matter that the Tribunal in fact read the late submission of the applicant in that case.  It did not constitute relevant “further action”.  The Court also held that by reading and considering the late submissions, the Tribunal was, in the factual circumstances of that case, exercising a power to “extend” the time for compliance (at [18]).  The Court considered (as obiter dicta) that the Tribunal might not have had the power to extend time after the original time for compliance (the 28 days) had passed.

    i)With great respect, Her Honour’s decision is plainly wrong and it should not be applied by the Court for the following reasons (in addition to the written submissions already made on the issues:

    i)The decision was made before Plaintiff S157 (on 4 February 2003) and the Full Federal Court decision in NAAVv Minister for Immigration & Multicultural & Indigenous Affairs (on 15 August 2002).

    ii)There was very little reasoning set out for the aspects of the decisions set out above.  It was impressionistic and not reasoned.  There was no analysis set out as to why the Court’s stated position should be the correct or preferred interpretation.

    iii)The case may be distinguished from the present case as the Tribunal here did not merely read and consider the material in the applicant’s adviser’s submission, it dealt with it in some detail in the Reasons for Decision and made rulings on parts of it (CB p.139). It plainly took relevant “further action to obtain the additional information”. It picked the submissions up, used them and argued against them and they thereby became part of the evidence before it (as opposed to them merely remaining a part of the Tribunal’s file to which it had no regard as it was not obliged to under the Act).

    j)As to the Court’s brief analysis as to “extension” pursuant to s.359B(4), the Court was concerned that there might be “two periods” resulting from a construction that permitted the Tribunal to extend the time after the original period had expired. There was no consideration to why that was not a good thing. When one is dealing with a matter as fundamental as the provision of natural justice to migration applicants that would not be such a bad consequence. In any event, Her Honour’s remarks here are merely obiter.

  1. It was submitted in respect of Ground 2 – Other error of law – misconstruction and misapplication of relevant law

    a)The Tribunal stated at [39] (CB p 139):

    “The Tribunal acknowledges that the examples of compelling circumstances given in the Explanatory Memorandum to Statutory Rules 1996 no. 75 are examples only and are not to be taken as an exhaustive list of possible compelling circumstances.  The Tribunal acknowledges that policy should not be applied inflexibly and that all the circumstances of the case must be considered.  The Tribunal also acknowledges that the compelling circumstances must have been in existence at the time the visa applicant lodged the visa application.”

b)The Tribunal’s “acknowledgment”:  “that the compelling circumstances must have been in existence at the time the visa applicant lodged the visa application” was a misconstruction of the relevant law.  It was also, as matter of logic, contrary to the Tribunal’s acknowledgment “that all the circumstances of the case must be considered”.

c)Purposive interpretation was the technique best calculated to construe and give effect to the intention of the legislature:  Fothergill v Monarch Airlines Ltd at 272–273, 275, 280, 291; Acts Interpretation Act 1901 (Cth) s.15AA. The following example illustrates the point in regard to the Tribunal’s error of law: consider an Australian citizen married to a visa applicant for 6 months at the time the visa applicant (who does not hold a substantive visa) lodges an application for a spouse visa. The citizen is alone in the world except for their spouse. A week after the lodgment of the application for the visa the citizen suffers a very serious injury which requires the citizen to now need constant and loving care, care which the spouse is able and happy to provide. This need would, on any view, be a compelling circumstance. It would be just the sort of circumstance intended to be covered by the legislation. Yet the Tribunal’s construction of the law would suggest that this circumstance cannot be taken into account.

d)The Tribunal noted that the policy provided that a long-standing spouse relationship, which was defined as one that has been in existence for at least two years, would meet the definition of compelling circumstance. The hardship in this situation which could result in applying the Schedule 3 criteria was sufficiently compelling to justify not applying the criteria. At the time of the Tribunal’s decision (on 6 August 2004) the couple had been living together (since October 2001) for 2 years and 10 months. Owing to the Tribunal’s error in construction, the Tribunal considered only the period at the time of lodgment of the visa application (9 May 2002 – the Tribunal made another error when it stated this date as 13 May 2002), a period of only about
7 months.  The Tribunal error was clearly material to its decision. Such an error of law is jurisdictional error:  Craig; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs.

e)The application was made on 9 May 2002 (CB p.5).  On 7 May 2003 the applicant’s solicitor wrote to the Department (CB p.101) stating that the applicant had not heard further from the Department since the applicant’s letter of 20 June 2002 and requesting the Department to advise the applicant of the current status of the application.  The delegate’s decision is dated
19 August 2003.  It is clear that any delay – which in turn gave rise to the compassionate ground above - cannot and should not be sheeted home to the visa applicant.

f)The applicant’s argument was that the Tribunal must have applied subclause 820.211(2) of Schedule 2 to the Regulations as at the date of the Tribunal’s decision. That was the natural construction of the Regulation itself.

g)Alternatively, the Court should construe the words “unless the Minister is satisfied that there are compelling reasons for not applying those criteria” in the said Regulation as relating to a decision that can only logically be made as at the time of the Tribunal’s determination.

h)In addition, there was no compulsion under the Regulations for the Tribunal to treat everything that appeared under the heading 820.21 of the Regulations as if it all must relate to the precise time of the application. The heading 820.21 of the Regulations was not a relevant “Part, Division or Subdivision” heading that must form part of the Regulation itself: s.13 of the ActsInterpretation Act1901(Cth) and s.13 of the Legislative Instruments Act 2003 (Cth). Accordingly, the heading to 820.21 of the Regulations does not form part of the Regulations.

  1. It was submitted in respect of Ground 3:

    a)There was a denial of procedural fairness and/or the Tribunal exceeded its powers in that the Tribunal failed to comply with s.360(1), which relevantly provides the Tribunal must invite the applicant to appear at a hearing unless s.359C(2) applies to the applicant. In the present case, the Tribunal did, in fact, extend time to the applicant to permit the applicant to provide additional information or comments pursuant to s.359B(4) by reason of the fact that the Tribunal took the submissions of the applicant’s advisers dated 21 June 2004 into account in making its decision on the papers. Accordingly, the “time for giving (the submissions)” had not “passed”: s.359C(2)(a) and that section did not apply to the applicant at the relevant time. The Tribunal must have accorded the applicant a hearing

    b)Further, or in the alternative, the Tribunal in fact took “further action” to obtain the applicant’s view in accordance with that expression in s.359C(2)(b) by the Tribunal reading and considering the submissions of the applicant’s advisers dated
    21 June 2004 and, accordingly, s.359C(2) no longer applied to the applicant (and s.360(1) thereby applied). The Tribunal must have therefore accorded the applicant a hearing pursuant to s.360(1)

    c)Counsel for the applicant repeated the submissions set out in subparagraphs 11(h)-(j) above.

  2. In was submitted in respect of Ground 4:

    a)The Tribunal failed to take into account relevant considerations that it was required to take into account, namely, evidence going to the genuine nature of the relationship of the applicant and the nominator.  Under the Tribunal’s heading “The genuine and continuing nature of the spousal relationship”, the Tribunal stated:

    “… it is not necessary for the Tribunal to examine the genuine nature of the relationship”.  (CB p.140)

    This factor was a significant matter for the Tribunal to take into account.  While it might not have been determinative on its own (because of government policy), it was still a significant factor for the Tribunal to take into account as:

    i)The Tribunal itself acknowledged that it must take “all the circumstances of the case” into consideration (CB p.139), and

    ii)In the Tribunal’s letter to the applicant dated 6 May 2004 (CB p.122), the Tribunal stated, in effect, that the issue was relevant, but not “in itself” determinative.

    b)The issue should have been part of the Tribunal’s overall consideration of the applicant’s application pursuant to 820.211(2)(d) of Schedule 2 to the Regulations. Failure to take into account a relevant consideration is a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (“Yusuf”) at [82].

  3. It was submitted in respect of Ground 5:

    a)This ground is related to Ground Four and arises from the same failing of the Tribunal. The Tribunal denied the applicant procedural fairness in that the Tribunal misled the applicant into believing that evidence going to the genuine nature of the relationship of the applicant and the nominator would be taken into account by the Tribunal as relevant material (but it would not be sufficiently compelling in itself as to satisfy the waiving of the Schedule 3 requirements – Items 3001, 3003 and 3004).

    b)In its letter to the applicant dated 6 May 2004 the Tribunal made that assertion (CB p.122)  However, in its Reasons for Decision, without notice to the applicant, the said issue was deemed by the Tribunal not to be of relevance at all and it was thereby not examined (CB p.140).  The applicant was plainly misled, it can be inferred, and she was denied the opportunity of adducing evidence or making submissions as to this proposed course of conduct by the Tribunal. 

    c)In addition, the Tribunal took the submissions into account in a manner adverse to the applicant (on the 4 year old grand-daughter issue – CB p.139) without giving the applicant an opportunity to adduce oral evidence or make submissions at a hearing.

    d)Misleading an applicant in this important context is long-established as a denial of natural justice and is also a jurisdictional error:  Muin v Refugee Review Tribunal.

  4. It was submitted in respect of Ground 6:

    a)The Tribunal plainly misunderstood its powers by issuing the “Invitation to Comment on Information” dated 6 May 2004 (CB p.121).  The invitation was ultra vires, in any event. On the face of the document, the Tribunal appeared to be exercising its powers pursuant to s.359A (applicant must be given certain information) as:

    i)The document is headed in bold capitals:  “INVITATION TO COMMENT ON INFORMATION”;

    ii)Paragraph 3 of the document invokes expressly s.359A of the Act (relating to the provision of “comments”);

    iii)The last four paragraphs of the second page of the letter all refer to the provision of “comments” (and not to the giving of “additional information” – s.359).

    b)Reading the document as a whole, the Tribunal was hopelessly confused about the powers it was exercising and apparently attempted to wrap or mix up two different notices (s.359A and 359) into the one document. The stated prescribed period for the provision of “comments” was set out only for the part that apparently related to the s.359A invitation – to the extent that this can be identified. There was no prescribed period for the provision of additional information set out at all in the document.

    c)For that reason alone, the document is ultra vires.  The two concepts (if that is what the Tribunal intended to issue) cannot be severed in the document.  The Tribunal intended there to be only one document and for all intents and purposes, one exercise of power.  The document was a composite one and it should not be severed, carved up or dissected with a blue pencil or scissors by the Court:  Pyneboard Pty Ltd v Trade Practices Commission & Bannerman per Northrop, Deane and Fisher JJ at 572; and Fieldhouse v Commissioner of Taxation per Lockhart J at 195.6.

    d)In the alternative, if, contrary to the applicant’s submissions, the Tribunal’s letter dated 6 May 2004 was considered by the Court to be an effective invitation to comment under s.359A, the invitation purportedly sought additional information (without setting a prescribed period in the document) and must constitute an invalid request: Sun v Minister for Immigration & Multicultural & Indigenous Affairs (“Sun”) per Walters FM at [50], [62] and [67]. In that case Walters FM stated at [67]:

    “I am also well aware that the applicant did not supply any further information or comment after 10 September 2003, but that fact does not rectify or validate a decision of the Tribunal that was, in effect, ultra vires. I would add that it is important not to overlook the fact that s.360(1) imposes a positive obligation on the Tribunal to invite the applicant to appear before it to give evidence and present arguments. Although s.360(3) takes away the applicant’s right to appear before the Tribunal in certain circumstances, the right to appear and be heard is such a fundamental component of the overall concept of procedural fairness that any legislative provision designed to limit or remove that right, or to render it conditional, should be interpreted strictly.” (footnote omitted)

    e)It would have been a simple matter for the Tribunal to make its intentions plain by issuing two separate notices or invitations that were each apparently valid and not positively misleading.

Respondent’s submissions

  1. Mr A Markus, Solicitor appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions.

  2. In relation to the first ground of review which asserted that the respondent did not comply with either s.359C or s.360. The particulars in support of this ground roll these two assertions together and claim that the respondent either did not exercise or exceeded its jurisdiction under s.359C and that, accordingly, it failed to comply with its obligations under s.360 to invite the applicant to a hearing. This ground of review is fundamentally misconceived for the following reasons:

    a)The assertion that the Tribunal did not comply with s.359C appeared to be based on the proposition that s.359C “does not allow the Tribunal to simply decide to proceed without conducting a hearing”. However, s.359C(2) together with s.360 enables the Tribunal to proceed in such a manner.

    b)These provisions remove any obligation from the Tribunal to invite the applicant to a hearing in the circumstances specified and enables the Tribunal to proceed to a decision in respect of the application before it without taking any further steps to obtain the applicant’s views on the information sought.

    c)The Tribunal could decide, if it considered appropriate, to extend a further opportunity to the applicant to provide the information, either in writing or by inviting the applicant to appear before it to give evidence. Relevantly, however, in the circumstances prescribed there is no obligation on the Tribunal to do so. The Tribunal is entitled to determine the procedure it adopts to deal with the application before it free of such an obligation provided that it exercises its powers consistently with Division 4 of Part 5 of the Act.

    d)The applicant complained that there was nothing in the Tribunal’s reasons for decision to suggest why the Tribunal decided to proceed without a hearing.  This complaint totally ignored the fact that the Tribunal’s reasons were provided in respect of, and relate to, the decision not to grant the applicant a visa (or more exactly to affirm the delegate’s decision) and not any “decision” not to take any further action to obtain the applicant’s views on the information requested.

    e)There is no obligation on the Tribunal to give reasons for its decision to proceed in the way it chose any more than there was an obligation for it to give reasons for seeking additional information under s.359 in the first place. These were not “decisions” in the relevant sense but formed part of the procedure adopted by the Tribunal for dealing with the application. Provided the procedure was authorised under the Act and Regulations, there was no error in the Tribunal adopting any particular course of action.

    f)In summary, it was submitted:

    i)The obligation under s.360(1) to invite the applicant to appear before the Tribunal does not apply if s.359C(2) applies to the applicant: see s.360(2)(c); and

    ii)Subsection 359C(2) did apply to the applicant in the present case as:

    ·she was invited under s.359A to comment on information; and

    ·she did not give comments before the time for giving them had passed.

  3. It was submitted in respect of Ground 2:

    a)The applicant asserted that the Tribunal misconstrued and misapplied the relevant law in requiring that compelling circumstances be present at the time that the visa application was lodged. The applicant’s submissions either ignored the provisions of the Regulations which dealt with the relevant visa category and require certain of the criteria prescribed to be satisfied as at the time of application (and others as at the time of decision), or fundamentally misconstrued those provisions.

    b)The criteria provided for under Item 820.211(2)(d)(ii) of Schedule 2 of the Regulations is required to be satisfied as at the time of the application, including that part of the criteria which requires the existence of compelling circumstances. The criteria does not provide for an exercise of discretion. If the Minister, her delegate, or on review, the Tribunal, is satisfied that the prescribed criteria for the visa have been met, s.65 requires the visa to be granted. One of the criteria potentially relevant to the application for a visa in the present case is the existence of compelling circumstances at the time of the application. If the Minister, her delegate, or on review, the Tribunal, are satisfied as to the existence of such compelling circumstances, the requirements of Item 820.211(2)(d)(ii) are met.

    c)Contrary to what the applicant’s submissions appeared to assume, the “power” available under this Item not to apply Schedule 3 criteria 3001, 3003 and 3004 is not a discretion, let alone a general discretion akin to the power available to the Minister personally under s.351 irrespective of whether an applicant satisfies the prescribed criteria. To the contrary, it is part of the prescribed criteria that needs to be satisfied. In circumstances where an applicant does not satisfy Item 820.211(2)(d)(ii) as at the time of application for the visa, he either needs to satisfy Schedule 3 criteria 3001, 3003 and 3004, or needs to demonstrate compelling circumstances. This requirement needs to be met at the time of application: see 820.21 of Schedule 2 to the Regulations.

Reasons

  1. The applicant’s original Counsel, Mr Radha Nair, was unavailable due to a long running matter in the District Court, necessitating the brief being handed to Mr M Robinson a short time before the hearing.  Leave was sought to file further amended grounds of review as a result of a fresh mind brought to the matter.  The solicitor for the respondent raised no objection to the late filing so leave was granted.

  2. In respect of ground 1, both parties have submitted detailed written submissions. The applicant’s claim was that the Tribunal did not comply with s.359C or s.360 of the Act. The applicant’s argument was that the Tribunal proceeded to make its decision without firstly exercising its discretion in respect of the s.395A letter that it issued to the applicant on 6 May 2004 (CB p.121). The applicant claimed, and the respondent conceded, that there was a discretion in s.359C(2). The applicant argued that the Tribunal did not exercise discretion in conducting its hearing, evidenced by the fact that the Tribunal made no reference to that discretion in its decision. The applicant’s contention was that the failure to exercise that discretion was fundamental to the provision of natural justice.

  3. The alternative contention of the respondent was that there was no obligation on the Tribunal to give reasons for its decision to proceed in the way it chose on the basis that this was not a decision in the relative sense but formed part of the procedure adopted by the Tribunal for dealing with the application. The issue put by the applicant was that the Tribunal misconceived the discretion given to it under s.359C(2) by believing it was obliged to make a decision without taking further action once no response was received to the invitation to comment.


    I believe that the applicant’s submissions in respect of this interpretation of the section of the Act is incorrect as it makes an important error of law concerning the Tribunal’s review procedures: Ramnares v Minister for Immigration & Multicultural & Indigenous Affairs (“Ramnares”) per Smith FM at [19]:

    “If the Tribunal had acted under such a construction of the section then in my view it would have made an important error of law concerning its review procedures, since in my view the Tribunal is not so bound but is given a discretion whether to take further action or whether to proceed to make a decision without taking further action. If it makes the latter decision then the effect of s.360 is that s.360(2)(c) would “apply to the applicant” and under s.360(3) “the applicant is not entitled to appear before the Tribunal.” However, it would be open to the Tribunal to decide not to cause these provisions to apply, by deciding to “take further action” notwithstanding the failure to give comments.”

  1. The Tribunal did not discuss why it decided to proceed with the review without taking further action to obtain the applicant’s comments on the two points she was invited to comment on.  The final date for the submission of the material in response to the s.395A letter was 14 June 2004.  A letter was received from the applicant’s representative on


    16 June 2004 indicating the response letter was delayed due to unforeseen circumstances (CB p.125). On 21 June 2004 a further letter was received from the applicant’s representative which addressed the Schedule 3 criteria (CB p.126). This information was noted in the Tribunal’s decision which was not completed until 6 August 2004. The consequence of the Tribunal’s decision in respect of s.359C is that s.360(3) removes the right of the applicant to appear before the Tribunal. The applicant put forward a number of arguments to suggest that s.395C could not have been applied and therefore the applicant should have been provided with the opportunity to appear before the Tribunal and provide further information.

  2. One argument was that the Tribunal noted the contents of the letter sent on 21 June 2004 and by doing so actively extended the period permitted for the response. The mechanism for permitting an extension occurs under s.359B(4) and assuming that the prescribed time period had not expired and the letter of 21 June 2004 was received before the time for giving it had passed, s.395C(2) of the Act would not apply and the applicant would have the opportunity to appear before the Tribunal as permitted by s.360. For this argument to succeed it would be necessary for the material contained in the letter of 21 June 2004 to be new or in addition to the material already held by the Tribunal resulting in a change in the ultimate decision. Whereas the Tribunal noted that the material was similar in substance to that already held.

  3. In June 2002 a representative of the applicant forwarded to the delegate information that addressed the Schedule 3 requirements. The material forwarded in the June 2004 letter addressed the same Schedule 3 requirements and was essentially the same as the material previously supplied. In the Tribunal’s “Findings and Reasons” under the subheading of “Schedule 3 Criteria” the Tribunal considered all of the material which addressed this issue, including the applicant’s representative’s new submissions regarding exceptional circumstances and the attachments formed to the new husband and grandchildren, coupled with the severing of the ties in Fiji, the pre-existing medical condition of her husband’s back and the emotional links to the grandchild.

  4. The Tribunal did not find that any of these issues satisfied the test of exceptional circumstances established by Schedule 3. The Tribunal concluded that there were no compelling reasons that would justify the waiver of the Schedule 3 criteria in this case (CB pp.139-140). Although the Tribunal did not specifically dismiss the material, because it did not contain any new or significant additions to the material already held by the Tribunal, it would appear to have taken that approach. I was not able to infer from the absence of discussion by the Tribunal about what it considered when exercising its procedural discretion under s.395C(2) that the Tribunal in fact failed to take into account the contents of these documents.

  5. The ultimate effect is that the Tribunal member did not believe that he had any information placed before him that was different to the material placed before the delegate. This was clearly stated in the Tribunal’s reasons. In the absence of new material, the suggested mechanism for extending the prescribed time did not occur and the consequential activation of s.360 also did not occur.

  6. Two of the Tribunal’s findings are questions of fact. The first of those was that the nominator was and is now an Australian citizen at the time of the visa application and remains an Australian citizen. Secondly, the applicant was not the holder of a “substantive visa” at the time of the application and did not make an application within twenty eight days. The remaining question of whether the applicant failed to satisfy the Schedule 3 criteria is subject to evaluation. The ultimate answer to this question contains a number of subjective evaluations and may ultimately differ between decision makers. However, on the material available to the decision makers, the decision in regard to failure to satisfy the criteria was not difficult for the delegate or the Tribunal member. If this matter was remitted for rehearing by the Tribunal, differently constituted, I do not believe that the outcome would be different and the existence of a discretion to refuse relief on this ground is supported by authority: Ramnares at [28]:

    “…in Samad v District Court NSW (2000) 209 CLR 140 at [46], the Court refers to a discretion to refuse relief in the nature of certiorari if “the decision of Judge Herron was virtually inevitable “ or “there was only one possible outcome”.


    A comparable discretion under s.16 of the ADJR Act is referred to in X v Commonwealth (1999) 200 CLR 177 by Gummow and Hayne JJ (Gleeson CJ agreeing) at [112]:  “No doubt showing that setting aside the decision would be futile because no different decision could lawfully be made would be reason enough to exercise the discretion against granting relief” (citing authority).  [Counsel] for the Minister also referred me to Jankovic v Minister for Immigration (1995) 56 FCR 474 at 477, and other authorities are cited by Merkel J in Nguyen v Minister for Immigration (1998) 88 FCR 206 at 213 and Weinberg J in Kumaraperu v Minister for Immigration (1998) 88 FCR 381 at 397.”

  7. The argument being promoted by the applicant for ground 2 is that the heading to 820.21 of the Regulations does not form part of the Regulations. The structure of the heading is:

    “820.21 Criteria to be satisfied at time of application”

    The applicant’s argument was that “criteria to be satisfied at time of application” fell into the category of “drafting aid”.  The applicant depends upon the provisions of the Acts Interpretation Act 1901 (Cth) s.13 which states:

    “Headings, schedules, marginal notes, footnotes and endnotes

    (1)The headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act.

    (2)Every schedule to an Act shall be deemed to form part thereof.

    (3) No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.”

  8. I do not accept this argument as it is clearly contrary to the drafted intentions of the Regulations. If this interpretation was adopted and the heading to 820.21 of the Regulations was removed and similarly the heading to 820.22 was removed, then when are the respective Regulations applied? The content of the Regulation would not resolve this question nor are there any other indicators in other parts of the Regulations which specify where 820.21 and 820.22 would apply. This is clearly not the intention of the draughtsman nor the legislature. The same structure occurs in a substantial number of the other Regulations and the removal of the relative headings would make the entire Regulations inoperative. The Acts Interpretation Act 1901 (Cth) s.13(3) makes certain exclusions being marginal notes, footnotes and section headings of the Act. There is no reference in this provision to section headings of the schedules. The argument promoted by the applicant in respect of ground 2 cannot proceed unless the interpretation of the schedules as the applicant suggests is adopted.


    I do not believe that this statutory interpretation can be sustained.

  9. In ground 3 the applicant claimed the Tribunal failed to comply with s.360(1) which relevantly provides the Tribunal must invite the applicant to appear at a hearing unless s.359C(2) applies to the applicant. It was argued that the Tribunal extended the time pursuant to s.359B(4) by accepting and considering the submission from the applicant’s representative dated 21 June 2004 and that accordingly the acceptance of the submission, in effect, extended the prescribed period in which to respond to the original invitation. Consequently, it was argued, s.395C(2)(a) had not commenced its operation as the section did not apply. It was argued that in these circumstances the Tribunal must have accorded the applicant a hearing under s.360.

  10. The Tribunal recorded in its decision at paragraph 29 that it had received a letter from the applicant’s migration agent on 21 June 2004 and that it contained four items of information which the applicant’s representative claimed were compelling reasons for the grant of a visa. The Tribunal considered the content of the letter from the representative in its “Finding and Reasons” (CB p.139 at [43]-[45]). There was nothing in the Tribunal’s decision that stated what the Tribunal’s member approach to s.395C(2) was and I am not in the position to infer from the absence of discussion from the Tribunal about what it considered when exercising its procedural discretion under s.395C(2). However, the Tribunal is under no obligation to provide reasons for a procedural decision as the obligation is limited under s.368 of the Act which requires reasons only for “the decision of the Tribunal on the review”.

  11. Given that the Tribunal member is not obliged to provide any explanation as to her approach to procedural discretion, it cannot be denied that the Tribunal’s decision, on its face, discloses that the applicant was denied procedural fairness and/or the Tribunal exceeded its powers in that the Tribunal failed to comply with s.360(1). However, the decision does indicate that if the matter was remitted for rehearing by the Tribunal the subsequent outcome would be unlikely to be significantly different from the conclusion that the Tribunal has currently reached. The action of the Tribunal to forward the s.359A letter on 6 May 2004 indicates that the material held at that point would not have supported a finding in favour of the applicant. The issues raised by the 21 June 2004 response were considered in respect of the issues it raised and the Tribunal effectively rejected that material. The reasons for that rejection were set out in paragraphs 43-45 of the Tribunal’s decision. The material presented in the letter of 21 June 2004 was essentially the same as the material previously supplied in


    20 June 2002 submissions in support of the original application to the Department. The only issue that was new was the relationship with the granddaughter to whom the applicant provides regular care. However, it was noted that the grandparent is not the primary carer and this reason would not be seen as a compelling reason for waiving the Schedule 3 requirements. There are a number of authorities that support the contention that there is a discretion to refuse relief by remitting a matter for rehearing if that procedure was to be futile and that a Court should not order such a procedure: Ramnares at [28].

  12. In respect of ground 4, the applicant claimed that the Tribunal failed to take into account a relevant consideration in its determination which amounted to jurisdictional error and relied on the authority of Yusuf per McHugh, Gummow and Hayne JJ at [82]:

    “It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error.   As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)

    ‘falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’

    "Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.”  (Citations omitted)

  13. The basis of the submission was that the Tribunal ignored relevant material being the general nature of the relationship of the applicant and her nominator.

  14. The alternative view and the one taken by the Tribunal member is set out in paragraph 47 of the Tribunal’s decision:

    “The criteria for a Subclass 820 visa, relevant to this review, are set out in subclauses 820.211(2) and 820.221(1), and clause 820.221A of the Regulations. However as the Tribunal has found that the visa applicant fails to meet the requirements of subclause 820.211(2)(d), it is not necessary for the Tribunal to examine the genuine nature of the relationship.”   (CB p.140)

    The criteria prescribed for the grant of a subclass 820 visa in clause 820.211(2)(d) sets out the criterion which must be satisfied before the Minister can grant such a visa. The Minister’s satisfaction that a criterion has been satisfied is, by virtue of s.65(1), a necessary condition of the Minister’s power to grant the visa. If the Minister is satisfied that the criterion has been satisfied and the other conditions set out in s.65(1) are met, then the Minister has a statutory duty to grant the visa. That is a duty to exercise the power conferred upon the Minister by s.29 of the Act.

  15. Where the Minister misconstrues one of the criteria prescribed in the Act or Regulations and because of that misconstruction the Minister considers that the criteria has been satisfied, it is as though the Minister did not consider the criteria at all. For, on the face of it, the Minister has failed to ask the question which the Act and Regulations, upon a proper construction of the criteria, require the Minister to ask. The analysis comes down to clause 820.211(2)(d)(ii) which is a question of whether “the Minister is satisfied that there are compelling reasons for not applying those criteria”. The Tribunal, in paragraph 38 of its decision, set out the guidelines to be followed in determining what were “compelling reasons”. The decision reproduced the relevant section from the Departmental policy (PAM3: Schedule 2 – Spouse – Visa 820). In the following paragraphs of the decision, the Tribunal discussed the application of the statutory rules. The ultimate decision of the Tribunal was that there were no “compelling reasons” that would justify the waiver of the Schedule 3 criteria (CB p.140 at [46]). That decision was consistent with the policy set out by the Department as follows:

    “… it is the policy intention that an assessment of the relationship between an applicant and their nominator as genuine would not, in the absence of the factor(s) described in paragraph 3.3.14, be sufficiently compelling to justify not applying the Schedule 3 criteria.”

  16. I do not believe that an argument that relevant material has been ignored can be sustained because the Tribunal has explained in its reasons the assessment criteria that it has applied which led to its decision of not accepting the general nature of the relationship between the applicant and the nominator.

  17. The submission in relation to ground 5 was that the Tribunal misled the applicant in believing that evidence going to the general nature of the relationship of the applicant and the nominator would be taken account by the Tribunal and that this material would be used to assess whether there was sufficiently compelling circumstances to waive the Schedule 3 requirements. The submission was that the structure of the letter misled the applicant, resulting in a denial of procedural fairness. The letter of 6 May 2004 invited the applicant to comment on information to assist the Tribunal to make its determination as to whether criteria existed that was sufficiently compelling to satisfy the waiver of the Schedule 3 requirements. However, this question was clearly qualified by the following statements in the Tribunal’s letter:

    “Departmental policy states that examples of compelling reasons include, but are not limited to:

    ·there are Australian-citizen children from the relationship; or

    ·the applicant and their nominator are already in a long-standing spouse relationship (taken to be a relationship which has existed for at least two years).

    Policy also states that the genuine nature of the relationship is not sufficiently compelling in itself to satisfy the waiving of Schedule 3 requirements.”   (CB p.122) (Emphasis added)

  18. The Tribunal’s letter of 6 May 2004 was addressed to the applicant’s migrant agent who would have been aware of the significance of this request and the qualifications that the letter contained. The letter was received by the applicant’s migration agent and was therefore received by a person who was clearly familiar with the operation of the Act and Regulations. The claim that the applicant was misled is unsubstantiated. No evidence was put by the applicant Counsel to suggest that the applicant was misled by the contents of the letter. Nor was there evidence in relation to other issues in support of her claim such as medical evidence detailing the injuries sustained by the nominator or any of the other issues that were contained in the agent’s response of 21 June 2004. The submission that the applicant was denied the opportunity of adducing evidence to the Tribunal cannot be sustained.

  19. The correspondence in response to the Tribunal’s invitation was prepared by a registered migration agent who was qualified and should have been aware of the nature of the requests being made and the requirements being requested by the Tribunal.  The material was not being prepared and submitted by the applicant herself who, it was clearly acknowledged, did not possess the skills that would be necessary in order to prepare the appropriate submissions.  Rather, they were being prepared by her qualified representative, who was familiar with the operations and requirements of the Tribunal.

  20. Under ground 6 the applicant submitted that the Tribunal misunderstood its powers by issuing the “Invitation to comment on information” dated 6 May 2004 (CB p.121) in that the invitation was ultra vires. The applicant’s argument was that the document was an apparent attempt to issue two different notices within the one document, namely s.359 request for additional information and s.359A invitation to comment on information. If that is what the document represents, then it is ultra vires and cannot be remedied by the Court by severing, covering up or dissecting with a blue pencil to overcome this defect.  I accept the submissions by the applicant in paragraph 16(c) above that this approach is not available.  I also accept the submissions in paragraph 16(d) above citing Sun per Walters FM at [67]:

    “… the right to appear and be heard is such a fundamental component of the overall concept of procedural fairness that any legislative provision designed to limit or remove that right, or to render it conditional, should be interpreted strictly”.

  21. The Tribunal’s letter of 6 May 2004 was formatted as a notice under s.359A. The invitation was to comment in writing on the following information:

    “Departmental records indicate that, at the time you applied for your visa (13 May 2002), you did not hold a substantive visa (your Subclass 686 visa expired on 10 July 1999).”   (CB p.121)

  1. The notice then explained the significance of that issue and the requirements in respect to the time limits for response and the consequences of failing to respond within those time limits. The material that was challenged by the applicant, as being inappropriate to be contained in a s.359A notice, is the following paragraph:

    “In order to assist the Tribunal to make this determination, you are invited to provide, in writing, the following information to the Tribunal:

    ·Whether there are any compelling reasons for granting you a visa; and

    ·Whether you did not hold a substantive visa at the time you lodged your visa application because of circumstances beyond your control.”   (CB p.122)

  2. The basis of the applicant’s argument was that this paragraph was a request for information that should have been contained in an s.359 notice as a distinctly separate notice from letter of 6 May 2004, which otherwise had all the characteristics and statutory requirements of an s.359A notice.

  3. Taken in isolation the contents of this paragraph is a request for information.  The alternative instruction is that the request for comment set out in the letter can only be satisfied in a positive respect by the applicant’s response that:

    a)She does hold a substantive visa

    b)She does not hold a substantive visa but there are compelling reasons

    c)She did not hold a substantive visa because of circumstances beyond her control

  4. These three responses are canvassed in the Tribunal’s letter of 6 May 2004. In the paragraph at the bottom of the letter, immediately after the invitation to comment, the Tribunal indicated to the applicant that she may in fact be the holder of a substantive visa and the Departmental records may be defective or in error regarding the issue. The paragraph in contention, addressed the alternative position, as confirmed by the Department’s records, that the applicant did not hold a substantive visa but did fall within the exemptions available within the regime of the Act and Regulations. Consistent with this view, was that the applicant was being provided with the opportunity to comment on the Department’s records and given an invitation to rectify any error or omission in those records. This analysis of the paragraph in question was supported by the context of the following three paragraphs of the letter which placed a strict limitation on the contents of any comment that the applicant may make.

  5. The parameters of compelling reasons were suggested together with the exclusions to any material that had been previously supplied and obviously within the Tribunal’s or Department’s records and deemed to not satisfy the nature of the comment sought.  It must be acknowledged that the wording of the paragraph in question, when taken in isolation and strictly interpreted, suggested the Tribunal’s letter of 26 May 2004 could be the substance of a separate notice (s.359 notice).  However, taken in the context of the letter as a whole, I believe the intention of the Tribunal’s letter was to both guide and limit the nature of the explanation of the comment as to the non existence of a substantive visa.

Conclusion

  1. For the preceding reasons I do not believe that any of the six grounds of the application can be sustained and the application should therefore be dismissed.

  2. I am satisfied that an order for costs should be made in this matter.


    I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  17 May 2005

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Cases Citing This Decision

2

SZORU v Minister for Immigration [2011] FMCA 182
Diallo v Minister for Immigration [2009] FMCA 642