Singh v Minister for Immigration
[2009] FMCA 281
•23 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 281 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a temporary business visa – applicant failing to respond to a request for additional information – Tribunal proceeding without a hearing – whether Tribunal had a discretion to invite the applicant to a hearing discussed – where the applicant is not entitled to a hearing the Tribunal has no discretion to invite the applicant to a hearing – in the circumstances there is no obligation on the Tribunal to disclose at a hearing the essential and significant issues on which the review will turn – whether the Tribunal breached s.359A considered – Tribunal accessing Departmental computer records to find that the applicant’s sponsor’s approval had expired – no disclosure of that information to the applicant – jurisdictional error established – whether relief should be withheld in the exercise of discretion considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.357A, 359, 359A, 359B, 359C, 360, 363A, 379A, 379C, 379G, 422B, 425 Migration Regulations 1994 |
| Khergamwala v Minister for Immigration & Anor [2007] FMCA 690 M v Minister for Immigration (2006) 91 ALD 629 Minister for Immigration v Jing Shan Sun [2005] FCAFC 201; (2005) 146 FCR 498 SAAP v Minister for Immigration (2005) 215 ALR 162 Suhv Minister for Immigration [2009] FCAFC 42 SZBEL v Minister for Immigration (2006) 228 CLR 152 Uddin v Minister for Immigration [2005] FCAFC 218 |
| Applicant: | MANDIP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG2855 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 1 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Newman Newman and Associates |
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal handed down on 1 October 2008.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the application before it according to law.
The first respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2855 of 2008
| MANDIP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was handed down on 1 October 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a temporary business (class UC) visa. The following statement of background facts is derived from written submissions filed on behalf of the Minister on 27 March 2009.
The applicant applied for a Long-stay Temporary Business Visa (subclass 457) on 20 March 2007.[1] He was sponsored by an employer known as BSS Management Pty Ltd (BSS), for which he proposed to work (and had previously worked) as a cook.[2]
[1] court book (“CB”) 1.
[2] CB 6-7.
On 5 September 2007 a delegate of the Minister refused to grant the visa on the ground that the applicant did not meet the criterion in clause 457.221 of Schedule 2 to the Migration Regulations1994 (“the Migration Regulations”).[3] That clause requires that, if the visa applicant is in Australia, he or she has complied substantially with the conditions that applied to his or her last substantive visa. The delegate noted that the applicant had held a student visa which was subject to condition 8202, and the delegate was not satisfied that he had complied with that condition.
[3] CB 34-35.
The delegate also noted that, at the time of his decision, ‘the validity of the nomination lodged on the applicant’s behalf had also ceased’.[4] That statement may have been based on a letter from the applicant’s sponsor dated 17 July 2007 which verified the applicant’s employment up until the date of the letter[5]. However, this issue was not pursued in the light of the finding that had been made about clause 457.221.
[4] CB 35.
[5] CB 22.
The applicant applied for review of this decision by the Tribunal on 25 September 2007.[6] He attached a copy of the delegate’s decision to his application but did not lodge any other written material. The Tribunal acknowledged receipt of the application[7] and payment of the application fee[8].
[6] CB 37.
[7] CB 54.
[8] CB 55.
The court book does not record any further action taken by the Tribunal on the review application until August the following year. The Tribunal wrote to the applicant on 4 August 2008 inviting him to provide certain additional information.[9] The letter was sent by facsimile (apparently successfully) to the applicant’s adviser,[10] at the number that had been provided in the review application.[11] It asked for the information to be provided by 1 September 2008[12] and noted that, if the information was not provided within the time allowed, the Tribunal might make a decision without taking any further action to obtain the information and the applicant would lose his right to a hearing.[13]
[9] CB 57.
[10] CB 56.
[11] CB 40.
[12] CB 57.
[13] CB 58.
The Tribunal also sent an e-mail to the Department asking for the file on the applicant’s earlier student visa,[14] presumably in order to consider whether the applicant had complied with the conditions applicable to that visa.
[14] CB 59.
The Tribunal did not receive a response to the invitation it had issued to the applicant by 1 September 2008.[15]
[15] CB 60.
The Tribunal proceeded to make a decision on the material before it, without taking further action to seek information from the applicant and without inviting him to a hearing. In its statement of reasons, which the presiding member signed on 18 September 2008, the Tribunal noted that the applicant’s failure to respond had enlivened s.359C of the Migration Act 1958 (Cth) (“the Migration Act”) and that, under s.360, he was therefore not entitled to appear before the Tribunal. The Tribunal said that after ‘careful consideration’ it had ‘decided to proceed with the review’.[16] This was apparently intended to convey that the Tribunal had decided to make a decision without further attempts to hear from the applicant.
[16] CB 70 [16].
The Tribunal’s decision
The Tribunal affirmed the decision not to grant the visa on the ground that it could not be satisfied that the applicant met two of the criteria contained in clause 457.223(4) of Schedule 2: namely that, at the time of decision, he proposed to be employed by his sponsor and that he would be paid at the level specified in the nomination.[17] This conclusion meant that he could not satisfy clause 457.223 and therefore could not meet the criteria for grant of the visa sought.
[17] CB 72 [23]-[24].
The Tribunal’s lack of satisfaction as to these issues flowed from the applicant’s failure to provide it with the additional information it had asked for. The Tribunal referred to a reference from the sponsor, lodged with the original visa application, which went some way to dealing with these issues but was then some 14 months old[18] (and which, it may also be noted, did not deal directly with the issue of salary). The Tribunal considered that it would be an easy matter for the applicant to provide confirmation that the sponsor still wished to employ him and, in the absence of any current information, was not satisfied that he met the criteria referred to above.[19]
[18] CB 71-72 [19]-[20], [22].
[19] CB 72 [21]-[22].
In the light of this conclusion, the Tribunal did not need to reach a conclusion about the ground relied on by the delegate – ie, compliance with the conditions of the applicant’s earlier visa.[20] Nor did it explore the implications of another point which had come to its attention: that BSS’s approval as a sponsor had apparently lapsed shortly before the Tribunal’s decision was made.[21]
[20] CB 73 [26].
[21] CB 70 [13].
The application
These proceedings began with a show cause application filed on
4 November 2008. The applicant later filed an amended application after having obtained legal representation. I conducted a show cause hearing on that amended application on 6 March 2009. At that hearing I ordered the Minister to show cause why relief should not be granted in relation to the issue of whether the applicant’s failure to respond to a letter dated 4 August 2008[22] deprived the applicant of a hearing pursuant to s.360 of the Migration Act, having regard to s.363A of the Migration and the decisions of Minister for Immigration & Citizenship v Sun [2008] FCAFC 201 and M v Minister for Immigration (2006) 91 ALD 629 and the decision of the High Court in SZBEL v Minister for Immigration (2006) 228 CLR 152.
[22] sent pursuant to s.359 of the Migration Act
Subsequently, by letter, I invited submissions from the parties on the issue of whether the Tribunal breached s.359A of the Migration Act by failing to disclose to the applicant and invite comment on information derived by the Tribunal from “Departmental systems” concerning the date of approval of the applicant’s sponsor and the duration of that approval[23].
[23] [13] of the Tribunal decision, CB 70
No other arguable issue of jurisdictional error arises from either the original or amended applications.
I have before me as evidence the court book filed on 16 December 2008 and some additional documents introduced by the affidavit of Katherine Nicole Hooper, affirmed on 18 December 2008.
Submissions
The applicant submits that, in the light of the High Court’s decision in SZBEL, the Tribunal was obliged to inform the applicant at a hearing of the essential and significant issues upon which the review would turn because the Tribunal decision turned on a completely different issue to that considered by the delegate. The Tribunal did not invite the applicant to a hearing where it could have complied with that obligation and, accordingly, the applicant submits that the Tribunal fell into jurisdictional error.
Secondly, the applicant submits that the Tribunal breached s.359A of the Migration Act by not disclosing to the applicant and inviting comment on the adverse information the Tribunal derived, apparently from a Departmental computer system, concerning the expiry of the approval of the sponsor BSS Management Pty Ltd.
The Minister relevantly submits as follows:
Issues in the proceedings
Two issues require attention in the light of the Court’s order to show cause, and a letter from the Court dated 6 March 2009:
i)whether the Applicant’s failure to respond to the Tribunal’s invitation deprived him of the right to a hearing, in the light of SZBEL v Minister for Immigration and Citizenship;[24] and
[24] (2006) 228 CLR 152.
ii)whether the Tribunal was required to raise with the Applicant, pursuant to s 359A of the Migration Act, the information it had received concerning the expiry of BSS’s approval.
The right to a hearing
It does not seem to be in dispute that the Applicant’s failure to respond to the Tribunal’s invitation brought s 359C(1) into operation.
a)The invitation was sent to the Applicant’s authorised recipient. Pursuant to s 379G(2), therefore, it is taken to have given the invitation to the Applicant.
b)It was sent to the adviser by the method referred to in s 379A(5), and thus complied with s 359(3).
c)Having been sent by that method, it is conclusively deemed to have been received at the end of 4 August 2008 (s 379C(5)).
d)The heading of the invitation specified that the response was to be in writing[25] (cf s 359B(1)). It specified the period in which a response was required (cf s 359B(2)), being the period ending on 1 September 2008. This coincided with the period prescribed by reg 4.17(4) of the Regulations (28 days after the day on which the invitation is received).
[25] CB 57.
e)The invitation therefore did everything that was necessary to create an obligation in the Applicant to respond to it by 1 September 2008 (s 359B(2)). When no response was made by that date (with no extension having been sought or granted), s 359C(1) came into operation.
One consequence of s 359C applying was that the circumstance described in s 360(2)(c) arose. In that situation, s 360(2) provides that s 360(1) – which is the source of the Tribunal’s obligation to provide an oral hearing – ‘does not apply’. Section 360(3) confirms this result by providing that, where s 360(2) applies, the review applicant ‘is not entitled to appear before the Tribunal’.
It should also be noted that s 363A applies where a provision of Part 5 provides that a person ‘is not entitled to do something’. Section 363A provides, in that situation, that the Tribunal ‘does not have power to permit the person to do that thing’.
There is a lack of unanimity in the authorities as to whether s 363A deprives the Tribunal of any discretion to invite the review applicant to attend a hearing, once s 360(2) and (3) come into operation.[26] If necessary the Minister would submit that s 363A does have that effect. However, the issue does not need to be resolved: the Tribunal proceeded on the basis that it did have a discretion but was not prepared to exercise it.[27]
[26] Compare M v Minister for Immigration and Multicultural Affairs (2006) 91 ALD 629 and Khergamwala v Minister for Immigration and Citizenship [2007] FMCA 690 at [74].
[27] CB 70 [16].
The issue that arises (and is pursued in the Applicant’s written submissions) is whether the reasoning of the High Court in SZBEL somehow trumps the effect of ss 360(2) and (3). However, the question only needs to be stated in those terms to make the answer clear.
SZBEL concerned the procedural fairness obligations of the Refugee Review Tribunal (RRT), as embodied in s 425 of the Act (which is the equivalent of s 360).[28] There was no doubt in that case that the RRT was subject to the obligation in s 425(1); the issue was the content of that obligation. The content of the obligation was held to be affected by the extent to which ‘issues arising in relation to the decision under review’ had or had not been brought to the review applicant’s attention.
[28] 228 CLR at 162-164 [33]-[37]
Nothing in SZBEL is inconsistent with the view that Parliament may expressly prescribe the procedural obligations to which a decision-maker is subject, including the circumstances in which a person is to be offered an oral hearing. That is what s 360(2) and (3) do. Their effect is expressly to free the Tribunal from the obligation in s 360(1), thereby rendering irrelevant the issues that were considered in SZBEL. When the application of s 360(1) is excluded, it cannot not be the source of a right to be alerted to issues upon which the Tribunal’s decision might turn. Nor, as a consequence of s 422B(1), is any such right provided by the general law. (In any event, in the present case, the Tribunal’s invitation to provide further information provided a clear indication that the Tribunal was concerned about the issues upon which its decision ultimately turned.)
Having failed to respond to the Tribunal’s invitation, the Applicant lost the right to a hearing which s 360(1) would otherwise have given him. That right did not revive when the Tribunal decided to base its decision on circumstances that had not been present at the time of the delegate’s decision.
Section 359A and the expiry of the sponsor’s approval
One of the criteria to be satisfied at the time of decision, under cl 457.223(4)(b), was that the employer be either a ‘pre-qualified business sponsor’ or a ‘standard business sponsor’ approved under reg.1.20D. The material does not indicate which of these categories BSS fell into. However, if that status had expired by the time of the Tribunal decision, the expiry would clearly prevent the grant of the visa.
The information that BSS’s approved status had expired was therefore capable of being the reason, or part of the reason, for affirming the decision under review. However, obligations under s 359A in respect of an item of information arise only if and when ‘the Tribunal considers’ that the information ‘would’ have that effect. The opinion of the Tribunal, rather than the relevance of the information in an objective sense, is critical.[29]
[29] SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578 at [33].
Whether the Tribunal has attained that state of mind is a question of fact. It has been suggested that the Tribunal’s reasons for decision are not the starting point in resolving the question; but, whether or not this is so, the question must be answered in the light of all the relevant evidence including the reasons.[30]
[30] See SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [13]-[18].
In the present case, the only evidence of the Tribunal having become aware of the expiry of BSS’s approval is a two-line paragraph in its reasons, noting that ‘Departmental systems’ showed the approval to have been granted for two years on 29 August 2006.[31] The point is not taken up in the Tribunal’s reasoning.[32] Nor is there any other indication in the documents that the Tribunal:
· reached any final view about the accuracy of the departmental record (or asked for or received any of the documentation relating to BSS’s approval); or
· analysed the consequences, for the purpose of the Applicant seeking to meet cl 457.223, of the period of BSS’s approval having expired.
There is therefore no proper basis to conclude that the Tribunal brought its mind to bear on the apparent expiry of BSS’s approval to a sufficient degree to engage s 359A.
Discretionary considerations
Two issues arise in relation to the Court’s discretion to refuse relief.
First, if the information cited by the Tribunal concerning the expiry of BSS’s status as an approved sponsor was correct, it followed that the Applicant could not possibly meet the criterion in cl 457.223(b). Evidence concerning BSS’s current position, which the Minister will seek leave to file, will establish that BSS’s approved status has indeed expired and that it has not once again become a ‘pre-qualified business sponsor’ or a ‘standard business sponsor’. What follows is that, if the Tribunal’s decision were set aside and the Tribunal obliged to consider the case again, it would have no option but to affirm the decision refusing a visa. Accordingly, relief would be futile[33].
Secondly, if the Tribunal’s only error was a failure to comply with s 359A in the manner discussed above, there is an additional reason why relief should be refused. This is that, whatever the Applicant might have been able to say about the status of BSS, it could not have overcome the Tribunal’s lack of satisfaction that the Applicant met cl 457.223(a) and (f). That lack of satisfaction was itself enough to rule out a favourable decision; so that the decision-maker was ‘bound by the governing statute to refuse’ the application, irrespective of the suggested non-compliance with s 359A.[34] (The Tribunal’s lack of satisfaction, of course, arose from perceived deficiencies in what the Applicant had put forward and was not itself the subject of an obligation under s 359A.)
Reasoning
[31] CB 70 [13].
[32] CB 71-73.
[33] The submissions in this paragraph were not pressed.
[34] Cf SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, 618-619 [29]; MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483, 493 [31].
Did the Tribunal breach s.360 of the Migration Act?
SZBEL was a case dealing with the general law fair hearing rule. Since the enactment of s.357A of the Migration Act[35] the issue arising from SZBEL is whether s.360 is breached by a failure to identify the essential and significant issues arising in a review at a hearing. Relevantly, in SZBEL the High Court stated at [33]-[37]:
The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review". The reference to "the issues arising in relation to the decision under review" is important.
Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But 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.
That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness. (endnotes deleted)
[35] and s.422B in relation to Refugee Review Tribunal proceedings under s.425
Sections 359, 359C, 360 and 363A provide as follows:
Section 359
(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.
Section 359C
(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.
Section 360
(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.
Section 363A
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.
The Tribunal wrote to the applicant pursuant to s.359 on 4 August 2008 seeking the following information[36]:
· Copies of all of your Australian bank account statements since June 2006.
· A statement which details how you have financially supported yourself in Australia since June 2006. Also detail all of your employment since June 2006 including hours worked, and provide evidence from your employer about your employment.
· Detail all of your study undertaken since your arrival in Australia.
· Provide copies of all non-compliance notices you received from your education providers in Australia.
· A letter from your proposed sponsor for the Subclass 457 visa that they still seek to employ you.
[36] CB 57
The letter included the following warning in bold type[37]:
If the Tribunal does not receive the additional information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain the additional information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.
[37] CB 58
The applicant did not respond to the letter. There is no dispute that the Tribunal complied with its obligations in relation to the request under s.359. Accordingly, s.359C applies and the applicant lost his entitlement to a hearing that would otherwise have arisen under s.360(1). The Tribunal appears to have proceeded on the basis that it nevertheless had a discretion to invite the applicant to a hearing. At [16] of its decision[38] the Tribunal stated:
The applicant failed to provide the information within the prescribed period. Section 359C of the Act provides that if an applicant who is invited to give additional information, or to comment on information, does not do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the additional information or comments. Section 360 of the Act provides that if section 359C applies to the applicant, the applicant is not entitled to appear before the Tribunal. Accordingly, the applicant is not entitled to a hearing. After careful consideration the Tribunal decided to proceed with the review.
[38] CB 70
The final sentence of the above quoted paragraph only makes sense if one implies the additional words without inviting the applicant to attend a hearing. That is because the Tribunal was under a statutory duty to proceed with the review. There is no question whether the applicant was entitled to a hearing. He was not, having failed to respond to the s.359 letter. But, if the Tribunal had a discretion to invite him to a hearing, a relevant consideration in the exercise of that discretion would have been any need to comply with a perceived obligation arising from the High Court’s decision in SZBEL. The Tribunal does not state what might have been in its mind in considering whether to proceed with the review without a hearing. That is of no consequence, however, if the Tribunal (contrary to its assumption) had no discretion. The effect of s.363A appears to be to remove any discretion. The issue was considered by his Honour Tracey J in M v Minister for Immigration (2006) 91 ALD 629. At [39]-[46] his Honour said:
Section 360 of the Act ensures that, subject to certain limited exceptions, all applicants are invited to appear before the Tribunal to give evidence and make submissions in support of their applications. One of the exceptions, provided for in s 360(2)(c) of the Act arises where s 359C(1) of the Act applies to an applicant. Section 359C(1) of the Act so applies where an invitation to provide additional information has been extended under s 359 and that information has not been provided within the time stipulated in the letter of invitation. An applicant to whom one of the exceptions provided for in s 360(2) of the Act applies ‘is not entitled to appear before the Tribunal’: see s 360(3) of the Act. Had the legislative scheme contained nothing more of relevance, an applicant whose circumstances brought him within one of the exceptions provided for in s 360(2) of the Act could be said to have lost the right to an invitation to appear before the Tribunal but might, in the exercise of the Tribunal’s discretion, nonetheless, be extended an invitation.
In the present case the Tribunal did not consider that it had such a discretion and therefore did not consider the exercise of such a discretion. So much is evident from the extract from its reasons which appears above at [14]. The Tribunal held that the applicant was not entitled to appear before it ‘and pursuant to s 363A cannot be permitted to do so’.
The applicant’s argument in support of the second alleged error hinges on the proper construction of these provisions and, in particular, the effect of s 363A of the Act.
The applicant placed principal reliance on the joint judgment of Wilcox and Branson JJ in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218. That case, like the present, involved a failure of an applicant to make a timely response to an invitation (in that case extended under s 359A of the Act) with the result that the Tribunal dealt with the application on the papers. The Tribunal said that it did this in accordance with s 359C of the Act. Judicial review was sought in the Federal Magistrates Court. Relevantly, the Federal Magistrate held that:
the Tribunal was under no obligation to make any decision regarding whether it would or would not allow the applicant a hearing. In particular, subsection (1) of s 360 did not apply to the applicant’s case. Clearly s 359C(1) did apply to the applicant. Accordingly, it follows that there has been no failure of the discretion.
On appeal it was contended that the Federal Magistrate had erred by finding that the Tribunal was under no obligation to make any decision as to whether it would or would not allow the applicant a hearing. In dealing with this ground their Honours in Uddin said:
[59] The appellant contended that the Tribunal made its decision to affirm the cancellation of the appellant’s visa on the false assumption that since he was not entitled to a hearing before the Tribunal, the Tribunal could not afford him a hearing.
[60] ...
[61] We accept that the Tribunal was free, had it wished to do so, to accord the appellant an oral hearing. We see no reason to conclude that the Tribunal thought otherwise. The reference in its reasons for its decision to the appellant being ‘no longer entitled’ to a hearing suggests a correct understanding of the legal position. Nothing in the reasons for decision of the Tribunal suggested that it proceeded on an assumption that it was not empowered to grant the appellant a hearing. In the circumstances that happened the Tribunal was entitled to decide the matter before it in the way that it did.
The other member of the Court, Bennett J, agreed with Wilcox and Branson JJ on this point.
It does not appear that either the Federal Magistrate or the Full Court was referred to s 363A of the Act. This also appears to have been the case in two decisions of the Federal Magistrates’ Court which were also relied on by the applicant: see Ramnares v Minister for Immigration and Multicultural Affairs [2004] FMCA 683 at [19] and Sharma v Minister for Immigration and Multicultural Affairs [2006] FMCA 20 at [11] and [14]-[22].
It is to be noted that, in each of these three cases, the applicant did not succeed, notwithstanding the failure of the court to consider the effect of s 363A of the Act. In each case this was because the Court was not prepared to infer that the Tribunal had not turned its mind to the exercise of an assumed discretion to invite the applicant to appear before it, even though the Tribunal did not refer specifically to having considered the exercise of such a discretion in its reasons.
Counsel for both parties referred me to a more recent Full Court decision in which the effect of s 363A of the Act was dealt with. That decision was Minister for Immigration and Multicultural and Indigenous Affairs v Jing Shan Sun [2005] FCAFC 201; (2005) 146 FCR 498. Sun was primarily concerned with the efficacy of multiple invitations being given by the Tribunal to an applicant under ss 359 and 359A of the Act. The Court held that there was no provision of the Act which would prevent the Tribunal giving multiple notices in the course of dealing with a particular application. The Court considered that there would be cases in which the Tribunal might be obliged to act in this way. In this context the Court observed (at 509):
Section 363A would not prevent the Tribunal from acting in that way. It says that the Tribunal does not have power to permit a visa applicant to do a thing in relation to a review if the visa applicant is, by a provision in Pt 5, not entitled to do that thing. Section 360(3) disentitles a visa applicant from appearing before the Tribunal if any of the circumstances in s 360(2) apply, relevantly here if s 359C(2) applies to the first respondent. Consequently, s 363A would appear to disempower the Tribunal from allowing the first respondent to appear before the Tribunal in the present circumstances. But there is no provision disentitling the visa applicant from providing such information to the Tribunal as that visa applicant considers to be pertinent. And notwithstanding that s 359C(2) applies to that visa applicant, such information may include information provided belatedly pertaining to information referred to in an invitation under s 359A. That was what the Tribunal gave the first respondent the opportunity to do ... in the present matter. (Emphasis added)
Counsel for the Minister relied on the sentence which has been emphasised in the quoted passage. Counsel for the applicant acknowledges the potential relevance of the sentence for present purposes but emphasises the Court was expressing itself tentatively and that what it said did not form part of the ratio of the decision. Section 363A has been in the Act since 1995. It was introduced by the Migration Legislation Amendment Bill (No 5) 1994 (Cth). The explanatory memorandum which accompanied the Bill stated that the new s 363A ‘ensures that the IRT has no discretion to allow a person (including any assistant or representative) to do something where a provision provides that the person is not entitled to do that.’ Counsel for the applicant very properly drew my attention to this part of the memorandum. Not surprisingly, it was relied on by counsel for the Minister.
In my view s 363A of the Act has the effect contended for by the Minister. Section 360(3) of the Act provides that a consequence of an applicant failing to provide information to the Tribunal in a timely way following an invitation to do so is that the applicant ceases to have an entitlement to appear before the Tribunal. Section 363A of the Act operates to remove any residual discretion the Tribunal may have had to permit an applicant to appear notwithstanding his or her loss of an entitlement to do so. The language of the section is clear. The construction which I have placed upon it is consistent with the observation of the Full Court in Sun and the terms of the explanatory memorandum. To the extent that the dictum in Sun may be said to be inconsistent with that of the Full Court in Uddin the differences are relevantly explicable by the absence of any reference to s 363A of the Act in the joint reasons in the latter case. (emphasis added)
His Honour appears to have regarded the statements in Sun and Uddin bearing upon this issue as obiter dicta. That same view was urged upon me by counsel for the Minister in this case. A different view was taken by Riley FM in Khergamwala v Minister for Immigration & Anor [2007] FMCA 690. Her Honour considered herself bound by the decision of the Full Federal Court in Uddin notwithstanding her view that she regarded the decision of Tracey J in M as “plainly right”. Her Honour considered whether she should treat the decision of the Full Court in Uddin as per incuriam but decided at [72] that such a finding was not open to an inferior court. I agree. However, I also agree with Riley FM that the decision of Tracey J in M was plainly right. It should be followed by this Court unless there is directly conflicting authority. In my view, the correctness of his Honour’s decision in M extends to his treatment of the decisions in Sun and Uddin (which conflict) as obiter on the question of whether the Tribunal has a discretion to conduct a hearing where s.359C and s.363A apply. The question of whether his Honour’s decision in M is strictly binding upon me is beside the point[39].
[39] see Suhv Minister for Immigration [2009] FCAFC 42 at [29]
Even if I were wrong in finding that the Tribunal had no discretion to conduct a hearing I would still find no breach of s.360 in the circumstances of this case. First, the applicant should have been on notice from the s.359 letter that an essential and significant issue in the review was the information (or the lack of it) being sought by the Tribunal. Secondly, if the Tribunal had a discretion, rather than an obligation to invite the applicant to a hearing, it must logically follow that the Tribunal is entitled to decide not to have an oral hearing, provided that it acts judicially. It would be a surprising result if the Tribunal was compelled to exercise its discretion in favour of having an oral hearing whenever it was minded to decide a case on the basis of an issue about which an applicant had already been put on notice in writing. In my view, the High Court statement in SZBEL that the Tribunal’s obligation to inform an applicant of the essential and significant issues upon which the review will turn can only be satisfied at hearing only bears on circumstances where an applicant is entitled to a hearing. In circumstances where there is no entitlement to a hearing the Tribunal’s obligation to inform an applicant of the essential and significant issues on which the review will turn (if it exists at all) can be met in writing.
I find that the Tribunal did not breach s.360 of the Migration Act.
Did the Tribunal breach s.359A of the Migration Act?
Section 359A provides:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
At [13] of its decision the Tribunal stated[40]:
Departmental systems also show the sponsor BSS Management Pty Ltd was approved as a sponsor for 2 years on 29 August 2006. That sponsorship has now expired.
[40] CB 70
The issue of the expiry of the approval of BSS Management Pty Ltd as a sponsor was not determinative of the review. However, the fact that the Tribunal saw fit to include a reference to the expiry in its decision indicates that the Tribunal considered the expiration of the sponsorship approval as a matter of some significance. The Minister concedes that if the sponsorship approval had expired the applicant would have been unable to qualify for the class of visa sought and that expiration would have been a complete answer to the review application. In the circumstances, I reject the Minister’s contention that there is no proper basis to conclude that the Tribunal brought its mind to bear on the apparent expiry of BSS’s approval to a “sufficient degree” to engage s.359A. There is, in my view, no doubt that the expiry of the sponsorship approval is, objectively, information that would support affirming the delegate’s decision. The Tribunal was plainly aware of that expiry before it made its decision.
It is unclear when the Tribunal accessed Departmental records to obtain the information relevant to the Tribunal’s statement. There are no documents in the court book relating to that statement but two computer print outs are annexed to the affidavit of Ms Hooper. Those printouts verify the apparent accuracy of the Tribunal’s statement that the sponsorship approval had expired at the time of its decision. The computer printouts do not on their face state when those records were accessed. However, the documents bear Tribunal folio markings of
27 and 28 which suggest that the records were placed on the Tribunal file sometime between 25 September 2007 and 4 August 2008[41] during which period the Tribunal does not appear to have taken any other steps to deal with the review application. This suggests that the Tribunal was aware of the date and duration of the sponsorship approval before that sponsorship expired. It could hardly have escaped the notice of the Tribunal that the applicant would become ineligible for the visa he sought after the sponsorship expired. That knowledge would not have triggered an obligation to write to the applicant pursuant to s.359A before the date of expiry as, prior to that date, the information would not be a reason for affirming the decision under review. Indeed, if the Tribunal had written such a letter prior to the date of expiry it would no doubt have been met with the response that the Tribunal should be dealing with the matter prior to that date rather than awaiting it.
[41] see folio markings on the documents reproduced at CB 55-57
If, after that date, the Tribunal had written pursuant to s.359A there may have been little or nothing the applicant could say by way of response. He may not have responded at all. But that is not the point. The obligation of disclosure exists whether or not a useful response may be anticipated. Section 359A is a statutory expression of the general law principles of procedural fairness and promotes transparent decision making. If the Tribunal had written to the applicant pursuant to s.359A after the date of expiry of the nomination, if nothing else, that letter might have stimulated a useful enquiry from the applicant as to why the Tribunal was unable to make a decision on the review in the 12 months between the lodgement of the review application and the expiry of the sponsorship. In my view, the information obtained by the Tribunal concerning the date and duration of the sponsor’s approval became disclosable information pursuant to s.359A(1) once the sponsorship had expired. By failing to disclose that information on or after the date of expiry of the sponsorship the Tribunal breached that section. That constitutes jurisdictional error[42].
[42] SAAP v Minister for Immigration (2005) 215 ALR 162
I will not withhold relief in the exercise of discretion. The Minister submits that relief should be refused because the applicant was unable to qualify for the class of visa sought, apart from the expiry of the sponsorship. However, the fact that the presiding member who made the decision was dissatisfied with the quality or currency of the information submitted does not mean that a different presiding member would be similarly dissatisfied. Further, a redetermination on the review would provide the applicant with a further opportunity to satisfy the Tribunal of the matters on which it was dissatisfied. It would also provide the applicant with an opportunity to address the accuracy and currency of the sponsorship information referred to by the Tribunal in its decision.
I will order that the applicant receive relief in the form of the constitutional writs of certiorari and mandamus.
As to costs, the solicitor for the applicant seeks costs in accordance with the Court scale. The scale changed between the hearing and judgment but it was clear from what the solicitor said that he was not seeking more than $5,000. I will fix costs in that amount.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 April 2009
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