Singh & Ors v Minister for Immigration & Anor
[2009] FMCA 334
•21 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 334 |
| MIGRATION – Review of MRT decision – where principal applicant the holder of a sub-class 457 visa – where applicant did not respond to s.359A letter in time and was not granted a hearing as a result – where Tribunal had applicant’s responses to a similar letter sent by earlier Tribunal – whether requirement to act fairly towards applicant overrules mandatory refusal to allow applicant to attend hearing. |
| Migration Act 1958 (Cth), ss.353, 359A, 359C, 360, 363A |
| Khant v Minister for Immigration & Anor [2009] FMCA 328 Khergamwala v Minister for Immigration & Anor [2007] FMCA 690 M v Minister for Immigration & Anor [2006] FCA 1247 |
| First Applicant: | SURINDER SINGH |
| Second Applicant: | BALWINDER SINGH |
| Third Applicant: | SANDEEP SINGH |
| Fourth Applicant: | MANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2872 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 17 April 2009 |
| Date of Last Submission: | 17 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Newman & Associates |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicants to pay the First Respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2872 of 2008
| SURINDER SINGH |
First Applicant
| BALWINDER SINGH |
Second Applicant
| SANDEEP SINGH |
Third Applicant
| MANDEEP SINGH |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is the second proceeding in which I have been required to opine upon the effect of ss.353, 359A, 359C, 360 and 363A of the Migration Act 1958 (Cth) (the “Act”). The reasoning which appears in this case follows the reasoning in Khant v Minister for Immigration & Anor [2009] FMCA 328 handed down contemporaneously with this decision.
Mr Singh, the principal applicant in this case, is a chef. He arrived in Australia as the holder of a sub-class 456 (Business Short Stay) visa on 11 April 2003. On 28 July 2003 he was granted a sub-class 457 visa. That visa ceased on 31 March 2004. On the same day he was granted a further sub-class 457 visa. On 28 April 2005 the sub-class 457 visa was cancelled. The applicant sought review from the Migration Review Tribunal. The matter was considered by a Tribunal which, on 2 September 2005, determined to affirm the decision to cancel the visa. The applicant applied for judicial review of the Tribunal’s decision. On 23 May 2007, by consent, the Federal Magistrates Court (Smith FM) made orders quashing the decision of the second respondent Tribunal and ordered that the matter be referred back to the Tribunal to be heard and determined according to law. The Court noted:
“The first respondent’s concession that the Tribunal’s decision is affected by jurisdictional error for the reason that in its purported exercise of its power of review of the delegate’s decision to cancel the visa under s.109 of the Migration Act 1958, the Tribunal did not confine itself to the question of whether there was non-compliance by the visa holder in the way dictated by the notice issued under s.107(1)(a) of the Act (Saleem v Migration Review Tribunal [2004] FCA 234).” [CB 185]
The matter was referred to a second Tribunal. On 18 April 2008 the second Tribunal wrote to the applicant a letter pursuant to s.359A of the Act. It requested that the applicant respond to the letter by 28 April 2008. It noted that if it did not receive the comments in the period allowed, or as extended, the applicant would lose any entitlement he might otherwise have had to appear before the Tribunal to give evidence and present arguments. On 28 April 2008 the applicant’s migration agent sent a fax to the Migration Review Tribunal as follows:
“Dear Sir/Madam
I refer to the above mentioned applicant who has an application for the review. The deadline for the submission of a response to section 359 notifications is today. I am preparing additional information and submission also waiting for some information from the client which will be ready tomorrow. Due to some urgency I will not be able to submit the documents and submission today.
Can you please allow me 2 days to submit the response.
Thank you ” [CB 207]
On 29 April 2008 the Tribunal wrote to the migration agent relevantly advising him as follows:
“The Tribunal has considered the request carefully but has decided not to grant an extension of time for providing the comments. The comments must therefore have been received at the Tribunal by 28 April 2008, as previously advised.” [CB 209]
On 30 April 2008 the migration agent faxed (under the date 17 April 2008) a response to the letter. The Tribunal in its decision states:
“[t]he Tribunal is satisfied that the invitation was duly sent by one of the methods specified in s.359A of the Act. An examination of the Tribunal’s file shows that the first named applicant did not provide comments for the Tribunal within the prescribed period allowed. Although the first named applicant sought an extension of time, the Tribunal did not grant the extension. Where an applicant is invited to comment on information under s.359A and fails to provide those comments within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information (s.359C(2) of the Act). In these circumstances the applicant is not entitled to appear before the Tribunal (s.360(3) and s.363A of the Act). The Tribunal finds that the first named applicant did not provide comments within the prescribed period. The Tribunal will therefore proceed to make a decision on the review without taking further action to obtain the comments from the first named applicant and without inviting the first named applicant to appear before the Tribunal. The Tribunal will take into account any evidence provided to the Tribunal prior to the handing down of the decision. However, the first named applicant is not entitled to appear before the Tribunal at a hearing.” [CB 259]
The Tribunal then considered the various matters that were the subject of the review. It concluded that it should affirm the decision to cancel the visa. Put shortly, the Department had received information from a third party that the applicant had provided “bogus information” for the purpose of his visa application and in particular that he had not, as he said he had, been employed at the Amritsar Club as a chef for approximately 12 years between July 1990 and October 2002. The information which had been given to the Department has been checked by departmental officers in Amritsar who interviewed a number of members of staff of the Amritsar Club and concluded that the applicant was unknown there. In making its decision the second Tribunal took into account the responses that it had received from the applicant through his migration agent on 30 April 2008. For reasons which are given in the Tribunal decision, it came to the view that those responses did not detract from the force of the evidence given through the departmental officers.
On 5 November 2008 the applicant sought review of the second Tribunal decision from this Court. The application, which was prepared by a solicitor who later appeared for the applicant, stated its ground:
“The Tribunal erred in law and failed to exercise its jurisdiction by interpreting the words of s.360(3) viz: the applicant is not entitled to appear before the Tribunal: as having the effect of obliging it to proceed without affording the applicant a hearing and in so doing by inference mistakenly concluding that it had no power to [invite] the applicant to appear and [explain] the charges against him.”
On 3 April 2009 the applicant provided some written submissions. The Court notes that no challenge has been made to any other part of the Tribunal decision. No challenge has been made to the exercise of the Tribunal’s discretion not to provide the applicant with an extension of time and the only issue in contention is whether or not the Tribunal was wrong in not inviting the applicant to a hearing.
The applicant’s argument proceeds on the basis that the hearings before the two Tribunals are a continuous process. He says that where a Tribunal decision is quashed by a Court, no decision exists and one remains to be made. He then argues that, as the second Tribunal had before it the file that was before the first Tribunal and had stated in its decision that it had taken into account matters contained in that file, it would have taken into account the responses received by the first Tribunal to the s.359A and 359(2) letters sent by that Tribunal to the applicant on 21 July 2005 [CB 136 – 138]. The applicant says the Tribunal had no need to send the second letter because the second letter was to all intents and purposes identical to the first and the responses received to the second letter indicated that the applicant was confirming the responses he made to the first one. The applicant then suggests that in these circumstances the Tribunal in fact had a response to its letter and was wrong not to have granted the hearing. The applicant argued that the provisions of s.353 covered this situation; that section is in the following form:
353 “(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.”
and the requirement to act fairly towards the applicant overruled the provisions of the Act which appeared to mandate a refusal to allow the applicant to attend the hearing.
I dealt with the s.353 argument in Khant where I said this:
“[37] The gravamen of the applicant’s argument is that s.353 is in some way akin to s.79(2) of the Family Law Act 1975 which prevents the Family Court from making an order for the division of matrimonial property under s.79 of the Act unless it is satisfied that in all the circumstances it is just and equitable to make the order. In the Marriage of Mallett (1983) 52 ALR 193 at [227] Dawson J said of that sub-section:
“That is the overriding requirement and it admits of no presumptions in the consideration of the relevant circumstances, including those which s. 79(4) requires the court to take into account.”
[38] Section 353 of the Act is identical in terms to s.420 which deals with the Refugee Review Tribunal’s way of operating. Section 420 was considered by the High Court in Minister for Immigration & Anor v Eshetu (1999) 162 ALR 577 at [46 – 53]. At [48] Gleeson CJ and McHugh J said:
“It is not an acceptable approach for statutory interpretation to negate the clear intention of the legislature by relying on s.420 of the Migration Act. In any event, s.420, when understood in its legal and statutory context, is an inadequate foundation for an attempt to overcome the provisions of s.476(2).”
Their Honours’ views were supported by Gauldron and Kirby JJ at [71]. Gummow J at [109] agreed with the approach taken by Lindgren J in Sun Zhan Qui v Minister for Immigration & Anor [1997] FCA 324 where his Honour described s.420 as containing “general exhortatory provisions, the terms of which do not conform to the common understanding of a “procedure”. It is clear that there is no room to utilise s.420 to override provisions of the Act relating to the procedures in the Tribunal such as those contained in Division 4 of Part 7 or Division 5 of Part 5 of the Act.”
Nothing that the applicant’s lawyer said to me at the hearing of this matter leads me to resile from these views. The applicant in the instant case did not argue that there was some residual discretion left in the Tribunal as suggested by Riley FM in Khergamwala v Minister for Immigration & Anor [2007] FMCA 690. But in that regard I would refer to the views that I expressed in Khant that I believed her Honour was wrong in not following the decision of Tracey J in M v Minister for Immigration & Anor [2006] FCA 1247.
There are a number of other difficulties with the applicant’s position. First, the letter written by the original Tribunal on 21 July 2005 contained the seeds of the jurisdictional error found in the Tribunal’s decision. It made reference to an application for a sub-class 456 visa rather than the sub-class 457 visa that was the subject matter of the decision to cancel. If the only relevant letter was the one from 21 July 2005 and the Tribunal was not permitted to send out another letter, then the second Tribunal decision was likely to meet the same fate as the earlier one. But the applicant does not say that the Tribunal could not send out an additional letter. He says only that because the letters were similar and the responses were the same the Tribunal was seized of the information and should have granted a hearing. I believe that the vice in that argument is that once the Tribunal decides, in compliance with its obligations to act fairly, to issue a new letter then certain rights and obligations go with it. One of them, the major right, is the opportunity that the applicant has to confirm his earlier answers or to expand on those answers or to resile completely from them and provide different answers. These are powerful rights but with them go obligations, in particular the obligation to provide the information within the specified time. The sanction for not providing the information within the time is exclusion from a hearing. The Tribunal on the day it issues the letter does not know what stance the applicant might take in regard to his response. It cannot assume that the applicant will respond in exactly the same terms as he did to an earlier letter. It is therefore entitled to proceed on the basis that the second letter was validly issued with all the rights and obligations that go with it. Incidentally, Mr Markus who appears for the respondent points out that the applicant did not respond in time to the first letter and would have no rights to a hearing as a result.
The respondent complains that the applicant has not identified a jurisdictional error and he only argues that the Tribunal should not have asked for the information in the s.359A letter if it already had it. It seems to me that the applicant is in fact arguing that there is a jurisdictional error by refusing the hearing on the grounds that to do so would not be fair under s.353 but, as I hope I have explained, s.353 cannot trump the mandatory requirements of s.359C, 360 and 363. Once it is clear that the Tribunal is entitled to write a further letter, and I am of the view that in this case that was the fair thing to do, the procedures were required to be followed and the applicant was required to be denied a hearing when he did not respond in time.
The application must be dismissed. The applicant shall pay the respondent’s costs which I assess in the sum of $5,000.00.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 21 April 2009
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