Saba Bros Tiling Pty Ltd v Minister for Immigration & Anor
[2010] FMCA 598
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SABA BROS TILING PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 598 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of application for appointment under employer nomination scheme – Tribunal inviting comment on a statutory exclusion which was the basis of the delegate’s decision – exclusion expiring after the delegate’s decision and before the application to the Tribunal – after its expiry the exclusion was irrelevant to the Tribunal’s decision on review – whether the exclusion was “information” for the purposes of s.359A considered – applicant replied to an invitation to comment within the time specified for a response – applicant requested an oral hearing – reply treated by the Tribunal as non responsive to the invitation – whether the Tribunal erred in denying an oral hearing considered. |
| Migration Act 1958 (Cth), ss.140J, 140L, 351, 359A, 359B, 359C, 360, 424A Migration Regulations 1994 (Cth) |
| Chun Wang v Minister for Immigration [1997] FCA 70 Kumar v Minister for Immigration & Anor [2010] FMCA 614 M vMinister for Immigration (2006) 155 FCR 333 Minister for Immigrationv Sun [2005] FCAFC 201 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZBYR v Minister for Immigration (2007) 235 ALR 609 VAFv Minister for Immigration (2004) 206 ALR 471 Win v Minister for Immigration (2001) 105 FCR 212 Xue vMinister for Immigration [2009] FMCA 421 |
| Applicant: | SABA BROS TILING PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1185 of 2010 |
| Judgment of: | Driver FM |
| Hearing dates: | 6 August, 11 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Michael Jones, Solicitor |
| Counsel for the Respondents: | Mr G Kennett Ms F Ramsey |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal made on 23 April 2010.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1185 of 2010
| SABA BROS TILING PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) made on 23 April 2010. The Tribunal affirmed a decision of a delegate of the Minister that an application for appointment under the employer nomination scheme not be approved. The following statement of background facts is derived from the submissions of the parties.
The applicant (“Saba Bros”) lodged an “employer nomination” form in respect of a Mr El Chediac on 21 May 2008.[1] Approval was sought under regulation 5.19 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”) for a “nominated position”, which was described as “wall and floor tiler”.
[1] Court Book (“CB”) 3.
Saba Bros’ application was refused by a delegate of the Minister on 9 October 2008.[2] The reason for that refusal was that Saba Bros had, in August 2008, been issued with a sanction notice under s.140J of the Migration Act 1958 (Cth) (“the Migration Act”) which barred it from applying for approval as a sponsor, or nominating persons or activities in relation to temporary visas, for three months.[3] The sanction was apparently imposed on 20 August 2008.[4] This was an action described in s.140L of the Migration Act and resulted in the delegate being required to refuse the application under regulation 5.19(1C)(b).
[2] CB 102.
[3] CB 65-69.
[4] See CB 123.
Saba Bros applied for review of the delegate’s decision by the Tribunal.[5]
[5] CB 107.
On 25 January 2010 the Tribunal wrote to Saba Bros, inviting it to comment on information. The information set out in the letter was in substance the existence of the sanction. The letter indicated that the Tribunal might find (as had the delegate) that the application was required to be refused as a result of the imposition of the sanction.[6] Any response or request for an extension was required by 22 February 2010.[7]
[6] CB 123.
[7] CB 124.
The response from Saba Bros’ solicitor, dated 22 February 2010, was:
We refer to section 351 notice (sic) and note adverse information therein. We have put the adverse information to our client, however we are instructed that he would still like the opportunity of an oral hearing.[8]
[8] CB 127.
The next day the Tribunal wrote to Saba Bros again. It noted that it did not regard the letter of 22 February as a response to, or comment on, the information it had put to Saba Bros. On this basis it considered that Saba Bros had lost its right to an oral hearing. It went on to invite Saba Bros to provide certain further information about its finances and business structure and the salary paid to Mr El Chediac.[9]
[9] CB 129-130.
A bundle of financial information was provided to the Tribunal on 22 March 2010. The covering letter observed that further documents would be provided “prior to the hearing”.[10]
[10] CB 132.
The Tribunal responded on 23 March, restating its view that Saba Bros had lost its entitlement to a hearing and saying that it would now proceed to make a decision.[11] This issue was the subject of a telephone conversation and further correspondence.[12]
[11] CB 164.
[12] CB 165-168.
The Tribunal made its decision on 23 April 2010 and sent it to Saba Bros’ representative on 27 April 2010.[13]
[13] CB 170, 174.
As to the issue upon which the delegate’s decision had turned, the Tribunal considered that the period of the sanction had passed and Saba Bros was therefore no longer the subject of an action described in s.140L (cf regulation 5.19(1C)(a)(iii)). The application was therefore not required to be refused on that basis.[14]
[14] CB 183 [40]-[44].
The Tribunal therefore considered the requirements of regulation 5.19(1C)(a)(i) and (2). On the evidence before it, it was not satisfied that Saba Bros was making “adequate provision for training” as required by regulation 5.19(2)(e).[15] It therefore concluded that Saba Bros had not met an essential criterion for approval of the nomination, and accordingly affirmed the delegate’s decision.
[15] CB 186 [60].
The application
These proceedings began with a show cause application filed on 28 May 2010. Saba Bros now relies upon an amended application filed on 12 August 2010. The grounds of that application are:
1.The Tribunal wrongly concluded that s.359C operated to disentitle the Applicant from appearing before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, as otherwise required by s.360 of the Migration Act, for either or both of the following reasons:
(i) The Tribunal erred in law by taking the view that the Applicant had not responded to an invitation under s.359A of the Act.
Particulars
The Tribunal sent the applicant a purported invitation under s.359A inviting it to comment on or respond to certain information. The Applicant responded to that invitation through its solicitor within the time limit specified. The Tribunal wrongly held that the solicitor’s letter did not amount to a response to the invitation.
(ii) The Tribunal’s invitation was not a lawful invitation under s.359A, and therefore could not have had the consequences envisaged by s.359C whether or not the Applicant had commented on or responded to it.
Particulars
The Tribunal invited the Applicant to comment on or respond to information relating to a sanction imposed on it under s.140J on 20 August 2008 which barred it from nominating a person or activity for [three] months. The nomination which was the subject of the decision under review had been made on 21 May 2008 and therefore was not barred by the sanction. Section 359A(1)(b) requires the Tribunal to ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review. The Tribunal’s explanation contained an incorrect statement of the law and therefore the Tribunal failed to comply with its obligation under s.359A(1)(b).
2. The Tribunal’s invitation could not have had the consequences envisaged by s.359C because, the “information” not being objectively relevant to the determination of the review, the Tribunal was not compelled by law to issue the invitation.
The evidence and submissions
I received as evidence the book of relevant documents filed on 6 July 2010. That is the only evidence I have before me.
Both parties made both written and oral submissions. I commenced hearing the matter on 6 August 2010, at which time the parties advanced their submissions on the questions then in issue, namely whether the Tribunal erred in law by taking the view that Saba Bros had not responded to the invitation purportedly issued under s.359A of the Migration Act and, secondly, whether the Tribunal had met its obligation under s.359A(1)(b) to ensure that Saba Bros understood why the information referred to was relevant to the review (in circumstances where the nomination which was the subject of the decision under review was not barred by the sanction by the time the matter came before the Tribunal). I put to the parties that there seemed to me to be a fundamental issue requiring consideration of whether s.359A was engaged at all. I put the preliminary view that, in order for s.359A to be engaged there needed to be information which fell within the purview of the section. I said that it appeared to me that that question needed to be answered by the Court by reference to the decision of the High Court in SZBYR v Minister for Immigration[16] which appeared to establish an objective test, rather than the subjective opinion of the Tribunal.
[16] (2007) 235 ALR 609.
The parties filed supplementary submissions to deal with that issue, which was raised in the amended application. Having heard their supplementary submissions, I informed the parties that I would deal with the issue of whether s.359A was enlivened first, and my decision on the remaining issues would be informed by my decision on the first issue.
Consideration
Section 359A of the Migration Act is a key provision in the statutory procedural code governing the operations of the Tribunal. It should not be read in isolation but in its context as part of that procedural code and in the context of the decision making function conferred upon the Tribunal. The section provides:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
In SZBYR at [17] the High Court stated:
Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
Saba Bros submits that in the present case, at the time the Tribunal issued its purported invitation to comment under s.359A, the information referred to in the invitation was irrelevant and therefore incapable of grounding a decision to uphold the decision under review. That was subsequently confirmed by the Tribunal in its decision[17].
[17] See paragraph 43 of the Tribunal’s decision at CB 183.
As was noted by the Tribunal in its reasons at [9][18]:
[18] CB 176-177.
The requirements for approval of a nominated position as an approved appointment under the Employer Nomination Scheme are set out in r.5.19(2) as follows:
Employer Nomination Scheme
(2)An employer nomination meets the requirements of this subregulation if:
(a)the employer nomination is made by an employer in respect of a need for a paid employee (the employee) in a business:
(i) actively and lawfully operating in Australia; and
(ii) operated by that employer; and
(b)the Minister is satisfied that nothing adverse is known to Immigration about the business background of:
(i) the employer; or
(ii) any officer of any of the entities that constitute the employer; or
(iii) any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and
(c)the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and
(d)the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:
(i) the Commonwealth; and
(ii) each State or Territory in which the employer operates the business and has employees of that business; and
(e) the Minister is satisfied:
(i)that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or
(ii)if the business is newly established, that the employer is making adequate provision for future training of employees in work relevant to the business; and
(f) the appointment will:
(i) provide the employee with full-time employment; and
(ii)be for at least 3 years, and not subject to any express exclusion of the possibility of renewal; and
(g)the employee's working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards; and
(h)the tasks to be performed in the nominated position:
(i)correspond to the tasks of an occupation specified in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and
(ii)will be carried out in a location specified, for the relevant occupation, in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and
(i)the employee will be paid a salary in the nominated position that is at least the salary specified, for the relevant occupation and location, in a Gazette Notice in force for this paragraph at the time at which the application for approval of the nominated position is made.
The Minister submits that the High Court’s statement in SZBYR should not be taken as establishing that information must be “objectively relevant” in order to enliven s.359A. In particular, the Minister submits:
· If SZBYR requires that information to which s.359A applies is to have an “objective” quality, that objective quality is determined by:
·what it is not – information pertaining to the subjective reasoning processes of the Tribunal; and
·the statutory criteria relevant to the making of the decision.
· Information to which s.359A applies does not have to be “correct”, “accurate”, or relevant to the statutory criteria on a correct analysis in order to enliven the section.
· The assessment of information that falls within s.359A is not dependent upon the use that the Tribunal subsequently makes of the information.
The Minister concedes that s.359A is not enlivened simply because the Tribunal issues a letter purportedly under the section. The Minister also concedes that it is for the Court to determine whether the section was enlivened. Nevertheless, the Minister’s position, as I understand it, is that the Court should find that the section was enlivened in circumstances where a letter was issued purportedly under it relating to information which the Tribunal considered at the time would be a reason for affirming the decision under review and the information was not excluded from the operation of the section by s.359A(3). The Minister submits that it does not matter whether the Tribunal was mistaken in its expressed view that the information was relevant to its inquiry at the time the invitation was issued and the Tribunal’s admission, in its reasons, that the issue had ceased to be relevant does not alter that position.
In this respect, the Minister submits that nothing said in SZBYR is inconsistent with the reasoning of the Full Federal Court in Win v Minister for Immigration rejecting an argument that information was “confined to material that is reliable or has a sound factual basis”. The Court observed:[19]
The only qualification expressed in s 424(1) as to the nature of “any information” that the RRT can get is that the RRT itself considered the information relevant. Moreover, the RRT cannot know whether material it obtains is sound until the material is assessed and findings made. Some material will prove to be reliable in whole or part; some will be unreliable or even fabricated.
The point is reinforced by reference to s 424A(1). The obligations imposed by that provision apply when the RRT has “information”, regardless of its source, that it considers would be the reason, or part of the reason, for affirming the decision. Permitting an applicant to comment on such information provides him or her with an opportunity to demonstrate that the information should not be relied on by the RRT. It follows that an applicant may be able to show that particular “information” in the possession of the RRT is completely worthless.
[19] (2001) 105 FCR 212, 217-218 [19]-[20]. See also VAFv Minister for Immigration 206 ALR at 477 [24(ii)].
In my view, s.359A was not enlivened at the time of the invitation to comment issued by the Tribunal. I see no material distinction between an invitation issued by the Tribunal purportedly under the section in circumstances where the information identified was excluded from the operation of the section by subsection (3) and an invitation purportedly issued under the section in relation to information which, on an objective view, was not “information” for the purposes of subsection (1). The exclusion upon which the delegate based his decision and to which the Tribunal referred in its invitation to comment was irrelevant to the Tribunal’s inquiry because the exclusion had expired before the review application was lodged with the Tribunal. It would, in my view, be inconsistent with the reasoning of the High Court in SZBYR if the Tribunal could mistakenly invoke the operation of s.359A in circumstances where the section had no application. The Tribunal is, of course, entitled to form an opinion as to when it is obliged to invite comment on information for the purposes of s.359A and to act on that opinion. It is, however, for the courts exercising judicial review of Tribunal decisions to determine whether such an opinion was correct in law and whether the Tribunal fell into jurisdictional error by acting on that opinion. While it is a matter of some interest that the Tribunal recognised its mistake in its reasons, the Court’s decision is not determined by reference to those reasons. Consistently with the decision of the High Court in SZBYR, the Court’s decision is informed by the statutory function conferred upon the Tribunal and the criteria for the grant of the appointment in issue.
The Minister has not advanced any argument as to how an expired statutory exclusion bore on the requirements for approval of a nominated position as an approved appointment under the Employer Nomination Scheme. Indeed, the Minister’s submissions appeared to proceed on the basis (as did those of the applicant and the reasons of the Tribunal) that the statutory exclusion, once it expired, was irrelevant. Because, on an objective view, the statutory exclusion could not be relevant to the Tribunal’s inquiry into its exercise of discretion, information concerning that exclusion was not “information” to which s.359A(1) applied. The operation of the section was not enlivened by the Tribunal purportedly (and mistakenly) issuing an invitation to comment in relation to that information.
I am fortified in this view by observing that s.359A is a statutory expression of an obligation of procedural fairness that exists to ensure applicants have an opportunity to comment on material and adverse information about which applicants might not otherwise be aware. The section does not exist in order to authorise the deprivation of a hearing by the Tribunal in circumstances of the Tribunal’s choosing.
The other procedural fairness provision of fundamental importance in this context is s.360. The Tribunal made its decision on a completely different basis to that of the delegate, who based his decision (properly) on the statutory exclusion which applied at the time of the delegate’s decision. Whether the applicant was entitled to assume that the Tribunal would approach the matter on the same basis as the delegate might have been open to debate were it not for the purported letter issued under s.359A. The effect of that letter was to remove any doubt and to state explicitly that the Tribunal would approach the matter on the same basis as the delegate. It must follow, from the decision of the High Court in SZBEL v Minister for Immigration[20] that where the Tribunal then proceeded to make its decision on an entirely different basis, it had an obligation to explore its consideration of the other issues with the applicant at a hearing. Indeed, the applicant had requested a hearing in reply to the invitation to comment. The Tribunal proceeded in the mistaken belief that it was required to deny that hearing and stated in its reasons at [30]:
The Tribunal received from the applicant’s representative on 22 February 2010 a letter in which he stated that he referred to “section 351 (sic) notice and note adverse information therein. We have put the adverse information to our client, however we are instructed that he would still like an opportunity for an oral hearing.” The Tribunal has considered carefully whether the applicant has commented on or responded to the information in the Tribunal’s letter of 22 February 2010. The Tribunal finds that the applicant has not commented or responded to the information in the Tribunal’s letter of 22 February 2010. The applicant has not provided the comments or response within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no discretion to permit him or her to appear: M v MIMA (2006) 155 FCR 333 at [46]; MIMA v Sun [2005] FCAFC 201 at [50]; and Xue v MIAC [2009] FMCA 421.
[20] (2006) 228 CLR 152.
I conclude that the Tribunal fell into jurisdictional error in three fundamental respects:
a)first, by mistakenly issuing an invitation to comment on information to which s.359A did not apply because the information was irrelevant to the function the Tribunal was called upon to perform;
b)by assuming that because an invitation to comment had been issued purportedly under s.359A, the applicant was deprived of a hearing in circumstances where the applicant had not “responded” to the purported invitation; and
c)by failing to recognise that in the circumstances of the case, s.360 obliged the Tribunal to explore with the applicant at a hearing the relevant issues bearing upon its exercise of statutory power.
It is strictly unnecessary for me to consider the other issues raised in the amended application but, for completeness and in view of the possibility of an appeal against my decision in the first issue, I shall now consider them.
If, contrary to the conclusion I have reached, s.359A was engaged upon the issuing of the invitation to comment by the Tribunal, then I would reject the applicant’s contention that the Tribunal failed to ensure that the applicant understood why the information is relevant to the review as required by s.359A(1)(b). It must follow, in my view, that if the Tribunal is able to issue an invitation to comment under s.359A on a mistaken view of the facts or the law, then the only obligation under s.359A(1)(b) is to ensure that the recipient of the invitation understands the Tribunal’s mistaken approach. It would be absurd to expect the Tribunal to correct a mistaken approach to the facts or the law in an invitation to comment, because if the Tribunal had realised its mistake, it would not have invited comment on the information at all. The obligation imposed by s.359A(1)(b) is an obligation of clarity, not an obligation of correctness. In that regard, the decision of the Full Federal Court in Win[21] is pertinent. If the section is engaged the opportunity to comment on information provides an applicant with an opportunity to demonstrate that the information should not be relied upon. The obligation of clarity supports that opportunity.
[21] op cit.
The question of what constitutes a “response” to an invitation to comment is a more difficult one to answer. The Migration Act does not define what constitutes a response. The position of the applicant is that any reply to an invitation to comment is a “response”. The Minister’s position is that a reply to an invitation to comment must be responsive to the matters raised in the invitation. In the present case, the reply given to the invitation was simply to note that the applicant’s solicitors had put the information to their client but that a hearing was requested. The Tribunal did not regard that reply as constituting a “response”.
It is ironic that the Tribunal would treat a request for an oral hearing given in reply to an invitation to comment or respond as justification for denial of the very thing which had been requested (the oral hearing). A similar irony was not lost on Merkel J in Chun Wang v Minister for Immigration[22] where his Honour said by way of introduction to the facts of that case:
In The Trial Franz Kafka tells the story of a man who comes from the country to gain admittance to the Law. Before the Law stands a door-keeper who says that he cannot admit the man at the moment. The man had not expected to meet this difficulty as he thought that the Law should be accessible to every man and at all times. But he decides that he had better wait until he gets permission to enter. He waits for days and years. Finally the man asks how does it come about that in all these years no one has come seeking admittance but me? The door-keeper perceives that the man is at the end of his strength and his hearing is failing, so he bellows in his ear: "No one but you could gain admittance through this door, since this door was intended only for you. I am now going to shut it."
Occasionally a case arises which makes the word Kafkaesque appear to be a description of fact rather than fiction. The present is such a case.
[22] [1997] FCA 70.
Section 359C(2) provides that, if an applicant is invited to comment on or respond to information under s.359A, and “does not give the comments or the response before the time for giving them has passed”, the Tribunal may make a decision without taking further action to obtain the applicant’s views on the information.
Further, if s.359C(2) applies, s.360(2) also applies. The result is that, if there is no timely response to an invitation to comment, the Tribunal’s obligation to invite the applicant to a hearing under s.360(1) does not apply and, by s.360(3), “the applicant is not entitled to appear before the Tribunal”[23].
[23] I interpreted that provision in Kumar v Minister for Immigration & Anor [2010] FMCA 614.
The action that is necessary in order to avoid the operation of s.359C(2), according to its terms, is the provision of “comments” on, or a “response” to, “information” – ie, the information that has been put before the review applicant in the s.359A letter. The Minister contends that a response to the letter itself (eg a mere acknowledgement of receipt) is not sufficient. Nor is it enough (so the Minister contends) for the review applicant simply to say that it would like to respond to the information later, at a hearing. The Minister asserts that the whole point of ss.359C(2) and 360(2) is that the applicant is not entitled to a hearing unless he or she has given some response to the information that the Tribunal has raised.
In the absence of a statutory definition of “comment” or “response” the words should be given their ordinary or natural meaning. The third edition of the Macquarie Dictionary includes in the definition of “comment”:
to make comments or remarks on; furnish with comments.
To “respond” means, relevantly:
to answer; give a reply in words: to respond briefly to a question.
It seems to logically follow, in my view, that an invitation to provide comments anticipates a reply which is responsive to the invitation. However, an invitation to respond is more general. It is simply seeking a reply. In the present case, as is common in such invitations, the applicant’s solicitor was invited to give comments on or to respond to the information provided. The applicant’s solicitor elected, in the facsimile transmission dated 22 February 2010[24] to respond but not to comment. The solicitor was entitled to do so. The applicant had not been compelled to respond and to provide comments or to respond with comments. The content of the reply was left to the applicant to determine. I conclude that the reply given on behalf of the applicant, which noted the purportedly adverse information and sought an oral hearing to deal with it, was a “response” for the purposes of ss.359A, 359B and 359C of the Migration Act. The Tribunal was wrong to conclude that the applicant had not responded within the time given and therefore fell into jurisdictional error in denying the applicant a hearing by reason of non response.
[24] CB 127.
The applicant 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 forty (40) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 10 December 2010
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