Singh v MIBP

Case [2017] FCAFC 67

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCAFC 67

Appeal from: Singh v Minister for Immigration and Border Protection & Anor [2016] FCCA 1182
File number: VID 685 of 2016
Judges: NORTH, BROMBERG AND BROMWICH JJ
Date of judgment: 27 April 2017
Catchwords: MIGRATION – proper construction of s 360 of the Migration Act 1958 (Cth) – appeal from Federal Circuit Court decision dismissing application for judicial review of Tribunal’s decision to cancel a scheduled hearing – where Tribunal hearing cancelled due to lack of response to s 359A comment invitation – where invitation to attend hearing was issued before comment invitation was issued – whether extant hearing obligation existed by virtue of earlier hearing invitation – whether any temporal limitation should be imposed on ss 359C, 360, 363A of the Migration Act 1958 (Cth)
Legislation: Migration Act 1958 (Cth), ss 357A, 359, 359A, 359B(4), 359C, 360, 363A
Cases cited:

Bropho v Western Australia (1990) 171 CLR 1

Coco v The Queen (1994) 179 CLR 427

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543

Giri v Minister for Immigration and Citizenship [2011] FCA 928

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413

Kumar v Minister for Immigration and Citizenship [2010] FMCA 614; (2010) 246 FLR 379

M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; (2006) 155 FCR 333

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Multicultural and Indigenous Affairs v Sun [2005] FCAFC 201; (2005) 146 FCR 498

Potter v Minahan (1908) 7 CLR 277

R v Snow (1915) 20 CLR 315

Date of hearing: 15 February 2017
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 64
Counsel for the Appellant: Ms S Maharaj QC with Mr T Goodwin (pro bono)
Counsel for the First Respondent: Mr R Knowles
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

VID 685 of 2016
BETWEEN:

MANDEEP SINGH

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:

NORTH, BROMBERG AND BROMWICH JJ

DATE OF ORDER:

27 APRIL 2017

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Appellant pay the First Respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

  1. This is an appeal from orders made by a judge of the Federal Circuit Court of Australia.  On 25 May 2016, the primary judge dismissed an application for judicial review of a 23 February 2015 decision of the former Migration Review Tribunal, now…

Continue reading Singh v MIBP

Sign in free to access the full text

Details
AGLC
Singh v MIBP [2017] FCAFC 67
Case
[2017] FCAFC 67
Decision Date

CaseChat Overview and Summary

Singh v MIBP is an appeal against an order of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The appellant, Mr Singh, sought judicial review of a decision by the Tribunal to refuse to grant him a Partner (Temporary) (Class UK) visa. The central issue was whether the Tribunal erred in cancelling a scheduled hearing and deciding the matter without allowing the appellant to appear. The Tribunal cancelled the hearing because Mr Singh had not responded to an invitation to comment on adverse information. The Tribunal reasoned that, as a result of the appellant’s failure to respond, he had no entitlement to a hearing and the Tribunal had no power to permit him to appear.

The appeal raised the question of whether the Tribunal properly interpreted sections 359C(2), 360 and 363A of the Migration Act 1958 (Cth). The court found that the Tribunal correctly concluded that, as a result of the appellant’s failure to respond to the comment invitation, he had no entitlement to a hearing under section 360(3) of the Act. The court also found that the Tribunal properly exercised its discretion under section 359C(2) not to take any further action to obtain the appellant’s views on the information. The court further held that, pursuant to section 363A of the Act, the Tribunal did not have the power to permit the appellant to appear at the hearing. The court concluded that the Tribunal did not commit any jurisdictional error and that the primary judge was correct to dismiss the appellant’s application for judicial review. The appeal was therefore dismissed, with the appellant ordered to pay the first respondent’s costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The Appellant pay the First Respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. On 25 May 2016, the primary judge dismissed an application for judicial review of a 23 February 2015 decision of the former Migration Review Tribunal, now a part of the Administrative Appeals Tribunal. The Tribunal had affirmed a 19 December 2013 decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse to grant the appellant a Partner (Temporary) (Class UK) visa. BACKGROUND The central question in this appeal is whether the Tribunal committed jurisdictional error by deciding the appellant’s review application without permitting him to appear at a hearing. This issue arose in circumstances where the appellant’s scheduled hearing had been cancelled on the basis that he had not given a response to a written invitation to comment on or respond to adverse information raised by the Tribunal. In cancelling the hearing, the Tribunal had concluded that, pursuant to ss 360(2)(c), 359C(2), 360(3) and 363A of the Migration Act 1958 (Cth), the appellant’s failure to respond meant that there was no entitlement to a hearing and no power to permit the appellant to appear. The key events, which took place between October 2014 and February 2015, were as follows.(1)The Tribunal invited the appellant to appear before it at a hearing scheduled for just over 10 weeks later, pursuant to s 360(1) of the Migration Act (hearing invitation). The hearing invitation letter indicated that any additional evidence relied upon by the applicant should be provided to the Tribunal by one week before the hearing.(2)About six weeks later, and about a month before the scheduled hearing, pursuant to s 359A of the Migration Act, the Tribunal invited the appellant to comment on or respond to information which it considered would, subject to his comments or response, be the reason or part of the reason for affirming the delegate’s decision (comment invitation).(3)The comment invitation required a response just over three weeks later, being six days before the scheduled hearing date.(4)The appellant did not respond to the comment invitation as required.(5)Two days after the deadline for responding to the comment invitation, and four days before the scheduled hearing date, the Tribunal wrote to the appellant by email and informed him that as a consequence of his failure to respond to the comment invitation by the deadline, he had lost the right to appear before the Tribunal and the hearing had therefore been cancelled.(6)The Tribunal informed the appellant that it would receive and consider any further comments or a response to the information requested until the time of the member’s decision, and further documents were provided. It should be noted that this was not a formal extension of the time to respond to the comment invitation under s 395B(4) because the time for responding had elapsed and therefore a formal extension could not be granted by the Tribunal: see Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 at 419 [45]-[48]).(7)The appellant provided additional information by the date advised.(8)Just over a month later, the Tribunal affirmed the delegate’s refusal of the visa, finding that:(a)it was not satisfied that the appellant and the sponsor had a mutual commitment to each other to the exclusion of all others as his sponsor married another person three months after marrying the appellant and was also sponsoring that other person;(b)it was not satisfied that the relationship was genuine and continuing; and (c)the appellant did not meet the definition of “spouse” in s 5F of the Migration Act.(9)The Tribunal’s reasons at [8] were to the effect that:(a)by reason of the appellant not providing comments within the required period after the comment invitation, s 359C(2) applied;(b)therefore, pursuant to s 360(3), the appellant had no entitlement to a hearing;(c)following the Full Court decision in Hasran, the application of s 363A meant the Tribunal had no power to permit the appellant to appear; and(d)the Tribunal had decided to proceed to make a decision without taking any further steps to obtain the comments.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The relevant provisions of the Migration Act were ss 357A, 359, 359A, 359C, 360 and 363A. The relevant portions of those provisions were (and to date are) as follows: Division 5—Part 5-reviewable decisions: conduct of review357A Exhaustive statement of natural justice hearing rule(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.(2)Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.(3)In applying this Division, the Tribunal must act in a way that is fair and just.……359 Tribunal may seek information(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.……359A Information and invitation given in writing by Tribunal(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.……359CFailure to give information, comments or response in response to written invitation(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.360 Tribunal must invite applicant to appear(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.…363ATribunal does not have power to permit a person to do something he or she is not entitled to doIf 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.The possible interaction of ss 359C(2), 360 and 363A of the Migration Act

Ratio Decidendi

Legal Principle Established

The Minister’s case was that the Tribunal properly applied s 360(3) and that, as a result of the operation of s 363A, the Tribunal had no power to permit the appellant to appear at a hearing. On that argument there was no jurisdictional error on the part of the Tribunal and no error on the part of the primary judge in dismissing the appellant’s application for judicial review. GROUND 1 – FAILURE TO COMPLY WITH S 360 OF THE MIGRATION ACT Ground 1 as pressed by the appellant at the hearing of the appeal was as follows (particulars omitted):The Federal Circuit Court of Australia erred in not finding that the Second Respondent (the Tribunal) committed jurisdictional error by failing to comply with s 360(1) of the Migration Act 1958 (Cth) (the Act) by not holding a hearing and not allowing the Appellant to appear at a hearing before it, notwithstanding the Appellant had been invited to appear.The relevant provisions The relevant provisions of the Migration Act were ss 357A, 359, 359A, 359C, 360 and 363A. The relevant portions of those provisions were (and to date are) as follows: Division 5—Part 5-reviewable decisions: conduct of review357A Exhaustive statement of natural justice hearing rule(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.(2)Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.(3)In applying this Division, the Tribunal must act in a way that is fair and just.……359 Tribunal may seek information(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.……359A Information and invitation given in writing by Tribunal(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.……359CFailure to give information, comments or response in response to written invitation(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.360 Tribunal must invite applicant to appear(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.…363ATribunal does not have power to permit a person to do something he or she is not entitled to doIf 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.The possible interaction of ss 359C(2), 360 and 363A of the Migration Act