Reddy v Minister for Immigration
[2020] FCCA 15
•1 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REDDY v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 15 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – sponsor informing the Minister’s Department that the relationship had ended – applicant invited to comment by the Tribunal – applicant not responding in time – Tribunal proceeding to make its decision without affording a further opportunity to comment – whether the process followed by the Tribunal was unfair or whether the Tribunal misconstrued its powers considered – whether the Tribunal’s reasoning was irrational, whether the Tribunal failed to exercise its statutory power or whether the Tribunal misconstrued s.359A considered – jurisdictional error established – correspondence which combines an invitation to comment with a request for information where one or other is not called for does not disentitle an applicant to a hearing where no response is made within the stipulated time period. |
| Legislation: Migration Act 1958 (Cth), ss.338, 359, 359A, 359B, 359C, 360, 379A, 379G |
| Cases cited: Hasran v Minister for Immigration [2010] FCAFC 40 |
| Applicant: | AVINESH REDDY |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 430 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 December 2019 |
| Date of Last Submission: | 12 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Foster |
| Solicitors for the Applicant: | Harish Prasad & Associates |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 23 January 2019 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine according to law the review application before it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 430 of 2019
| AVINESH REDDY |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Mr Reddy) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 January 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Reddy a partner visa.
The following statement of background facts is derived from written submissions filed on behalf of the Minister on 10 December 2019.
Mr Reddy is a citizen of Fiji who on 13 May 2015 applied for a partner visa on the basis of his relationship with his sponsor, Ms Gounder. It was a requirement for the grant of the visa that at the time of decision Mr Reddy and Ms Gounder be in a spousal or de facto relationship, unless the relationship had ceased and certain circumstances existed.[1]
[1] See clause 100.221 of the Migration Regulations 1994 (Cth) (Regulations)
On 20 August 2018 Ms Gounder communicated to the Minister’s Department that her relationship with Mr Reddy had ceased.[2] On 20 August 2018 the delegate invited Mr Reddy to comment on the information the Minister’s Department had received that his relationship with Ms Gounder had ceased.[3] On 25 August 2018 Mr Reddy submitted to the Minister’s Department a notification of change in circumstances form, confirming that he was no longer in a relationship with Ms Gounder, and that Ms Gounder was no longer living with him.[4]
[2] Court Book (CB) 161
[3] CB 163
[4] CB 166
On 7 September 2018 the delegate refused to grant Mr Reddy a visa.[5] On 24 September 2018 Mr Reddy applied to the Tribunal for review of the delegate’s decision.[6]
[5] CB 169
[6] CB 205
On 5 December 2018 the Tribunal pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act) invited Mr Reddy to comment on information that his relationship with Ms Gounder had ended, and that she had withdrawn her sponsorship.[7] The invitation stated that Mr Reddy’s comments or response and information should be received by 28 December 2018, and that if he was not able to do so, he could ask for an extension of time before 28 December 2018 stating the reason why an extension of time was required. The invitation stated that if the Tribunal did not receive either Mr Reddy’s comments or response or the information within the period allowed or as extended, it might make a decision on the review without taking any further action to obtain his views on the information or to obtain the information. Further, Mr Reddy was informed that he would lose any entitlement he might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.
[7] CB 230
On 7 January 2019 Mr Reddy through his solicitor sent a letter to the Tribunal seeking an extension of time to make the relevant submissions.[8] The letter explained the circumstances that resulted in Mr Reddy not having responded to the Tribunal’s invitation to respond and to provide information within the stipulated time frame. The letter stated that “In our brief discussion we had with [the applicant], he has undertaken to provide us upon our return substantive documents to prove that he was in fact in a spousal relationship with his sponsoring spouse. Further to this he will also provide substantive documents in conformity with legislative requirements to claim family violence from the sponsoring spouse”.[9]
[8] CB 234
[9] CB 234
The response to the invitation to comment was essentially limited to a request for more time to comment, and was itself made outside of the time stipulated in the invitation to comment. The Tribunal proceeded to make its decision without providing any further opportunity to comment or make submissions.
The current proceedings
These proceedings began with a show cause application filed on 26 February 2019. The applicant continues to rely upon that application. There are five grounds in it:
Ground One
The Administrative Appeals Tribunal (the "Tribunal") denied the applicant the opportunity to put before it further written material, written statements and written arguments in support of his application. The Tribunal's failure to accord the applicant an extension of time or to provide a timely response to advise him that the extension of time request had been refused, denied the applicant procedural fairness.
Particulars
a)The applicant was entitled under s 358 of the Migration Act 1958 (Cth) (the "Act") to give the Tribunal a written statement and written arguments. This opportunity to do so was quite separate from, and unaffected by, the loss of his entitlement to appear before the Tribunal to give evidence and present arguments.
b)The Tribunal's letter of 5 December 2018 stated in part:
"We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted".
c)On 7 January 2019, the applicant's representative wrote to the Tribunal seeking an extension of time and advising it that the applicant would be making a non-judicially determined claim of family violence.
d)The Tribunal did not respond to the applicant's representative's letter of 7 January 2019 and moved to make a decision in the matter on 23 January 2019. This denied the applicant procedural fairness because had the applicant been put on notice that his request for an extension was denied, he would have provided the Tribunal his written statements, written material and written arguments to substantiate his claims in support of his case as a matter of urgency.
e)Section 353 of the Act exhorts the Tribunal to conduct its review in a way that is "fair, just, economical, informal and quick'. A critical issue in the applicant's matter was that notwithstanding that s 359C(2) applied to him, the Tribunal had regard to the information provided to it with the letter from the applicant's migration agent on 7 January 2019 even though the prescribed time for a response had lapsed.
f)The letter clearly identified the fact that the applicant would be making a non-judicially determined claim of family violence. There is no provision of the Act which inhibits the Tribunal from not accepting written material, written statements and written arguments despite the fact that the prescribed time for a response had lapsed. There is no provision in the Act which inhibits the Tribunal from not advising the applicant accordingly.
Ground Two
The Tribunal misconstrued its powers under the Act and denied the applicant from providing relevant information to substantiate his case despite being advised that he had lost the opportunity to appear before it. The Tribunal made its decision to affirm the refusal of the applicant's visa on the false assumption that since he was not entitled to a hearing before the Tribunal, the Tribunal could not afford him the opportunity to make written submissions. This constitutes procedural unfairness.
Particulars
a)It is accepted by the applicant that s 360(3) disentitles a visa applicant from appearing before the Tribunal if any of the circumstances in s 360(2) applies to the applicant. Consequently, s 363 would appear to disempower the Tribunal from allowing the applicant to appear before it in the present circumstances of this matter.
b)As the court in Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201 (14 September 2005) observed at (50):
"But there is no provision disentitling the visa applicant from providing such information to the Tribunal as that the visa applicant considers to be pertinent. And notwithstanding that s 359C(2) applies to that visa applicant, such information may include information provided belatedly pertaining to information referred to in an invitation under s 359A. That was what the Tribunal gave the first respondent the opportunity to do ... in the present matter".
c)The Tribunal at Decision Record [12] stated:
"The applicant did not provide the requested responses or comments or the information within the prescribed period and he did not seek an extension of time within the requisite time period. In these circumstances, s. 359C applies and pursuant to s. 360(3), the review applicant is not entitled to appear before the Tribunal".
d)The Tribunal was put on notice by the applicant's migration agent's letter of 7 January 2019 the course of action that would be taken in providing substantive documents to prove the applicant's spousal relationship with the sponsoring spouse as well as the preparation of detailed statutory declaration to substantiate the applicant's claims of family violence.
e)The Tribunal failed in its duty to carry out its statutory task The Tribunal had information that was relevant and pertinent to the applicant's matter. The Tribunal however had total disregard to the information and acted in a manner that was procedurally incorrect and therefore prejudicial to the applicant.
f)As Gleeson CJ said in Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 195 ALR 502 at [37], procedural fairness is not an abstract concept; it is essentially practical and the concern is to avoid practical injustice. The applicant submits that there was practical injustice in the present case.
Ground Three
The Tribunal's approach and reasoning was irrational and or illogical because it was not based on findings or inferences of fact supported by logical grounds.
Particulars
a)The Tribunal was put on notice on 7 January 2019 by the applicant's migration agent's letter that there had been a delay in communication between the applicant and the agent and that the agent's office was closed from 21 December 2018. The letter of7 January 2019 raised a number of pertinent matters for the Tribunal's consideration.
b)The Tribunal had total disregard to the letter of 7 January 2019 and did not even respond to it by writing and stating that no extension would be granted. More importantly, the Tribunal did nothing in response to the 7 January 2019 letter to notify the applicant that he could still submit further information to it. That would have clearly been a common sense approach.
c)Had the Tribunal adopted that course, it would not have removed from the applicant the status of a person to whom s 359C(2) applied, but would have been consistent with the Tribunal's functions and within the processes permitted by the Act.
d)The overzealous approach taken by the Tribunal in excluding any further information to be submitted by the applicant was an irrational approach that denied the applicant procedural fairness. Such an action would give rise to jurisdictional error.
Ground Four
The Tribunal failed to carry out its exercise of power under s359B(4) to extend the period to respond to an invitation under s359A, even though the initial prescribed period had expired.
Particulars
a) Section 359B(4) states that if a person is to respond to an invitation within a prescribed time, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
b) Section 359B(4) does not expressly preclude the Tribunal from doing so. As the court in Sun observed at [51], there is no practical reason why it should be so restricted. The timing of the Tribunal's processes is a matter for it.
c) In the present matter, there were fully understandable reasons why the applicant was unable to respond to the invitation under s 359A in a timely manner. There were circumstances beyond the control of the visa applicant that led to the delay in communicating with his migration agent.
d) As the Court in Sun observed at [51], s 359B(4) is intended to give the Tribunal a general discretion to extend the time to respond to an invitation under s 359A even though the initial prescribed time has expired.
Ground Five
The purported invitation sent by the Tribunal on 5 December 2018 was incorrectly issued under s 359A. The Tribunal exceeded its powers by seeking information on the withdrawal of the sponsorship when clearly there was no such withdrawal.
Particulars
a) The Tribunal has a duty to act in a way that is just and fair. Its statutory task is to review the delegate's decision and to make its finding in the matter at hand. In this particular case, the Tribunal identified the wrong issue and in doing so cannot be said to have conducted its task in a procedurally correct manner.
b) The Tribunal's invitation letter of 5 December 2018 provided particulars of information that was factually wrong. The Tribunal invitation letter stated:
"Information on the Department's file indicates that your relationship with the sponsoring partner has ended and that the sponsoring partner has withdrawn the sponsorship.
c) As a result of the defective invitation under s 359A, the Tribunal was obliged to reissue another s 359A invitation to comment or respond to information and to provide information. By not correcting its error, the Tribunal acted in a procedurally incorrect manner.
I have before me as evidence the court book filed on 2 May 2019.
Both Mr Reddy and the Minister provided pre-hearing written submissions and made oral submissions through their counsel at the trial of this matter on 19 December 2019. In view of oral argument concerning [11] of the Tribunal decision[10] I called for further submissions from the parties on the issue of whether the power to invite comments or information had been enlivened. Both Mr Reddy and the Minister filed post-hearing submissions.
Consideration
[10] CB 240
The grounds as advanced
In relation to Ground 1 Mr Reddy contends that s.358 of the Migration Act entitled him to provide a written statement or arguments which is not restricted by s.359A or s.359. While I accept that Mr Reddy, through his solicitor, could have provided evidence or a submission to the Tribunal prior to the Tribunal’s decision in reliance upon s.358, the fact is he did not do so. All the solicitor did was to seek further time to respond to the invitation and request, based upon the seasonal closure of their office. The solicitor may have laboured under the misapprehension that they needed an extension of time in order to submit anything further, but that is not the fault of the Tribunal.
I otherwise agree (subject to an important caveat) with the Minister’s submissions concerning the first ground. That caveat is the assumption that the invitation and request sent to Mr Reddy was validly issued because the power to issue it (at least under s.359) was enlivened. If that power was not enlivened, then the grounds of review (including this ground) simply fall away in the face of a more fundamental jurisdictional error).
Mr Reddy’s complaint that the Tribunal denied him the opportunity to provide further material and written arguments in support of his application is unfounded. To the contrary, the Tribunal invited Mr Reddy to comment on adverse material relevant to the review, and he failed to respond within the specified time frame. Having not responded to the Tribunal’s invitation to comment under s.359A and to provide information under s.359, and having failed to make a request for an extension to respond within the timeframe, the Tribunal did not have power to grant the extension. As the Full Federal Court stated in its analysis of the provisions in Hasran v Minister for Immigration[11] at [45]-[48], following the obiter remarks of Tracey J in M v Minister for Immigration:[12]
The question of whether the Tribunal may exercise the power under s 359B(4) to extend the period to respond to an invitation under s 359A after the expiry of the initial prescribed period was left open in Sun at [51]. See also the observations in SZEXZ v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 449 at [46].
However, in M at [52] Tracey J said that had it been necessary to do so, he would have held that the Tribunal could not enlarge time under s 359B(4) after the expiry of the date prescribed in the s 359A letter.
In coming to that view, Tracey J observed that s 359B(4) is cast in the present tense. That is to say, the subsection contemplates a person who "is to respond to an invitation" within the stipulated time. We agree with Tracey J that this indicates that the power to grant an extension is lost since the prescribed time has expired. See also Usman v Minister for Immigration [2005] FMCA 966 at [44].
That view is re-enforced by the provisions of s 359C(2). If an applicant does not give the comments or response "before the time for giving them has passed" the Tribunal’s power to make a decision without taking further action to obtain the applicant’s views is enlivened. This is a further indication that the Tribunal’s discretion to extend time is spent if a request is made after the expiry of the prescribed period. The effect of this subsection, when read with s 360(2), s 360(3) and s 363A is that the gate closes on an applicant who fails to respond to a letter under s 359A within the prescribed time. There is simply no discretion to extend the time to respond.
(Minister’s emphasis retained)
[11] [2010] FCAFC 40
[12] (2006) 155 FCR 333
To this end, the Tribunal was correct to find that it could not in this case grant an extension of time for Mr Reddy to give the written comments or response or information as he was invited to do.[13]
[13] [15]; CB 241
Additionally, the Tribunal engaged in a consideration of the circumstances of the case in determining to proceed to make a decision without taking any further steps to enable Mr Reddy to respond to the adverse information. To the extent the Tribunal purported not to exercise a discretion to take further steps to enable Mr Reddy to respond to the adverse information, the Tribunal’s reasons for decision disclose an evident and intelligible justification. No error is made out.
In relation to Ground Two, subject to the same caveat as in relation to Ground One, based upon discussion of the issue arising during oral argument, I prefer the submissions of the Minister.
Mr Reddy contends that the Tribunal misconstrued its powers and denied him the opportunity to make written submissions. He says that the Tribunal relied on a false assumption. However, on a proper analysis of the Tribunal’s reasons, the Tribunal did not rely on any false assumption or otherwise mischaracterise its powers. The Tribunal did not deny Mr Reddy the opportunity to make written submissions. Rather, it proceeded according to the procedural fairness obligations set out in the Migration Act. It was a matter for Mr Reddy to make whatever submissions he wished to the Tribunal.
The question of whether the Tribunal needed to delay making its decision (which it had discretion to do in the circumstances under s.359C(1) of the Migration Act and whether Mr Reddy had lost his right to be invited to a hearing) is a separate question. For the reasons the Tribunal gave, it was open to the Tribunal to proceed in the way it did. The Tribunal addressed Mr Reddy’s submissions at [13]-[14] of its decision.[14]
[14] CB 240-241
Further, Mr Reddy’s submission that the Tribunal’s “advice” that he would lose his entitlement to appear at a hearing was wrong in that it suggested that Mr Reddy could not make submissions to the Tribunal cannot be made out. There is a difference between making written submissions and an invitation to appear at a hearing to give evidence and present arguments orally.
Lastly, Mr Reddy’s submission that s.359C(1) did not apply to him should be rejected. The submission appears to be that the Tribunal’s use of the word “should” in its letter dated 5 December 2018, indicating that comments or response “should be” received by 28 December 2018, suggested that there was no rigid time limit for the provision of the response or the information. First, the wording of the letter does not dictate the requirements of the Migration Act and the Regulations.[15] Secondly, the Tribunal’s letter was clear, read in context, in conveying the time limits in which information or responses were required to be given. The Tribunal did not deny Mr Reddy procedural fairness, but acted in accordance with the procedural fairness regime in Part 5 of the Migration Act.
[15] see s.359B(2) of the Migration Act and regulations 4.17(4) and 4.18(4) of the Regulations
I likewise prefer the Minister’s submissions in relation to Grounds Three and Four, subject to the same caveat as applies in relation to Grounds One and Two.
In the third ground Mr Reddy asserts that the Tribunal’s decision was illogical and irrational in that the Tribunal had “total disregard” for his 7 January 2019 letter. Mr Reddy submits that the Tribunal did nothing to notify him that he could still submit further information to it. Mr Reddy describes the Tribunal’s approach in excluding further information to have been “overzealous”, giving rise to jurisdictional error.
The ground does not identify error. The Tribunal was entitled, and indeed required, to find that s.359C applied to Mr Reddy. Mr Reddy does not appear to contest this point. However, Mr Reddy, having lost an entitlement to be invited to a hearing, the Tribunal had no power to invite him to a hearing, as found in Hasran, addressed above. The Tribunal was under no duty, express or implied, to further communicate with Mr Reddy about the effect of the legislation, or to invite him to make further submissions. Indeed, having already invited him to provide comments and give information, and Mr Reddy having failed to do so, the Tribunal had a discretion to proceed without taking any further steps to enable Mr Reddy to comment, or to provide information. The Tribunal gave reasons for its approach, which were based on evidence, intelligible and open to the Tribunal.[16] No error is made out.
[16] [13]-[14]; CB 240-241
Mr Reddy asserts in his fourth ground that the Tribunal failed to carry out its exercise of power under s.359B(4) to extend time, even though the initial prescribed period had expired.
Section 359B(4) provides:
If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
The question of whether in circumstances where an applicant who fails to respond to an invitation to comment or to provide information, and who seeks an extension of time to do so beyond the allowed time frame, the Tribunal may consider exercising its discretion under s.359B(4), was considered in Hasran, as relevantly extracted above. In the circumstances as identified by the Tribunal in this case, it had no discretion to extend time.
In any event, the Tribunal did turn its mind to Mr Reddy’s explanation in the letter dated 7 January 2019 for the delay in providing a response to the Tribunal’s letter. The Tribunal decided it could not in the circumstances grant the extension of time that was sought. No error is made out.
I note that Ground 5 in the application was not pressed.
The additional issue
An additional issue arose during oral argument at the trial. This concerns [11] of the Tribunal decision where it stated:[17]
The Tribunal is mindful that the applicant provided the Tribunal with a copy of the primary decision. That decision contains information about the cessation of the relationship but not the withdrawal of sponsorship. In the circumstances, the Tribunal considers that s.359A(4)(b) applies and the Tribunal does not have an obligation pursuant to s.359A in respect of the adverse information about the cessation of the relationship. Accordingly, the Tribunal considers that the purported invitation sent on 5 December 2018 was not correctly issued under s.359A in this respect. However, the Tribunal notes that the delegate's decision does not contain information about the withdrawal of sponsorship and that information is subject to the s.359A obligation and, accordingly, the invitation was correctly issued in this respect. Further, the Tribunal considers that the invitation to give information in writing, which was also contained in the letter of 5 December 2018, was correctly issued under s.359(2).
[17] CB 240
The issue is, as the Tribunal conceded that s.359A(4)(b) applied to the information concerning the cessation of the relationship between Mr Reddy and Ms Gounder (that information having already been provided to the Tribunal by Mr Reddy) there was no enlivenment of the Tribunal’s power to issue the letter dated 5 December 2018,[18] at least insofar as it related to the information concerning the cessation of the relationship.
[18] CB 230-232
The Tribunal points out in its letter that there was new information, namely that Ms Gounder had withdrawn her sponsorship. The Tribunal took the view that that information supported the issuing of the invitation. However, the presence or absence of a sponsor is not the critical factor bearing upon the criteria for a partner visa. The relevant criterion is the existence of a spousal relationship rather than the existence of a sponsor.
The Tribunal also took the view that in any event the issuing of the letter was supported by s.359(2) of the Migration Act even if s.359A did not apply. However, an invitation to give information in writing does not arise in a vacuum, it must relate to particular information or an issue. There was no call for an invitation to give information about the cessation of the relationship because Mr Reddy had already told the Minister’s Department and the Tribunal about that. The issue of the withdrawal of the sponsorship arguably did not have any bearing itself on the outcome of the visa application. The question of law to resolve is whether the letter had any effect under the Migration Act in circumstances where the power to issue it had not been enlivened.
The post-hearing submissions addressed that issue. Mr Reddy relevantly submits that, while the Tribunal would have been permitted to send a letter pursuant to s.359 inviting Mr Reddy to give information concerning family violence, it was not permitted to send an invitation for Mr Reddy to give comments or respond to information concerning the cessation of the relationship.
Mr Reddy contends that, once the Tribunal determined that “the Tribunal did not have an obligation pursuant to s.359A in respect of the adverse information about the cessation of the relationship”, a reference to the invitation referred to above as the “first invitation”, no other provision in the Migration Act entitled the Tribunal to forward such request in the form it did.
The provisions of s.379A of the Migration Act address the forwarding of documents which the Part or the Regulations “require or permit the Tribunal to give a document to a person”, and clearly do not apply to the giving of documents that are not required or permitted to be given to a person under the Migration Act.
Mr Reddy submits that the letter cannot be dissected into two parts, one part being seen as permitted (s.359) and the other part not. On any view, the letter contains matters (the “first invitation”) that are not authorised, or required or permitted to be sent, and is, in his submission, invalid. That aspect is said to infect the entire letter.
Further, Mr Reddy submits that, apart from the point of including invalid and unauthorised paragraphs in the letter, the letter is extremely misleading by impermissibly purporting to impose time limit obligations and consequences should Mr Reddy not comply with the obligations:
a)the imposed time limits are as follows: “Timeframe to give comments or response and provide information. Your comments or response and the information should be received by 28 December 2018. …. If you cannot provide either the written comments or response or the information or both by 28 December 2018, you may ask us for an extension of time. If you make such a request it must be received by us before 28 December 2018 and you must state the reason why the extension of time is required.”[19] As one can see, the “Timeframe” part of the letter distinguishes between Mr Reddy giving “comments and responses”, and Mr Reddy “giving information”: these are separated by the word “and” in block. Such distinction corresponds with the dichotomy between s.359 and s.359A;
b)the letter then sets out the consequences of not responding to either invitation:[20]
If we do not receive your comments or response or the information 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 or to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.
(counsel’s emphasis retained)
[19] CB 231
[20] CB 231
Mr Reddy submits that, as with the “timeframe” portion of the letter, it is also clear that the “consequences” part of the letter referred to both invitations, those under s.359 (“the information”) and those purportedly under s.359A (“comments or response”), clearly separated by the word “or” in block.
Since s.359A cannot apply to the “first invitation”, those parts of the letter requiring compliance within an imposed timeframe and imposing consequences in default thereof, are obviously invalid and misleading.
Mr Reddy contends that, in such circumstances, the letter cannot be separated into two portions as if one part (the “first invitation”) can be discounted or ignored from the “second invitation”.
The case of Hasran confirmed that the power of the Tribunal to grant an extension of time for an applicant to respond is lost where the prescribed time in a s.359A letter has expired. The case did not deal with a conflation of a valid and permitted invitation on the one hand, together with an invalid and unpermitted invitation on the other, in the same letter as in this case, and so is not on point.
Mr Reddy submits that the Court should find the whole of the letter of invitation dated 5 December 2018 was invalid and invalidly sent; quash the decision of the Tribunal; issue a writ of mandamus requiring the Tribunal to deal with Mr Reddy’s application according to law; and make an order that the Minister pay costs.
The Minister’s submission is that it was permissible for the Tribunal to send an invitation to comment or respond to adverse information, and an invitation to give information in one letter. The Minister submits that the Tribunal’s 5 December 2018 letter, having regard to its content and form, met the statutory requirements for an invitation under both s.359A(1) and s.359(2).
The answer to the question posed may be discerned from a process of statutory construction. The Migration Act does not prescribe the manner in which an invitation under s.359A(1), or an invitation under s.359(2), is to be given. There is no prescribed form. Neither does the Migration Act prohibit an invitation pursuant to s.359A(1) and an invitation pursuant to s.359(2) to be given or contained in a single piece of correspondence. To the contrary, the Migration Act requires only that an invitation contain certain content. Further, the Migration Act refers in ss.359 and 359A to an “invitation”, rather than to a “notice of invitation”.
The prescribed content for an invitation under s.359A(1) and under s.359(2) is contained in s.359B, which provides:
(1) If a person is:
(a) invited in writing under section 359 to give information; or
(b) invited under section 359A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2)If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3)If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
Regulation 4.17 of the Regulations provides for the prescribed time period in which a person is required to respond either to an invitation given under s.359A(1) or given under s.359(2). Different response time periods are prescribed depending upon what kind of review the Tribunal is conducting under s.338 of the Migration Act.
The Minister submits that the statutory and regulatory context support the proposition that it is open to the Tribunal to issue an invitation under s.359A(1) and under s.359(2) in a single letter. That is because the requirements as to the manner in which the invitations under each section are to be given are contained in s.359B and regulation 4.17. That is, the Migration Act and the Regulations do not prescribe separate and distinct requirements for the manner in which invitations under each section are to be given. Further, the consequences of an applicant’s failure to comply with an invitation issued pursuant to s.359A(1) or s.359(2) are the same, and set out in s.359C of the Migration Act.
The Minister contends that the Tribunal’s 5 December 2018 letter[21] is clearly expressed, and plainly invites Mr Reddy both to comment on or respond to adverse information, and provide information. The letter makes clear at CB 231 that the timeframe stipulated was for the purposes of giving comment or response and to provide information. The letter also clearly expressed that failure to respond to either invitation might result in the Tribunal making a decision on the review without taking any further action to obtain Mr Reddy’s views on the information or to obtain the information, and that he might lose his entitlement to a hearing.
[21] CB 230
The Minister submits that the 5 December 2018 letter complied with the requirements both for an invitation under s.359A(2) as well as an invitation under s.359(2). For instance, the letter:
a)set out the particulars of the information, its relevance to the review and invited Mr Reddy to comment in writing;[22]
b)was given to Mr Reddy via his migration agent as authorised recipient, as required by s.379G of the Migration Act, by email as permitted by s.379A(5) and s.359A (2)(a);
c)specified the period of time in which Mr Reddy was required to respond to the information as required under s.359B(2) of the Migration Act read with regulation 4.17 of the Regulations, although the letter appears to have provided for more than 14 days prescribed (but no error arises from that).
[22] sections 359A (1) and 359B(1)(b) of the Migration Act
Whilst this question did not arise for consideration, a “combined” invitation under s.359A(1) and s.359(2) was the subject of scrutiny by the Federal Court on an appeal in Kaur v Minister for Immigration.[23] Justice Middleton in that case identified no difficulty with an invitation under each section having been given in a single letter to the appellants.
[23] [2018] FCA 779
As submitted earlier to the Court, the Minister submits that in the circumstances even had the Tribunal at [11] of its decision record been mistaken as to the basis to have issued an invitation to comment on or respond to adverse information under s.359A(1), any such misapprehension by the Tribunal does not infect the fact that the Tribunal’s 5 December 2018 letter was also an invitation properly issued pursuant to s.359(1). That is, the Tribunal remained entitled to conclude, as it did, that s.359C applied in respect of Mr Reddy’s non-response to the s.359(2) invitation.
Resolution
The question is whether the Tribunal, in issuing a letter that performed, or purported to perform, the function of an invitation to invite comment or respond to adverse information, and of an invitation to give information, was issued under and complied with ss.359A(1) and 359(2). The issue arises in respect of the Tribunal’s decision record at [11] where the Tribunal determined that the invitation to Mr Reddy dated 5 December 2018 was an invitation both under s.359A (to invite comment or response on adverse information) and under s.359(2) (to invite the giving of information).
There appears to be no authority directly on point. There are, however, some general principles which are not (or should not be) controversial. First, the Tribunal is not prohibited from sending a letter purportedly under s.359A of the Migration Act in circumstances where the obligation to send such a letter is not enlivened. It is often prudent for the Tribunal to send a letter in such circumstances, possibly because the Tribunal may be uncertain whether an obligation of disclosure has arisen, or because the Tribunal is concerned to ensure that an applicant is aware of a potentially determinative issue and given the opportunity to comment upon it.
Secondly, if the Tribunal issues a letter purportedly for the purposes of s.359A of the Migration Act in circumstances where the obligation to issue the letter was not enlivened, a failure by an applicant to respond to the purported invitation, either within the time prescribed or at all, has no consequence in terms of the procedural fairness obligations on the Tribunal under the Migration Act. So, for example, a failure to respond in such circumstances would not deprive the applicant of an entitlement to a hearing under s.360.
Thirdly, the Tribunal is entitled to combine an invitation to comment under s.359A and a request for information under s.359 in a single letter. That is well established in the authority referred to by the parties.
It is but a small step to conclude (as I do) that the Tribunal in the present case was entitled to combine a request for information under s.359 with its purported invitation to comment purportedly under s.359A. The Tribunal was alive to the fact that no obligation to invite comment arose in respect of the cessation of the spousal relationship. The Tribunal took the view that an obligation to invite comment did arise in respect of the withdrawal of the sponsor. However, I agree with Mr Reddy that the withdrawal of Ms Gounder’s sponsorship (not being a visa criterion) was only relevant insofar as it bore on the cessation of the spousal relationship (which is a visa criterion). In the present case, Mr Reddy had already conceded that the spousal relationship had ended and he had provided that information to the Minister’s Department, so the withdrawal of the sponsor added nothing. In the circumstances of this case, in my opinion, the information concerning the withdrawal of the sponsor was not information giving rise to an obligation of disclosure under s.359A. It follows, in my opinion, that s.359A was not enlivened in respect of any information in the letter.
While the Tribunal was entitled to issue the letter under s.359 and there was nothing preventing the Tribunal combining that request with the purported invitation to comment, purportedly under s.359A, the consequence is that the request and the invitation were intermingled. Hypothetically, on the basis of the Minister’s submissions, if Mr Reddy had responded to the request for information but remained silent on the invitation to comment, he would have retained the opportunity to comment further and have a hearing. If, on the other hand, Mr Reddy had responded within time to the purported invitation to comment but remained silent on the request for information, on the Minister’s case, he would have lost those opportunities. This would be, to my mind, a very strange, even absurd, outcome. The information or comment which Mr Reddy would hypothetically have provided would have been the same in either case, namely that while the relationship had broken down, he should still receive a visa on account of being a victim of family violence.
The Tribunal should not be deprived of the opportunity (and obligation) to explore an allegation of family violence in relation to a partner visa application except in clear circumstances. If the Tribunal had sent two letters rather than one and received no response within time to either of them, that would have been a clear circumstance supporting the outcome contended for by the Minister. Where, however, the Tribunal has chosen to combine a request and invitation in one letter and one or other of the request or invitation were not required, the proper outcome, in my view, is that the punitive consequences of a failure to respond within time do not apply. I so find.
Conclusion
Mr Reddy has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error. He should receive relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 1 April 2020
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