Shrestha v MIBP

[2014] FCCA 34

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 34

Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – alleged failure of the Tribunal to fulfil its obligations under s.360 – whether a letter “invited” the applicant “to give information” pursuant to s.359 – Jurisdictional error found – relief granted.

Legislation:

Migration Act 1958 (Cth), ss.354, 359, 359A, 359B, 359C, 357A, 360, 363A, 476.

Migration Regulations1994 (Cth), Sch 2.

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Immigration and Citizenship v Li [2012] FCAFC 74
SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) ALR 162
VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1

Applicant: SURESH KUMAR SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 506 of 2013

Judgment of: Judge Nicholls

Hearing date: 28 November 2013

Date of Last Submission: 28 November 2013

Delivered at: Sydney

Delivered on: 17 January 2014

REPRESENTATION

Counsel for the Applicant: Mr J R Young

Solicitors for the Applicant: Shamsa Thapa & Associates

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The title of the first respondent be amended to read “Minister for Immigration and Border Protection”.

2. A writ in the nature of certiorari issue quashing the decision of the second respondent, dated 21 February 2013, to affirm the decision of the delegate of the first respondent to refuse to grant a Student (Temporary) visa to the applicant

3. A writ in the nature of mandamus requiring the second respondent to determine according to law the application for a review made by the applicant.

4. The first respondent pay the applicant’s costs set in the amount of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 506 of 2013

SURESH KUMAR SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 14 March 2013 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 21 February 2013, which affirmed the decision of the Minister’s delegate not to grant a Student (Temporary) visa (“the visa”) to the applicant.

Background

1. The applicant applied for the visa on 3 November 2010. (CB 1 to CB 10 with annexures). He was assisted by a registered migration agent. The delegate refused to grant the visa because the applicant did not satisfy the relevant requirements of cl.572.223 of Schedule 2 of the Migration Regulations1994 (Cth) (“the Regulations”) (CB 14 to CB 17).

2. The applicant applied to the Tribunal for review of the delegate’s decision on 9 November 2010. He continued to be represented by a registered migration agent (CB 18 to CB 25).

3. Before the Court, Mr J R Young  of counsel appeared for the applicant. Mr J Smith of counsel appeared for the first respondent. A bundle of relevant documents (the Court Book – “CB”), filed by the Minister, was before the Court.

4. There is no dispute between the parties now as to the following relevant background. The Tribunal identified at [6] (at CB 62) and [7] (at CB 63)  “the issue” in the present case:

   “[6] … The issue in the present case is whether the applicant meets the criterion in cl.572.223. So far as relevant to the present matter, that criterion requires that at the time of the decision, the Minister be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2)...

   [7] The first of these requirements is that the applicant must provide evidence in accordance with the requirements in Schedule 5A to the Regulations. The relevant clause in Schedule 5A is dictated by the assessment level to which the applicant is subject.”

5. The Tribunal’s decision record states at [18] (at CB 68) to [20] (at CB 69) that:

   “[18] The Tribunal wrote to the applicant to his appointed representative on 4 January 2013 by registered post advising of the above Schedule 5A to the Regulations requirements for Assessment Level 4 for Subclass 572 and requesting he provide evidence of meeting those requirements. He was invited to provide evidence of the requirements and respond and this was to be received by 20 February 2013. The letter further provided that he may ask the Tribunal for an extension of time however, if making such a request it must be received by the Tribunal before 20 February 2013 and must state the reason why the extension of time is required. The letter detailed that:

   If the Tribunal does not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

   [19] No response was received to that request within the prescribed time, and no request for an extension of time was made. The registered post letter is noted on Australia Post tracking as having been delivered on 30 January 2013.

   [20] The Tribunal received a faxed letter from the applicant dated 21 February 2013 and received at 11.31am on 21 February 2013. In that submissions he provides evidence of an IELTS score of 5.0 dated 25 February 2012, and claims he has now transferred his course to TAFE. He notes he has completed an Advanced Diploma of Business Management and then commenced at Central College to undertake a Bachelor of Business Management, though then changed his mind and decided to continue with a Certificate III in Hospitality – Patisserie. The provider, Carrick Institute of Education, then decided not to continue with this course, and he then made no arrangements with TAFE to complete the Certificate III. He provided no confirmation of this from TAFE. He made no submissions and provided no information in relation to clause 5A405 relating to Financial capacity, and no information in relation to Clause 5A406 Other requirements.”

   [Emphasis in Original.]

6. The Tribunal noted at [21] and [22] (at CB 69) that:

   “[21] The applicant has not provided the information within the prescribed period (by 20 February 2013) and no extension has been sought or granted. In these circumstances s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The applicant has provided information that responds in part to the Tribunal letter of 4 January 2013 though has not provided any information relating to Financial capacity or Other requirements.

   [22] In such circumstances the Tribunal has determined to determine the matter on the information available and without taking further steps to obtain any additional information from the applicant.”

   [Emphasis Added.]

7. Ultimately, the Tribunal reasoned, and found, at [26] (at CB 69) and [27] (at CB 69 to CB 70) that:

   “[26] As detailed above the applicant has been requested to provide evidence of his meeting the relevant Schedule 5A requirements. He has provided evidence of meeting the English language requirement, though has provided no evidence of meeting Clause 5A405 relating to Financial capacity and no information in relation to Clause 5A406 Other requirements. He was aware of the requirements from the letter from the Tribunal as detailed above.

   [27] On the basis of the above, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and the assessment level to which he is subject, in relation to the necessary financial capacity, or the prescribed ‘other requirements’. Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i).”

The Issue

1. The issue in these proceedings concerns the contents and nature of the Tribunal’s letter to the applicant. The applicant’s complaint is that, in reliance on that letter and the applicant’s failure to respond within the time specified, the Tribunal proceeded to make its decision and, while doing so, “determined” that the applicant was not entitled to a hearing.

The Legislation

1. The following sections of the Act are relevant to the consideration of the applicant’s complaint now:

   (1)Section 359 states:

   “(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   (2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   (3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

   (a) except where paragraph (b) applies—by one of the methods specified in section 379A; or

   (b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

   (4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.”

   (2)Section 359A(1) states:

   “(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.”

   (3)Section 359C states:

   “(1) If a person:

   (a) is invited in writing under section 359 to give information; and

   (b) does not give the information before the time for giving it has passed;

   the Tribunal may make a decision on the review without taking any further action to obtain the information.

   (2) If the applicant:

   (a) is invited under section 359A to comment on or respond to information; and

   (b) does not give the comments or the response before the time for giving them has passed;

   the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.”

   (4)Section 360 states:

   “(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2) Subsection (1) does not apply if:

   (a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c) subsection 359C(1) or (2) applies to the applicant.

   (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”

   (5)Section 363A states:

   “If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.”

Preliminary Points

1. A preliminary point concerns the identification of the letter on which the Tribunal relied. In its decision record, the Tribunal states that it wrote to the applicant “on 4 January 2013”. (See [18] at CB 68 of the Tribunal’s decision record and as reproduced at [6] above.)

2. No letter dated “4 January 2013”, fitting the general description given by the Tribunal in its decision record, appears in the Court Book. There is, however, a letter dated 14 January 2013 reproduced at CB 44 to CB 49 (with a covering letter to the applicant at CB 43 also dated 14 January 2013).

3. However, the applicant confirmed at the hearing that the date of the letter was not being raised as a “separate issue’ in these proceedings. That is, while there was no “concession’ as to which of the two dates was the “correct” date, that there was acceptance that this was “a” letter sent to the applicant and on which the Tribunal subsequently relied.

4. The applicant argues that this letter “is plainly a letter purporting to be under s.359A and reflects words of s.359A(1)(a)” ([5] of his written submissions). Further, the applicant argues that s.359A and s.359 are “mutually exclusive” ([6] of his written submissions). If by this he means that the former deals with the Tribunal’s decision to give information to an applicant such that the applicant may comment on, or respond to, it, and s.359 deals with the “getting” of information then that distinction is plainly correct.

5. A note should be made here on the nature of the “information” in s.359A. The applicant says s.359A deals with “adverse information”. Some care must be taken with descriptions that use language not found in the actual statute.

6. It is made plain in s.359A(1) that it deals with the giving of “information” to an applicant in circumstances where the Tribunal “considers’ that it is “information…which would be the reason, or a part of the reason, for affirming the decision under review”.

7. In my view, the use of the descriptor “adverse”, in part, focuses on the ultimate use to which the information may be put, rather than the temporal focus, identified and explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [19]. That is, a point antecedent to the publishing of the Tribunal’s reasons for decision.

The Basis of the Applicant’s Case before the Court

1. In any event, the applicant argues that s.359C(1), therefore, applies to a failure to give information to the Tribunal pursuant to a request for information under s.359. It, therefore, does not apply in this case because the letter, on its face, stated an invitation to comment on, or respond to, information under s.359A.

2. The applicant also argues that s.359C(2) (with reference to s.359A) was not engaged because there was no “adverse” information in the letter in respect of which the applicant was asked to “respond to or comment on”.

3. The applicant’s position is that, as the provisions of s.359C were not engaged, the Tribunal was not entitled to proceed under s.360(2)(c) and s.360(3). This was the Tribunal’s error. The applicant was entitled to a hearing.

4. The letter in question was signed by an officer of the Tribunal. There is no evidence before the Court that this was done at the direction of the Tribunal member. The conduct of a particular review requires constitution of the Tribunal for that purpose (s.354(1)). Such constitution is to be by a member, or members, of the Tribunal. For current purposes it may be accepted that for the purposes of the review, the Tribunal member who made the decision was the subject of such constitution pursuant to s.354 of the Act.

5. The Tribunal officer who signed the letter was not the Tribunal member who was the subject of the constitution. This raises the question, therefore, as to whether the Tribunal officer was acting under the direction of the Tribunal member in the drafting, signing and dispatch of the letter.

6. In its decision record, the Tribunal member appears to have adopted the letter as his own (for example, [18] at CB 68, “the Tribunal wrote…”) (see also at [6] above). The Tribunal plainly proceeded on the basis that an invitation had been given to the applicant to provide certain information (“evidence”) by a particular date. That date was 20 February 2013.

7. The objects of s.359 and s.359A contemplate that the action taken (for example, “in conducting the review” – s.359, “the Tribunal considers” – s.359A) in any review is at the action, or direction, of the Tribunal member.

8. This question is of some importance in this case, because while it is the Tribunal member, constituted as the Tribunal, who has taken the impugned action, it is the letter that sits at the heart of the applicant’s attack and the disposition of this case.

9. While it can be accepted that the Tribunal officer acted under some direction from the Tribunal member (neither the applicant nor the Minister makes any issue of this) it is by no means clear what the Tribunal officer was purporting to do. That is, did he intend to write to the applicant pursuant to s.359 or s.359A? [Putting to one side the matter of the “incorrect” date of the letter.]

10. This question is suggested by the applicant’s argument that it is “a letter purporting to be under s.359A” ([5] of the applicant’s written submissions). In the absence of any evidence from the Tribunal officer (or for that matter, additional evidence to what is contained in the decision record from the Tribunal member) the Court can only proceed on the evidence actually before it. It is important to note here that, as the proposer of legal error, it is for the applicant to make out his case before the Court on the balance of probabilities.

11. It is important to note that the letter makes no reference to either s.359 or s.359A. However, the applicant’s argument is given weight when regard is had to the heading (in bold) of the letter. The words “Invitation to Comment on or Respond to Information” (at CB 43) are plainly the language of s.359A, and not s.359.

12. This sentiment is repeated in the second paragraph of the letter (at CB 44):

    “In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or part of the reason, for affirming the decision under review.”

    [Emphasis Added.]

    Again, plainly, this uses the language of s.359A.

13. Further, in bold, the letter states:

    “Please note, however, that the Tribunal has not made up its mind about the information.”

    [Emphasis in Original].

14. This suggests that the Tribunal already has the information and is seeking comment or a response. Just what this “information” is, is never explained. Despite the words “[t]he particulars of the information are” (CB 44.5), the bulk of the remainder of the letter then refers to certain “evidence” which the applicant should provide. It does not refer to any information with an invitation to comment on, or respond to, it.

15. Towards the end of the letter, the language reverts to that used at the beginning of the letter. Namely, that the applicant is invited to give comment on, or respond to, the “information’ referred to above (See CB 44.8 to CB 49.3).

16. In effect, the applicant’s starting point in his argument before this Court, (a starting point not attacked by the Minister) was s.360 of the Act. I agree with the applicant that the central point, relevant to this case, in the applicable statutory scheme, as set out at Division 5 of Part 5 of the Act, is the invitation to a hearing.

Consideration

1. The matters dealt with in Division 5 of Part 5 of the Act are said to be the exhaustive statement of the natural justice hearing rule (s.357A). At common law the right to be heard, the right to know the case against you, and the opportunity to respond to material that is adverse, relevant, and material is well established (Kioa v West [1985] HCA 81; (1985) 159 CLR 550).

1. Section 360 provides, for the purposes of the statute, the opportunity for the applicant to give his evidence and arguments, and to be heard in relation to the issues arising in the review. In that sense it reflects important aspects of the common law “hearing” rule.

2. The importance of this is emphasised at s.360(1). (The Tribunal “must write” to the applicant). Subsection 360(2) provides the circumstances where this does not apply. Subsection 360(2)(a) and (b) again, by their very nature, emphasise the importance of the Tribunal hearing by providing that s.360(1) does not apply where there is, in effect, no practical need for it, or the applicant consents to a decision “on the papers”.

3. Subsection 360(2)(c), in my view, must be seen in a similar light. The statute creates certain obligations, relevant to this case, for an applicant, upon invitation, to give certain information to the Tribunal (s.359), or to give an applicant the opportunity to comment on, or respond to, the information which the Tribunal has and which it considers would be the reason, or a part of the reason, for affirming the delegate’s decision (s.359A).

4. Whether s.357A(3) is seen as an exhortation or creating some “additional” right (see Minister for Immigration and Citizenship v Li [2012] FCAFC 74) is a moot point in the current case. The Tribunal is at least expected “to act in a way that is fair and just.” That is, for the purposes of the statute, at least as the Tribunal acts in relation to the matters set out at Division 5, which plainly includes the sections relevant to the consideration of the disposition of this application (s.360, s.359, s.359A, and s.359C).

5. Whether the applicant can be said to have lost the statutory entitlement to a hearing by the operation of s.360(2)(c) must be understood in light of what appears immediately above.

6. The applicant’s conduct is plainly critical and central to the operation of s.360(2)(c). If an applicant does not give the information, the subject of the invitation pursuant to s.359, by a specific time (s.359C(1)), or does not comment on, or respond to, information (s.3569A) by a specific time (s.359C(2)), then he “loses” the opportunity of a hearing.

7. However, in my view, the statutory scheme outlined above imposes an equal level of importance to the Tribunal’s relevant conduct. The Tribunal must be held to a similar expectation as that of the applicant. In that light, the Tribunal’s conduct must comply with the requirements of s.359C(1) or (2) if the applicant is to “lose” the opportunity of a hearing before the Tribunal.

8. The relevant question is, therefore, does the letter (reproduced at CB 44 to CB 49) meet either of the descriptions at s.359C(1) or (2). That is, can the letter be said to be, clearly, either an invitation to give information pursuant to s.359, or an invitation to comment on, or respond to, information pursuant to s.359A?

9. The Minister made no argument that, despite some of the language in the letter (as referred to above), the letter was an invitation under s.359A. Section 359C(2), therefore, was not relied upon by the Minister.

10. This reduces the question to whether the letter was an invitation to the applicant to give information to the Tribunal pursuant to s.359. The Minister’s position was that the letter was such a request.

11. Section 359(1) establishes that the Tribunal may get information that it considers relevant Nothing further turns on this for current purposes, nor is the nature of the relationship between s.359(1) and (2) of relevance here (see SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51). I have no difficulty with the Minister’s submission that given the language of s.359(2) (“Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information”) “suggests” that there is no particular “format” for the invitation under s.359(2).

12. I also agree with the Minister that other provisions in Division 5 concerned with the giving of such an invitation do not, therefore, hamper the description of the letter as an invitation.

13. Section 359(3) is directed to how the invitation is to be given, that is, the method of the giving, rather than the language, or content, of the letter.

14. Section 359B directs attention to the contents of the letter, if the invitation is given in writing. (As the Minister submitted, as opposed to orally or by telephone – s.359(2)). Relevant to the current circumstances, therefore, is the requirement to specify the way in which the applicant is to give the information, being a way the Tribunal considers appropriate in the circumstances (s.359B(1)). Further, that it be given within a period specified in the letter, being the prescribed period (s.359B(2)).

15. It may be allowed that the Tribunal’s letter met those requirements.

16. Even agreeing with all of the above, and not withstanding all of the above, I do not subsequently agree with the Minister that the letter is an invitation “under s.359 to give information” (such as to satisfy s.359C(1)(a)).

17. The question, as posed by the Minister, was whether the letter can be characterised as an “invitation”. Whatever the exact meaning of the word “invitation”, it may be allowed as the Minister submits that this includes “a request of some sort”.

18. I agree with the applicant that the letter is not a “request of some sort” under s.359. The Minister’s emphasis on the word “invitation” while in one sense, is plainly not misplaced (given that it is a central part of the language of the statute) nonetheless requires an equal emphasis on the subject matter of the invitation.

19. In the current case that requires the letter to be an invitation “to give information” (s.359(2)). While the letter may not need to use certain words, or have a precise “verbal formula” (as the Minister submitted) to fall within the statutory requirement and while the absence of certain words may not put the letter outside the statutory requirement, the essential character of the letter must still satisfy the requirement that it be an “invitation…to give information” (s.359(2) and, therefore, linked to s.359C(1)).

20. The plain terms of the letter do not fulfil this requirement. The letter asks for a response or comment on “certain information”. The letter, in all its terms, cannot be understood as seeking the giving of information.

21. The Minister urges a “common sense” reading of the letter. That is that there is an implication in the letter, or that a meaning can be derived from the letter, that the Tribunal was inviting the applicant to give information.

22. In my view, such an argument cannot be sustained in light of the plain language of s.359C(1), when regard is had to the statutory scheme in which it appears. As derived from what is set out above, that statutory scheme seeks to achieve a balance between maintaining the common law right to a hearing, and imposing, in that context, some rigour on an applicant’s prosecution of his case.

23. That imposition also places an obligation on the Tribunal to comply with its own statutory obligations. In my view, such compliance cannot be assumed, or result from, a “constructive” reading of the relevant letter, and the context in which it was purportedly sent.

24. In my respectful view, the High Court’s judgment in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) ALR 162 at [77] per McHugh J, provides direction in this regard:

    “However, because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal's decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the Tribunal receives the adverse information as evidence from another person and the Tribunal there and then invites the applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no “partial compliance” with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act…”

    [Emphasis Added.]

25. Whatever the Tribunal meant to do, whatever the Tribunal officer intended in the “drafting” of the letter, or whatever the Minister now hopes the Tribunal officer or the Tribunal meant when the letter was sent cannot overcome the lack in the letter of the required characterisation that it contain an “invitation…to give information”.

26. The Minister argues that the applicant was not “misled” by the letter. When regard is had to the applicant’s response (at best, received one day “late”) the applicant did attempt to provide some information to the Tribunal. (Although, not comprehensive of what was required in the circumstances of the criteria for the visa).

27. The answer to this is that in matters of procedural fairness, it is the process, and not necessarily the result, or the outcome, that is important (VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [14], Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at [11]). The obligation here is for the Tribunal to act in a fair manner in the implementation of its statutory tasks. That is, it is the Tribunal’s conduct, not in that sense the applicant’s conduct or, understanding, that is of primary importance. This is not a case of the applicant having been misled, but a case where the Tribunal, by its conduct, deprived the applicant of a hearing in circumstances where it failed to follow the required statutory process.

Conclusion

1. The Tribunal has made an error of law in the exercise of its jurisdiction. No argument, nor even suggestion, was put to the Court by the Minister that the Court should not exercise its discretion and grant the relief the applicant seeks. In this regard, I note specifically that nothing was said by the Minister that to grant the relief would be an exercise in futility. The applicant should therefore, have the orders he seeks. I will make the orders accordingly.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 17 January 2014