Singh v Minister for Immigration
[2016] FCCA 3343
•21 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3343 |
| Catchwords: MIGRATION – Judicial review of decision of Migration Review Tribunal (Tribunal) not to grant the applicant Skilled (Residence) (Class VB) Subclass 885 visa (885 visa) – whether Tribunal failed to consider medical certificates and applicant’s medical condition when determining whether to grant applicant time to take a further IELTS test – whether the Tribunal acted unreasonably in deciding not to give the applicant further time to take another IELTS test – whether information the Tribunal obtained from a third party the substance of which the Tribunal disclosed to the applicant was information to which s.359A of the Migration Act 1958 (Cth) applied – whether in finding the applicant had not been honest with the Tribunal and relying on that finding not to give the applicant further time to take another IELTS test the Tribunal was obliged to give the applicant notice of the possibility that it might make such finding – whether by failing to give such notice the Tribunal made a jurisdictional error – jurisdictional error found. |
| Legislation: Migration Act 1958 (Cth), s.353, 353(1), 357A(1), 357A(3), 359A, 359A(1), 360, 360(1), 363, 363(1)(b), 424A, 425, 425(1) Migration Regulations 1994 (Cth), reg.1.15C(1) |
| Cases cited: Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SULTAN SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2446 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 24 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| Applicant in person with the assistance of Mr Jamal, with leave of the Court. |
| Solicitors for the Respondents: | Mr M Glavac of Clayton Utz |
ORDERS
The decision of the second respondent made on 29 July 2014 affirming the decision of the delegate of the first respondent made on 17 January 2014 not to grant the applicant a Skilled (Residence) (Class VB) Subclass 885 visa (885 visa) is quashed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Migration Review Tribunal to review the decision of a delegate of the first respondent made on 17 January 2014 not to grant the applicant an 885 visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2446 of 2014
| SULTAN SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review relates to the decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Residence) (Class VB) Subclass 885 visa (885 visa). The Tribunal affirmed the delegate’s decision because it was not satisfied the applicant had “competent English” as defined by reg.1.15C(1) of the Migration Regulations 1994 (Cth) (Regulations).
The applicant, who is not legally represented, challenges the Tribunal’s decision on four broad grounds. The first is that the Tribunal, when determining whether to grant the applicant further time to demonstrate he had “competent English” by undertaking a further International English Language Testing System (IELTS) test, failed to take into account medical certificates relating to the applicant’s health and, more generally, the applicant’s medical condition as revealed by those certificates. The second ground is that the Tribunal acted unreasonably, having regard to the applicant’s medical condition, in deciding not to grant the applicant further time. The third ground relates to the Tribunal’s seeking and relying on information it obtained from the IELTS Test Centre at Macquarie University that was adverse to the applicant. The applicant claims the Tribunal’s reliance on the information obliged the Tribunal to comply with s.359A of the Migration Act 1958 (Cth) (Act), but the Tribunal did not comply with that provision. The fourth ground is that the Tribunal denied the applicant procedural fairness because it relied on a finding of dishonesty without giving the applicant notice of its intention to make such finding.
To assess the applicant’s grounds, it will be necessary to describe the history of the proceedings before the Tribunal.
Before the Tribunal
On 14 April 2014 the applicant attended a hearing before the Tribunal. The applicant said he had taken “more than 10 IELTS tests” but was “unable to obtain the required results”. He said this was due to a stammer that affected his ability to satisfy the speaking component of the IELTS test.[1] The applicant further said he had taken an IELTS test on 12 April 2014, the results of which would be available on 28 April 2014. At the applicant’s request, the Tribunal allowed him until 30 April 2014 to provide those results.
[1] CB124, [12]
By letter dated 30 April 2014 the applicant’s migration agent informed the Tribunal the applicant had recently become aware his stammer and hearing problem fell within a minor disability category for which special arrangements could be made when undertaking an IELTS test.[2] The agent said the applicant had been informed by the IELTS Administration that a test could be conducted “separately with adequate arrangements to cater for his minor disability” on the receipt of “certain medical evidence”.[3] The agent said the applicant had two medical appointments on 1 May 2014 and 20 May 2014, and requested that the applicant be given time to complete “at least 1 test under [the] special arrangement”.[4] The Tribunal wrote to the applicant on 30 April 2014 granting him until 13 June 2014 to book an IELTS test and to provide the Tribunal with evidence of the results of that test.[5] The Tribunal requested that the applicant book the first available test. The Tribunal said it would proceed to make a decision on the review after 13 June 2014 if the Tribunal were to receive no response.
[2] CB91-96
[3] CB124, [13]
[4] CB91
[5] CB98, CB124, [14]
By letter dated 13 June 2014 the agent informed the Tribunal the applicant had booked an IELTS test for 6 September 2014. The agent said the lengthy delay was due to “special arrangement [sic] being made to meet the special needs of the applicant”.[6] By email sent on 16 June 2014 (16 June 2014 correspondence),[7] the Tribunal requested the applicant provide a letter from the IELTS Administration which provided the following information:
a)when the applicant requested the IELTS Administration to allow the applicant to sit “an IELTS test that accommodated his special needs (stammer)”;
b)when the applicant provided the IELTS Administration with a medical report;
c)how often tests are conducted to meet the special needs of the applicant;
d)the first available test to meet the special needs of the applicant;
e)when was the last available test to meet the special needs of the applicant; and
f)whether it is possible to move the test scheduled for 6 September 2014 to an earlier date.
[6] CB99
[7] CB124-125, [16]
The applicant did not provide a letter from the IELTS Administration.[8] Instead, on 17 June 2014 the applicant contacted an officer of the Tribunal. He informed her “that he had been advised by the IELTS Administration that it takes two to three months to organize an IELTS test to accommodate special needs” and that “he had requested an earlier date but none was available”.[9]
[8] CB125, [17]
[9] CB125, [17]
By email sent on 24 June 2014, the Tribunal asked the IELTS test centre at Macquarie University the questions outlined in the 16 June 2014 correspondence.[10] In a response received the same day, an IELTS Administrator confirmed that the applicant had provided a medical certificate after he sat an IELTS test on 21 June 2014; that, generally, candidates requesting special consideration should make a request “at least 5 weeks before the test” but that “for a stammer, we would not need that much notice”; that tests were held twice a month; that the next available test date was 12 July 2014; and that the applicant could bring his test forward to that date in accordance with the transfer and refund policy.[11]
[10] CB102-103
[11] CB102
On 25 June 2014 the Tribunal sent a letter to the applicant in which it repeated the information Macquarie University IELTS Centre had provided to the Tribunal, and stated that the information it had received from that centre was not consistent with the information the applicant’s migration agent had provided.[12] The Tribunal indicated it would give the applicant time to allow him to make the necessary arrangements to reschedule his IELTS test to 12 July 2014, and that it would provide the applicant until 28 July 2014 to provide evidence of competent English. The Tribunal also informed the applicant it would “proceed to make a decision on your case after 28 July 2014 based on the evidence before it at that time”.[13]
[12] CB106-107; CB125, [19]
[13] CB125, [21]
By fax sent on 27 June 2014 the applicant informed the Tribunal he had rescheduled his IELTS test dates for 12 July 2014 and 19 July 2014.[14] On 1 July 2014 an officer of the Tribunal attempted to contact the applicant for the purpose of confirming that the extension to 5.00pm on 28 July 2014 still applied.[15] The officer was unable to reach the applicant and left a voicemail. On 3 July 2014 an officer of the Tribunal contacted the applicant’s migration agent confirming the extension.[16]
[14] CB108
[15] CB125-126, [22]
[16] CB125-126, [22]
On 21 July 2014 the applicant’s migration agent sent a letter to the Tribunal, together with a medical certificate, stating that the applicant did not undertake the IELTS test on 12 July 2014 because he was “medically unfit”. The agent said the applicant had undertaken the test on 19 July 2014 and the results would be provided to the Tribunal.[17]
[17] CB112-113; CB126, [23]
On 25 July 2014 the applicant wrote to the Tribunal.[18] He stated he was able to book two IELTS tests on 12 and 19 July 2014; he could not attend the 12 July 2014 test because of “sickness”; he sat the test on 19 July 2014, but he was “unwell on the day of exam”; he was “suffering from heavy sickness and physical weakness from the last month, which could have negative effect on my test result”; he had “some tests (chest, exray [sic], blood test) and next week I have couple of more test of cough”; and the next available test date was 2 August 2014, but his doctor advised the applicant not to sit the exam. The applicant requested the Tribunal provide a letter “confirming that I… need a disabled ielts test booking urgently, so I can sit and pass my ielts exam as soon as possible”.[19]
[18] CB114
[19] CB114
With this letter, the applicant provided four documents. One was a medical certificate dated 24 July 2014 which certified that Dr Asad examined the applicant, and confirmed “he will be unfit for work/school/usual activities from .24 July 2014 . . to 31 July 2014 . . . inclusive” (First Medical Certificate).[20] The second document was a medical certificate that certified the applicant “attended Medscan Merrylands on 25.7.2014 for a medical appointment” (Second Medical Certificate).[21] The third document is dated 22 July 2014, and appears to be a request for a chest Xray.[22] And the fourth document was a medical certificate dated 25 July 2014, also issued by Dr Asad, certifying that he examined the applicant on that day and that he was “suffering from some persisting respiratory sign symptms [sic] and weakness, so I think he would not be able prepare himself to sit the IELTS exam in [sic] 2 August 2014” (Third Medical Certificate).[23]
[20] CB116
[21] CB115
[22] CB117
[23] CB118
On 28 July 2014 an officer of the Tribunal contacted the applicant’s migration agent and informed him that the Tribunal was “not prepared to extend the time any further and the applicant had until 5.00pm on 28 July 2014 to provide evidence of competent English”.[24] The applicant subsequently contacted the Tribunal on 28 July 2014, and it was confirmed to him that an extension had not been granted. [25] The applicant did not provide any evidence of competent English by that time.
[24] CB126, [25]
[25] CB126, [25]
On 29 July 2014 the Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant an 885 visa on the basis that the Tribunal had not received any evidence as to the applicant’s competent English as defined in reg.1.15C(1) of the Regulations.
Tribunal’s reasons for not granting further extension
The Tribunal said it did not grant the applicant the further time he requested to sit for an IELTS test for the following reasons:
a)the applicant had indicated he did not undertake an English test in the 24 months before he made the visa application; the applicant, therefore, “has had an additional 3 years in which to provide the Tribunal with evidence of competent English”, and that “is a more than reasonable amount of time in which to provide the required evidence”;[26]
b)the applicant first raised with the Tribunal the issue of his stammer at the hearing on 14 April 2014; the applicant was given further time until 30 April 2014 to provide the required evidence, and that was later extended to 13 June 2014 and then again to 28 July 2014;[27]
c)the Tribunal had made inquiries of the IELTS Administration which revealed that not much notice was required to make special arrangements for a candidate with a stammer to undertake the IELTS test; the applicant, therefore, “has not been honest with the Tribunal in relation to information provided to him by the IELTS Administration with respect to the timeframe for sitting a special needs IELTS test and he has sought to delay this review for as long as possible”.[28]
[26] CB126, [26]
[27] CB126, [26]
[28] CB126, [27]
In short, the Tribunal did not grant the applicant further time because the applicant had a reasonable time in which to provide the required evidence, the applicant first raised the difficulties he claimed to have with his stammer in April 2014, and, in any event, the applicant was not honest with the Tribunal about the times by which the IELTS Administration could set up a test for persons who suffered from a stammer, thereby indicating to the Tribunal that the applicant had sought to delay the review of his application for as long as possible.
Grounds of application
The application contains the following grounds of review:
1. MRT DID NOT TAKE INTO CONSIDERATION OF MY MEDICAL CONDISION [sic].
2. OTHER APPLICANTS IN SIMILAR CIRCUMSTANCES WERE GRANTED THE EXTENSION.
The applicant filed written submissions on 10 November 2015. In those submissions the applicant made the following submissions which, in substance, are additional grounds:
1. I submit that the MRT failed to consider the medical certificates presented as evidence of my sickness at the time of the decision (appendices 1, 2 and 3) and as such the MRT acted unreasonably (Minister for immigration vs Li and another Appendix 4)
2. I submit that the admission by the Tribunal that they made some inquiries with the ILETS [sic] Test Centre at Macquarie University and the adverse information used by the Tribunal to affirm the decision as per paragraph 18 of the Tribunal decision record, is in clear breach of s 424A of the Migration Act 1958 (Cth) and therefore falls under jurisdictional error (Mzyez vs Minister for immigration appendix 5). Please note that I firmly stand by my claim and as advertised by ILETS [sic] on their web site that the waiting time for a special needs test is two to three months.
3. Considering the above I submit that there is a jurisdictional error in the MRT decision dated 30 July 2015.
4. I submit that the Tribunal have denied me natural justice.
5. I submit that an order to squash [sic] the decision of the MRT dated 30 July is the only way to redress this jurisdictional error.
I will read paragraph 2 of the applicant’s written submissions as intending to refer to s.359A, not s.424A, of the Act.
Hearing before Court
At the hearing before me, the applicant requested I permit Mr Jamal to speak on behalf of the applicant. Mr Jamal is not a legal practitioner; and he is not a migration agent. Mr Jamal said he offers assistance to persons in the position of the applicant. The applicant’s written submissions appear to have been prepared by him. One reason the applicant requested I permit Mr Jamal speak on his behalf is that the applicant has a stammer. Over objection by the Minister, I granted Mr Jamal leave to speak on behalf of the applicant. That was not intended to prevent the applicant from making whatever submissions he wished to make on his own behalf, and, at my invitation, the applicant did make submissions in addition to those made by Mr Jamal.
Mr Jamal made submissions that reflected the applicant’s written submissions. In addition, Mr Jamal made submissions which, in effect, claimed the Tribunal failed to accord the applicant procedural fairness before it found the applicant had not been honest. That is the submission I infer from the following passage of what Mr Jamal said to me:[29]
[29] T12.5
HIS HONOUR: Well, the tribunal, I think, did take an adverse view of Mr Singh. . . . It said he has not been honest.
MR JAMAL: He is being dishonest.
HIS HONOUR: Well, he has not been honest.
MR JAMAL: Yes. Well, that hurts Mr Singh a lot because he thought that he did the proper inquiries and he found that it need two to three months – not on one side, on two sides, and he even called, as I recommend, and they told him he need to wait between two to three months before he can sit the test. So this is what he presented at the tribunal. The tribunal did their own individual inquiries and they got different advice from the centre. So that leaves him exposed and that’s why the tribunal took the view that he may be lying or he’s dishonest but it’s definitely there on two sides.
I take this to be a submission that the Tribunal failed to notify the applicant of its intention to find the applicant was not honest and, therefore, failed to give the applicant an opportunity to make submissions about that.
The issues that arise, therefore, are as follows:
a)Did the Tribunal consider the applicant’s medical condition when considering whether to give the applicant time to undertake a further IELTS test (Issue 1)?
b)To the extent the Tribunal did consider the applicant’s medical condition, did the Tribunal act unreasonably in deciding not to grant the applicant further time (Issue 2)?
c)Was the Tribunal obliged to deal with the information it received from the Macquarie University IELTS Test Centre in the manner required by s.359A of the Act (Issue 3)?
d)Assuming (c) is answered in the negative, was the Tribunal under a duty to give notice to the applicant that it might find that the applicant was not being honest, but the Tribunal failed to do so (Issue 4)?
Issue 1 - did the Tribunal consider the applicant’s medical condition?
The Tribunal did refer to the First Medical Certificate and to the Second Medical Certificate. It also referred to the applicant’s letter dated 25 July 2014 and also to the applicant’s having stated in that letter that he had been advised by his doctor not to sit the IELTS test that was scheduled for 2 August 2014. The Tribunal, however, did not refer to the Third Medical Certificate. Further, the Tribunal did not, when stating its reasons for not granting the applicant further time to take an IELTS test, expressly refer to any of the medical certificates or the applicant’s medical condition.
Three questions arise. The first is whether I should infer from the Tribunal’s failure when it gave its reasons for not giving further time to refer to the First Medical Certificate and to the Second Medical Certificate, and to the applicant’s statement in his letter of 25 July 2015 that his doctor advised him not to sit for the test on 2 August 2014, that the Tribunal did not consider these matters when determining whether to give the applicant further time. The second question is whether the Tribunal made any jurisdictional error by having overlooked the Third Medical Certificate.
I am not prepared to infer from the Tribunal’s failure to refer to the First Medical Certificate and to the Second Medical Certificate, and to the applicant’s statement in his letter of 25 July 2015 that his doctor advised him not to sit for the test on 2 August 2014 (applicant’s medical condition), that the Tribunal did not consider these matters when it decided not to give the applicant further time. The more probable inference is that the Tribunal considered the applicant’s medical condition, but decided it would give it little or no weight. My conclusion that the Tribunal considered the applicant’s medical condition is based on the Tribunal having referred to two of the medical certificates and the applicant’s letter of 25 July 2014 and setting out the effect of their contents. And my conclusion that the Tribunal gave the applicant’s medical condition little or no weight is based on the matters on which the Tribunal expressly relied in refusing to grant the applicant further time. The Tribunal relied on the time the applicant had to provide evidence he had competent English (almost three years), the applicant’s first raising in April 2014 the difficulties he claimed to have with his stammer, and the applicant’s not being honest about the information he received from IELTS Administration. Given the matters on which the Tribunal relied, the Tribunal could not reasonably be supposed to have considered assigning any or any substantial weight to the applicant’s medical condition and his not being in a position to sit for the IELTS test on 2 August 2014.
In any event, given the matters on which the Tribunal relied for not giving the applicant further time, and, in the context of those matters, the little weight in favour of the granting of further time that could rationally be assigned to the applicant’s medical condition, I am not satisfied the Tribunal did not consider the applicant’s medical condition as revealed in the First Medical Certificate, the Second Medical Certificate, and the advice the applicant, in his letter dated 25 July 2014, represented his doctor gave him.
The second question is whether I should infer that, because the Tribunal did not refer to the Third Medical Certificate, the Tribunal had overlooked its existence. I do infer the Tribunal overlooked the existence of the Third Medical Certificate: the Tribunal expressly referred to the First Medical Certificate and to the Second Medical Certificate, and set out the effect of the content of those certificates, but the Tribunal did not do that in relation to the Third Medical Certificate.
The third question is whether the Tribunal made any jurisdictional error because it had overlooked the Third Medical Certificate. In my opinion, the Tribunal did not make any jurisdictional error for that reason. Although the Tribunal did not refer to the Third Medical Certificate, it did refer to the applicant’s statement in his letter dated 25 July 2014 that the applicant’s doctor had advised him not to sit the IELTS test on 2 August 2014. Although that overstated the opinion contained in the Third Medical Certificate, which was that the applicant would not be able to prepare himself for the exam on 2 August 2014, it is clear that the doctor’s advice to which the applicant referred in his letter related to the applicant’s medical condition that was the subject of the First Medical Certificate and the Second Medical Certificate. That is apparent from the applicant’s stating in his letter dated 25 July 2014 that the doctor advised the applicant “to have complete rest to recover this weakness as soon as possible”.
Given that I have concluded the Tribunal considered, but gave little or no weight to, the applicant’s medical condition as revealed by the First Medical Certificate, the Second Medical Certificate, and the applicant’s statements contained in his letter of 25 July 2014, it is inevitable the Tribunal would have given little or no weight to the Third Medical Certificate had it considered it; and its being aware of the Third Medical Certificate would not otherwise have led the Tribunal to give weight or more weight than it did to the First Medical Certificate, the Second Medical Certificate, or the applicant’s statements contained in his letter of 25 July 2014. Thus, the Tribunal’s overlooking the existence of the Third Medical Certificate cannot reasonably be considered as having had any effect on the decision the Tribunal made not to give the applicant further time to undertake a further IELTS test.
For these reasons, the Tribunal did not make a jurisdictional error because it did not consider the applicant’s medical condition when considering whether to give the applicant time to undertake a further IELTS test.
Issue 2 - did the Tribunal act unreasonably?
The next question to consider is whether, assuming the Tribunal did consider the applicant’s medical condition, the Tribunal’s decision not to give the applicant further time was unreasonable.
Under s.363(1)(b) of the Act, the Tribunal has power to “adjourn the review from time to time”. The Tribunal must exercise that power reasonably.[30] Whether or not, in any given case, the exercise of a power is unreasonable “will depend on the application of the principles which emerge from” Minister for Immigration and Citizenship v Li,[31] “and the earlier authorities discussed in it”.[32] Assessing whether a decision is legally unreasonable requires an evaluation of the decision with a view to determining whether, having regard to the subject matter, scope, and purpose of the relevant statutory power, the decision possesses one or more of the qualities conveyed by such words or expressions as ““plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate””.[33] If the court concludes the decision possesses one or more of these attributes, the decision will be held to be legally unreasonable.[34] Where the decision which it is claimed to be unreasonable is supported by reasons, reasonableness should be assessed both by reference to the actual reasoning the decision-maker adopted in reaching the decision, and the outcome of the decision.[35] In those circumstances, the decision will be unreasonable if it lacks an intelligible justification; and the intelligible justification “must lie within the reasons the decision-maker gave for the exercise of the power”.[36]
[30] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
[31] [2013] HCA 18; (2013) 249 CLR 332
[32] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [42]
[33] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [65]
[34] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [65]
[35] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]
[36] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]
In applying these principles to the circumstances of the Tribunal’s deciding not to give the applicant time to undertake a further IELTS test, I must first identify the subject matter, scope, and purpose of s.363(1)(b) of the Act. The subject matter is the adjournment of the review from time to time. The scope and purpose of that power must be assessed at least in the context of Part 5 of Division 5 of the Act. Three provisions are of particular relevance. Fundamental is the power conferred by s.348 of the Act, which requires the Tribunal to review an application for review that has been properly brought before it. Next is s.360(1) of the Act, which requires the Tribunal to 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. Finally, there is s.353 of the Act which, at the time the Tribunal determined the application, required that the Tribunal, in carrying out its functions under the Act, “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”.
Next, there are the reasons the Tribunal gave for not granting the applicant additional time to sit for an IELTS test. As I have already noted, the Tribunal did not grant the applicant further time because the Tribunal concluded the applicant had already had a reasonable time in which to provide the required evidence, and the applicant had not been honest with the Tribunal about the times by which the IELTS Administration could set up a test for persons who suffered from a stammer.
In my opinion, assuming the Tribunal did not deny the applicant procedural fairness or otherwise did not make any jurisdictional error by not notifying the applicant that it might find the applicant did not act honestly (these being matters I consider below), it was reasonably open to the Tribunal to rely on these two reasons for not granting the applicant further time, notwithstanding the applicant’s medical condition. The first of the two reasons was relevant to whether there would be any utility in the applicant being provided further time. Given the applicant had some three years within which to obtain a successful IELTS score, it was reasonably open to the Tribunal to conclude that it was unlikely the applicant would successfully complete the IELTS test for which the applicant sought further time to sit. The second of the two reasons was relevant for the reasons the Tribunal gave; it could reasonably indicate that the applicant sought to delay the review of his application for as long as possible.
Again assuming the Tribunal did not deny the applicant procedural fairness or otherwise did not make any jurisdictional error by not notifying the applicant that it might find the applicant did not act honestly, it was also reasonably open to the Tribunal to conclude, as it did, and for the reasons it gave, that the applicant had not been honest with the Tribunal about the information provided to him by the IELTS Administration concerning the timeframe for sitting a special needs IELTS test. As I have already noted, the applicant informed the Tribunal that IELTS Administration had advised him it took two to three months to organise a test, yet the Tribunal’s own inquiries revealed that in the case of persons who suffered from a stammer IELTS Administration did not need much notice.
At the hearing before me, the applicant tendered a document he claimed contained information from the University of Technology Sydney IELTS Centre providing information about the provision of specially modified materials. The document stated, among other things: “If you need a modified version of test papers (e.g. hearing/sight impairment), please contact us . . . at least 3 months before the test date”. The applicant tendered this document to support the contention made in the applicant’s submissions that he stands firm in his claim that the waiting time for a special needs test is two to three months.
I admitted the document subject to relevance. In my opinion, however, the document is not relevant. As I have already noted, by its letter dated 25 June 2014, the Tribunal informed the applicant of the information it had received from Macquarie University IELTS Test Centre. The applicant, however, did not at the time contradict or address the information the Tribunal obtained from Macquarie University IELTS Test centre.
In my opinion, and again assuming the Tribunal did not deny the applicant procedural fairness or otherwise did not make any jurisdictional error by not notifying the applicant that it might find the applicant did not act honestly, the Tribunal did not act unreasonably by refusing to grant the applicant further time to sit for a further IELTS test. This part of the applicant’s case, therefore, fails.
Issue 3 – s.359A of the Act
The applicant submits that the information the Tribunal received from the Macquarie University IELTS Test Centre was information to which s.359A(1) of the Act applied (Relevant Information), but the Tribunal did not do in relation to that information that which s.359A(1) required the Tribunal to do.
Subsection 359A(1) of the Act provides:
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.
The Minister submitted the Relevant Information is not information to which s.359A(1) applied. Section 359A only applies to information the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. The Tribunal did not rely on the Relevant Information as a reason or part of the reason for affirming the delegate’s decision; nor can there be any reasonable basis for inferring the Tribunal considered that the Relevant Information would be the reason or part of the reason for affirming the delegate’s decision. To the extent the Tribunal relied on the Relevant Information, it did so as part of the reason for not granting the applicant time to take a further IELTS test.
I accept the Minister’s submission. The Relevant Information was not information to which s.359A of the Act applied; and the Tribunal, therefore, made no jurisdictional error by not complying with s.359A of the Act in relation to that information. This part of the applicant’s case, therefore, fails.
Issue 4 - denial of procedural fairness?
As I have already noted, I have treated the applicant, through Mr Jamal, to have submitted the Tribunal was obliged to give the applicant notice of the possibility of its finding that the applicant was not being honest with the Tribunal about the times by which the IELTS Administration could set up a test for persons who suffered from a stammer. In broad terms, the applicant complains he was not accorded procedural fairness.
The Tribunal, when exercising its functions under Division 5 of Part 5 of the Act, is not under a general common law duty to accord an applicant procedural fairness. That follows from s.357A(1) of the Act, which provides that Division 5 of Part 5 of the Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. Notwithstanding s.357A(1) of the Act, however, other provisions of Division 5 of Part 5 of the Act have been interpreted to give rise to obligations that are similar to those that arise under the common law duty to accord procedural fairness. The most well-known are the duties that are implied by s.360 of the Act, and the equivalent provision in s.425 of the Act. Subsection 360(1) provides that 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”. It has been held this requires that the issues “arising in relation to the decision under review” must be identified; and whether or not these issues are identified in any given case depends in part on the grounds on which the Minister or his or her delegate disposed of the decision under review. In particular, unless the Tribunal “tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision”. [37]
[37] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [36]
The question of what matters are capable of being properly characterised as “issues arising in relation to the decision under review” was considered by Barnes FM (as her Honour then was) in SZHZD v Minister for Immigration & Anor.[38] Her Honour said that the “issues arising in relation to the decision under review” are “the “dispositive” or determinative issues in the sense of issues on which the decision to reject the applicant’s claim is based”.[39] And in SZJUB v Minister for Immigration & Citizenship, Bennett J said the Tribunal is obliged to inform an applicant of the issues, but not each fact that relates to them.[40]
[38] [2008] FMCA 4
[39] [2008] FMCA 4 at [39]
[40] [2007] FCA 1486 at [25]
The Minister in the case before me assumed that the source of any duty the Tribunal had to accord the applicant procedural fairness when deciding whether to give the applicant further time was to be found in s.360 of the Act.[41] In my opinion, however, that assumption is incorrect. What has been said about the duty to give notice under s.360(1) and s.425(1) of the Act only relates to the giving notice of “issues arising in relation to the decision under review”. The issue in relation to which the Tribunal in the case before me found the applicant had not been honest, however, cannot properly be characterised as an issue arising in relation to the decision under review. The issue before the Tribunal that the applicant challenges was whether the Tribunal should, in the exercise of the power conferred by s.363(1)(b) of the Act, give the applicant time to take a further IELTS test. This raises two questions. The first is whether, on the assumption s.357A(1) of the Act may be ignored, the exercise of the power under s.363(1)(b) of the Act is capable of attracting the “natural justice hearing rule”, that is, a duty to accord procedural fairness. The second question is, assuming the exercise of s.363(1)(b) of the Act is capable of attracting the natural justice hearing rule, whether, because of s.357A(1) of the Act, the natural justice hearing rule is displaced by the provisions of Division 5 of Part 5 of the Act.
[41] T32.40
As a general rule, there will be implied in a statutory provision that confers a power a condition that such power must be “exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power”.[42] In my opinion, a decision to exercise or not exercise the power conferred by s.363(1)(b) of the Act is capable of adversely affecting the interests of an applicant. A decision not to grant an adjournment may result in the applicant being deprived of the opportunity conferred by s.360(1) to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
[42] Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 at [97] (Gummow, Hayne, Crennan, and Bell JJ) referring to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 100-101 [39]-[41].
Does s.357A(1) of the Act displace the implication of the condition that s.363(1)(b) must be exercised with procedural fairness to an applicant? In my opinion, it does not. Why that is so requires me first to examine an aspect of the judgment of the plurality (Hayne, Kiefel, and Bell JJ) in Minister for Immigration and Citizenship v Li.[43]
[43] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Li concerned a challenge to the Tribunal’s decision not to grant an adjournment under s.363(1)(b) of the Act. One of the submissions the Minister made in that case was that s.353 and s.357A(3) of the Act, properly understood, did not contain substantive requirements regarding the conduct of a review, the breach of which would amount to an error going to jurisdiction.[44] At the time Li was decided, s.353 provided:
[44] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [49]
(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.
Subsection 357A(1) and (3) of the Act provided:
(1)This Division [being the Division which contains s.363 of the Act] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
. . . .
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
Section 353 of the Act was subsequently amended by item 42 of Schedule 2 to the Tribunals Amalgamation Act 2015 (Cth) which repealed s.353(1). Under s.2 of that Act, this amendment came into effect on 1 July 2015, which is after the Tribunal’s decision in the case before me. Section 357A has not been amended since the High Court’s decision in Li.
Returning to Li, the plurality asked what is to be understood by the requirement provided by s.357A(3) of the Act that the Tribunal must act in a way that is just and fair, given that s.357A(1) provides that Division 5 of Part 5 of the Act is to be taken to be an exhaustive statement of the requirements of natural justice.[45] The plurality addressed that question by making the following points:
a)What is fair and just is not to be ascertained by reading s.357A(3) of the Act alone, but “by reading it as it applies to the actions of the Tribunal in the conduct of a review”.[46]
b)What is fair and just in relation to a particular act “may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole”.[47]
c)A “consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal”. That means that “whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act”.[48]
[45] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [55]
[46] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [58]
[47] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [58]
[48] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [59]
The plurality then said that the “duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example”.[49] After explaining the nature and purpose of the Tribunal’s obligations under s.360 of the Act, the plurality said (emphasis added):[50]
It is not necessary to determine what s 357A(3) requires and what may be the consequence of a breach of that provision. Even if s 357A(3) by itself has no consequence for the ultimate decision of the Tribunal, to affirm the delegate's decision, it might nevertheless be concluded that the purpose of s 360(1) was not met. Without Ms Li being provided an opportunity to present her further evidence, it might be concluded that the hearing contemplated did not take place. It is not necessary to determine the appeal on this basis, since there is a more direct route to its resolution, by reference to s 363(1)(b) and a requirement of the law.
[49] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [60]
[50] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [62]
In my opinion, the effect of this part of the plurality’s judgment is that an unfair exercise by the Tribunal of the power under s.363(1)(b) of the Act not to grant an adjournment would lead to the applicant’s being denied that which s.360(1) of the Act confers, namely, an opportunity to appear before the Tribunal to give evidence and present arguments. That, in turn, will result in the Tribunal’s decision being affected by jurisdictional error.
In my opinion, a failure by the Tribunal to accord an applicant procedural fairness when exercising the power under s.363 of the Act would not be “fair and just” within the meaning of s.357A(3) of the Act; and s.357A(1) of the Act would not, therefore, prevent the Tribunal from coming under a duty to accord an applicant procedural fairness. It therefore follows that if, in the exercise of the power conferred by s.363(1)(b) of the Act, the Tribunal were to refuse to grant an applicant an adjournment without according the applicant procedural fairness, the purpose of s.360 of the Act will not be met because the applicant will be denied the opportunity conferred by s.360 to appear before the Tribunal.
I have so far concluded that, ignoring s.357A(1) of the Act, the Tribunal would be under a duty to accord the applicant procedural fairness before deciding not to grant the applicant further time; and that, because of s.357A(3) of the Act, s.357A(1) did not abrogate that duty. The next question, then, is whether the Tribunal accorded the applicant procedural fairness when it made a finding based, in part, on its conclusion that the applicant had not been honest with the Tribunal. That, in the first instance, depends on what, in the circumstances of this case, the Tribunal was required to do to accord the applicant procedural fairness. In my opinion, the Tribunal was required, at the very least, to identify to the applicant any issue that was critical to its decision not to grant the applicant further time that was “not apparent from its nature or the terms of the” Act under which the Tribunal made its decision; and it was required to “advise of any adverse conclusion which” it may have arrived at “which would not obviously be open on the known material”.[51]
[51] Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at pages 591-592; quoted with approval in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]
The Minister submitted[52] the Tribunal complied with its obligations to accord the applicant procedural fairness by sending its letter dated 25 June 2014 in which it informed the applicant of the information the Tribunal had received from IELTS Administration.[53] In its letter, the Tribunal identified the information after it had received two letters the Tribunal received from the applicant’s migration agent. The Tribunal then stated:[54]
This information from the IELTS Administration is not consistent with the information provided by your migration agent to the Tribunal.
[52] T32.40
[53] CB106
[54] CB107
The Tribunal’s letter, however, says nothing further about the information it received from IELTS Administration. It does not state that the information the applicant’s agent conveyed to the Tribunal was the result of any dishonest instructions the applicant gave the Tribunal, or the product of any other dishonesty by the applicant. Nor is the letter reasonably capable of being interpreted as signalling to the applicant that the Tribunal was considering that it might conclude the applicant was not honest, even though the Tribunal stated the information it had received was not consistent with the information the applicant had given to the Tribunal. Further, the Tribunal’s conclusion that the applicant was not honest was critical to its decision not to grant the applicant time to enable him to take another IELTS test. It was one of three factors on which the Tribunal relied; and the finding of dishonesty was a particularly weighty factor, given the Tribunal relied on that finding to conclude that the applicant had sought to delay the review of his application for as long as possible.
In those circumstances, I do not accept the Minister’s submission that by sending the letter dated 25 June 2014 the Tribunal discharged its duty to accord procedural fairness to the applicant. In my opinion, the Tribunal was required to notify the applicant that it was of the view that an issue it considered relevant to whether to grant the applicant time to take a further IELTS test was whether the applicant was honest with the Tribunal about the times by which the IELTS Administration could set up a test for persons who suffered from a stammer. By not notifying the applicant of that issue, and by relying on its finding that the applicant was not honest with the Tribunal about the times by which the IELTS Administration could set up a test for persons who suffered from a stammer, the Tribunal failed to accord the applicant procedural fairness when exercising its power under s.363(1)(b) of the Act not to grant the applicant further time. And by exercising its power without according the applicant procedural fairness, the Tribunal denied the applicant the opportunity to give evidence and present arguments, as provided for by s.360 of the Act. For these reasons, the Tribunal’s decision affirming the delegate’s decision is affected by jurisdictional error.
The Minister also submitted the Tribunal did not act unfairly towards the applicant because the Tribunal’s finding that the applicant did not act honestly with the Tribunal was reasonably open on the material that was before it.[55] That submission, however, does not address the question of whether the Tribunal was under a duty to notify the applicant that it was considering making a finding of lack of honesty. For the reasons I have given, the Tribunal was under such a duty to give notice of that matter, but it did not do so.
[55] T22.20ff
The applicant succeeds, therefore, on this part of his case.
Other matters
In the second ground stated in the application, the applicant claims other applicants in similar cases were granted an extension. This claim is not supported by any evidence; and even if it were, it would not by itself prove the Tribunal acted unreasonably.
Disposition
I propose to order that the decision of the Tribunal be quashed, that the Administrative Appeals Tribunal (AAT) be substituted for the Tribunal as second respondent, and that the AAT determine the applicant’s application for review according to law.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 21 December 2016
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