FEDERAL COURT OF AUSTRALIA

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

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

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          The appellant is a citizen of Malaysia who held a Student (Temporary) (Class TU) (Subclass 573 – Higher Education Sector) visa until 3 June 2009 when it was cancelled by a delegate of the Minister under s 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”).

2                          The appellant was unsuccessful in an application for review of the delegate’s decision in the Migration Review Tribunal (“the Tribunal”).  He was also unsuccessful in an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court.  He appeals from the decision of the Federal Magistrate (Nicholls FM).

3                          The issues which arise on the appeal re-agitate those on which the appellant failed before the Federal Magistrate.  The issues arise from the appellant’s failure to respond within the stipulated time to a letter of invitation given to him on 16 July 2009 under s 359A of the Act (“the s 359A letter”).  The letter sought the appellant’s comment on the question of his failure to achieve satisfactory progress in his course of study at the University of Western Australia.  The letter also invited his comments upon the question of whether there were exceptional circumstances for his failure to do so.

4                          The s 359A letter requested the appellant to provide his written comments by 3 August 2009 and stated that if he did not:

·          the Tribunal may make a decision on the review without taking any further action to obtain his response to the Tribunal’s invitation; and

·          he would lose any entitlement he may have under the Act to an oral hearing.

5                          On 4 August 2009, that is to say the day after the date stipulated in the s 359A letter for the appellant’s response, the appellant telephoned and sent a fax to the Tribunal seeking an extension of time.  The Tribunal replied in writing on 5 August 2009 stating that it was unable to grant an extension because the request was received after the due date.  The Tribunal’s letter also stated that the appellant had lost his right to appear before the Tribunal to give evidence and present arguments.

6                          The Tribunal proceeded to make a decision without inviting the appellant to appear at a hearing.

THE ISSUES ON THE APPEAL

7                          The principal issue which arises on the appeal is whether upon the proper construction of ss 359A, 359C, 360 and 363A of the Act, the learned Federal Magistrate was in error in finding that the Tribunal did not have the power to afford the appellant an oral hearing.

8                          The second issue is whether the Federal Magistrate was in error in finding that the Tribunal’s letter of 5 August 2009 did not deny the appellant the opportunity to put before the Tribunal written material in support of his case.  This issue turns on the construction of the letter and on the terms of s 358 of the Act.

9                          The third issue is whether the Federal Magistrate erred in finding that the Tribunal had no power under s 359B(4) of the Act to grant an extension of time to respond to the s 359A letter where the request for an extension was made after the expiration of the time stipulated in the letter.

THE RELEVANT PROVISIONS OF THE ACT

10                        The relevant part of the Act is Division 5 of Part 5.

11                        Section 358(1) of the Act provides that an applicant for review by the Tribunal may give the Tribunal a written statement in relation to any matter of fact the applicant wishes the Tribunal to consider, and, written arguments relating to issues arising in relation to the decision under review.

12                        Section 359A provides relevantly:

                   (1)  Subject to … , 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)  …; and

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

13                        Section 359B(4) provides:

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.

14                        Section 359C(2) provides:

                   (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.

15                        Section 360(1) provides that the Tribunal is required to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

16                        However, s 360(2) provides relevantly that the requirements of subsection (1) do not apply if section 359C(2) applies to the applicant.

17                        Section 360(3) is in the following terms:

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

18                        Section 363A provides as follows:

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

THE TRIBUNAL’S DECISION

19                        The essence of the Tribunal’s reasons for making its decision without affording the appellant an oral hearing are stated at [30] as follows:

The Tribunal notes that the invitation to comment and provide information was sent to the last advised address of the applicant.  This letter and attachments were sent by registered mail (receipt number 5551205520129 at folio 100).  As the applicant has failed to give the information requested before the time for giving it has passed, subsections 359C(1) and (2) apply and the Tribunal may make a decision on the review without taking any further action to obtain the information.  Further, as subsection 359(2) applies to the applicant, subsection 360(3) states that the applicant is not entitled to appear before the Tribunal.  Under section 363A the Tribunal does not have the power to permit a person to do something he or she is not entitled to do, unless a provision expressly provides otherwise.  Section 360 does not provide otherwise and as the applicant has failed to give the information within the prescribed statutory period, the Tribunal will proceed to make a decision on the review without taking any further action to obtain the information in accordance with section 359C of the Act.

THE FEDERAL MAGISTRATE’S DECISION

20                        The learned Federal Magistrate was of the view that the decision of a Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498 (“Sun”) was authority for the proposition that the effect of s 363A of the Act was to disentitle the appellant to an oral hearing in the circumstances of this case.

21                        His Honour referred to and applied the decision of Tracey J in M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 (“M”) which explained the operation of s 363A.

22                        The Federal Magistrate at [64] was of the view that there was nothing in the language of the Tribunal’s letter of 5 August 2009, when properly read in its full context, to suggest that the Tribunal was seeking to exclude an opportunity the appellant may have had under
s 358 to provide a written statement or written arguments. 

23                        Moreover, his Honour observed at [67] that there was nothing in the appellant’s request for an extension of time to show that he sought an opportunity to put any other matter before the Tribunal.

24                        Finally, the Federal Magistrate at [85] considered that the preferable view of
s 359B(4) is that there is no discretion to extend the time to respond to an invitation issued under s 359A where the request is made after the expiry of the prescribed period of time stated in the letter of invitation. 

ISSUE 1 – ABILITY TO PROVIDE AN ORAL HEARING

25                       In our view, the proper construction and application of s 363A of the Act and the related provisions of Part 5 were correctly stated by the Full Court in Sun and explained by Tracey J in M.

26                        As Tracey J observed in M at [46], the language of s 363A is clear.  It operates so as to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do it.

27                        Here, the appellant’s failure to respond to the Tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.

28                        This was because the appellant was invited by the Tribunal’s letter under s 359A to comment or respond to the information stated in the Tribunal’s letter by 3 August 2009.  He did not do so, and accordingly he was a person to whom s 359C(2) applied.  The operation of s 360(3) was thereby attracted.  The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the Tribunal.

29                        The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing.

30                        As Tracey J said in M at [46], this approach to construction is consistent with the views of the Full Court in Sun, as well as the Explanatory Memorandum which accompanied the Migration Legislation Amendment Bill (No 5) 1994 (Cth).  The contrary view expressed by a Full Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1 (“Uddin”) is explained by the fact that the Full Court in Uddin was not referred to s 363A of the Act and by the fact that the case was not decided on a basis which involved any consideration of s 363A.

31                        Moreover, the obiter comments in Uddin were published after the decision in Sun was handed down and there was no reference in Uddin to the contrary views stated in Sun.  The explanation for this appears to be that the decision in Uddin was reserved shortly before the Full Court decision in Sun was handed down.

32                        We reject the appellant’s submission that the approach to construction we have adopted ignores the discretion conferred on the Tribunal by s 359C.  That section does not confer a discretion on the Tribunal to provide a hearing.  It merely enables the Tribunal to make a decision without a hearing.  It is therefore irrelevant to the operation of s 363A.

ISSUE 2 – THE LETTER OF 5 AUGUST 2009

33                        The question of whether the letter of 5 August 2009 purported to deny the appellant any opportunity to put before the Tribunal further written material is not without difficulty.

34                        It seems clear enough that he was entitled under s 358 of the Act to give the Tribunal a written statement and written arguments.  The opportunity to do so was separate from, and unaffected by, the loss of his entitlement to appear before the Tribunal to give evidence and present arguments.

35                        On 12 June 2009 when the Tribunal acknowledged receipt of the appellant’s application for review, it informed him that if he wished to provide material or written arguments to the Tribunal, he should do so as soon as possible.  That letter is set out at AB70 and is part of the context against which the letter of 5 August 2009 is to be interpreted.

36                        The letter of 5 August 2009 is also to be construed in light of what was said in the
s 359A letter.  The salient part of the letter is as follows:

If the Tribunal does not receive your comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain your views on the information.  You will also lose any entitlement you might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments. (Emphasis in original).

37                        The relevant part of the letter of 5 August 2009 is as follows:

I am writing to advise you that unfortunately because your request for an extension was received after the due date the Tribunal is unable to provide an extension of time.

In accordance with the letter dated 16 July from the Tribunal, you have now lost any right you may have had under the Migration Act, to appear before the Tribunal to give evidence and present arguments.

Accordingly the Tribunal will now make a decision based on the material before it.

If you have any questions, please contact me on the number listed below…

38                        The letter of 5 August 2009 does not state in express terms that the appellant was still entitled to present a written statement and written arguments under s 358.  Nevertheless, we think the better view is that the letter did not purport to deny him the opportunity to do so.

39                        It seems to us that the letter of 5 August 2009, when read in light of what was said in the s 359A letter, merely informed the appellant that he had lost the opportunity to appear at a hearing and that the Tribunal would make a decision on the material before it.

40                        As the Federal Magistrate said at [66], the letter of 5 August 2009 did not convey to the appellant that the Tribunal would not consider anything else that he may choose to put before it in writing.

41                        In any event, the appellant did not make clear to the Tribunal what if anything he wished to put before it in addition to his statement of 3 June 2009.  Nor did he give evidence before the Federal Magistrate that he read the letter of 5 August 2009 as denying him the opportunity to put any further written material before the Tribunal or as to what he wished to put before it. 

42                        As Gleeson CJ said in Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [37], procedural fairness is not an abstract concept; it is essentially practical and the concern is to avoid practical injustice.  There was no practical injustice in the present case.

43                        It follows in our view that there was no denial of procedural fairness. 

ISSUE 3 – REQUEST FOR AN EXTENSION OF TIME

44                        No issue arises as to the date for response stipulated in the s 359A letter.  The due date of 3 August was in accordance with reg 4.17(3) of the Migration Regulations 1994 (Cth).

45                        The question of whether the Tribunal may exercise the power under s 359B(4) to extend the period to respond to an invitation under s 359A after the expiry of the initial prescribed period was left open in Sun at [51].  See also the observations in SZEXZ v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 449 at [46].

46                        However, in M at [52] Tracey J said that had it been necessary to do so, he would have held that the Tribunal could not enlarge time under s 359B(4) after the expiry of the date prescribed in the s 359A letter.

47                        In coming to that view, Tracey J observed that s 359B(4) is cast in the present tense.  That is to say, the subsection contemplates a person who “is to respond to an invitation” within the stipulated time.  We agree with Tracey J that this indicates that the power to grant an extension is lost since the prescribed time has expired.  See also Usman v Minister for Immigration [2005] FMCA 966 at [44].

48                        That view is re-enforced by the provisions of s 359C(2).  If an applicant does not give the comments or response “before the time for giving them has passed” the Tribunal’s power to make a decision without taking further action to obtain the applicant’s views is enlivened.  This is a further indication that the Tribunal’s discretion to extend time is spent if a request is made after the expiry of the prescribed period.  The effect of this subsection, when read with s 360(2), s 360(3) and s 363A is that the gate closes on an applicant who fails to respond to a letter under s 359A within the prescribed time.  There is simply no discretion to extend the time to respond.

CONCLUSION AND ORDERS

49                        The appeal must be dismissed with costs.

Associate:

Dated:         10 May 2010