FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201

MIGRATION - whether the Migration Review Tribunal denied applicant natural justice - whether the Migration Review Tribunal is obliged to invite applicant to a hearing ‑ extension of time to provide comment – appeal allowed

Migration Act 1958 (Cth) ss 353, 358, 359, 359(2), 359A, 359B, 359B(2), 359B(4), 359C, 359C(1), 359C(1)(b), 359C(2), 359C(2)(b), 360, 360(1), 360(2), 360(2)(c), 360(3), 363A, 379A(5)

Judiciary Act 1903 (Cth) s 39B

Acts Interpretation Act 1901 (Cth) s 15AA, s 33

Migration Regulations 1994 (Cth) reg 4.17, reg 4.18A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, [2005] HCA 24 cited

Haque v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 313 approved

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited

Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v JING SHAN SUN and MIGRATION REVIEW TRIBUNAL

WAD 224 OF 2004

MARSHALL, MANSFIELD & SIOPIS JJ

14 SEPTEMBER 2005

PERTH

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.        The Migration Review Tribunal be joined as a party to the appeal.

2.        The appeal be allowed.

3.        The orders ofFederal Magistrate Walters made on 10 September 2004 be set aside.

4.        The decision of the Migration Review Tribunal of 30 September 2003 be affirmed.

5.        The first respondent pay the appellant’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a judgment of the Federal Magistrates Court published on 10 September 2004 pursuant to which the Federal Magistrate set aside the decision of the Migration Review Tribunal (‘the Tribunal’) which had affirmed the decision of the delegate of the appellant (‘the delegate’) that the first respondent is not entitled to the grant of an Employer Nomination (Residence) (Class BV) Visa (‘Employer Nomination Visa’).  The Federal Magistrate granted relief on the grounds that the Tribunal had denied the first respondent natural justice in that it had, in breach of his entitlement under s 360 of the Migration Act 1958 (Cth) (‘the Act’), denied the first respondent an opportunity to attend a hearing of his application for review, and had dismissed the application without according the first respondent a hearing.  The appellant appeals from the whole judgment of the Federal Magistrate.

2                     The Tribunal has been added as a respondent to the appeal in accordance with the observations of several members of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162;[2005] HCA 24 (‘SAAP’).

3                     For the reasons, which follow, we are of the view that the appeal should be allowed.

Background

4                     The first respondent is a national of the People’s Republic of China.  He was born on 12 January 1964.  He entered Australia in May 1999 on a Tourist (Short Stay) Visa.  He was then granted a Temporary Business (Long Stay) Visa that expired in June 2000.

5                     On 15 June 2000 the first respondent lodged an application for an Employer Nomination Visa.  Accompanying his visa application was an employer nomination application by a Chinese restaurant in Western Australia for the position of chef.  On 12 March 2001 the appellant’s delegate refused to grant the first respondent a permanent visa.  The delegate was not convinced that the mandatory criteria had been satisfied.  In his reasons, the delegate stated ‘the applicant has made no claims to nor provided any evidence to support that he satisfies the mandatory requirements of the other subclasses within the Employer Sponsored Class’.

6                     On 23 March 2001 the Tribunal received an application lodged by the first respondent for a review of the delegate’s decision to refuse the Employer Nomination Visa.

7                     By a letter dated 2 April 2001, the Tribunal advised the first respondent that it had received his application.  On 16 August 2001, the Tribunal informed the first respondent that his application for review had been transferred to the Tribunal’s Melbourne registry.

8                     The Tribunal sent a letter dated 10 July 2003 (‘the July letter’) to the migration agent representing the first respondent at the time.  The July letter was headed ‘Invitation to Comment on Information and Invitation to provide Information’.  In the letter the Tribunal referred to its obligations under s 359A of the Act and invited the first respondent to comment on information including an assessment that indicated that the first respondent was not ‘highly skilled’, and the fact that there was no evidence that he possessed ‘vocational English’.  The July letter, also referred to the power of the Tribunal under s 359(2) of the Act to invite a person to give additional information, and invited the first respondent to provide additional information, including ‘evidence of recognition of trade qualifications’ as a chef with Trades Recognition Australia, and ‘evidence of having vocational English’.

9                     The July letter further stated:

‘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. (original emphasis)

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 section 359C of the 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.’ (original emphasis)

10                  Neither the first respondent, nor his migration agent, responded to the July letter within the prescribed 28 day period.

11                  On 21 August 2003, the first respondent’s migration agent sent a letter to the Tribunal by facsimile.  The letter stated:

‘Re:  Jing Shan SUN – W 01/01589

In reference to the above-mentioned MRT application, we have been requested to provide additional information in support of this application.

Please find enclosed original of Mr Sun’s positive assessment for skills migration from Dept. of Employment and Workplace Relations. (original emphasis)

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 MRT by 10^th September 2003…’

12                  On 26 August 2003 the Tribunal sent a letter (‘the August letter’) to the first respondent’s migration agent in the following terms:

‘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 comments within the period allowed, it may, under section 359C of the Act, make a decision on the review without taking any further actions to obtain your comment. (original emphasis)

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…’

13                  The first respondent’s migration agent did not provide any information or further documentation nor any comment by 10 September 2003, or at any time thereafter.  The first respondent was not invited to a hearing before the Tribunal made its decision dated 30 September 2003.

The Tribunal’s decision

14                  In its decision dated 30 September 2003, the Tribunal affirmed the decision of the delegate to refuse to grant an Employer Nomination Visa.  The Tribunal referred to the July letter and its invitation for comment and information pursuant to s 359A and s 359 of the Act but stated ‘no response was received’.  The Tribunal said that s 360(3) of the Act therefore applied to the first respondent and the Tribunal proceeded to determine the matter without inviting the first respondent to appear at a hearing.  The Tribunal found that the first respondent failed to meet the criteria required for the visa.

15                  The first respondent sought a review of the Tribunal’s decision on the ground that the Tribunal did not accord the first respondent a hearing as it was required to do under s 360 of the Act, and, accordingly, the Tribunal did not accord the first respondent natural justice.  The first respondent asserted that the breach of natural justice was an error in law, which went to the Tribunal’s jurisdiction.

The Statutory Framework

16                  Sections 358, 359, 359A, 359B, 359C and 363A of the Act form the relevant statutory framework.

17                  Section 358 of the Act provides:

‘(1)   An applicant for review by the Tribunal may give the Tribunal:

a)             a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

b)             written arguments relating to the issues arising in relation to the decision under review.

(2)          The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review.’

18                  Section 359 of the Act provides:

‘(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 a person to give additional information.

(3)     If an invitation is given to a person other than the Secretary, the invitation must be given:

a)             except where paragraph (b) applies—by one of the methods specified in section 379A; or

b)             if the invitation is given to a person in immigration detention‑by a method prescribed for the purposes of giving documents to such a person.

(4)     If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.’

19                  Section 359A of the Act provides:

‘(1)    Subject to subsection (2), the Tribunal must:

a)             give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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

c)             invite the applicant to comment on it.

(2)          The information and invitation must be given to the applicant:

a)             except where paragraph (b) applies—by one of the methods specified in section 379A; or

b)             if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)     …

(4)     This section does not apply to information:

a)             that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

b)             that the applicant gave for the purpose of the application; or

c)             that is non-disclosable information.’

20                 Section 359B of the Act provides:

‘(1)   If a person is:

a)             invited under section 359 to give additional information; or

b)             invited under section 359A to comment on information;

the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2)          If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3)          If the invitation is to give information or comments at an interview, the interview is to take place:

a)             at the place specified in the invitation; and

b)             at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

(4)          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.

(5)          If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

a)             a later time within that period; or

b)             a time within that period as extended by the Tribunal for a prescribed further period;

and then the response is to be made at an interview at the new time.’

21                 Section 359C of the Act provides:

‘(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.’

22                  Section 360 of the Act provides:

‘(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)          Section (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.’

23                  The prescribed periods for the purpose of s 359B of the Act are set out in reg 4.17 and reg 4.18A of the Migration Regulations 1994 (Cth) (‘the Regulations’).  Regulation 4.17 of the Regulations provides prescribed periods for invitation to comment or give additional information for s 359B(2) of the Act as follows:

‘(1)    This regulation applies, for subsection 359B(2) of the Act, if a person is invited to give additional information, or to comment on information, other than at an interview

…

(4)     If the invitation relates to any other application for review, the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 28 days after the day on which the invitation is received.’

24                  Regulation 4.18A of the Regulations provides the prescribed period for invitation to give comment or information for s 359B(4) 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

…

(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.’

25                  Section 363A of the Act provides:

‘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 application for review before the Federal Magistrate

26                  On 30 October 2003, the first respondent filed an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for prerogative relief.  The grounds for the application were, in effect, that the Tribunal had erred in concluding that the first respondent was not entitled to a hearing and had denied the first respondent procedural fairness in not according the first respondent a hearing.

27                  Section 360(1) of the Act provides that the Tribunal must invite an applicant to a hearing, but s 360(2)(c) of the Act provides that an applicant for review is not entitled to a hearing before the Tribunal if s 359C(1) or s 359C(2) of the Act ‘applies to the applicant’.  The main issue before the Federal Magistrate was whether the first respondent was a person to whom the provisions of s 359C(1) or s 359C(2) of the Act applied, and whether the first respondent had accordingly lost an entitlement to appear at the hearing.

28                  The Federal Magistrate analysed the contents of the July letter.  He accepted that it purported to be an invitation to the first respondent to comment on certain information (pursuant to s 359A of the Act) and an invitation to give additional information (pursuant to s 359 of the Act).  The Federal Magistrate was not satisfied that the invitation to provide additional information was an effective invitation under s 359 of the Act as it did not specify the prescribed period within which the first respondent was to provide the additional information as required by s 359B.  The Federal Magistrate did find, however, that the July letter was an effective invitation under s 359A of the Act to comment on information because it did specify a 28 day period within which the first respondent should provide his comments.

29                  In construing s 359C(1) and s 359C(2) of the Act the Federal Magistrate adopted the following observationsof Branson J in Haque v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 313 at 317‑318 (‘Haque’):

‘The circumstances in which the Tribunal is relieved of the statutory obligation posed by s 360(1) of the Act to invite an applicant to appear before it are those identified by s 360(2).  If any of the paragraphs of s 360(2) apply, the applicant is not entitled to appear before the Tribunal (s 360(3)).  Paragraph (c) of s 360(2) is, in the circumstances of this case, the only potentially relevant paragraph.

Section 360(2)(c) relevantly calls for consideration to be given to whether “subsection 359C(1)…applies to the applicant”.  In my view, s 359C(1) applies to the applicant within the meaning of s 360(2)(c) if the applicant is a person to whom paras (a) and (b) of s 359C(1) apply.  That is, if the applicant is a person who is invited under s 359 to give additional information and who did not give the information before the time for giving it had passed.  The remaining words of s 359C(1) do not add anything concerning the class of applicant to whom the subsection applies.  They are words which authorise the Tribunal to adopt a particular procedure.  For these reasons Ido not accept the premise upon which the first submission of the applicant is based.’

30                  The Federal Magistrate found that s 359C(1)(b) of the Act did not apply to the first respondent because he had not been given an effective invitation issued under s 359 of the Act to give additional information in the July letter.

31                  The Federal Magistrate then considered whether s 359C(2)(b) of the Act applied to the first respondent.  As already mentioned, the Federal Magistrate found that the invitation to comment on information in the July letter did comprise an effective invitation under s 359A of the Act.  However, the Federal Magistrate found that, notwithstanding that the first respondent had not responded to the invitation within the 28 day prescribed period, s 359C(2) did not apply to the first respondent within the meaning of s 360(3) of the Act, because, in sending the August letter the Tribunal acted beyond power.  The Federal Magistrate found that by the August letter the Tribunal had purported to extend the time for making additional comments under s 359B(4) of the Act in a manner that did not comply with the Act and the Regulations, in that, reg 4.18A of the Regulations only permitted an extension of time for 28 days and that the extension of time which was granted by the August letter was for a period less than 28 days.  It followed, said the Federal Magistrate, that the purported extension of the time was invalid, and therefore, that the first respondent could not be regarded as a person who had failed to give comments ‘before the time for giving them had passed’ within the meaning of s 359C(2)(b) of the Act.  Accordingly, s 360(2)(c) did not operate to deprive the first respondent of a right to a hearing under s 360(1) of the Act.  The first respondent had, therefore, unlawfully been deprived of a hearing.  The Federal Magistrate granted prerogative relief in the nature of certiorari and mandamus.

The grounds of appeal

32                  The grounds of appeal are as follows:

‘1.     His Honour erred in law in finding that the Migration Review Tribunal (the Tribunal)had denied the respondent natural justice:

a.             by determining that the respondent was not entitled to appear at a hearing before the Tribunal; and

b.             in proceeding to dismiss the application without affording the respondent a hearing,

when by ss 360 and 363A of the Migration Act 1958 (Cth) (the Act) the respondent was not entitled to appear before the Tribunal, and the Tribunal did not have power to permit him to appear.

2.       His Honour erred in law in holding that ss 359C(2) and 360(3) of the Act did not apply to the respondent because when the Tribunal purported to allow him an extension of time to provide comments to the Tribunal, it did so invalidly, when his Honour ought to have held that the extension of time did not affect the application of ss 359C and 360 of the Act.’ (original emphasis)

33                  The first respondent also filed a notice of contention.  In the notice the first respondent contends that the decision of the Federal Magistrate can be supported on the basis that, on a proper construction of s 359C and s 360 of the Act, the Tribunal was obliged to invite the first respondent to appear before the Tribunal at a hearing because the Tribunal had stated in its August letter that it would entertain further comment from the first respondent.

Appellant’s submissions

34                  Counsel for the appellant submitted that the Tribunal did not purport to exercise its power to extend time under s 359B(4) of the Act so as to preserve the first respondent’s entitlement to an invitation to a hearing before the Tribunal under s 360(1) of the Act.  This is because in the August letter the Tribunal had expressly stated that the first respondent would not be entitled to a hearing before the Tribunal.  Counsel submitted that the effect of the August letter was that the Tribunal advised the first respondent that it was prepared to receive further comment from the first respondent, but that this would not affect the statutory position which had already crystallised as a consequence of the failure of the first respondent to provide comment within the 28 day statutory period referred to in the July letter.  Counsel submitted that the Tribunal always had a discretion whether to entertain further comment, and by the August letter it did no more than exercise this discretion by extending time within which the first respondent could provide further comment before it made its decision.

35                  Counsel for the appellant also submitted, that in any event, on the proper construction of s 359B(4) of the Act, the power to extend time would need to be exercised before the expiration of the original 28 day period.  This had not happened.  The appellant submitted that s 359B(4) of the Act contemplates a continuous period of time within which an applicant is to provide the information.  Counsel for the appellant also referred to the words ‘when the time for giving the comments has passed’ in s 359C(1)(b) of the Act, and submitted that those words are not consistent with the Tribunal having power to grant a separate period within which to provide information or comment, after the initial period had expired.  To read the section as recognising the power to grant a separate period, would result in the Tribunal having the power to restore the entitlement to a hearing, which would otherwise have been forfeited by the failure to respond in time.  The combination of s 360(3) and s 363A of the Act, precludes such a power being vested in the Tribunal, because there is no express provision in s 359C(1)(b) empowering the Tribunal to permit a hearing once the right is otherwise lost.

36                  Further, counsel for the appellant submitted that the Federal Magistrate erred because, even if the purported extension of time or new period of time within which to provide the additional comment given by the Tribunal in the August letter was invalid, this did not make the initial time limit of 28 days in the July letter invalid.  If the initial time limit was valid, that time limit had passed without the first respondent providing comment, and it followed the first respondent had lost any entitlement he otherwise had to a hearing.

First Respondent’s Submissions

37                  The first respondent submitted that the August letter was an attempt to exercise statutory power to extend time under s 359B(4) of the Act.  Insofar as the August letter contained a statement to the effect that because there had not been a response to the July letter within the prescribed period, the first respondent would not be entitled to appear before the Tribunal, that was simply a mistaken statement of the law.

38                  The first respondent also submitted that the Tribunal had the power to extend time even if the application for an extension of time was made after the expiry of the initial prescribed period.  If the position were otherwise, anomalies would arise.  The first respondent says that it would be a curious situation for instance if the Tribunal received a request from an applicant to extend time within the prescribed period, but because of pressure of work, the Tribunal did not deal with the request until after the prescribed period had expired and was then prevented from granting the extension of time.  The first respondent also submits that it would be an anomaly if the Tribunal had the power to issue further invitations for information or comments but had no power to extend time to answer a previous invitation.

39                  Further, the first respondent submits that the construction contended for, permits the Tribunal to operate fairly by expanding the range of circumstances when it will be empowered to obtain further information.  That construction he says advances the statutory purpose and effect andshould be given to it under s 15AA and s 33 of the Acts Interpretation Act 1901 (Cth).

40                  As to the notice of contention, the first respondent submitted that in determining whether s 359C(1) or s 359C(2) of the Act applies to an applicant in the context of s 360(2)(c) of the Act, it is necessary to give effect to all of the language which appears in s 359C(1) and s 359C(2) of the Act.  In the context of s 359C(2) of the Act, counsel for the first respondent submits that effect must be given to the words ‘without taking any action to obtain the applicant’s views on the information’, which appear at the end of that section.  The first respondent submits that, on its proper construction, s 359C(2) of the Act will not apply to the applicant within the meaning of s 360(2)(c) in circumstances where the applicant, in response to an invitation to comment under s 359, does not give the comment within the prescribed period, but the Tribunal, thereafter, takes further action to obtain the additional comment.  The first respondent submits that this is what occurred in this case – the first respondent did not respond within the statutory 28 days provided for in the July letter, but by the August letter the Tribunal took further action to obtain the applicant’s comment.

41                  Counsel for the first respondent recognised that the construction of s 359C(1) and s 359C(2) of the Act for which he contends was rejected by Branson J in Haque.  The first respondent submits, however, that the Court should not follow the construction given to that section by Branson J in Haque.

Reasoning

42                  The failure of the Tribunal to afford the first respondent the opportunity to attend a hearing to give evidence and make submissions, as required by s 360(1) of the Act, will amount to jurisdictional error:  see, for example, SAAP; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.  The issue on this appeal is whether s 360(1) applied in the circumstances.  That in turn depended on whether s 359C(2) applied to the first respondent:  s 360(2)(c) and (3).

43                  The contentions of the appellant are straightforward and follow the wording of the Act.  Division 5 of Pt 5 of the Act prescribes, in some respects, how the Tribunal is to conduct its review.  The July letter was given in compliance with s 359A.  It is accepted that it was given to the first respondent in accordance with s 379A(5).  It accurately represented the period within which the first respondent might respond without attracting the operation of s 359C(2).  If s 359C(2) then applied, the Tribunal was empowered to decide the review application without taking further action to obtain the first respondent’s comments.  The first respondent did not in fact respond to the July letter within the prescribed period.  Hence, s 359C(2) did apply to him.  Moreover, as s 359C(2) applied to the first respondent, the Tribunal was not obliged under s 360(1) to invite the first respondent to appear to give evidence and present arguments on his review application:  see s 360(2)(c) and (3).

44                  That apparently clear operation of the relevant provisions of the Act was said by the first respondent to have been affected by the August letter.  The contention depends firstly upon the correct characterisation of the August letter.  The first respondent contends that the August letter amounted to the Tribunal under s 359B(4) extending the period within which the first respondent might comment upon the matters in the July letter.  The contention then involves accepting that the Tribunal was empowered to extend time after the prescribed period, so as to revive the right to a hearing.  The next step in the argument is that the extension of time granted – to 10 September 2003 – was not a valid extension of time because it was not for a period of 28 days as prescribed by reg 4.18A so that the extension of time had no expiry date and the entitlement to a hearing was not again lost by the effluxion of time.

45                  The August letter is not happily worded.  It contains an indication that the Tribunal was intending to exercise the power under s 359B(4) by reason of the reference to s 359C of the Act.  On the other hand, the Tribunal pointed out that the first respondent had failed to respond to the July letter ‘within the prescribed time’.  That indicates that the Tribunal did not regard itself as extending the prescribed time under s 359B(4).  It also pointed out that the first respondent, by that failure, was not entitled to appear before the Tribunal.  That also clearly indicates that the Tribunal regarded the first respondent as a person falling within s 360(2)(c).  That view of the Tribunal is also not consistent with it intending to extend the prescribed period to reply to the July letter.  In our view, the effect of the August letter contended for by the appellant is to be accepted.  The first respondent’s migration agent by his letter of 21 August 2003 asked for an extension of time until 10 September 2003 within which to provide further information in response to the July letter.  By that time, the 28 day prescribed period referred to in the July letter had expired.  The fact that the Tribunal in the August letter provided until 10 September 2003 within which to provide further information, a period of shorter duration than the 28 day period referred to in reg 4.18A of the Regulations, also points to that conclusion.

46                  Overall, the picture is clear that the Tribunal was giving the first respondent a further period to respond to the July letter, but was not doing so by purporting to extend the prescribed period for the response under s 359B(4).  The Tribunal made it clear that it did not intend to derogate from a crystallised position under the Act, namely, that the first respondent had forfeited his right to a hearing. 

47                  Accordingly, the failure of the first respondent within the prescribed period to respond to the invitation under s 359A conveyed by the July letter meant that s 359C(2) applied to the first respondent.  That is not to say that the Tribunal was not empowered to give the first respondent the August letter, so as to give the first respondent further time in which to comment upon the July letter.  Division 5 of Pt 5 of the Act imposes certain procedural obligations upon the Tribunal, and correspondingly creates certain procedural rights upon the visa applicants to which it applies.  But it does not disempower the Tribunal from conducting a review in a manner not inconsistent with those procedural obligations.

48                  Section 353 of the Act exhorts the Tribunal to conduct its review in a way that is ‘fair, just, economical, informal and quick’.  There may be a variety of circumstances in which the Tribunal may decide to proceed to conduct its review, not inconsistently with the procedural obligations imposed upon it, in a way which is not expressly the subject of those procedural obligations.  The present matter provides an illustration.  On a critical issue, and notwithstanding that s 359C(2) applied to the first respondent, the Tribunal had regard to the information provided with the letter from the first respondent’s migration agent of 21 August 2003 even though the prescribed time for a response had elapsed.  There is no provision of the Act which inhibits the Tribunal from doing so.  Secondly, the Tribunal indicated that it would defer its decision for a further period at least to 10 September 2003 so that the first respondent could submit further information to it.  That was clearly a commonsense approach by the Tribunal.  It is possible to conceive of many similar circumstances.  To adopt that course did not remove from the first respondent the status of a person to whom s 359C(2) applied, if that status already existed in the circumstances, but it is consistent with the Tribunal’s functions and within the processes permitted by the Act.

49                  Indeed, the Tribunal may be obliged to give two or more notices under s 359A of the Act.  It is not uncommon for information which would be the reason or part of the reason for affirming the decision under review to emerge at different times, and from different sources.  The circumstances addressed by the High Court in SAAP (in respect of the similar provisions of the Act as they apply to the Refugee Review Tribunal) provide an illustration.  The need to give a second or subsequent notice under s 359A would not however remove from a visa applicant the status of being a person to whom s 359C(2) applies, if the visa applicant had failed to respond to an earlier notice under s 359A or had done so outside the prescribed time.

50                  Section 363A would not prevent the Tribunal from acting in that way.  It says the Tribunal does not have power to permit a visa applicant to do a thing in relation to a review if the visa applicant is, by a provision in Pt 5, not entitled to do that thing.  Section 360(3) disentitles a visa applicant from appearing before the Tribunal if any of the circumstances in s 360(2) apply, relevantly here if s 359C(2) applies to the first respondent.  Consequently, s 363A would appear to disempower the Tribunal from allowing the first respondent to appear before the Tribunal in the present circumstances.  But there is no provision disentitling the visa applicant from providing such information to the Tribunal as that visa applicant considers to be pertinent.  And notwithstanding that s 359C(2) applies to that visa applicant, such information may include information provided belatedly pertaining to information referred to in an invitation under s 359A.  That was what the Tribunal gave the first respondent the opportunity to do, by 10 September 2003, in the present matter.

51                  There is much to be said for concluding that the Tribunal may exercise its power under s 359B(4) to extend the period to respond to an invitation under s 359A, even though the initial prescribed period has expired.  Section 359B(4) does not expressly preclude the Tribunal from doing so.  There is no apparent practical reason why it should be so restricted.  The timing of the Tribunal’s processes is a matter for it.  A visa applicant who has received an invitation under s 359A may have sought an extension of time to respond well within the prescribed period for response, but the Tribunal may have failed to address the request within the prescribed period through some administrative oversight, or because it needed time to consider the request.  There may be fully understandable reasons why the recipient of an invitation under s 359A may have anticipated being able to respond in a timely manner, but despite all proper efforts to have discerned only at the last moment that a timely response could not be given.  There may be delays in procuring information, and critical information, which are beyond the control of the visa applicant.  Other examples might be conceived.  That suggests that s 359B(4) is intended to give the Tribunal a general discretion to extend the time to respond to an invitation under s 359A even though the initial prescribed time has expired.  Nonetheless, there are some textual indications pointing to the opposite conclusion, including the present tense used in s 359B(4).

52                  However, in view of our findings in respect of the effect of the August letter, it is unnecessary to determine the question of whether the Tribunal has a power to extend the time under s 359B(4) of the Act even after the initial prescribed period has expired.  Also, it is unnecessary to consider the appellant’s argument that even if there was an invalid extension of time in the August letter, it did not adversely affect the validity of the invitation made in the July letter.

53                  Further, we reject the submission of the first respondent in support of his notice of contention.  We respectfully agree with the construction of s 359C(1) and, by parity of reasoning, s 359C(2), adopted by Branson J in Haque.  The construction placed by her Honour on relevant words in the statute as being ‘words which authorise the Tribunal to adopt a particular procedure’ is, in our respectful view, correct.  The construction contended for by the first respondent is strained and requires words in the nature of a disqualifying proviso to be read into the section, whereas the construction espoused by Branson J in Haque gives the section a harmonious operation without the necessity of notionally having to read words into the section.

54                  It follows that in our view the appeal should be allowed.  The first respondent should pay to the appellant the costs of the appeal.

Associate:

Dated:              14 September 2005