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Cases

MIGRATION - Review of Migration Review Tribunal's decision to grant the applicant an Employer Nomination (Residence) (Class BW) visa - Procedural Fairness - invitation under s.359 of the Migration Act to give additional invitation - invitation under s.359A of the Migration Act to comment on information - alleged failure to give information or comments within periods specified invitations - whether invitations valid, whether periods within which to give information or comments validly extended by Tribunal - whether period by which the Tribunal may extend period for giving information or comments can be extended for a greater or lesser period than 28 days - whether applicant was entitled to appear before the Tribunal - refusal of Tribunal to allow applicant to appear before it - effect of request for extension of time to provide additional information or comments - meaning and effect of s.360(2)(c) of the Migration Act - jurisdictional error for denial of procedural fairness.

Sun v Minister for Immigration [2004] FMCA 582 (10 September 2004)

Sun v Minister for Immigration [2004] FMCA 582 (10 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUN v MINISTER FOR IMMIGRATION
[2004] FMCA 582



MIGRATION - Review of Migration Review Tribunal's decision to grant the applicant an Employer Nomination (Residence) (Class BW) visa - Procedural Fairness - invitation under s.359 of the Migration Act to give additional invitation - invitation under s.359A of the Migration Act to comment on information - alleged failure to give information or comments within periods specified invitations - whether invitations valid, whether periods within which to give information or comments validly extended by Tribunal - whether period by which the Tribunal may extend period for giving information or comments can be extended for a greater or lesser period than 28 days - whether applicant was entitled to appear before the Tribunal - refusal of Tribunal to allow applicant to appear before it - effect of request for extension of time to provide additional information or comments - meaning and effect of s.360(2)(c) of the Migration Act - jurisdictional error for denial of procedural fairness.



Migration Act 1958

Migration Regulations 1994

Migration Legislation Amendment (Procedural Fairness) Act 2002

NAAV v MIMIA [2002] FCAFC 228

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1

MIMIA v Awan (2003) FCAFC 140

Landers v MIMIA (2003) FMCA 223

Haque v MIMA (2001) FCA 1077

Patel v MIMIA (2003) FCA 115

Nadeszhkin v MIMIA (2004) FMCA 434

Applicant:
JING SHAN SUN



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 56 of 2004



Delivered on:


10 September 2004



Delivered at:


Perth



Hearing Date:


6 September 2004



Judgment of:


Walters FM



REPRESENTATION

Counsel for the Applicant:


Mr H.N. Christie



Solicitors for the Applicant:


Christie & Strbac



Counsel for the Respondent:


Mr J.D. Allanson



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The Court declares that the decision of the Migration Review Tribunal made on 30 September 2003 is invalid and of no effect.

(2) A writ of certiorari shall issue, quashing the decision of the Migration Review Tribunal.

(3) A writ of mandamus shall issue, requiring the Migration Review Tribunal to redetermine the matter according to law.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 56 of 2004

JING SHAN SUN


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. The applicant is a national of the People's Republic of China, who entered Australia in May 1999. He was then the holder a Tourist (Short Stay) visa. He was granted a Temporary Business (Long Stay) visa in December 1999 -- which visa expired in June 2000.

2. On 15 June 2000, the applicant applied for an Employer Nomination (Residence) (Class BW) visa. His application was accompanied by an application for employer nomination by a Chinese restaurant in Western Australia for the position of chef. The employer nomination application was approved in October 2000.

3. On 12 March 2001, a delegate of the Minister refused the applicant's application for permanent residence.[1] An application for review to the Migration Review Tribunal ("the Tribunal") was forwarded to the Tribunal on 20 March 2001, and received by it on 23 March 2001.

4. In its decision dated 30 September 2003, the Tribunal affirmed the delegate's decision, and found that the applicant "... is not entitled to the grant of an Employer Nomination (Residence) (Class BW) Visa."

5. The Tribunal made its decision of 30 September 2003 without conducting a hearing. The only ground of review ultimately relied upon by the applicant is to the effect that, in dismissing the application in its decision of 30 September 2003 "... without affording the applicant a hearing to resolve any matters of concern to the Tribunal, the Tribunal acted in breach of natural justice". The alleged breach of natural justice, it is asserted, was an error in law - which error went to the Tribunal's jurisdiction.

Decision of the Tribunal

6. The Tribunal recorded that "... one necessary primary criterion for (the visa sought by the applicant) that must be met at the time of application" is Regulation 856.313.[2] That Regulation describes the necessary conditions as follows:

The applicant:

(a) has been nominated in accordance with (the appropriate sub-regulation) by an employer in respect of an appointment in the business of that employer; and

(b) is a highly skilled person, within the meaning of (the appropriate Regulation), in relation to that appointment; and

(c) unless the appointment is exceptional:

(i) has not turned 45; and

(ii) has vocational English.

7. The Tribunal found that:

a) the applicant had not provided evidence that he has vocational English "and that he had therefore failed to satisfy one of the criteria set out above"[3]; and

b) it was not satisfied that the applicant is a "highly skilled" person under the appropriate Regulation, and therefore fails to satisfy another of the criteria set out above."[4]

8. As the applicant did not provide any other ground for review beyond the ground referred to in paragraph 5 above, there is no need to further analyse the Tribunal's decision.

Grounds for Review

9. As stated above, and as appropriately summarised by Mr Allanson (for the respondent) in paragraph 4 of his written submissions:

The application is brought on a single ground that the decision was made without jurisdiction. Although there are 10 particulars to the ground, they are all, in effect, pleading the facts for the single complaint that the Tribunal denied the applicant natural justice by determining that the applicant was not entitled to appear at a hearing before the Tribunal, and in proceeding to dismiss the application without affording the applicant a hearing.

The Law

10. Pursuant to s.483A of the Migration Act 1958 (Cth) ("the Act"), this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Act. Under s.475A, it has jurisdiction in relation to a "privative clause decision" that is a decision made on a review by the Tribunal. "Privative clause decision" is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:

A privative clause decision:

a) is final and conclusive;

b) must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and

c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.

11. In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:

a) the decision is a bona fide attempt by the decision-maker to exercise its power;

b) the decision relates to the subject matter of the legislation; and

c) the decision is reasonably capable of reference to the power conferred on the decision-maker.

12. There was also broad agreement in NAAV that the purported exercise of power must not be one that contravenes an inviolable limitation on the operation of the Act.

13. In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression `decision... made under this Act' in s.474(2) "must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act."[5] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act -- and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of procedural fairness was also said not to be a privative clause decision within s.474(2).

14. If there is no jurisdictional error affecting the Tribunal's decision, then the decision would be a privative clause decision and protected by s.474(1) -- unless it could be shown that one of the Hickman provisos had not been met.

15. In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Act constitute inviolable limitations or restraints, may raise some complex issues[6] - but there is no need to consider such issues in the proceedings before the Court.

Relevant Chronology

16. On 2 April 2001, the Tribunal wrote to the applicant confirming that his application for review had been received on 23 March 2001.[7] On 16 August 2001, the Tribunal again wrote to the applicant - advising him that, "in order to reduce processing time", his file had been transferred from the ACT registry to the Melbourne registry.[8] The letter included the following comment:

At the appropriate time, you will be advised to participate in a video hearing.

17. On 10 July 2003, the Tribunal wrote to the applicant[9] referring to s.359A of the Act and inviting him to comment, in writing, on information before the Tribunal that -

a) he had not been assessed as "highly skilled";

b) there was no evidence that he had at least 3 years' formal training and 3 years' experience; and

c) there was no evidence that he had vocational English.

18. In its letter of 10 July 2003 ("the July letter"), the Tribunal also referred to s.359(2) of the Act, and invited the applicant to provide certain additional information, being evidence of having vocational English and evidence of recognition of trade qualifications and/or relevant experience as a chef. He was also invited to provide a resume with details of all relevant work experience.

19. The July letter included the following passages:

The Migration Act 1958 contains provisions intended to ensure both a fair and speedy review process. These include opportunities for review applicants to respond to material before the Tribunal, as well as limits on further opportunities if there is a failure to provide comments within a specified period...

...

Your written comments should be provided within 28 calendar days of the date of notification of this invitation... The effect of this is that you have a total of 28 days from the date of this letter to respond.

If you are unable to provide comments within this period, you may request in writing that you be allowed additional time in which to respond. Such a request would need to include reasons for the extension and to be received before the end of the above period. The Tribunal will consider any request for an extension carefully, and advise you, in writing, whether an extension of time has been granted.

If you make comments, the Tribunal will consider your comments carefully. If the Tribunal is still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the Tribunal.

If the Tribunal does not receive any comments within the period allowed, it may, under s.359C of the Migration Act, make a decision on the review without taking any further action to obtain your comment. In addition, you will not be entitled to appear before the Tribunal...

20. The applicant did not respond to the July letter within 28 days.

21. On 21 August 2003, the applicant's migration agents wrote to the Tribunal enclosing a "Skilled Migration Assessment" prepared by the Department of Employment and Workplace Relations and dated 8 August 2003. The Skilled Migration Assessment amounted to formal recognition of the applicant's skills by Trades Recognition Australia, which is a part of the Department of Employment and Workplace Relations. The assessment amounted to recognition that the applicant met the appropriate criteria as a "highly skilled person".[10]

22. The letter from the applicant's migration agents also included the following:

I regret the delay in providing this information, as I required travelling outside of Australia. In relation to the remaining documentation I therefore, would like to request an extension of time to submit all relevant documentation and information to (the Tribunal) by 10 September 2003. I hope that this is acceptable to your office.

23. On 26 August 2003, the Tribunal replied to the applicant's migration agents in the following terms:[11]

Dear (Applicant),

Re: EXTENSION OF PERIOD TO PROVIDE COMMENTS AND PERIOD TO PROVIDE INFORMATION

I am writing in response to your request for an extension of time to provide comments to the Tribunal.

Your request for an extension has been granted. The requested comments should be provided in writing, by the close of business on 10 September 2003...

If you provide comments, the Tribunal will consider them carefully.

If the Tribunal does not receive any comments within the period allowed, it may, under s.359C of the Act, make a decision on the review without taking any further actions to obtain your comment.

Please note that as there was no response to the Tribunal's letter dated 10 July 2003 within the prescribed period, you will not be entitled to appear before the Tribunal...

24. I shall refer to the Tribunal's letter of 26 August 2003 as "the August letter".

25. On 18 September 2003, the MRT wrote to the applicant advising him that it had made a decision, and that it was inviting him to the formal handing down of the decision. The letter also stated that the decision was to be handed down on 30 September 2003.[12]

26. The Tribunal's decision was handed down on 30 September 2003 and, on that day, the Tribunal wrote to the applicant advising him that it had decided to affirmed the delegate's decision.[13]

Summary of Chronology

27. It seems clear from the chronology set out above that:

* The applicant was initially told (in the Tribunal's letter dated 16 August 2001) that he would be invited to participate in a video hearing;

* The applicant was told (in the July letter) that:

a) he had only 28 days in which to respond to the Tribunal's invitation (under s.359A) to comment;

b) if he did not provide the comments requested within the period of 28 days, then the Tribunal may make a decision on the review without taking any further action to obtain them;

c) if the Tribunal did not receive "any comments" within the 28 day period, then the applicant would not be entitled to appear before the Tribunal;

d) if he was unable to provide the comments within the 28 day period, then he could request that he be allowed additional time in which to respond (also referred to an extension);

e) the Tribunal would consider any request for an extension carefully and advise him, in writing, whether it had been granted;

f) if the applicant elected to make comment as invited so to do in the July letter, then the Tribunal would consider those comments carefully; and

g) if, having considered the comments, the Tribunal were still to be unable to make a decision in the applicant's favour, then it would provide him with an opportunity to appear before the Tribunal;

* an extension of time within which to submit "all relevant documentation and information" was requested by the applicant's migration agents (in their letter of 21 August 2003);

* the extension requested was to 10 September 2003;

* the request was for an extension was granted;

* the applicant was warned (in the August letter) that if the Tribunal did not receive "any comments" by 10 September 2003, then it may make a decision on the review without taking any further action to obtain the applicant's comments; and

* the applicant was advised (in the August letter) that, as there had been no response to the July letter within the 28 day period, the applicant would not be entitled to appear before the Tribunal.

Statutory Provisions

28. Part 5 of the Act is headed "Review of Decisions". It deals, amongst other things, with applications for review by the Tribunal. Division 5 of Part 5 is headed "Conduct of Review".

29. Section 357A(1) provides as follows:

This subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

30. Sections 358, 359, 359A and 359B deal, inter alia, with the documents which an applicant for review by the Tribunal may provide to it, and the power of the Tribunal to seek or invite the applicant to provide additional information or comments.

31. It is important to note that s.359 empowers the Tribunal to invite a person "to give additional information".[14] Section 359A, on the other hand, empowers the Tribunal to invite the applicant to comment on information that the Tribunal considers would be the reason (or part of the reason) for affirming the delegate's decision. Put another way, and as recognised in (for example) ss.359B and 359C, a person may be invited under s.359 to give additional information, or he may be invited under s.359A to comment on information. The invitations under the two sections are not the same.

32. Section 359B(2) is in the following terms:

If the invitation (to give additional information under s.359 or to comment on information pursuant to s.359A) is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified within the invitation, being a prescribed period, or if no period is prescribed, a reasonable period.

33. Section 359B(4) is in the following terms:

If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

34. Section 359C is as follows:

(1) If a person:

(a) is invited under section 359 to give additional 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 additional information.

(2) If the applicant:

(a) is invited under section 359A to comment on information; and

(b) does not give the comments 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.

35. Section 360 is as follows:

(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.

36. Section 363A is as follows:

If a provision of this Part states that a person is not entitled to do something...then, unless a provision expressly provides otherwise, the Tribunal... does not have power to permit the person to do that thing...

37. Regulation 4.17 of the Migration Regulations 1994 ("the Regulations") prescribes periods for the purpose of s.359B(2) of the Act. Regulation 4.18A of the Regulations prescribes periods for the purpose of s.359B(4).

38. The relevant period (in the circumstances of the present case) for the applicant to give additional information, or to comment on information, was the 28 day period referred to by the Tribunal in its correspondence with the applicant.[15]

39. The relevant provisions of Regulation 4.18A, however, are as follows:

(1) This regulation applies, for subregulation 359B(4) of the Act, if:

(a) a person is invited to give additional information, or to comment on information, within a period prescribed in regulation 4.17; and

(b) the invitation is to give the information or comments other than at an interview; and

(c) the prescribed period is to be extended by the Tribunal.

(2) ...

(3) ...

(4) If the invitation relates to any other application for review, the period by which the Tribunal may extend the prescribed period starts when the person receives notice of the extended period and ends at the end of 28 days after the day on which the notice is received.

40. It follows from the provisions of s.359B(4) and Regulation 4.18A that the period within which a person is required to give additional information under s.359 or to comment on information pursuant to s.359A can be extended by 28 days -- commencing from the date upon which the person seeking the extension receives notice of the extended period. Neither the Act nor the Regulations states explicitly that the extension period must commence before the expiration of the initial 28 day period. It might be possible to infer such an intention from the provisions of s.359B(4), and the usual or ordinary meaning of the word "extend"[16], but the requirement in Regulation 4.18A(4) that the extension period "... starts when the person receives notice of the extended period..." clearly envisages that the extension period might commence after the expiration of the initial 28 day period. That such an inference arises flows from the fact that an applicant for an extension of the initial 28 day period might write to the Tribunal seeking such extension shortly before the period elapses, but not receive a response until after it has expired.

41. It also seems clear that any extension granted must be for a period of 28 days - because Regulation 14.8A states that "the period by which the Tribunal may extend the prescribed period starts when the person receives notice of the extended period and ends at the end of 28 days after the day on which the notice is received" (emphasis added). The Regulation does not seem to countenance a longer or shorter extension period.

Applicant's Submissions

42. The applicant's submissions are adequately summarised in the written outline prepared by Mr Christie (counsel for the applicant). They are as follows:

9. The application for review to the Tribunal having been made prior to the commencement of the Migration Legislation Amendment (Procedural Fairness) Act 2002 on 3 July 2002, s357A did not apply to such Application or to the Tribunal's decision. The Tribunal in determining the Application for review was therefore obliged to afford the applicant procedural fairness and such obligation existed in addition to the provisions of Part 5 Division 5 (Sections 358 to 367) of the Migration Act.

10. The Tribunal was obliged to provide the Applicant with a hearing unders.360 unless s.359C(1) or (2) applied.

11. S.359C(1) did not apply because no notice under s.359 had been given to the Applicant.

12. ...

13. When constructing and applying subsections (2)(c) and (3) of s.360 the whole of s.359C(2) must be considered and applied.

14. S.359C(2) is in 3 parts. The applicant was invited by the Tribunal's letter dated 10 July 2003 to comment on certain information pursuant to s.359A. The Applicant failed to respond to this Notice under s.359A for the time limited for his response. The first 2 elements of s.359C(2) were therefore met. However the Tribunal did not proceed to make a decision on the review without taking any further action to obtain the Applicant's comments on the information. Instead, it accepted the information provided under cover of the Applicant's letter dated 21 August 2003 (see paragraph 22 of its reasons CB254) and by letter dated 26 August 2003, the Tribunal advised the Applicant that it had granted an extension of time in which to provide further information. (In the same letter, the Tribunal also incorrectly advised the Applicant that he could not have a hearing because of the Applicant's failure to respond to the letter of 10 July 2003 within the time limited).

15. The purpose of s.360(3) and s.363A is not to frustrate the Tribunal in its effective conduct of a review, but rather to allow it to operate efficiently so that if it makes a decision based on the information before it and without response from an Applicant then the Applicant can not complain, but if the Tribunal receives and acts on further information of gives the Applicant further opportunity to provide information, then the right to appear before the Tribunal remains.

16. Further, the interpretation favoured by the Tribunal and by the Respondent, that a failure to respond within the time limited prevents the Tribunal from having a hearing in any circumstances, provides impossible problems for the Tribunal or for applicants. In many circumstances an applicant may respond within the time limit but fail to comment as requested by the Tribunal or may comment on some information, but not on other information; if the failure to comment on some information under s.359C(2) is by itself sufficient to bring s.360(3) (and s.363A) into operation, the Tribunal could not have a hearing to clarify the issues it would obviously wish to have resolved.

17. Once the Tribunal did not make a decision on the information before it and without taking further steps to obtain the applicant's views, neither s.360(2)(c) nor s.360(3) applied and the Tribunal was bound to grant the Applicant a hearing under s.360(1).

Is Section 357A Relevant?

43. Mr Allanson submitted that s.357A ("Exhaustive Statement of Natural Justice Hearing Rule") is a relevant consideration, and that the section applies in the circumstances of the present case. I do not accept his submission in that regard.

44. Section 357A was inserted in the Act by the Migration Legislation Amendment (Procedural Fairness) Act 2002. Item 7(5) of Schedule 1 of that Act provides - in effect - that s.357A is only to apply in relation to any application for review made on or after the commencement of the amending Act. The amending Act came into effect on 4 July 2002. It follows that s.357A does not apply.[17] The application for review in this case was filed in March 2001.

Invitations and Extensions

45. Section 360(1) requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments. That primary obligation does not adhere if any of the provisions of s.360(2) apply. If at least one of the provisions of s.360(2) applies, then - according to s.360(3) - the applicant is not entitled to appear before the Tribunal.

46. It was not suggested that either s.360(2)(a) or (b) is relevant in the circumstances of this case. Mr Allanson argued, however, that s.360(2)(c) applies. In other words, the applicant was not entitled to appear before the Tribunal because s.359(c)(1) and/or (2) applied to him.

47. It is clear from the July letter that the Tribunal was inviting the applicant to comment on certain information (pursuant to s.359A) and inviting him to give additional information (pursuant to s.359). To that extent, Mr Christie's submission that s.359C(1) could not apply to the applicant "... because no notice under s.359 had been given" is incorrect.

48. Given that the applicant was invited under both s.359 (to give additional information) and s.359A (to comment on information), s.359B details the manner in which such invitations were to be extended. According to s.359B(2) and Regulation 4.17(4), the relevant time limit for the applicant to give the additional information and the comments is 28 days.

49. Section 359B(4) empowers the Tribunal to extend the initial 28 day period. According to Regulation 4.18A(4), the Tribunal may extend the initial period for a further 28 day period.

50. A careful reading of the July letter reveals that, although the applicant was informed that he had 28 days within which to respond to the invitation under s.359A (to comment on information), he was not advised that he had 28 days to respond to the invitation under s.359 (to give additional information).[18]

51. In my opinion, therefore, although the July letter was an effective invitation under s.359A to comment on information, it was not an effective invitation under s.359 to give additional information.

52. The letter from the applicant's migration agents to the Tribunal dated 21 August 2003[19] clearly amounts to a request for an extension of time within which to respond to the invitation under s.359 (to give additional information). It does not directly refer to the invitation under s.359A (to comment on information). The migration agents did not seek an extension beyond 10 September 2003.

53. In the August letter[20], the Tribunal writes under the heading "Extension of Period to Provide Comments and Period to Provide Information". It continued, however, as follows:

I am writing in response to your request for an extension of time to provide comments to the Tribunal.

Your request for an extension has been granted. The requested comments should be provided... by the close of business on 10 September 2003. (emphasis added)

54. The other parts of the August letter have been quoted elsewhere in these Reasons.[21]

55. Notwithstanding the migration agent's request for an extension of time "to submit all relevant documentation and information"[22] -- presumably pursuant to s.359 -- the Tribunal only granted an extension in respect of the invitation (under s.359A) to provide comments to the Tribunal.

56. Although the applicant could have inferred that an extension of any relevant period under s.359 (to give additional information) had been granted, the Tribunal's correspondence is less than clear in that regard.

Did Section 359C(1) or (2) apply to the Applicant?

57. I return now to the question of whether s.359C(1) or (2) applied to the applicant. If either provision applied, then - pursuant to s.360(3) - he was not entitled to appear before the Tribunal and (pursuant to s.363A) the Tribunal did not have the power to permit him to appear before it.

58. The question posed by s.360(2)(c) is whether s.359C(1) or (2) "... applies to the applicant". The inter-relationship between s.360(2)(c) and the subsections referred to in it was considered by Branson J in Haque v MIMA (2001) FCA 1077, where her Honour said:[23]

Paragraph 360(2)(c) relevantly calls for consideration to be given to whether "subsection 359C(1)...applies to the applicant". In my view, subsection 359C(1) applies to the applicant within the meaning of paragraph 360(2)(c) if the applicant is a person to whom paragraph (a) and paragraph (b) of subsection 359C(1) apply. That is, if the applicant is a person who was invited under s.359 to give additional information and did not give the information before the time for giving it had passed. The remaining words of subsection 359C(1) do not add anything concerning the class of applicant to which the subsection applies. They are words which authorise the Tribunal to adopt a particular procedure.

See also Patel v MIMIA (2003) FCA 115 at paragraph 14 and Nadeszhkin v MIMIA (2004) FMCA 434 at paragraph 24, where her Honour's approach was approved or adopted.

59. Although the passage in Haque refers only to s.359C(1) and its requirements, the same approach must logically apply to s.359C(2).

60. Mr Christie argued that s.359C(2) (and, by implication s.359C(1)) should be read as a whole, and that even if the provisions of paragraphs (a) and (b) of the subsection applied to the applicant, the subsection itself -- as a whole -- could not apply to him unless the Tribunal actually made its decision without taking any further action to obtain the applicant's views (in the case of s.359C(2)) or the additional information (in the case of s.359C(1)). For his part, Mr Allanson argued that the approach adopted by Branson J in Haque is clearly correct and should be followed.

61. In my opinion, the interpretation given to s.360(2)(c) by Branson J is logical and correct, and I adopt it. It follows that it is not to the point that the Tribunal may have accepted information from or on behalf of the applicant after the expiration of the initial 28 day period. To so find, however, is not to conclude that the applicant's application must necessarily fail. The question remains whether paragraphs (a) and (b) of either s.359C(1) or (2) applied to the applicant.

62. Section 359C(2)(a) clearly applies to the applicant. He was invited (under s.359A) to comment on information. That much is clear from the July letter. As I have concluded in paragraph 51 of these Reasons, however, the July letter was not an effective invitation under s.359 (to give additional information) - because the applicant was not advised that he had 28 days within which to respond to that particular invitation (as opposed to the invitation under s.359A to comment on information). It follows that s.359C(1)(a) did not apply to the applicant.

63. Insofar as s.359C(1)(b) is concerned, and as I have observed, the July letter did not specify the period within which the requested additional information was to be provided. Further, the August letter, although headed "Extension of Period to Provide Comments and Period to Provide Information", did not specifically extend the time limit for the provision of the additional information requested in the July letter. Nor did it fix or inform the applicant of "a time for giving..." the additional information. Given the circumstances described in this and the previous paragraph of these Reasons, I conclude that s.359C(1) did not apply to the applicant.

64. Insofar as s.359C(2)(b) is concerned, it is clear that the applicant did not provide the relevant comments before the nominated time for giving them had passed. Even if the August letter did not grant an extension of any relevant limitation period for the provision of additional information under s.359, it clearly purported to provide an extension of the limitation period for the invitation under s.359A to comment on information. The applicant did not give the comments before the initial 28 day period had passed. Nor did he give them before the nominated extended time for giving them had passed.

65. In order to determine whether s.359C(2)(b) applied to the applicant, however, the question arises whether the extension granted by the Tribunal in the August letter (being the extension to 10 September 2003) was within its power - given, as discussed above[24] that Regulation 4.18A(4) appears to empower the Tribunal to extend the prescribed period for no more and no less than 28 days (or, perhaps, 28 days in respect of each extension), and that s.359B(4) provides that "... if a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period." Once again, and notwithstanding the use of the word "may", the Tribunal is empowered to extend the initial prescribed period for no more and no less than the "prescribed further period". In my view, the word "may" relates to the Tribunal's discretion as to whether or not an extension should be granted, and does not relate to the period of any extension. The discretion could not logically extend to the duration of the extended period, as the effect of such an interpretation would necessarily be that the Tribunal could, in its discretion, grant an extension for a period that is longer (even considerably longer) than the "prescribed further period". If the Tribunal does not have power to exercise its discretion in favour of lengthening the extension period, then it does not have power to exercise its discretion in favour of shortening it.[25]

66. I am well aware that, in the present case, the period of the extension fixed by the Tribunal was precisely the period sought by the applicant through his migration agents[26] - but, once the Tribunal determined (in its discretion) to grant an extension, it then had no alternative (in my opinion) but to fix the prescribed 28 day extension period.

67. I am also well aware that the applicant did not supply any further information or comment after 10 September 2003, but that fact does not rectify or validate a decision of the Tribunal that was, in effect, ultra vires.[27] I would add that it is important not to overlook the fact that s.360(1) imposes a positive obligation on the Tribunal to invite the applicant to appear before it to give evidence and present arguments. Although s.360(3) takes away the applicant's right to appear before the Tribunal in certain circumstances, the right to appear and be heard is such a fundamental component of the overall concept of procedural fairness that any legislative provision designed to limit or remove that right, or to render it conditional, should be interpreted strictly.

68. It follows from the above, that in my opinion, s.359C(2) did not apply to the applicant because the extension period granted in the August letter was not a period that the Tribunal was empowered to grant, and hence the applicant cannot be regarded as a person who has failed to "give the comments before the time for giving them has passed" - within the meaning and contemplation of s.359C(2)(b).

69. If neither s.359C(1) or s.359C(2) applied to the applicant, then s.360(3) did not apply to him either, and his right to appear before the Tribunal and give evidence and present arguments (pursuant to s.360(1)) was never validly removed. A clear error of law has occurred, and the applicant was denied procedural fairness.

Conclusion

70. It follows that the applicant must succeed in his application for review, and I propose to grant relief in the form of a declaration and orders in the nature of certiorari and mandamus.

71. Finally, I would add that I am not unmoved by Mr Christie's argument that "...the interpretation favoured by the Tribunal and by the respondent, that a failure to respond within the time limited prevents a Tribunal from having a hearing in any circumstances, provides impossible problems for the Tribunal's or for applicants..." because "... in many circumstances, an applicant may respond within the time limit but fail to comment as requested by the Tribunal, or may comment on some information but not on other information...". It is not necessary, however, for me to consider Mr Christie's argument further, because the applicant in the present case did not provide any response to the invitation under s.359A (to comment on the information) contained in the July letter - whether within the initial 28 day period or the extended period. The Skilled Migration Assessment from Trades Recognition Australia[28] - was provided in response to the invitation under s.359 to give additional information (and not pursuant to the invitation under s.359A to comment).

Order

72. I propose to grant relief in the form of a declaration and orders in the nature of certiorari and mandamus.

73. I shall hear from counsel in relation to the issue of costs.

I, Paul O'Halloran, certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate:

Date: 9 September 2004


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[1] See CB184-8

[2] CB255

[3] CB255

[4] CB257

[5] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J

[6] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 -- in relation to s.65 of the Migration Act.

[7] CB212.

[8] CB213.

[9] CB218.

[10] CB229-30.

[11] CB242.

[12] CB245.

[13] CB248.

[14] See s.359(2).

[15] See Regulation 4.17(4).

[16] See Haque v MIMIA (2001) FCA 1077 at paras 17 to 20.

[17] See MIMIA v Awan (2003) FCAFC 140 at para 14; Landers v MIMIA (2003) FMCA 223.

[18] See the paragraph commencing with the words "Your written comments should be provided within 28 calendar days of the date of notification of this invitation...", and subsequent paragraphs, at CB219.

[19] CB 229.

[20] CB242..

[21] See paragraph 23 above.

[22] See CB229.

[23] At paragraph 13.

[24] See paragraph 41 of these Reasons.

[25] Cf Haque v MIMIA (2001) FCA 1077 at paras 17 to 20.

[26] CB229

[27] Cf Haque v MIMIA (2001) FCA 1077 at para 17.

[28] CB230.
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