FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. On 25 May 2016, the primary judge dismissed an application for judicial review of a 23 February 2015 decision of the former Migration Review Tribunal, now a part of the Administrative Appeals Tribunal. The Tribunal had affirmed a 19 December 2013 decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse to grant the appellant a Partner (Temporary) (Class UK) visa.

Background

2    The central question in this appeal is whether the Tribunal committed jurisdictional error by deciding the appellant’s review application without permitting him to appear at a hearing. This issue arose in circumstances where the appellant’s scheduled hearing had been cancelled on the basis that he had not given a response to a written invitation to comment on or respond to adverse information raised by the Tribunal. In cancelling the hearing, the Tribunal had concluded that, pursuant to ss 360(2)(c), 359C(2), 360(3) and 363A of the Migration Act 1958 (Cth), the appellant’s failure to respond meant that there was no entitlement to a hearing and no power to permit the appellant to appear.

3    The key events, which took place between October 2014 and February 2015, were as follows.

(1)    The Tribunal invited the appellant to appear before it at a hearing scheduled for just over 10 weeks later, pursuant to s 360(1) of the Migration Act (hearing invitation). The hearing invitation letter indicated that any additional evidence relied upon by the applicant should be provided to the Tribunal by one week before the hearing.

(2)    About six weeks later, and about a month before the scheduled hearing, pursuant to s 359A of the Migration Act, the Tribunal invited the appellant to comment on or respond to information which it considered would, subject to his comments or response, be the reason or part of the reason for affirming the delegate’s decision (comment invitation).

(3)    The comment invitation required a response just over three weeks later, being six days before the scheduled hearing date.

(4)    The appellant did not respond to the comment invitation as required.

(5)    Two days after the deadline for responding to the comment invitation, and four days before the scheduled hearing date, the Tribunal wrote to the appellant by email and informed him that as a consequence of his failure to respond to the comment invitation by the deadline, he had lost the right to appear before the Tribunal and the hearing had therefore been cancelled.

(6)    The Tribunal informed the appellant that it would receive and consider any further comments or a response to the information requested until the time of the member’s decision, and further documents were provided. It should be noted that this was not a formal extension of the time to respond to the comment invitation under s 395B(4) because the time for responding had elapsed and therefore a formal extension could not be granted by the Tribunal: see Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 at 419 [45]-[48]).

(7)    The appellant provided additional information by the date advised.

(8)    Just over a month later, the Tribunal affirmed the delegate’s refusal of the visa, finding that:

(a)    it was not satisfied that the appellant and the sponsor had a mutual commitment to each other to the exclusion of all others as his sponsor married another person three months after marrying the appellant and was also sponsoring that other person;

(b)    it was not satisfied that the relationship was genuine and continuing; and

(c)    the appellant did not meet the definition of “spouse” in s 5F of the Migration Act.

(9)    The Tribunal’s reasons at [8] were to the effect that:

(a)    by reason of the appellant not providing comments within the required period after the comment invitation, s 359C(2) applied;

(b)    therefore, pursuant to s 360(3), the appellant had no entitlement to a hearing;

(c)    following the Full Court decision in Hasran, the application of s 363A meant the Tribunal had no power to permit the appellant to appear; and

(d)    the Tribunal had decided to proceed to make a decision without taking any further steps to obtain the comments.

4    By application to the Federal Circuit Court, the appellant sought judicial review of the Tribunal’s decision. On 25 May 2016, the primary judge dismissed that application. The grounds raised before the primary judge have not been agitated on appeal. The reasons for dismissing the application therefore do not warrant further consideration, save that his Honour held (at [31]) that the failure to respond to the comment invitation “enlivened the Hasran provisions”.

5    The appellant was granted an extension of time within which to bring an appeal against the orders made by the primary judge immediately prior to the hearing of this appeal. He was also granted leave to file an amended notice of appeal and leave to advance arguments not relied upon in the Court below. The grant of the extension of time and related leave was not opposed by the Minister.

6    The appellant’s ultimate case by the time of the hearing of the appeal was that the Tribunal, in not conducting a hearing, failed to comply with s 360 (ground 1), or denied him procedural fairness (ground 2), by refusing to allow him to appear at a hearing. Each of these asserted failures was said to amount to jurisdictional error. These grounds involved the construction and interpretation of the relevant provisions of the Migration Act and collateral arguments asserting a right to a hearing arising independently of Part 5 Division 5 of the Migration Act. They also involved an argument that Hasran and related authority should be distinguished.

7    The Minister’s case was that the Tribunal properly applied s 360(3) and that, as a result of the operation of s 363A, the Tribunal had no power to permit the appellant to appear at a hearing. On that argument there was no jurisdictional error on the part of the Tribunal and no error on the part of the primary judge in dismissing the appellant’s application for judicial review.

Ground 1 – failure to comply with s 360 of the Migration Act

8    Ground 1 as pressed by the appellant at the hearing of the appeal was as follows (particulars omitted):

The Federal Circuit Court of Australia erred in not finding that the Second Respondent (the Tribunal) committed jurisdictional error by failing to comply with s 360(1) of the Migration Act 1958 (Cth) (the Act) by not holding a hearing and not allowing the Appellant to appear at a hearing before it, notwithstanding the Appellant had been invited to appear.

The relevant provisions

9    The relevant provisions of the Migration Act were ss 357A, 359, 359A, 359C, 360 and 363A. The relevant portions of those provisions were (and to date are) as follows:

Division 5—Part 5-reviewable decisions: conduct of review

357A    Exhaustive statement of natural justice hearing rule

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

(2)    Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

…

…

359     Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

…

…

359A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2) and (3), the Tribunal must:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)     invite the applicant to comment on or respond to it.

…

…

359C    Failure to give information, comments or response in response to written invitation

(1)    If a person:

(a)    is invited in writing under section 359 to give information; and

(b)    does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the information.

(2)    If the applicant:

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

(b)    does not give the comments or the response before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

360    Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 359C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

…

363A    Tribunal does not have power to permit a person to do something he or she is not entitled to do

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

The possible interaction of ss 359C(2), 360 and 363A of the Migration Act

10    The Tribunal is under a general obligation to invite a review applicant to a hearing pursuant to s 360(1). That obligation is relevantly subject to s 360(2)(c) and (3), which provide that an applicant is not entitled to appear before the Tribunal if s 359C applies to the applicant. Section 359C(2) refers to the situation where an applicant has failed to respond in the time provided to a written invitation under s 359A for the applicant to comment on information considered adverse to its case, namely “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”.

11    The substance of the appellant’s case is that the provisions which disentitle a review applicant from appearing before the Tribunal – ss 360(3) and 363A – only apply when no hearing invitation has issued. On that argument, as a hearing invitation had already been issued to the appellant, he remained entitled to a hearing, notwithstanding his failure to respond to the later comment invitation as required prior to the scheduled hearing.

12    The appellant’s case has been considered in light of three possible interpretations of ss 359C(2), 360 and 363A, which are outlined below.

First interpretation: ss 360(3) and 363A only apply before a hearing invitation has issued

13    The appellant’s interpretation is that ss 360(3) and 363A only apply when no hearing invitation has issued, and that once a hearing invitation has issued, as it did in this case, the hearing cannot be dispensed with. On the appellant’s argument, the three possible trigger events or situations in paragraphs (a), (b) or (c) of s 360(2) are irrelevant once a hearing invitation has issued.

Second interpretation: ss 360(3) and 363A only apply after a hearing invitation has issued

14    An alternative interpretation, not advanced by either party but necessarily included as a possible way to read the provisions, is that ss 360(3) and 363A only apply after a hearing invitation has issued. Under this construction, if any of the events or situations described in paragraphs (a), (b) or (c) in s 360(2) occur before a hearing invitation has issued, no such invitation is required to be issued by the operation of s 360(2) and no occasion for the operation of s 360(3) arises. However if an entitlement to appear exists prior to the issuing of a hearing invitation, the loss of that entitlement is left to inference or the practical effect of there being no hearing invitation and no scheduled hearing, rather than an express statement of the kind contemplated by s 363A to deny the Tribunal power to permit a review applicant to appear. If there is already existing an entitlement to appear at a hearing, this is an unsatisfactory interpretation and therefore less likely to be correct. For the reasons discussed below, the entitlement to appear at a hearing arises from filing a valid review application.

15    On this interpretation, if (and only if) an invitation to a hearing has already issued and the review applicant’s entitlement to appear at a hearing thereby crystallises, and then any of the events or situations described in paragraphs (a), (b) or (c) in s 360(2) occur, expressly by s 360(3) there is no entitlement to a hearing. By virtue of s 363A the Tribunal does not have power to permit the visa applicant to attend a hearing.

Third interpretation: ss 360(3) and 363A have no temporal restriction and can take effect at any time before or after a hearing invitation has issued and before a hearing takes place

16    The substance of the Minister’s case is that ss 359C(2), 360(3) and 363A have no temporal restriction, and it does not matter whether or not a hearing invitation has issued. If any of the events or situations described in paragraphs (a), (b) or (c) in s 360(2) occur at any time before a hearing takes place, the review applicant loses the entitlement to appear at a hearing by the operation of s 360(3) and the Tribunal does not have the power to permit the review applicant to appear at a hearing by the operation of s 363A. Additionally, if such an event or situation occurs before a hearing invitation has issued, there is no obligation to give that invitation.

Authorities on ss 359A, 359C, 360 and 363A of the Migration Act

17    The interaction of ss 359A, 359C, 360 and 363A of the Migration Act has been considered by a number of prior cases, all of which are sought to be distinguished by the appellant.

18    In Minister for Immigration and Multicultural and Indigenous Affairs v Sun [2005] FCAFC 201; (2005) 146 FCR 498, a visa applicant applied for more time to respond to a s 359A comment invitation after the time stipulated for a response had expired. At the time of the comment invitation no hearing invitation had issued. The Minister allowed more time to comment, but stated that the visa applicant was not entitled to appear before the Tribunal as a result of failing to respond to the comment invitation within the prescribed period. That stance was upheld by the Full Court, observing at 509 [49]-[50] that giving a second or subsequent notice under s 359A does not remove from a visa applicant the status of being a person to whom s 359C(2) applies. That is, failure to respond to a prior s 359A invitation, either on time, or at all, enlivens the power of the Tribunal to make a decision on the review without taking any further action to obtain the visa applicant’s views on the information the subject of the invitation.

19    The Full Court in Sun held (at 509 [50]) that the Tribunal could, for example, decide to receive and consider a written response even if it was late, such a course not being precluded by s 363A and as in fact occurred in Sun. However, no such latitude was found to exist in relation to hearings to which s 360(3) applied by virtue of the existence of one or more of the circumstances in s 360(2) applying and by which the prohibition in s 363A was thereby engaged. The right to a hearing was lost by the failure to respond to the comment invitation within time, even though a later provided written comment could still be taken into account.

20    In M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; (2006) 155 FCR 333, a hearing invitation was issued under s 360(1) of the Migration Act, but the hearing date was vacated before a request for additional information was made under s 359 and later a comment invitation was made under s 359A. The time limit for the additional information requested under s 359 was not complied with (in fact more time was given than the visa applicant was entitled to, although nothing turns on this), but the time limit for providing the s 359A comment was observed. Tracey J relied upon Sun in concluding at 343-4 [39] and 345-6 [46] that failure to comply with the s 359 request for information within time meant that s 359C(1) applied, which led to the application of paragraph (c) of s 360(2), s 360(3) and s 363A. The loss of the entitlement to appear at a hearing extinguished any residual discretion in the Tribunal to permit the visa applicant to appear.

21    In Hasran, a comment invitation issued pursuant to s 359A and was not responded to within time, no hearing invitation having issued. At 417 [25], the Full Court found that Sun and M v Minister correctly stated the construction and application of s 363A and related provisions of Division 5 of Part 5 of the Migration Act. The Full Court further stated at 417 [26]-[30] that s 363A operates to remove any discretion which the Tribunal may have to allow a person to do something where a provision of Part 5 (not just Division 5) states that the person is not entitled to do it. The Tribunal was therefore deprived of the power to allow the visa applicant to appear at a hearing. That was because the failure to respond to the s 359A comment invitation had the effect of attracting the cascading operation of s 359C(2), paragraph (c) of s 360(2) and s 360(3), which enlivened s 363A.

22    In Giri v Minister for Immigration and Citizenship [2011] FCA 928, the primary federal magistrate had declined to follow an earlier decision of another federal magistrate (both subsequently judges of the Federal Circuit Court) in Kumar v Minister for Immigration and Citizenship [2010] FMCA 614; (2010) 246 FLR 379. Kumar and Giri were factually similar: see Giri at [38]-[39]. In Giri, the primary federal magistrate instead applied Hasran to a case in which the hearing invitation was issued in the intervening period between a comment invitation being issued and a response to it falling due. That stance was upheld by Greenwood J, dismissing the appeal.

23    The decision in Kumar, which was not followed in Giri either by the primary federal magistrate or by Greenwood J on appeal, held that s 360(3) did not operate to extinguish a visa applicant’s entitlement to appear before the Tribunal pursuant to a properly issued s 360(1) invitation by reason of s 359C(1) or (2) being triggered between the date of the hearing invitation and the date of the hearing. That is, the federal magistrate in Kumar effectively treated the invitation to a hearing as reflecting or creating an accrued right or entitlement to a hearing, which was unaffected by an otherwise disentitling subsequent event of non-compliance. Greenwood J considered at [46] that there was at least some force in this approach to the construction of ss 359C, 360 and 363A, but held that the contrary construction of those provisions had been definitively established by the Full Court in Hasran, including by the approval of M v Minister. The ambit of Hasran was therefore not confined in Giri to only the period before a hearing invitation has issued, as it must be for the appellant’s primary ground of appeal to succeed. The only authority supporting the appellant’s argument was that of the federal magistrate in Kumar.

The appellant’s submissions on ground 1 (s 360)

24    It was submitted on behalf of the appellant that having regard to s 360 as a whole, s 360(3) in its application to s 360(2)(c) should be read as only applying if an invitation to comment under s 359A (or equivalent under s 359) had been sent and not responded to before any hearing invitation has issued. On that construction, the purpose of s 360(3) is to disentitle a person who has failed to provide a response to the invitation given under s 359C(2) (or s 359C(1)) from being invited to attend and appear at a hearing. In support of this proposition, it was argued that:

(1)    section 360(3) should be read in concert with the preceding sub-paragraphs of s 360(2) to apply contemporaneously to an invitation that has yet to be sent, relying upon the use of the word “applies” in s 360(2)(c) and the word “apply” in s 360(3) to limit the applicability of the obligations in s 360(1);

(2)    because s 360(3) commences with “[i]f any of the paragraphs in subsection (2) of this section apply …”, at the time the hearing invitation was issued, s 360(2) did not apply as the applicant could not have failed to respond to any comment invitation because none had issued at the time of the hearing invitation, let alone not been responded to; and

(3)    the commencing words of s 360(3) “[i]f any of the paragraphs in subsection (2) of this section apply …” support a contemporaneous reading of the application of that subsection up to the time immediately prior to the giving of a hearing invitation, but not when a hearing invitation has already been given.

25    That way of reading s 360(3) led to the submission that s 360(3) can only apply where an invitation to appear has not been sent and the obligation to hold a hearing has not yet been “enlivened”, or the hearing invitation is not current such that the entitlement to appear is not “enlivened”. This argument ties the entitlement to appear at a hearing in some way to the giving of the hearing invitation, and the hearing invitation remaining current, although it was not clear from submissions made on behalf of the appellant, including in response to questions from the bench, either what the source of the entitlement was said to be, or when precisely the entitlement was said to come into existence, or how it ceased to exist if a hearing date was vacated.

26    The appellant contended that an extant hearing invitation at the time of a failure to respond to a comment invitation is critical in this case and that Sun, M v Minister, Hasran and Giri should therefore be distinguished because:

(1)    in Sun and in Hasran no hearing invitation had issued at the time the s 359A comment invitation response fell due;

(2)    in M v Minister the hearing date was vacated before a request for additional information was made under s 359, such that there was no extant hearing date and thus no operative invitation at the time of the request; and

(3)    in Giri the comment invitation issued prior to the hearing invitation, but the hearing invitation issued before the comment invitation had not been responded to.

27    It was therefore submitted that, reading s 360 as a whole, the relevant power that the Tribunal cannot exercise when s 359C applies is to invite a review applicant to appear. Implicit in this argument, although not the subject of any submission on behalf of the appellant, was the proposition that the role of s 360(3) was to make it explicit that non-responsiveness prior to a hearing invitation issuing meant not only that such an invitation was not required, but that there was no entitlement to such a hearing. In this way, s 360(3) still had work to do even if confined to the period before an invitation had issued.

28    The remaining submissions for the appellant assumed the correctness of the preceding arguments as to the correct construction of s 360, seeking to bolster that outcome by reliance on the principles stated from Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 discussed below and reliance on conventional principles of statutory interpretation concerning procedural fairness and the need for clear words in a statute to exclude such a right. Such clear words were said to be lacking so as to deprive the appellant of the right to a hearing once he had been invited to attend.

The Minister’s submissions on ground 1 (s 360)

29    The Minister’s submissions addressed the legislative provisions in question and how they should be interpreted, and contended that the Tribunal complied with s 360 and other provisions of the Migration Act, including by expressly applying Hasran. The Minister submitted that the differences between Sun, M v Minister, Hasran and Giri and this case were immaterial. This Court was therefore bound to follow Hasran. The Minister contended in the alternative that it cannot be said that M v Minister and Giri are “plainly wrong” and therefore as a matter of comity should be followed, citing well-known authority in support of that approach which does not need to be repeated.

30    Counsel for the Minister advanced a number of additional reasons why the appellant’s temporal construction should not be accepted:

(1)    s 360(3) is concerned with a visa applicant being entitled to appear before the Tribunal, which is different to and broader than a visa applicant’s entitlement to be invited to appear before the Tribunal under s 360(1), such that s 360(3) is intended to operate more generally including by taking away any existing right to a hearing via s 363A;

(2)    use of the word “apply” in s 360(3) does not support any temporal limitation on its operation; if Parliament had intended that its operation was to depend only on the circumstances in existence at the time of the giving of the Tribunal’s hearing invitation, it could easily have said so in terms that limited its operation to the period at or before the time the invitation was made;

(3)    all of the circumstances in paragraphs (a), (b) and/or (c) of s 360(2) could exist either before or after the Tribunal issues a hearing invitation and there is no reason why any of those circumstances should exist only at or before the time of the hearing invitation; and

(4)    the construction advanced by the appellant leaves little, if any, work for s 360(3) to do because there would be considerable, if not total, overlap between the operation of ss 360(2) and (3).

Consideration on ground 1 (s 360)

31    On the appellant’s interpretation, once a hearing invitation has been issued, s 360(3) cannot apply to deprive the appellant of an entitlement to a hearing and there is no other identified power reposed in the Tribunal to dispense with the duty to hold a hearing and to permit a review applicant to appear. Acceptance of the appellant’s argument would mean that the issuing of a hearing invitation itself (and it remaining extant) either creates, or reflects, an accrued right or entitlement to a hearing, and a duty on the part of the Tribunal to proceed to hold that hearing unless, for example, the application for review is abandoned.

32    There are four reasons to reject the appellant’s interpretation:

(1)    the lack of any temporal restriction in the terms of ss 359C(2), 360(2), 360(3) and 363A, the lack of any compelling reason for such a restriction to exist and the appellant’s misinterpretation of s 360(3);

(2)    the entitlement to a hearing arises from the filing of a valid application for review with the Tribunal, and does not depend upon a hearing invitation having been given;

(3)    the unlikely and undesirable consequences of the appellant’s interpretation; and

(4)    binding and/or persuasive authority that cannot be distinguished and should be followed.

(1)    The lack of any temporal restriction in the terms of ss 359C(2), 360(2), 360(3) and 363A, the lack of any compelling reason for such a restriction to exist and the appellant’s misinterpretation of s 360(3)

33    The appellant’s case requires a temporal limitation to be read into the terms of ss 359C(2), 360(2), 360(3) and 363A, such that none applied once a hearing invitation had been issued. There is nothing in the text of any of those provisions to support such a limitation, especially in light of the way in which s 360(3) can and should be read as set out below. Nor was senior counsel for the appellant able to give any compelling reason for such a limitation to exist. The use of the present tense form of “apply” and “applies” in ss 360(2)(c) and 360(3) did not assist the appellant’s argument in that regard.

34    Moreover, the appellant’s submissions rely upon a misreading of the terms of s 360(3) in order to confine its operation to the period prior to the issue of a hearing invitation. Contrary to the submissions for the appellant, s 360(3) does not contain any words that pick up the chapeau to s 360(2). Rather, s 360(3) expressly refers only to the paragraphs of s 360(2). That is, s 360(3) uses legislative shorthand to pick up the situations described in the paragraphs of s 360(2), but without picking up the nexus to s 360(1) appearing in the chapeau to s 360(2). Section 360(3) is therefore to be read as though the words incorporated by reference from s 360(2)(a), (b) and (c) appeared in s 360(3) as follows:

If:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it;

(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,

the applicant is not entitled to appear before the Tribunal.

35    Read in that way, there is nothing in the text of s 360(3) to confine it either to the period before or the period after a hearing invitation has issued. It is a statement as to the lack of an entitlement to appear of the kind contemplated by s 363A, whenever one of the three stipulated events or situations exists. It is a clear and unambiguous statement that an entitlement to appear will not exist in those clearly specified circumstances, and thereby a power to permit a review applicant to appear will also not exist. In so far as the principal of legality has application (Potter v Minahan (1908) 7 CLR 277 at 304; R v Snow (1915) 20 CLR 315 at 322; Bropho v Western Australia (1990) 171 CLR 1 at 17-8; Coco v The Queen (1994) 179 CLR 427 at 437; and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 553 [11]) the right to appear has been abrogated by clear words.

(2)    The entitlement to a hearing arises from the filing of a valid application for review with the Tribunal, and does not depend upon a hearing invitation having been given

36    In order to distinguish M v Minister, senior counsel for the appellant contended that vacating a hearing date has the same legal effect as a hearing invitation never having been issued, which necessarily entails the right to a hearing being dependent in some way upon a hearing invitation having been given. On any view, the mere vacating of a hearing date cannot make any difference as to the right or entitlement to a hearing. If that right or entitlement did not exist at the outset, it has by then been enlivened and cannot be lost only by an adjournment. However the appellant’s attempt to distinguish M v Minister in this way runs into a more fundamental problem, because it necessarily depends upon the entitlement to a hearing being in some way dependent on the fact of an invitation both having issued and continuing to be extant.

37    In Li it was found that the refusal of a Tribunal to exercise the power under s 363(1)(b) of the Migration Act to “adjourn the review from time to time” by refusing an application to adjourn a Tribunal hearing constituted legal unreasonableness amounting to jurisdictional error in the circumstances of that particular case. The plurality (Hayne, Kiefel and Bell JJ) held at 361-2 [60]-[61] that the Tribunal’s duty arising from s 360(1) was not merely to issue an invitation to appear, but to provide a review applicant with a real and meaningful opportunity to present evidence and arguments relating to issues arising in connection with the decision under review before a decision was made.

38    The language used by the plurality in Li suggests that s 360(1) confers not just a right to an invitation to a hearing, but a substantive entitlement to appear at such a hearing, necessarily subject to any statutory restriction or qualification on that entitlement. If that is the correct way in which to interpret this aspect of Li, it would seem that at least the dominant source of the entitlement to appear at a hearing is indeed s 360(1). The existence of an entitlement to appear at a hearing is also recognised or supported by many of the other provisions of Division 5 of Part 5 which contain an “exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”: s 357A.

39    What is not clear from Li, because it did not arise on the facts of that case, is whether the entitlement to appear at a hearing exists from the time that a valid review application is made to the Tribunal, subject to being extinguished, or whether it only comes into existence if and when the required invitation under s 360(1) has issued. The latter seems inherently unlikely as that would entail a statutory version of a fundamental right in the nature of procedural fairness only coming into existence as a consequence of administrative action. That interpretation should be rejected. Rather, the Tribunal’s duty both to invite a review applicant to appear at a hearing, and to hold a hearing that is real and meaningful prior to making a decision, is triggered by the making of a valid review application. Both duties exist, and an entitlement to each is bestowed upon a review applicant, unless and until removed by the operation of a contrary provision of the Migration Act.

40    It follows that the right to a hearing endures unless and until a provision of the Migration Act takes it away, or the visa applicant abandons the review application. This conclusion removes any factual basis for distinguishing M v Minister, because the vacating of the hearing date cannot have any bearing on the existence of the entitlement to appear.

(3)    Unlikely and undesirable consequences of the appellant’s interpretation

41    Senior counsel for the appellant could not suggest any reason why the asserted temporal limitation on paragraph (c) of s 360(2), if it existed, would not apply equally to paragraphs (a) and (b), especially given that those paragraphs are also phrased in the present tense form. It follows that if the appellant’s argument is correct, the three situations described in s 360(2)(a), (b) and (c) would only apply so as to trigger s 360(3) when a hearing invitation is not extant, and in particular when no invitation has issued. That consequence is therefore a further way in which to test the correctness of the appellant’s temporal proposition.

42    The paragraphs of s 360(2) address three stipulated situations, namely:

(1)    when the Tribunal is going to decide the review in the review applicant’s favour on the basis of the material before it;

(2)    when the review applicant consents to the Tribunal deciding the review without him or her appearing before it; or

(3)    when the review applicant has not responded to a request for additional information or a comment invitation within the prescribed time.

43    On the appellant’s interpretation, if any of the situations or events listed in any of the paragraphs of s 360(2) occurs after the hearing invitation has issued, the Tribunal has no alternative but to press on with the hearing, which may be some months away. For the reasons that follow, all three situations or events can as readily occur after a hearing invitation has been issued as before, and certainly have no less scope for application after a hearing invitation has issued.

44    In relation to the first situation, where, prior to a previously scheduled hearing, a Tribunal member forms the view that a review applicant should succeed, there is no apparent reason to be found in the text of paragraph (a) of s 360(2), when read with s 360(3), why the prior issuing of an invitation should preclude dispensing with a hearing. That is especially so when hearings are likely to be set down a considerable time in advance and quite possibly before the review application and associated evidence and materials have received close or detailed consideration. It might also be influenced by new and favourable information that has come to hand after the hearing invitation has issued. There is no apparent reason why, in those circumstances, s 360 should be interpreted in a way that compels the Tribunal to proceed with a hollow and pointless hearing merely because it has already been scheduled and an invitation issued, especially as that may delay the favourable outcome that the review applicant was necessarily seeking until or after the hearing date. It is no answer to say that this legal position might be manipulated by artificially bringing forward a hearing date.

45    In relation to the second situation of consent by the review applicant to having a decision made without appearing, as a practical matter a review applicant may be seen to be more likely to consider giving such consent to a review being decided without appearing once an invitation has already issued. A review applicant may not be aware of the existence of a hearing, let alone of the option of not attending, until advised of both, as is set out in the “response to hearing invitation” form that apparently routinely accompanies the hearing invitation letter. Even if that is not the invariable situation, it is surely one in reasonable contemplation by the terms of paragraph (b) of s 360(2) when read with s 360(3), especially in a case in which the review applicant cannot usefully add anything more to the review process, may not want to expend the time or money in appearing, and again may not wish to delay what may be a favourable outcome once a hearing is dispensed with and the existing material is considered by the Tribunal.

46    In relation to the third and present situation of non-compliance with, in this case, a comment invitation, if the appellant’s interpretation was correct, the point in time at which the Tribunal may become aware of more information that it wishes to obtain from a review applicant, or adverse material that it wishes to have the review applicant respond to or comment on becomes artificially critical. Yet each case will be different, and each Tribunal member will have his or her own way of examining a review application and preparing for a hearing. Again, new and important information may come to light. In the scheme of Division 5 of Part 5 there is no apparent reason why the need to seek information, or a comment or response to information, should be lessened by the fact of an invitation to a hearing having already issued. Further, if such a request for information or a comment invitation does issue between the hearing invitation date and the hearing date, there is nothing apparent in the scheme of the provisions why failure to respond should not amount to disentitling conduct.

47    A further practical consideration tells against the interpretation urged by senior counsel for the appellant. That interpretation would create a perverse incentive for Tribunal members to hold off on setting an application down for hearing until the comment and request period was finalised. That would be the only way to prevent a hearing going ahead. Such an approach would make sense because otherwise the Tribunal would be compelled to waste time and resources to proceed to hear something that would have otherwise been cancelled, but it would ultimately be productive of delay in concluding the review process.

(4)    Binding and/or persuasive authority that cannot be distinguished and should be followed

48    The weight of authority in Sun, M v Minister, Hasran and Giri is to the effect that a review applicant has no entitlement to a hearing if there has been non-compliance with a comment invitation deadline (or with a s 359 request for information), irrespective of whether or when a hearing invitation issues. The question for this Court is whether that conclusion is correct, or not plainly incorrect, or plainly incorrect to the point that Hasran in particular should not be followed in the circumstances of this case. Distinguishing or overruling those cases was indispensable for the first ground of appeal to succeed.

49    The problem with the points of factual distinction that senior counsel for the appellant sought to draw between this case and each of Sun, M v Minister, Hasran and Giri is that this argument depended, in a circular fashion, upon the appellant’s alternative interpretation being correct for those differences to have any relevance. That is, the asserted points of distinction can only matter if s 360(3) does not apply once a hearing invitation has issued. Apart from the decision of a federal magistrate in Kumar, which has been found, in effect, to be wrongly decided by a judge of this Court, no authority was cited that supported the appellant’s case.

50    No principled reason was advanced on behalf of the appellant for distinguishing any of Sun, M v Minister, Hasran and Giri, beyond a general incantation of the importance of fundamental rights being taken away by clear language, a proposition that begs the question of interpretation rather than answering it. That leaves only the task of deciding whether those cases, and Hasran in particular, have been wrongly decided at least to the extent of applying to the period prior to a hearing invitation being issued.

51    On the Minister’s case, the prior authority in Sun, M v Minister, Hasran and Giri should be considered at the level of statutory construction and principle, not turning on points of factual distinction that are illusory or irrelevant. On this argument it does not matter whether the entitlement to appear:

(1)    exists at large once a review is on foot before the Tribunal; or

(2)    is only prospective and subject to crystallising with the issuing of an invitation; or

(3)    has already accrued by the issuing of an invitation fixing a hearing date.

52    Properly considered, the decision in Hasran in particular is compelling and correct, especially in light of the preceding three reasons not to accept the appellant’s interpretation. It should be followed. There is no proper reason to confine its operation to the period before a hearing invitation issues. Each of Sun, M v Minister and Giri should also be followed or approved.

Conclusion on ground 1 (s 360)

53    Of the three possible interpretations, the entirely non-temporal operation advanced by the Minister should be accepted. The operation of ss 359C(2), 360(3) and 363A has no temporal restriction and can take effect at any time before or after a hearing invitation has issued and before a hearing takes place. The correct way of viewing the operation of those provisions is therefore as follows.

54    If, before a hearing invitation has issued:

(1)    the Tribunal forms the view that a review applicant should succeed, that triggers s 360(2)(a); or

(2)    the review applicant consents to the matter being decided without him or her appearing, that triggers s 360(2)(b); or

(3)    the review applicant has not complied with a s 359A invitation to comment on or respond to information within time, s 359C(2) applies, which triggers s 360(2)(c),

no hearing invitation is required to be issued.

55    Additionally, for any of the situations or events in s 360(2) listed in the preceding paragraph, s 360(3) operates to provide expressly that the review applicant is thereby not entitled to appear at a hearing. That then triggers s 363A so that the Tribunal clearly does not have power to permit the review applicant to appear at a hearing.

56    If, after a hearing invitation has issued:

(1)    a Tribunal member forms the view that a review applicant should succeed, that triggers s 360(3) via the application of s 360(2)(a); or

(2)    the review applicant consents to the matter being decided without him or her appearing, that triggers s 360(3) via the application of s 360(2)(b); or

(3)    the review applicant has not complied with an invitation to comment upon or respond to information, s 359C(2) applies, which triggers s 360(3) via the application of s 360(2)(c),

there is no longer an entitlement to appear at a hearing and by virtue of s 363A the Tribunal does not have power to permit the visa applicant to attend a hearing.

57    The same interpretation must inevitably apply to s 359 requests made to a review applicant to provide information and the operation of s 359C(1) in conjunction with ss 360 and 363A.

58    Ground 1 must therefore fail.

Ground 2 – alleged failure to accord procedural unfairness

59    Ground 2 as pressed by the appellant at the hearing was as follows (particulars omitted):

Alternatively to Ground 1, the Federal Circuit Court of Australia erred in not finding that the Tribunal committed jurisdictional error by failing to accord procedural fairness to the Appellant by not holding a hearing and not allowing the Appellant to appear at a hearing before it, notwithstanding the Appellant had been invited to appear.

60    At the hearing, the appellant conceded that ground 2 had no independent life to ground 1 because, if the appellant was disentitled to a hearing by reason of s 360(3) of the Migration Act, then ground 2 necessarily must fail. Notwithstanding that concession, senior counsel for the appellant pressed ground 2. This ground of appeal can shortly be disposed of.

61    The appellant relies upon broad statements of uncontroversial principle repeated in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 per Kiefel, Bell and Keane JJ at 336 [33], 337 [35] and 340 [47], and per Gordon and Gageler JJ 341 [55], 342-3 [58]-[61], 345 [69]. Reliance is also placed on the principles from Li discussed at [36] above as to the right to a real and meaningful hearing. Finally, reliance was placed on the circumstances by which the appellant was said to have been treated unfairly referable to the facts and circumstances of his case to make good this ground, without any attempt to address the terms of Division 5 of Part 5 of the Migration Act.

62    As counsel for the Minister correctly pointed out:

(1)    pursuant to s 357A, Division 5 of Part 5 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with;

(2)    the provisions in Division 5 “deal with” the circumstances in which a review applicant is entitled to appear at a hearing before the Tribunal;

(3)    pursuant to those provisions, the Tribunal had no power to permit the appellant to appear at a hearing before it; and

(4)    unlike the circumstances in Li, there was not, and could not have been, any exercise of discretionary power by the Tribunal, let alone an unreasonable exercise of discretionary power and in any event (having regard to the terms of the statutory provision), the Tribunal’s decision did not lack “an evident and intelligible justification”; and

(5)    WZARH is a case that does not address the statutory regime that applies to the Tribunal. Rather, it is a case concerned with the independent merits review process, which is separate to and distinct from, and not governed by, statutory provisions such as Division 5 of Part 5 of the Migration Act.

63    Ground 2 must therefore fail.

Conclusion

64    The appeal must be dismissed with costs.

Associate:

Dated:    27 April 2017