Truong v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 753
Federal Circuit and Family Court of Australia
(DIVISION 2)
Truong v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 753
File number: MLG 2096 of 2017 Judgment of: JUDGE FORBES Date of judgment: 15 September 2022 Catchwords: MIGRATION – application for partner (subclass 801) visa – where Tribunal invitation to provide information contained error – where second invitation corrected error – where confusion contributed to loss of right to a Tribunal hearing – whether refusal of extension of time unreasonable – whether Tribunal should have sought further information from applicant – whether exercise of discretion not to seek information unreasonable – where Tribunal contributed to confusion – jurisdictional error found Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Migration Act 1958 (Cth), 5CB, 5F, 359, 359A, 359B, 359C, 360, 363A
Migration Regulations 1994 (Cth), cl 801.221, reg. 1.15A, 4.17, 4.18A
Cases cited: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Minister for Home Affairs v DUA16 (2020) 95 ALJR 54
Division: Division 2 General Federal Law Number of paragraphs: 114 Date of hearing: 17 November 2021 Place: Melbourne Counsel for the Applicant: Clothier Anderson Solicitor for the Applicant: Dr McBeth Solicitor for the Respondent: Australian Government Solicitor Solicitor for the Respondent: Mr Brown ORDERS
MLG 2096 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TAN PHAT TRUONG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
15 September 2022
THE COURT ORDERS THAT:
1.The decision of the Tribunal made on 28 August 2017 affirming the Minister’s decision of 15 April 2016 to refuse to grant the Applicant a Partner (subclass 801) visa be quashed.
2.The Applicant’s application for review of the delegate’s decision be remitted to the Tribunal to be determined according to law.
3.The Minister pay the Applicant’s costs pursuant to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 or as otherwise agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
This proceeding concerns an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) dated 28 August 2017 which affirmed a decision of the Minister’s delegate not to grant the applicant a Partner (subclass 801) visa (“the visa”).
In this proceeding, the applicant seeks an order that the decision of the Tribunal be quashed, a writ of mandamus be directed to the Tribunal to determine the application according to law and that the Minister pay the applicant’s costs of the proceeding.
Having heard and considered detailed written and oral submissions on behalf of the applicant and the Minister, I have determined that the Tribunal’s decision reveals jurisdictional error.
For the reasons set out below I have decided that the decision should be quashed and the matter returned to the Tribunal for determination according to law.
BACKGROUND
The applicant is a 29-year-old male national from Dong Nai, Vietnam. He first arrived in Australia on 6 January 2009, aged 16, as the holder of a Student visa.
In early 2012, three years after arriving in Australia, the applicant commenced a relationship with Ms Nguyen who is an Australian citizen.
On 14 January 2013, the couple married. It is not in issue that their marriage is valid for the purposes of the Migration Act 1958 (Cth) (“the Act”).
Shortly thereafter, on 1 March 2013, the applicant lodged an application for a Subclass 820 (Temporary) Partner visa and for a Subclass 801 (Permanent) Partner visa with the Department of Immigration and Border Protection (“the Department”) with the support of a migration agent.[1] The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). Ms Nguyen lodged a sponsorship in support of that application.
[1] Court Book (“CB”) pages 9-32
On 5 September 2014, the applicant received a letter from the Department granting him a Partner (Temporary) (class UK) Partner (subclass 820) visa.[2]
[2] CB page 167
On 16 January 2015, a request for further information was sent to the applicant’s migration agent. In March 2015, the applicant provided further documentary evidence to support his Subclass 801 (Permanent) Partner visa (“permanent partner visa”) application, including statutory declarations, joint bank statements and photographs.[3]
[3] CB pages 175-220
On 1 February 2016, the Department requested additional information from the applicant, via his migration agent.[4] The Department required detailed evidence of the applicant’s relationship with Ms Nguyen, including the nature of their household and the financial aspects of their relationship. The Department also provided the applicant with a list of examples of documents he could submit to support his claim that he was in a genuine relationship with Ms Nguyen.
[4] CB page 222
On 15 February 2016, in response to that request, the applicant’s migration agent provided the Department with joint bank statements and photographs of the applicant with Ms Nguyen in various settings.[5]
[5] CB pages 229-245
On 15 April 2016, a delegate of the Minister notified the applicant that his application for a permanent partner visa was refused on the basis that clause 801.221 of Schedule 2 to the Regulations has not been met. Specifically, the delegate was not satisfied that the applicant was the spouse or de facto partner of his sponsor, Ms Nguyen, or that they were in a genuine and continuing relationship as defined under paragraphs 5F(2)(c) and 5CB(2)(b) of the Act.[6] The delegate’s decision record states that insufficient documentation had been provided by the applicant to support the claim that he has been in a committed relationship with Ms Nguyen since 14 January 2013.[7]
[6] CB pages 250-267
[7] Ibid
THE TRIBUNAL
On 2 May 2016, the applicant lodged an application for review of the Minister’s decision with the Migration Review Division of the Tribunal.[8] The applicant was again assisted by a registered migration agent in relation to this application.
[8] CB page 268
At 9.20am on 3 March 2017, the Tribunal sent an email to the applicant’s migration agent, pursuant to s 359(2) of the Act, attaching a letter which invited the applicant to provide further information to support his claims that he and Ms Nguyen were in a spouse or de facto relationship.[9] The invitation directed the Applicant to respond to the invitation by 29 March 2017 – 26 days later.
[9] CB page 288
Fourteen minutes later, at 9.34am on 3 March 2017, the Tribunal sent a further e-mail to the applicant’s authorised recipient.[10] This second email directed the applicant’s migration agent to disregard the 9.20am email, stating that it had been sent by the Tribunal in error. This second Tribunal email stated that it had attached the “correct letter”, which was an amended s 359(2) letter inviting the applicant to provide information in support of his claim that he and Ms Nguyen were in a spouse or de facto relationship. In the revised letter the prescribed deadline to submit the information was corrected to 17 March 2017 i.e. 14 days later.[11]
[10] CB page 277
[11] CB page 279
The two letters were identical in wording and appearance, save for the date by which the information needed to be received by the Tribunal.
The later “correct letter” also stipulated that if the applicant could not provide the information by 17 March 2017, he may ask for an extension of time in which to provide the information, but that the request had to be received by 17 March 2017.[12] The applicant was cautioned that if the information was not received within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information.[13]
[12] Ibid
[13] Ibid
The applicant did not provide the Tribunal with any further information in support of his claim by 17 March 2017.
On 21 March 2017, the applicant’s migration agent sent an email to the Tribunal as follows:
“Dear Sir/Madam,
On the 6 March 2017, the writer received 2 emails from the Tribunal requesting for documents in support of the above application.
Deadlines for these requests were one of 17 March 2017 and the other for 29 March 2017.
Would you kindly clarify the correct deadline.”[14]
[14] CB page 286
On 22 March 2017, in response to the migration agent’s email, the Tribunal re-sent a copy of the letter sent on 3 March 2017 which nominated the due date of 17 March 2017.[15] On the same day, the applicant’s migration agent acknowledged receipt of the Tribunal’s correspondence and requested an extension of seven days to provide evidence to the Tribunal.[16]
[15] CB page 288-290
[16] CB page 291
On 24 March 2017 the Tribunal informed the applicant’s representative, by way of return email, that the request for an extension of time was refused on the ground that the Tribunal did not have discretion to extend time for comment as the request had been received after the 17 March 2017 deadline had expired.[17]
[17] CB page 296
On the same day, the applicant’s migration agent provided the Tribunal with submissions and supporting material, including photographs, travel documents and bank account statements.[18] This evidence was purportedly provided in response to the 3 March 2017 invitation to provide information in support of the application for review.
[18] CB page 299-347
As discussed below, the material provided by the migration agent on 24 March 2017 was considered by the Tribunal in the course of making its substantive decision[19].
[19] CB page 354-356 at [22], [27], [33] and [34]
Tribunal Decision
On 28 August 2017, the Tribunal affirmed the decision of the delegate of the Minister to refuse the applicant’s permanent partner visa.
Given that the applicant did not provide information within the permitted time period, s 359C(1) of the Act was engaged and pursuant to s 360(3), the applicant was not entitled to a hearing before the Tribunal. The Tribunal member was satisfied that the migration agent was privy to the 17 March 2017 deadline, as he had acknowledged to Tribunal registry staff via a telephone conversation on 22 March 2017 that he had received the second letter which stated in the covering email that the earlier letter should be disregarded.[20] With that in mind, the Tribunal proceeded to make a decision on the evidence before it without taking any additional steps to obtain further information from the applicant.
[20] CB page 353
A copy of the Tribunal’s statement of decision and reasons were attached to an email and sent to the applicant’s representative on 28 August 2017.[21]
[21] CB 349-360
In reaching its decision, the Tribunal applied the various r 1.15A(3) factors and commenced by considering the financial aspects of the applicant and Ms Nguyen’s relationship.
As to their financial arrangements, the Tribunal found that the applicant and Ms Nguyen do not owe any legal obligation in respect of the other, and there is no evidence in relation to any joint liabilities.[22] The Tribunal’s consideration was largely focused on reviewing the parties’ main joint asset, namely a Commonwealth Bank account which had been opened a few days after the parties had married. The Tribunal observed that sums of cash were being deposited into the joint bank account, but it was unclear who had deposited these sums “in recent times”, and whether both the applicant and Ms Nguyen were contributing money to the joint account, or whether only one party was.[23]
[22] CB page 355
[23] Ibid
Upon its review, the Tribunal determined that the joint bank account was being used for day‑to‑day living expenses and to meet the cost of some bills. However, the Tribunal found that there was no evidence from the bank statements relating to the payment of rent or utilities. Despite there being a private rental agreement provided by the applicant on the Department file, which stated that utilities were contained within the parties’ monthly rental amount, the Tribunal had no evidence as to whether that rental arrangement was still in place at the time of its decision[24]. In totality, the Tribunal found that there were “some unexplained gaps” in the applicant’s documentary evidence and placed only some weight on the evidence before it with respect to the financial aspects of their relationship[25].
[24] Decision at [29]
[25] Decision at [30]
The Tribunal also assessed the nature of the parties’ household. At the time of its decision, the Tribunal found that it did not have any up-to-date evidence before it regarding the applicants’ living arrangements with Ms Nguyen, or the sharing of any household tasks.
In its decision record, the Tribunal did acknowledge the applicant’s written submissions provided in response to the s 359(2) letter, wherein the parties contended that they had been living together for a number of years at a property in Footscray. It also noted that the applicant had submitted various bank statements to the Department and the Tribunal corroborating their joint address. However, the Tribunal considered that bank statements could be obtained without the parties necessarily cohabitating, and observed that the undated private rental agreement on the Department file had only been signed by the landlord, and not the applicant or Ms Nguyen.[26]
[26] CB page 356
The Tribunal also reviewed the photographs submitted by the applicant in the 24 March submission and concluded that they did not provide clear and strong evidence that the parties were living in the Footscray property as a married couple.[27] Similarly, there was a lack of evidence before the Tribunal pertaining to how responsibilities were apportioned between the applicant and Ms Nguyen regarding the sharing of housework and the cooking of meals. The Tribunal found that the evidence provided by the applicant and Ms Nguyen in early 2015 was inconsistent with the evidence provided by Ms Nguyen’s mother at the time, with respect to who cooked meals each evening.
[27] Ibid
The Tribunal found that there was a lack of convincing evidence that the applicant and Ms Nguyen were living together in a spousal relationship in Footscray or that they are not living separately and apart on a permanent basis.[28] It gave very little weight to the evidence provided by the applicant in relation to the household[29].
[28] Ibid
[29] Decision at [38]
In reaching its decision, the Tribunal also considered the social aspects of the parties’ relationship but noted that at the time of its decision, there was no current evidence before it of the opinions of the applicant and Ms Nguyen’s friends and family about the nature of their relationship.[30] The Tribunal observed that the Statutory Declarations provided to the Department in support of the Temporary Partner visa by the applicant and Ms Nguyen’s family and friends were made some 3.5 years earlier, in January 2013. Another two Statutory Declarations were made in February 2015. Given that the declarations were a number of years old at the time of the Tribunal’s decision, very little weight was afforded to them when making findings about the social aspects of the parties’ relationship.
[30] CB page 357
The applicant’s representative submitted that the photographs provided to the Tribunal on 24 March 2017 depicted the applicant and Ms Nguyen in a range of social scenarios which thereby “demonstrates that the couple has clearly presented themselves to their family and friends as a loving and committed couple”.[31] However, the Tribunal observed that of the photographs provided, three had already been submitted to the Department 18 months earlier, and only one of the remaining 10 images showed the applicant and Ms Nguyen socialising with others, whilst other photographs appeared to have been “staged”. The Tribunal did not accept that the applicant was not able to provide more photographs of himself and Ms Nguyen as a couple with friends in Australia, particularly if the applicant seeks to contend that they do engage in social activities and represent themselves as being a married couple.[32]
[31] CB page 357
[32] CB page 358
The Tribunal accepted that the applicant and Ms Nguyen travelled to Vietnam together in January 2017, as evidenced by their itinerary and numerous photographs demonstrating that they socialised together with family and friends during the course of their trip. However, the Tribunal found that it was unclear whether the applicant and Ms Nguyen presented themselves as a married couple to family and friends in Vietnam.[33] Overall, the Tribunal placed ‘some’, rather than significant, weight on the evidence regarding the social aspects of their relationship.
[33] Ibid
Finally, the Tribunal considered the nature of the parties’ commitment to one another. The Tribunal acknowledged that they had claimed to have been in a relationship since 2012, that at the time they had been legally married for over four and a half years and that they claim to have lived together since their marriage.[34] Whilst the Tribunal had regard to those considerations, it found that the applicant had put limited evidence to the Tribunal to demonstrate that he and Ms Nguyen had a mutual commitment to a shared life together, and that their relationship was genuine and continuing.[35]
[34] Ibid
[35] Ibid
Whilst Statutory Declarations had been made in March 2015 outlining the applicant and Ms Nguyen’s future plans, the Tribunal observed that no further statements had been provided to the Tribunal after the Minister has refused the permanent partner visa and that there was no evidence that their plans had been realised.[36]
[36] Ibid
The Tribunal further noted that it is not required to make the applicant’s case, and that it is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations had been met and it is for the applicant to supply evidence of relevant facts.[37] The Tribunal found that, at the time of decision, it had limited evidence upon which to make findings about the applicant’s commitment to Ms Nguyen, and whether they each saw the relationship as being a long-term one. For the purposes of s 5F of the Act and establishing whether the applicant and Ms Nguyen were in a married relationship, limited weight was afforded to the nature of their commitment to one another.
[37] Ibid
In conclusion, having applied the various r 1.15A(3) factors, the Tribunal was not satisfied that the applicant and Ms Nguyen were in a spousal relationship. Hence, the Tribunal affirmed the Delegate’s decision and found that the applicant did not meet the visa criterion under cl 801.221(2)(c).[38]
[38] CB page 359
Post-decision correspondence
In response to the Tribunal’s decision, the applicant’s representative sent the Tribunal member an email on 28 August 2017, contending that his client had not been given an opportunity to present his case at a hearing before the Tribunal as a result of the Tribunal’s administrative error in sending the two separate invitations and setting two separate deadlines. The letter requested “that the Tribunal revisit its decision and provide to the Applicant an opportunity to appear before the Tribunal and present his case in full by way of oral evidence.”[39]
[39] CB page 361-362
On 31 August 2017, the Tribunal informed the applicant’s migration agent that it would not reopen the case as it had no power to take any further action once a decision has been made.[40]
[40] CB page 364
APPLICATION FOR JUDICIAL REVIEW
On 28 September 2017, the applicant filed an application for judicial review in this Court. The application for review contained a single ground, namely that the Tribunal had acted unreasonably in that it failed to exercise its discretion under s 359C(1) of the Act and/or it exercised that discretion unreasonably. The applicant particularised this ground by outlining the circumstances which followed from the Tribunal’s administrative error, causing him to be “deprived of his right to a hearing under s 360(3) of the Act.”[41]
[41] Applicant’s Originating Application filed 28 September 2017
On 28 September 2017, the applicant also filed an affidavit in support of his application for review. That affidavit annexed a copy of the Tribunal’s two letters dated 3 March 2017 and the decision record.
On 30 May 2018 a Registrar of the Court made orders to prepare the matter for final hearing including that the applicant file and serve any amended application, court book materials and written submissions 28 days before the hearing. The Minister was directed to file and serve a Court Book in electronic and hard copy format by 13 June 2018 and was afforded an opportunity to file and serve written submissions at least 14 days before the hearing.
In accordance with the Registrars orders, the Minister filed a Court Book and written submissions.
The applicant filed two amended applications, dated 29 September 2020 and 19 October 2021, respectively. For the purposes of this decision, I need only consider the latter amended application. The further amended application for review identified four grounds of jurisdictional error, namely that:
(1)The failure of the Tribunal to extend the time for a response to the s 359 invitation was unreasonable in the circumstances;
(2)The failure of the Tribunal to invite further comment from the applicant, in circumstances where the Tribunal held concerns about the evidence that would ordinarily be the subject of discussion in a hearing but where the applicant had lost his entitlement to a hearing due to confusion arising at least in part from the Tribunal’s administrative error, was unreasonable;
(3)The Tribunal’s conclusion that it was not satisfied the applicant and his wife were in a genuine spousal relationship and did not live separately or apart on a permanent basis, in circumstances where the Tribunal accepted that the applicant and his wife were validly married, there was no evidence before the Tribunal to the contrary and the applicant did not have the opportunity to meet any of the Tribunal’s concerns in a hearing:
(a)constituted misconstruction of the Tribunal’s task in assessing the genuineness of the relationship; or alternatively
(b)was unreasonable.
(4)The Tribunal erred in finding that it did not have the power to permit the applicant to attend a hearing and consequently failed to consider whether to decline to exercise its discretion to make a decision on the review without inviting the applicant to a hearing.
On 19 October 2021, the applicant filed a detailed Outline of Submissions in support of those grounds.
At the final hearing before me on 17 November 2021, Dr McBeth of counsel appeared for the applicant and Mr Brown appeared on behalf of the Minister.
Ground 1 – the failure of the Tribunal to extend the time for a response to the s 359 invitation was unreasonable in the circumstances
Submissions
The applicant contends that it was unreasonable for the Tribunal to fail to extend time for the applicant to provide the information which was initially sought by the Tribunal.
The applicant accepts that the “prescribed period” as set out in reg 4.17(4) of the Regulations provides a 14 day time period for giving information in response to a s. 359 invitation and that the Tribunal’s decision not to grant an extension of time was entirely based upon the corrected deadline of 17 March 2017 as specified in its second invitation.
The applicant contends, however, that the information provided on 24 March 2017 fell within the “time for giving the information” as outlined in the Tribunal’s first invitation. The applicant submits that if the Tribunal had paid regard to the original stated deadline of 29 March 2017, the applicant would have been entitled to a hearing because his response was provided well before the expiration of that deadline.
The applicant submits that by virtue of sending the two invitations, the Tribunal created confusion. It is submitted that the body of the two emails sent 23 minutes apart on 3 March 2017, each being a formal invitation to provide information, were identical to one another and at first glance they would appear to be duplicates. The only substantive difference was an additional line included in the second email’s cover page, which says that “due to administrative error please disregard letter sent to you today at 9.20am. Attached is the correct letter.”
The Tribunal did not contact the applicant after the two emails were sent on 3 March 2017. It is submitted that the applicant’s representative only noticed the discrepancy between the deadlines on 21 March 2017, shortly after the revised deadline had expired but before the original, longer deadline had expired. Dr McBeth submitted that, as a consequence of the confusion surrounding the conflicting deadlines, the applicant could not request an extension as he failed to respond within 14 days of the prescribed period stated in the corrected letter, and therefore his right to a hearing under s 360 of the Act had been forfeited.
The gravamen of Ground one is that the Tribunal acted unreasonably in failing to take steps to ensure that any confusion surrounding its administrative error was cleared up, especially given that the consequences of that failure could be grave for the applicant. Namely, he could lose his statutory right to appear at a hearing before the Tribunal, which occurred in this case, and his prospects of remaining in Australia might be prejudiced.
Counsel for the applicant submitted that in circumstances where the Tribunal was conscious of and responsible for its administrative error, the Tribunal had two obvious and relatively straightforward courses open to it.
First, the Tribunal had the power under s 359B(4) of the Act and Reg 4.18A(4) of the Regulations to extend the deadline by a further 14 days on its own initiative, prior to the expiration date of 17 March 2017. Acting reasonably, the Tribunal could have taken that step when the administrative error became known so that any confusion arising from the two letters was resolved in favour of the applicant.
Alternatively, it is submitted that the Tribunal could have taken the responsible and simple step of contacting the applicant’s representative to ensure that the applicant was aware of the corrected, shorter deadline. In this context the applicant relied on Minister for Home Affairs v DUA16 where it was found in the circumstances of that case that the Tribunal acted unreasonably by failing to follow up with the applicant with a phone call or email.[42] The applicant submits that had the Tribunal contacted the applicant’s representative, any misunderstanding with respect to the deadline would have been clarified.
[42] Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at [28]
The applicant accepts that this Court is bound by the decision of the Full Court of the Federal Court in Hasran v Minister for Immigration[43] (Hasran), which held that the failure of an applicant to provide a response to an invitation issued under s 359C within the specified time enables the Tribunal to make a decision, without a hearing, and without taking further action to obtain information from the applicant[44].
[43] Hasran v MIAC [2010] FCAFC 40
[44] Noting that the applicant made the formal submission that Hasran was wrongly decided
However, that is not a complete answer to the allegation of jurisdictional error. The applicant contends that the unique set of circumstances in this case are relevant to the overall assessment of unreasonableness. The applicant submits that in circumstances where the confusion was caused by the Tribunal’s own administrative error, the Tribunal’s failure to act on its own motion to extend the applicant’s time to provide a response, or to contact the applicant to clear up any misunderstanding, was legally unreasonable.
In response, the Minister submitted that the applicant’s representative bears the responsibility of ensuring that the deadline for submitting information with the Tribunal is met, and there is no discretion to extend time to respond once an applicant fails to respond to a s 359C letter within the prescribed time-period. Hence, the request for an extension of time which was received on 22 March 2017 was properly refused.
Predictably, the Minister relied on the Full Court decision in Hasran. The Minister submitted that it is not open to this Court to find that the Tribunal conducted itself unreasonably in taking the position that it did, particularly as s 359C(1) was enlivened as a consequence of the applicant’s failure to meet the deadline for the provision of information. The fact that the Tribunal did not extend the applicant’s time to respond was something that it was properly empowered to do and the consequences which follow are a necessary part of the statutory scheme.
The Minister rejected the applicant’s suggestion that the Tribunal was responsible for the applicant’s failure to provide information to the Tribunal on time. The Minister pointed out that the second email was sent less than half an hour after the original email, the cover letter very clearly stipulated that an error had been made in the first email and it referred the migration agent to the replacement letter. It was submitted that the applicant’s representative acknowledged having received the second letter on 3 March 2017 which clearly stipulated that the earlier correspondence should be ignored.
Moreover, Mr Brown for the Minister submitted that the applicant’s representative “should have been well aware” of the 14 day timeframe when responding to a s 359(2) invitation to provide information, particularly given that such invitations are issued on almost every occasion that a partner visa review application is made to the Tribunal. Prima facie, an experienced migration agent “should have realised” that an error had been made in the first letter. The Minister says that it was not the Tribunal’s responsibility to second-guess that the migration agent might not understand the correction email sent to him.
The Minister submitted that the first ground of review is without merit as there is no discretion for the Tribunal to extend the time for a response once an applicant fails to respond to a s 359 invitation within the prescribed time.
In reply on behalf of the applicant, Dr McBeth submits that it is simply unrealistic to assume that a migration agent should know, off the top of his or her head, what the statutory scheme is for all the different dates prescribed in the Act and the Regulations. Furthermore, a migration agent is entitled to assume that the Tribunal knows what it is doing and that its directions should be observed, rather than the agent making his own assessment about what is or is not the prescribed timeframe.
The applicant contends that significant blame must lie with the Tribunal, particularly having regard to the serious and prejudicial consequences for the applicant where the Tribunal ignores the potential for confusion arising from its administrative error. Where the applicant stood to lose his right to a hearing, the Tribunal’s failure to take simple proactive steps to clear up any potential confusion was unreasonable.
Consideration
I do not agree that it was unreasonable for the Tribunal not to extend time for a response to the s 359 invitation. Ground one does not reveal jurisdictional error.
Here, the s 359A Invitation to Comment or Respond complied with the relevant statutory requirements. Pursuant to s 359A the applicant was invited by the Tribunal’s corrected letter to comment or respond to the information stated in that letter by 17 March 2017. The due date of 17 March 2017 was in accordance with Reg. 4.17(4) and s 359B(2) of the Act which requires that any response be given within that prescribed period.
The salient part of the letter sent to the applicant at 9.43am on 3 March 2017 is as follows:
‘If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.’
On 22 March 2017, 5 days after the due date stipulated in the s 359A letter for the applicant to provide information, the applicant’s migration agent sent an email to the Tribunal seeking an extension of time. The Tribunal replied in writing on 24 March 2017 and refused to grant the applicant an extension of time as the request was received after the date stipulated in the letter. The Tribunal then proceeded to make a decision to affirm the decision under review without extending the time for a response.
Section 359 of the Act is strict in its application. Since the applicant’s time to provide a response had lapsed, the Tribunal has no discretion to grant an extension to the invitation issued under s 359A. A further consequence is that an applicant loses his or her right to a hearing before the Tribunal and the Tribunal may make a decision without taking further action.
In Hasran, which the applicant accepts is binding on this Court, the Full Court observed:
The question of whether the Tribunal may exercise the power under s 359B(4) to extend the period to respond to an invitation under s 359A after the expiry of the initial prescribed period was left open in Sun at [51]. See also the observations in SZEXZ v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 449 at [46].
However, in M at [52] Tracey J said that had it been necessary to do so, he would have held that the Tribunal could not enlarge time under s 359B(4) after the expiry of the date prescribed in the s 359A letter.
In coming to that view, Tracey J observed that s 359B(4) is cast in the present tense. That is to say, the subsection contemplates a person who “is to respond to an invitation” within the stipulated time. We agree with Tracey J that this indicates that the power to grant an extension is lost since the prescribed time has expired. See also Usman v Minister for Immigration [2005] FMCA 966 at [44].
That view is re-enforced by the provisions of s 359C(2). If an applicant does not give the comments or response “before the time for giving them has passed” the Tribunal’s power to make a decision without taking further action to obtain the applicant’s views is enlivened. This is a further indication that the Tribunal’s discretion to extend time is spent if a request is made after the expiry of the prescribed period. The effect of this subsection, when read with s 360(2), s 360(3) and s 363A is that the gate closes on an applicant who fails to respond to a letter under s 359A within the prescribed time. There is simply no discretion to extend the time to respond.
It was not open to the Tribunal to extend the applicant’s time to provide a response and no jurisdictional error is be established.
Furthermore, no jurisdictional error is established by the Tribunal’s alleged “failure” to extend the time of its own initiative before 17 March 2017 or its alleged failure to contact the applicant’s migration agent to clear up any potential confusion. I accept that the two letters, minutes apart, present the potential for confusion and it might be thought that the Tribunal could have taken steps to minimise that risk. But the first letter prescribed a timeframe for response which was plainly wrong and not in accordance with the Regulations. I accept the submission of the Minister that a 14 day turnaround for responses to partner visa applications are par for the course and should have been known to an agent acting with diligence.
There may be circumstances where the Tribunal should take proactive steps to correct error. Here, a second follow-up email acknowledging the administrative error and drawing attention to the correct response date was sufficient and the Tribunal was entitled to assume that its correspondence would be read in a timely fashion. The Tribunal did not act unreasonably in not taking further steps to extend time.
Ground 2 – the failure of the Tribunal to invite further comment from the applicant, in circumstances whether the Tribunal held concerns about the evidence that would ordinarily be the subject of discussion in a hearing but where the applicant had lost his entitlement to a hearing due to confusion arising at least in part from the Tribunal’s administrative error, was unreasonable
Submissions
In relation to ground two, the applicant submitted that the right to a hearing before the Tribunal under s 360 of the Act is central to the statutory scheme of merits review. The purpose of a hearing before the Tribunal is to give an applicant an opportunity to respond to any concerns or misgivings which may be held by the Tribunal, and to persuade the Tribunal to make a favourable decision by providing evidence in response to its concerns.
In the present case, the applicant contends that since the right to hearing had been lost due to the confusion surrounding the deadline for the provision of a response and information, it was unreasonable for the Tribunal not to have sought further information from the applicant to allow him to put his case fairly.
Contextually, counsel for the applicant submitted that the Tribunal found no adverse evidence which would suggest that the applicant and Ms Nguyen were not in a genuine spousal relationship. For example, Dr McBeth pointed out that there was no evidence relating to either party living with someone else or any evidence which pointed to their marriage being a sham.
Instead, on a fair reading of the Tribunal’s decision the evidence was all one way and favourable to the applicant. The Tribunal did not find that any of the relevant factors were not made out, rather the adverse finding for the applicant was a consequence of the limited weight the Tribunal was able to attach to the evidence it had before it.
The Tribunal found that there were “gaps” in the evidence before it and it was on that basis that it was ultimately left unsatisfied that the applicant and Ms Nguyen were in a genuine and continuing relationship. Dr McBeth took the Court to various parts of the Tribunal’s decision record where the Tribunal noted that it had “no evidence” or “no current evidence” or “limited evidence” before it pertaining to important issues such as the manner in which the parties shared housework responsibilities or who was making deposits into their joint bank account.
It was submitted that the sorts of issues about which the Tribunal was unclear are typical of those which would be routinely put to an applicant during the course of a Tribunal hearing, thereby allowing the applicant to expand upon his evidence and clarify any misgivings which may be held by the Tribunal. For example, the Tribunal might ask for more photos or ask clarifying questions about financial or domestic arrangements.
The applicant submits that because he lost the opportunity to attend a hearing, where such follow up questions would have ordinarily been put, it was unreasonable for the Tribunal to make its adverse findings without at least inviting the applicant to provide further information pursuant to s 359 of the Act, which it had the power to do. Even without a hearing it was open to the Tribunal to have extended an invitation for additional information including the very information which the Tribunal considered to be missing or not current or unclear, such as how rental utilities were being paid or an update on their plans as a couple.
The applicant submits that whilst s 359C(1) empowers the Tribunal to make a decision on the review without taking further steps to obtain information, the provision does not mandate that it do so. The applicant contends that s 359C(1) also carries the contrary discretion, that is the positive discretion to take further steps to obtain information. There is nothing at all in the statute which speaks against the Tribunal sending a second s 359 letter and it is an obvious mechanism through which additional and clarifying information can be sought.
As to unreasonableness in the particular circumstances of this case, the applicant says that the Tribunal failed to take into account that it was at least partially responsible for the applicant losing his right to a hearing by virtue of its administrative error. In effect, it is submitted that the Tribunal failed to ameliorate any unfairness it caused by providing two conflicting deadlines to the applicant, which led to a grave misunderstanding and ultimately to the loss of a hearing. While the Tribunal could not give the applicant a hearing, it could and should have taken steps to give the applicant the next-best opportunity to put his case where the loss of the hearing left the Tribunal with gaps, limited and outdated evidence. It is submitted that in circumstances where the Tribunal was significantly culpable, electing not to exercise its discretion in s 359 to obtain further information was unreasonable and constitutes jurisdictional error.
Consistent with its submissions in relation to Ground 1 the Minister rejected the assertion that the Tribunal’s ‘administrative error’ caused a misunderstanding and led the applicant to lose his entitlement to a hearing. Rather, the Minister argued that the applicant lost his opportunity to attend a hearing because his migration agent failed to properly read the correspondence sent to him, and by failing to provide the information on behalf of the applicant within the prescribed time period.
On behalf of the Minister, Mr Brown also submitted that under clause 801.221 of Schedule 2 to the Regulations, it is the Tribunal’s role to make a decision based on the information before it at the time. He reinforced that a decision-maker is not required to make the applicant’s case for him, rather it is for the applicant to provide material to the Tribunal in support of its application for review.
The Minister reiterated that in its letter dated 3 March 2017 (as corrected), the Tribunal did in fact invite the applicant to provide information relevant to the various limbs contained in the “spousal married relationship” definition. The 3 March 2017 invitation was an opportunity for the applicant to provide as much information as possible to meet the criterion in the Reg 1.15A(3) limbs. In response to that invitation, the applicant’s migration agent provided information to the Tribunal on 24 March 2017 although it was limited and comprised a submission, some photographs, plane tickets and bank statements. No up-to-date statements or statutory declarations were provided to the Tribunal. This information was taken into account by the Tribunal. That the information proved to be inadequate or of little weight or left unexplained gaps was not the result of any error on the part of the Tribunal.
The Minister submits that the Tribunal’s power to make a decision under s 359C was engaged by reason of the applicant not providing the information sought within the prescribed time limit. It cannot, therefore, be said that it was unreasonable for the Tribunal not to have taken steps to seek further information from the applicant.
In a brief oral reply to the Minister’s submissions, the applicant submitted that he was not afforded the opportunity to provide further specific information by virtue of the 3 March 2017 letter, as it was a general notice. The notice did not telegraph the Tribunal’s specific concerns nor where it considered there to be gaps or shortcomings in the applicant’s evidence, which is what is normally done during the course of a hearing as a matter of procedural fairness. As such, at the time of submitting information the migration agent was “simply left to guess”. There is a material difference, the applicant submits, between the response that was provided and the response that would have been provided had a tailored letter been sent to the applicant setting out the Tribunal’s concerns.
Consideration
In rejecting Ground 1, I found that the Tribunal was correct in refusing to grant the applicant an extension of time to provide evidence after the nominated deadline for the provision of information had expired. That rejection did not disclose jurisdictional error.
By 24 March 2017 the applicant knew that he had been denied the opportunity for a hearing. Despite the Tribunal having no discretion to extend time for a response, and notifying the applicant of the same, the applicant’s migration agent nonetheless proceeded to provide the Tribunal with materials in support of his client’s visa application, including images, travel records, bank statements and a supporting submission. These documents and submissions were sent to the Tribunal on 24 March 2017[45].
[45] Decision at [12]
By supplying the information, the applicant exhibited a determination to engage in the issues which fell to be assessed by the Tribunal. Notwithstanding the material was outside the prescribed time and that the Tribunal might not even turn its mind to considering it, the applicant proceeded to urgently supply the information in the hope that it would be considered. I infer from the background narrative that the submission and documents were hastily pulled together as soon as the agent was told that the application for an extension could not be granted.
Notably, the applicant’s agent took a stab in the dark when providing this information to the Tribunal. He provided the information in response to a generic invitation to address the Reg 1.15A(3) limbs but in the absence of any indication from the Tribunal as to what specific concerns it held or might be left with in respect to the applicant’s visa application, such as what evidence it considered to be missing, unclear, out of date or what further information would assist to address those concerns.
As it turned out the Tribunal did have regard to the documents and submission which were provided on 24 March 2017. However, the applicant only became privy to the evidentiary ‘gaps’ and other shortcomings after the Tribunal published its decision on 28 August 2017. It was only on the publication of its reasons that the Tribunal revealed, for example, that it had insufficient or outdated evidence regarding matters such as whether the applicant and his wife shared household duties, or who cooked their meals at home or who made deposits into the joint account or whether their previous plans had been realised.
The question raised by Ground 2 is whether in the particular circumstances of this case it was unreasonable for the Tribunal not to have exercised its discretion to invite the applicant to provide further information and comment before making its decision. A number of matters bear on that question.
First, I accept the applicant’s submission that the Tribunal’s adverse decision was purely founded on gaps and lack of clarity in the evidence, such that on weighing the material before it, including the submission and documents provided by the agent on 24 March 2017, the Tribunal was left unsatisfied that the applicant and his sponsor were in a genuine relationship. Significantly, there were no adverse findings about the applicant’s evidence. For example, there was no evidence which pointed towards the applicant lying or being party to a ‘sham’ marriage. Simply, the Tribunal found that there was insufficient evidence, or certain gaps in the evidence, such that it was unable to be satisfied that the applicant and his wife were in a genuine relationship.
Secondly, I also accept the applicant’s submission that the “administrative error” was the Tribunal’s error and that it was at least in part the cause of the conundrum in which the applicant found himself.
Thirdly, the circumstances of the “administrative error” and its practical and legal consequences were known to the Tribunal prior to the making of its decision. Indeed the relevant chronology is set out in the Tribunal’s statement of reasons[46], including that by reason of ss 359C(1), 360(3) and 363A of the Act and Hasran the applicant had no entitlement to a hearing and the Tribunal had no power to permit him to appear. Knowing that the applicant had no right to attend a hearing, and knowing that he had attempted to seek one, the Tribunal nonetheless proceeded to make its decision without seeking further information.
[46] Reasons at [6]-[13]
Fourthly, the Tribunal proceeded to determine the matter without taking further steps to obtain information because, having reviewed case notes on the Tribunal file, it was satisfied that the migration agent had acknowledged to a registry staff member that he had received the “second” letter which had been sent to correct the administrative error[47]. However, it is not clear whether the agent acknowledged that he was aware of that letter at the time it was sent or only after it had been resent to him by the registry on 22 March 2017.
[47] Decision at [13]
Fifthly, the consequences for the applicant not being afforded a hearing were very significant and materially prejudiced his application. In circumstances where the Tribunal knew that the applicant wanted to provide information and be heard in relation to his application, it was open to the Tribunal to consider whether other means might be available to address concerns it was left with after consideration of the material before it.
Sixthly, the Tribunal had the power to proceed to determine the application without taking further steps but it was not required by s 359C(1) to do so. It had a discretion to seek further information under s 359 before determining the matter. The cost and time of making such a request should be weighed against the prejudice suffered by the applicant by reason of not being permitted a hearing.
Whilst it is not disputed that the Tribunal has power pursuant to s 359C(1) to decide a matter without taking further action, the exercise of that power is not mandated. The Tribunal is required to exercise that power reasonably, including considering its discretion not to make a decision without further evidence.
Evidentiary gaps and other shortcomings identified by the Tribunal are typically put to an applicant during the course of a Tribunal hearing. A hearing is ordinarily the forum where an applicant would have the opportunity to develop his evidence and address any reservations held by the Tribunal. Here, the Tribunal was aware that without a hearing, and without inviting the applicant to provide further information by virtue of s 359, there would be no scope for the applicant to expand upon his evidence or address the Tribunal’s concerns.
Pursuant to s 359 of the Act, it was open to the Tribunal to invite the applicant to provide additional evidence to address the Tribunal’s concerns. Despite its finding that there were gaps in the applicant’s evidence and that aspects of the evidence was limited or unclear or outdated, the Tribunal elected not to exercise its discretion under s 359 to obtain further information which might have addressed those shortcomings favourably to the applicant. Given those issues could not be addressed in a hearing, as would usually be the case, the Tribunal could, and in my opinion should, have taken the relatively simple step of inviting the applicant to provide further information.
It is submitted, and I accept, that the Tribunal should have been cognizant of the fact that the applicant had lost his right to a hearing following some confusion which had arisen out of its own administrative error. In those circumstances, acting reasonably, the Tribunal should not have proceeded to decide the matter without considering whether there were other reasonable means available to it which would have afforded the applicant a fair opportunity to put his case, albeit without a hearing.
Even without a hearing, the Tribunal had the power to invite further comment from the applicant in writing by sending another letter under s 359 of the Act, requesting specific information which the Tribunal considered to be missing.
Counsel for the applicant submitted that there is a massive chasm between the response that was given by the applicant’s agent and the response that would have been given if the Tribunal’s concerns had been set out in a letter. He submitted that the difference between one and the other is a difference between affording procedural fairness and not. In the circumstances of this case, I accept that submission.
Taking into account the Tribunal’s role in the applicant losing his right to a hearing, and the Tribunal’s subsequent failure to exercise its power under s 359 to obtain further evidence, I find that Ground 2 of the application for judicial review has been made out.
Grounds 3 and 4
In light of the Court’s finding in relation to Ground 2, it is unnecessary to address Grounds 3 and 4 of the application.
Disposition
I have found that the failure of the Tribunal, in the circumstances of this case, to exercise its discretion to invite further comment from the applicant, was unreasonable and amounted to jurisdictional error.
The decision of the Tribunal should be quashed and the application is to be remitted to the Tribunal to be determined according to law.
The Minister should pay the applicant costs pursuant to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 or as otherwise agreed.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 15 September 2022
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