FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration and Citizenship [2011] FCAFC 21

FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration and Citizenship [2011] FCAFC 21

CORRIGENDUM

1    In Order 2, the date of “2 June 2009” be changed to “2 June 2010”.

Associate:

Dated:    9 March 2011

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Magistrates Court on 2 June 2009 are set aside and in lieu thereof it is ordered that the decision of the Migration Review Tribunal on 19 February 2010 be set aside.

3.    The appellant’s costs of the appeal are to be paid by the first respondent, such costs to be taxed if not agreed.

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

BUCHANAN J:

1    Mr Khan is a citizen of Bangladesh. He arrived in Australia in November 2004 on a student visa. On 10 October 2006 Mr Khan was granted a Subclass 457 (Business (Long Stay)) visa under the Migration Act 1958 (Cth) (“the Act”) valid for a period of four years until 10 October 2010 to work in Australia as a chef. He was sponsored in that position by the Kul-In Restaurant Group Pty Ltd which operated Indian restaurants in the Newcastle area.

2    On his application for his working visa Mr Khan gave his marital status as “separated”. On 24 February 2008, Mr Selvey Sangha, who identified himself as “Restaurant Manager” for the Kul-In Restaurant Group Pty Ltd, informed the Department of Immigration and Citizenship (“the Department”) that the sponsor had also agreed to include Ms Rohima Akther, as Mr Khan’s dependant wife, in its sponsorship.

3    On 13 October 2008 Mr Sangha wrote again to the Department. This letter accused Mr Khan of “fraudulent behaviour”. It suggested that Ms Akther was not Mr Khan’s wife but his sister. The letter also said that Mr Khan’s true wife, Ms Anwara Begum, was already present in Australia as the holder of a student visa. It was also suggested that Mr Khan had provided a signed employment reference to Trades Recognition Australia on behalf of the sponsor without the sponsor’s knowledge or agreement. The letter asked for the cancellation of Mr Khan’s sponsorship. The following day Mr Sangha wrote again and asked that the Department not disclose the accusations he had made in any investigation the Department conducted. The letter said:

We have discussed with [Mr Khan] that his sponsorship will be cancelled however have not disclosed that we are reporting to your Department the true nature of his circumstances.

4    The following notes (presumably made within the Department) appear on the bottom of the letter of 14 October 2008:

    ceased employment on date

    withdraw sponsorship

    put in writing

5    On 15 October 2008 Mr Sangha sent a short fax which began:

I refer to the letter dated 13/10/2008 and my telephone conversation regarding Mr Delwar Khan.

(The fax went on to deal with matters which are not here relevant.)

6    On 13 November 2008 the Department wrote to Mr Khan to inform him that consideration would be given to the cancellation of his visa. The letter from the Department included the following statement:

The grounds for cancellation of your visa appear to exist because the Department received advice from your sponsor by fax on 15 October 2008, indicating that you had ceased employment with Kul-In Restaurant Group Pty Ltd.

7    It is common ground that, in fact, there was no advice by fax recording the cessation of Mr Khan’s employment. The record before the Court suggests that the information that Mr Khan’s employment had ceased was communicated by telephone. The fax dated 15 October 2008 confirms that a telephone discussion occurred between Mr Sangha and an officer of the Department on 14 or 15 October 2008. The note on Mr Sangha’s letter of 14 October 2008 supports an inference that the Department was then advised that Mr Khan’s employment had ceased. It may have been intended that the advice should be put in writing as the note on the letter of 14 October 2008 suggests. Be that as it may, there is no doubt that Mr Sangha advised the Department that the cessation of Mr Khan’s employment was connected with, and arose from, the matters and accusations set out in the letter of 13 October 2008. None of that was conveyed to Mr Khan by the Department in its letter nor, it may be inferred from Mr Sangha’s second letter, by his sponsor. So far as Mr Khan was informed, the Department’s letter of 13 November 2008 responded only to the simple fact that his employment with his sponsor had come to an end.

8    Mr Khan engaged a migration agent to assist him in his response to the Department explaining why his visa should not be cancelled. He was, of course, in no position to respond to anything Mr Sangha had said to the Department. On 8 December 2008 the migration agent sent a long letter to the Department stating the following matters:

•    Mr Khan was never provided with a proper employment contract;

•    he was required to work in the sponsor’s restaurants for average periods of 72 hours per week notwithstanding that the wages books showed that he only worked 38 hours per week;

•    he was not paid wages commensurate with his working hours. Notices of taxation assessment for the years ending 30 June 2007 and 30 June 2008 were attached;

•    he did not complain because he was told his employment would be terminated if he did so;

•    in October 2008 his hours were increased from six to seven 12 hour shifts per week;

•    Mr Khan could no longer handle the pressure but when he approached his sponsor was simply told to take two weeks off work;

•    at no time did Mr Khan resign, or give notice or wish to cease employment;

•    Mr Khan’s attempts to return to work were deflected by his sponsor;

•    the first knowledge he had of advice by his sponsor that his employment had ceased was when he received the Department’s letter dated 13 November 2008;

•    Mr Khan had not been paid various entitlements.

9    The migration agent’s letter contended that Mr Khan “did not do anything that was against the conditions imposed on his visa” and that he had “at all times abided by the conditions imposed on his visa”. The letter suggested that he was “an innocent victim of circumstances that has seen him manipulated and intimidated by a scrupulous [sic] sponsor employer”. The migration agent indicated that Mr Khan was willing to be interviewed by the Department about the allegations that he had made. There is no evidence that this invitation was accepted or that any other form of investigation occurred into the allegations which were made in the migration agent’s letter of 8 December 2008.

10    On 23 June 2009 Mr Khan’s migration agent was notified that Mr Khan’s visa had been cancelled on that day. The delegate’s decision said:

The grounds for cancellation of the visa appear to exist because the Department received advice from the sponsor by fax on 15/10/2008, indicating that the visa holder had ceased employment with KUL-IN RESTAURANT GROUP PTY LTD.

and:

Given that the visa holder has ceased to be in paid employment with the relevant sponsor, the visa holder no longer satisfies this criterion and therefore, a circumstance which permitted the grant of the visa no longer exists.

11    Again, Mr Khan was misinformed about the nature (and impliedly the content) of the advice received by the Department. As earlier noted, the “advice” referred to by the delegate appears to have been given by telephone, not in writing. There was no mention in the delegate’s decision of the accusations made against Mr Khan by Mr Sangha.

12    The delegate’s decision set out the representations made on Mr Khan’s behalf and stated that they had been “taken into account” but little real attention appears to have been given to the allegations which the migration agent had made against Mr Khan’s sponsor, nor their significance for the cessation of Mr Khan’s employment. The delegate dealt with the allegations in the following way:

The ground for cancellation arose when the visa holder ceased working for KUL-IN RESTAURANT GROUP PTY LTD on or before 15/10/2008. The visa holder indicates that the circumstances arose due to him being mistreated, manipulated and intimidated by his 457 sponsor and that he is the innocent victim of an unscrupulous employer. However I have no evidence to support the allegations made by the visa holder against his former employer other than the assertions that have been made by his agent. While I am unable to verify the allegations made against the visa holder’s former employer, I am able to reasonably conclude that the visa holder is no longer working in his nominated position and that he is not receiving the minimum salary level applicable to that position from his 457 sponsor.

13    A factor which seemed significant in the stated reasons of the delegate was that, despite indications in the migration agent’s letter that Mr Khan was seeking alternative employment, a significant period of time had elapsed without any evidence being available that alternative employment arrangements had been made or were available.

14    Mr Khan applied for review of the delegate’s decision by the Migration Review Tribunal (“the MRT”). He was advised on three occasions that the matter had been listed for hearing before the MRT. The hearings were arranged for 14 October 2009, 10 December 2009 and, finally, 27 January 2010. On each occasion Mr Khan forwarded advice, accompanied by a medical certificate, to the effect that he would be unable to attend the scheduled hearing. The MRT decided to continue with the hearing on 27 January 2010. Mr Khan was advised that it was in his best interests to attend the hearing and that if he did not the MRT would consider any written evidence or statements he wished to provide in support of his case. On 25 January 2010 Mr Khan confirmed in writing that he would not attend the hearing, citing illness due to stress and again attaching a medical certificate which he had earlier provided, suggesting that he was suffering from major depression and had suicidal tendencies. He forwarded with his letter substantial parts of the representations earlier made by his migration agent to the delegate. On 19 February 2010 Mr Khan was informed that the MRT had decided to affirm the delegate’s decision.

15    The decision of the MRT recorded the fact that cancellation of the visa was not, in the circumstances of Mr Khan’s case, mandatory. Accordingly, the MRT was required to decide whether or not to cancel the applicant’s visa “considering the circumstances as a whole”. Amongst the matters which were recognised as relevant to a consideration of the circumstances as a whole were a number of matters listed in a Departmental instruction issued as a guide to decision-makers about “general cancellation powers”. The matters listed as relevant to consider included:

•    If cancellation is being considered because of a breach of visa condition (and cancellation is not mandatory) – the reason for, and extent of, the breach. As a rule, a visa should not be cancelled where the breach of a visa condition occurred in circumstances beyond the visa holder’s control

•    The circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)

•    The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful in statements or applications made to the department or have previously complied with visa conditions).

16    The MRT seemed more sympathetic to Mr Khan’s circumstances than the delegate had been. The MRT’s reasons for its decision to affirm the decision of the delegate are set out in the following two paragraphs:

23.    The Tribunal has noted the claims and evidence that the applicant ceased working for his sponsor through no fault of his own and that the applicant was subjected to excessive work demands for inadequate remuneration by his sponsor. Based on the evidence available to the Tribunal, the Tribunal believes that the applicant has not been treated fairly by his sponsor and it attaches some weight to this consideration. The Tribunal also accepts that the applicant has cooperated with the Department and that cancellation of his visa will involve hardship to the applicant, including as a result of the likely consequent restrictions on, or withdrawal of, his right to work and reside in Australia. However, the Tribunal considers that these considerations do not outweigh the fact that it has been well over a year since the applicant ceased working for his sponsor; since that time he has been unable to obtain an offer of employment by a new sponsor and the evidence suggests that there is little prospect of the applicant’s obtaining an approved sponsor for some considerable time. The Tribunal acknowledges that the apparent deterioration in the applicant’s health may currently affect his ability to obtain an offer of employment by a new sponsor; however, the Tribunal considers that the applicant had sufficient time prior to the deterioration in his health to take measures to regularise his employment status. The Tribunal notes in this regard that there is no evidence in the Department’s case file that the applicant’s health was constraining his ability to obtain a new sponsor after he ceased working for his original sponsor. The applicant has indicated that he would rather live in Australia than his home country of Bangladesh but his status remains that of a temporary resident and he has not lodged any application for a permanent visa.

24.    Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

17    It is apparent that the principal reason why, despite the MRT’s apparent sympathy with Mr Khan’s position and apparent acceptance of his claims against his sponsor, the MRT decided that the delegate’s decision should be affirmed was that the passage of time demonstrated that Mr Khan had not, and was unlikely to, put in place suitable alternative sponsorship arrangements. There was no suggestion, however, that any attempt had been made to further investigate Mr Khan’s allegations. There was no reference to the accusations made against Mr Khan by Mr Sangha and no indication from the papers available to the Court (which the Court was told by the Minister’s solicitors represent the documents before the MRT) whether or not such accusations were ever investigated by the Department.

18    On 15 March 2010 Mr Khan made an application to the Federal Magistrates Court of Australia (“the FMCA”) for judicial review of the decision of the MRT. To succeed it would have been necessary for him to persuade the FMCA that the MRT had made a jurisdictional error. The grounds of the application were stated as follows:

1.    The decision-maker acted in breach of the rules of natural justice.

2.    The decision-maker failed to follow the procedures required by the Migration Act 1958.

3.    The decision-maker failed to address or to make findings in relation to claims made by the applicant.

4.    The Tribunal denied applicant a proper hearing under the Act because it made specific wrong findings in relation to the evidence of the applicant without having seen the applicant give that evidence in person.

19    Although not very effectively expressed, these grounds appear intended to complain about the fact that the findings of the MRT were made without Mr Khan having personally attended any hearing. Expressed as generally as these grounds were, however, they were inadequate and ineffective to identify any jurisdictional error in the processes or decision of the MRT, without substantial elaboration and a much clearer focus.

20    Mr Khan appeared at the hearing before the FMCA, with the assistance of an interpreter, and made representations in support of the grounds for the application for judicial review. He was unrepresented. He complained that he had not been in a position to attend the hearing before the MRT because he was sick and suffering from depression. The FMCA inquired whether he wished to seek leave to give sworn evidence about those matters, explaining that he would be required to give evidence on oath and might be questioned. Mr Khan declined to seek leave to give evidence. The consequence was that there was no evidence before the FMCA to support his assertions. Nevertheless the FMCA went on to consider the assertions, taking into account the background exposed by the documentary material before the MRT. The FMCA first concluded:

31.    In all the circumstances, it was open to the Tribunal to exercise its discretion to refuse the Applicant’s request for a further adjournment and there was no error in its decision to do so.

32.    Otherwise, the Tribunal’s findings and conclusions were open to it on the material before it and for the reasons it gave.

33.    Accordingly, ground 1 is not made out.

21    In relation to ground 2 of Mr Khan’s application the FMCA concluded:

38.    … the Applicant was validly given notice of the proposed cancellation in accordance with the legislative scheme and the decision made to cancel the Applicant’s visa was also made in accordance with the Act. There was no further obligation on the Department to give the Applicant any further notice about the proposed cancellation prior to its notification of the Delegate’s decision to cancel the Applicant’s visa.

22    As to grounds 3 and 4 the FMCA recorded:

41.    The Applicant declined to make any submission in support of grounds 3 and 4. The grounds are otherwise unsupported by particulars or evidence.

42.    Ground 3 and 4 appear to be no more than a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake …

(References omitted)

23    The FMCA reached the overall conclusion that the decision of the MRT was not affected by jurisdictional error and that the FMCA therefore had no jurisdiction to interfere with it. The application for judicial review was dismissed with costs.

24    On 23 June 2010 solicitors for Mr Khan filed an appeal in this Court against the judgment of the FMCA. After an initial amendment, the ground of appeal set out in a further amended notice of appeal, and the particulars in support of it, were as follows:

1.    Her Honour erred in finding that the Tribunal had afforded procedural fairness to the Appellant, and/or erred in finding that the Tribunal had complied with the procedures it was required to follow under the Migration Act 1958 (“the Act”).

Particulars

1.1    Her Honour should have found that, by not disclosing particulars of the letter of 13 October 2008, from Mr Sangha, manager of the restaurant sponsoring him (in which Mr Sangha alleged migration fraud, and document fraud):

(i)    the Tribunal failed to accord procedural fairness (the provision of highly prejudicial information which is credible, relevant and significant to the decision to be made (Veal v MIMIA (2005) 225 CLR 88, paragraphs 20-24)) not being a matter with which Part V, Division 5 of the Act deals with.);

(ii)    and/or failed to comply with section 357A(3);

(iii)    and/or failed to comply with section 359A(1) of the Act (as informed by section 357A(3), or in a manner consistent with section 357A(iii).

25    It will be apparent, from this ground of appeal and particulars, that the earlier challenges to the decision and processes of the MRT were replaced with reliance upon non-disclosure of the accusations made by Mr Sangha on 13 October 2008, a matter to which neither the delegate nor the MRT made any reference and about which no complaint appears to have been made before the FMCA.

26    At the hearing of the appeal leave was granted to amend the grounds of appeal again, to accommodate matters which arose during oral argument. I shall deal with those additional matters in due course but before doing so it will be as well to explain why the appeal succeeds, in any event, by reference to particular (iii), which is set out above, although not by reference to particulars (i) or (ii).

27    Division 5 of Part 5 of the Act deals with the conduct of reviews by the MRT. It contains ss 357A to 367. Sections 357A and 359A are relevant to the present case. Sections 357A(1) and (3) and 359A(1) and (4) are as follows:

357A(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)    …

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

…

359A(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.

(2)    …

(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 for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

28    Particular (i) suggests that the requirements of procedural fairness were not limited by s 357A(1) in Mr Khan’s case because (or to the extent that) provision of the information in the letter of 13 October 2008 is not dealt with by subsequent provisions in Division 5 of Part 5 of the Act. Reliance was placed on the judgment of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (“VEAL”). In VEAL a letter had been received by the Department making accusations against an applicant before the Refugee Review Tribunal (“the RRT”) who had sought review of a decision of a delegate of the Minister refusing a protection visa for him and his partner. The letter was referred to by the RRT in its decision with a disclaimer that it had been given no weight. The accusations in the letter were directly relevant to the claims that the applicant in VEAL would be subject to persecution in his own country. The High Court concluded (at [26]) that “the information bore on whether the appellant was entitled to a protection visa” and (at [27]) “the information which was contained in the letter was relevant to that inquiry and it could not be ignored by the Tribunal”.

29    The decision of the RRT which was considered in VEAL was made on 14 June 2002, before the commencement of s 422B(1) (a counterpart of s 359A(1)) which was inserted into the Act by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) (see also Minister for Immigration and Multicultural and Indigenous Affairs v VEAL (2004) 138 FCR 84 at [79]). The judgment of the High Court in VEAL, therefore, does not provide the support which Mr Khan’s case would require if the provisions of Division 5 of the Act do deal relevantly with the obligations upon the MRT concerning Mr Sangha’s accusations. In order to evaluate that question it is relevant to first identify the principle distilled in VEAL and then to examine whether the operation of that principle has been excluded by the enactment of s 357(A)(1) of the Act.

30    The formulation of the principle applied in VEAL may be traced to the observations of Brennan J in Kioa v West (1985) 159 CLR 550 at 629 that, as a matter of procedural fairness:

… in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.

31    In VEAL the High Court emphasised (at [17]) that:

17    “Credible, relevant and significant” must … be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.

and said (at [27]):

27    … to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter. Only then could he attempt to answer the suggestions made by the author of the letter that the appellant had reasons other than Convention reasons to absent himself from Eritrea and that he did not have a well-founded fear of persecution for a Convention reason.

32    Similarly, the question of whether Mr Sangha’s accusations were relevant or, more to the point, relevant for Mr Khan to know about, cannot be answered merely by pointing to the fact that the MRT appeared to reach its decision without taking them into account or by appearing sympathetic to Mr Khan’s own representations. That is not to suggest that the MRT might have been subconsciously affected by the existence of the accusations. As the High Court pointed out in VEAL (at [19]) such a consideration is beside the point:

19    … asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information distracts attention from the relevant inquiry. The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.

33    Were it not for the enactment of s 357A(1) I would accept the proposition in particular (i) that jurisdictional error had been committed by the MRT because it denied procedural fairness to Mr Khan in the way identified in VEAL. As will become apparent, I take the view that the MRT was obliged to disclose Mr Sangha’s letter of 13 October 2008 to Mr Khan in any event under s 359A of the Act. Mr Sangha’s letter, and the accusations it contains, may also have a further significance, even if the failure to disclose them was shielded by the operation of s 357A of the Act and even if disclosure of the letter was not obliged by s 359A, which will be discussed later.

34    Counsel for the Minister attempted to defend the MRT’s failure to disclose Mr Sangha’s communications to the Department by suggesting that it was clear from the decision of the MRT that the accusations against Mr Khan were rejected as having no possible significance. This argument depended upon an assumption (for which there was no evidence of any kind) that the MRT had other information (e.g. adverse to Mr Sangha) which permitted it to come to that view at the outset. It was necessary, for the purpose of the assumption advanced, to postulate that Mr Sangha’s communications could be rejected by the MRT at the outset, without drawing them to Mr Khan’s attention, because otherwise, if it was possible that any credence might be given to them, the MRT would have been under an obligation under s 359A(1) of the Act to give particulars of Mr Sangha’s communications, and the accusations they contained, to Mr Khan.

35    In a note sent to the Court (with the consent of Mr Khan’s solicitor) after the hearing the Minister’s solicitors advised that evidence would not have been available in the proceedings before the FMCA to show that the MRT had additional information available to it and that the Court might proceed on the basis that the documents before the Court represented those which were before the MRT. The effect of this note, as I understand its contents, is that the MRT had no principled basis on which it might take the position suggested by the assumption offered. In those circumstances there is no answer, in my view, to the proposition that Mr Sangha’s accusations were relevant ones for Mr Khan to be told and to have a chance to answer before the MRT.

36    I shall deal a little later with the MRT’s obligation under s 359A of the Act. Dealing with the matter, however, from the point of view of a general obligation to accord procedural fairness, if one existed, the Minister’s argument has, in any event, very little to recommend it. If Mr Sangha’s accusations were known to be without any substance it probably also follows that they were made maliciously. The possible prejudice to Mr Khan from accusations of this kind was considerable. If they were true, he risked loss of his visa and loss of any real chance to remain in Australia, if that was his wish. As events transpired, he lost not only his employment but, without any finding of fault on his part, he lost his visa in any event and now faces the virtual impossibility (or great difficulty) of obtaining another visa in those circumstances. On the Minister’s submission he nevertheless had no right to know that the accusations had been made. As Brennan J observed in Kioa v West it will be of no consolation to be told, in his present circumstances, that the information was disregarded by the MRT, still less will he understand why he had no right to know about it. In my view, if the obligation to accord procedural fairness was not excluded by s 357A(1) of the Act, it was denied to Mr Khan in this case.

37    The next question for examination therefore, in connection with particular (i), is whether s 357A(1) has the effect that the MRT had no obligation, as a matter of procedural fairness or natural justice, to disclose Mr Sangha’s accusations to Mr Khan. Section 357A(1) was inserted into the Act following the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. The Act, at that time, contained in various places provisions of the kind in s 359A(1), but not provisions of the kind in s 357A(1). By majority, the High Court decided that the provisions then in the Act were not a “code” limiting the common law requirements of natural justice. Thus, McHugh J said (at [126]):

126    It is now settled that, when a statute confers on a public official the power to do something which affects a person's rights, interests or expectations, the rules of natural justice regulate the exercise of that power “unless they are excluded by plain words of necessary intendment”. An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from “indirect references, uncertain inferences or equivocal considerations”.

(Footnotes omitted)

and (at [128]):

128    It is highly improbable that the legislature intended to exclude all the common law requirements of natural justice from subdiv AB. There are no clear words to that effect. Where Parliament has wanted to exclude common law rules from applying to the administration of the Act, it has not hesitated to do so in clear words …

38    Similarly, Kirby J said (at [181]):

181    Secondly, because the obligation to conform to the rules of natural justice is so deeply entrenched in the assumptions upon which our law is based, it can normally be treated as implicit in legislation enacted by the Parliament. It would require much clearer words than exist in Subdiv AB to convince me that the provisions of the Code exhaust the applicable rules of natural justice, although not mentioned and however important such requirements might be in the particular case.

39    Parliament responded with the enactment of s 357A(1) (and similar provisions). Those provisions have, generally, been regarded in this Court as a clear statement of legislative intent excluding the continuing operation of common law principles of natural justice in the conduct of reviews by the MRT and the RRT (see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [60]-[70]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7]-[8]; Saeed v Minister for Immigration and Citizenship (2009) 176 FCR 53 at [24]-[32], [46]). Nevertheless, it is now clear that s 357A(1) (and similar provisions) are only effective to exclude the natural justice rule with respect to “matters” actually dealt with in the provisions to which they refer (Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (“Saeed”) at [35]-[42]). Thus, in Saeed the provisions of s 51A (an analogue of s 357A) were held not to be effective to exclude the requirements of procedural fairness in relation to offshore visa applicants. In Saeed the High Court also re-affirmed the significance and content of the requirements of procedural fairness, if not excluded by provisions such as s 357A. The Court said (at [1]-[2]):

1.    Division 3 of Pt 2 the Migration Act 1958 (Cth) (the Act) contains provisions with respect to the grant or refusal of visas for non-citizens. Subdivision AB of that Division is directed to the Minister's dealing with an application for a visa and information relating to it. At issue in this appeal is whether an amendment to subdiv AB, effected by the insertion of s 51A, has the effect of excluding the requirements of the natural justice hearing rule and whether it may validly do so. In the circumstances of this case the rule would have required the Minister's delegate to afford the appellant an opportunity to comment upon information which had been provided to the delegate and which supported an inference that an essential aspect of the appellant's case for a visa was false.

2    The terms of s 51A are not directed to all requirements of natural justice. They are expressed to apply to the requirements of the natural justice hearing rule. The concern of that rule is that procedural fairness be applied in the process of decision-making in circumstances where a person's rights or interests may be affected by the decision. Applied to a case such as this, the rule requires that an opportunity be given to a person to deal with adverse information that is credible, relevant and significant to the decision to be made. It reflects a fundamental principle of natural justice.

40    As I said earlier, in my view Mr Khan would be entitled, by reference to this principle, to a finding that a jurisdictional error was committed by the MRT unless the operation of the principle is excluded in his case by s 357A. However, in my respectful opinion, s 357A(1) was effective in this case to relieve the MRT of the general law obligation to provide Mr Khan with advice about, and details of, the accusations made against him by Mr Sangha which had been proffered as an explanation of why Mr Khan’s employment with his sponsor ceased. That is because there is in this case, unlike Saeed, no reason to regard the provisions of s 359A (which directed what information the MRT was required to provide) as inapplicable to Mr Khan or to his circumstances. In the context of the operation of s 357A(1) and the limitations it imposes, the “matter” with which s 359A(1) is concerned (for the purposes of s 357A(1)) is not just the giving of information which would be a reason for the decision of the MRT but also “the provision of information more generally relevant and adverse, for comment” (see Saeed at [41]-[42]). It follows that, in this case, the content of the natural justice rule has been exhaustively stated and s 357A is effective to exclude the contention of jurisdictional error in particular (i).

41    From the way particulars (ii) and (iii) are expressed it is apparent that reliance on s 357A(3) in particular (ii) is seen as complementary to reliance on s 359A(1) in particular (iii). Reference might also be made to s 353 of the Act, which provides in relation to the MRT:

353(1)    The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)    The Tribunal, in reviewing a decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)    shall act according to substantial justice and the merits of the case.

42    It will be apparent that s 357A(3) (which was inserted into the Act in 2007) reflects the more general pre-existing instruction in s 353. Sections 353, 357A and 359A (which apply to the MRT) mirror ss 420, 422B and 424A (which apply to the RRT). The interaction amongst ss 420(1), 422B(3) and 424A was dealt with by a Full Court in Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427 (“SZMOK”) especially at [12]-[18]). In particular, at [17] the Full Court said:

17    … s 422B(3) was not intended to qualify or cut down in any way the express statement in s 422B(1) that Div 4 contained an exhaustive statement of the application to the conduct of a review by the tribunal of the natural justice hearing rule in relation to the matters dealt with in Div 4. In that sense, s 422B(3) complements s 420(1). The unequivocal statement in s 422B(1) of the exhaustive nature of Div 4 renders it unarguable that some other requirement of fairness are to be implied.

43    The same reasoning must be applied to the operation of s 357A(3). It neither adds substantively to the operation of s 353(1), nor relevantly qualifies the limitation imposed by s 357A(1). It follows that particular (ii) does not provide a separate basis to uphold the appeal.

44    As to particular (iii), s 359A(1) (and similar provisions in the Act) require advice of information which (subject to stated exceptions) “would be” the reason (or a part of it) for affirming the decision of a delegate. The obligation is an ongoing one. The High Court made it clear in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 (“SZLFX”) at [23]-[26] that an obligation of the kind which arises under s 359A(1) does not extend to every piece of information that “could” affect the outcome of a decision on an application for review. The Minister’s argument is that s 359A(1) did not apply to the decision made by the MRT in this case because there is no indication that the accusations made in the letter of 13 October 2008 were (or that at any time the MRT considered that they would be) the reason or part of the reason for affirming the delegate’s decision.

45    In part, this argument depends on the reliability of the assumption, to which I earlier referred, that the MRT had definitely put Mr Sangha’s accusations out of its consideration at the outset, and had other information permitting it to do so. The assumption is a critical one because, otherwise, the accusations made would clearly be relevant to matters which the RMT had to consider, including whether Mr Khan had breached his visa conditions or been untruthful to the Department. It is very difficult to see how credible information of that kind could be excluded at the outset from the class of information that would be part of a reason for affirming a decision to cancel a visa. As the obligation arises during the course of the review it is not sufficient, in order to exclude it, merely to point to the reasoning disclosed in the decision after the review has been conducted and completed. And, as I earlier pointed out, it became clear after the appeal was heard that the Minister was not in a position to defend the assumption which was offered in argument. I would therefore not accept the Minister’s argument on this point.

46    Moreover, there is a further reason to conclude that the MRT was obliged to disclose to Mr Khan the existence and contents of each of Mr Sangha’s letters on 13 and 14 October 2008. In paragraph 20 of its decision the MRT (correctly) stated the matters for its consideration as follows:

20.    The Tribunal must first decide whether the ground for cancellation under s.116 identified by the delegate has been made out. If satisfied such a ground exists, and it is not a circumstance prescribed in r.2.43, the Tribunal must then decide whether to cancel the visa having regard to all the relevant circumstances.

47    Section 116(1)(a) of the Act permitted cancellation of Mr Khan’s visa if:

116(1)    …

(a)    any circumstances which permitted the grant of the visa no longer exist;

48    Paragraph 21 of the MRT decision stated:

21.    The applicant’s visa was cancelled on the basis that the circumstances which permitted the grant of the visa no longer exist. The relevant circumstance is that the applicant ceased to work for his sponsor. In written statements and submissions in the case files, the applicant has affirmed that he no longer works for his sponsor. The sponsor has also advised the Department that it no longer sponsors the applicant. Based on the evidence, the Tribunal is satisfied that a circumstance which permitted the grant of the visa – namely that the applicant be employed by his sponsor – no longer exists and the ground for cancellation under r.116(1)(a) therefore exists. Since there are no circumstances prescribed in r.2.43 requiring mandatory cancellation in the present case, the Tribunal must decide whether or not to cancel the applicant’s visa, considering the circumstances as a whole.

(Emphasis added)

49    Mr Khan held a Subclass 457 (Business (Long Stay)) visa. Clause 457.223(4)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) made it a condition for the grant of his visa that:

(4)    …

(a)    the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer;

50    For the purpose of considering the conditions which permitted the grant of Mr Khan’s visa it was not only relevant that his employment had ceased. It was also relevant that his sponsorship had been withdrawn. Withdrawal of sponsorship could not fail to be at least part of the reason why the delegate’s decision would be affirmed. It was that circumstance which explained why his employment had ceased and how the grounds for cancellation had arisen. The MRT’s decision confirms that the lack of an alternative sponsor was critical to its decision. Those matters could not be excluded from any consideration of “the circumstances as a whole”.

51    In its reasoning the MRT appeared to rely on Mr Khan’s confirmation that he no longer worked for his sponsor as sufficient for its consideration of his circumstances. However, according to the letter sent by Mr Khan’s migration agent on 8 December 2008, Mr Khan was not aware that his employment had ceased until informed by the Department’s letter of 13 November 2008. At the time the Department sent the letter, the only information it had (so far as the documents before the MRT and the Court reveal) was the information provided by Mr Sangha in his letters and telephone call. The cessation of Mr Khan’s employment and the desire to cancel his sponsorship were explained only by reference to the accusations Mr Sangha had made. That position did not change thereafter. The only advice in the documents provided by the Department to the MRT concerning withdrawal of the sponsorship and any decision to terminate Mr Khan’s employment was contained in Mr Sangha’s letters of 13 and 14 October 2008. The letter of 13 October 2008, after setting out the accusations against Mr Khan, said:

As soon as possible, if you could cancel our sponsorship of his visa, it would be appreciated.

52    The letter of 14 October 2008 said:

We have discussed with him that his sponsorship will be cancelled however have not disclosed that we are reporting to your department the true nature of his circumstances.

53    The letter from Mr Khan’s migration agent, sent on 8 December 2008, said the following (relevant to this issue):

26.    The sponsor asked the applicant to take two weeks off from work and report back after the two weeks.

27.    The applicant claims that at no time did he resign or hand any notice to his employer and sponsor and that he wanted to cease employment.

28.    When the applicant went back after two weeks he asked his employer what was happening in his matter and whether the sponsor had decided to treat the applicant fairly and in a humane manner.

29.    The sponsor told the applicant that they were having some problems with the immigration department and that they could not employ him at that time but for him to return in two weeks and everything would be sorted out by then.

30.    Two weeks later the applicant again went to his place of employment and asked as to what was happening in his matter.

31.    He was told that things should be sorted out soon and that he was expected to start work in the middle of November.

32.    The applicant claims that whenever he phoned his employers he was told to phone back in a few days.

33.    The first he knew that the sponsor had written to the Department was when he received the Department’s letter dated 13 November 2008.

54    Mr Khan’s stated position was that at the time of the Department’s letter of 13 November 2008, despite his complaints about his working conditions, so far as he knew both his sponsorship and employment were still in place. In my view, the information that the Department had been informed that Mr Khan’s sponsorship had been withdrawn, in addition to the fact that the Department had been informed that his employment had ceased, was necessarily something which would be part of the reason for affirming the decision of the delegate. That information was not contained in the Department’s letter to Mr Khan on 13 November 2008. It was not contained in the delegate’s decision on 23 June 2009. In my view that information had to be given to Mr Khan by the MRT in conformity with s 359A of the Act.

55    Mr Khan was also entitled to know the circumstances in which his sponsor said his sponsorship had been withdrawn. He was therefore entitled to know not only about the existence of Mr Sangha’s two letters but to know their content. It was those letters (and in particular the first of them) which disclosed to the Department (whether falsely or not) the circumstances in which the sponsor withdrew support from Mr Khan. None of those things were communicated to Mr Khan. They could not be quarantined from the operation of s 359A of the Act either.

56    None of the exceptions to the obligation in s 359A(1) apply in this case. The MRT, in my view, failed to discharge its statutory duty under s 359A. It follows that particular (iii) should be accepted and the appeal upheld on that ground.

57    At the hearing of the appeal further matters emerged in the discussion between the Court and counsel for both parties. In due course arrangements were made to permit further amendment of the grounds of appeal and adequate time for the Minister to consider, and respond to, the additional issues raised. Those additional issues concerned whether the MRT had given sufficient (or any) attention to matters which bore directly upon the exercise of its discretion.

58    In Craig v South Australia (1995) 184 CLR 163 the High Court said (at 177):

… jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case.

and (at 179):

If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

59    In the present case the MRT correctly identified that its task was to exercise a discretion under s 116(1) of the Act. In paragraph 8 of its decision the MRT said:

8.    There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, the Tribunal has regard to any matters raised by the visa holder as to why the visa should not be cancelled, government policy guidelines, and any other relevant considerations.

60    In the present case the MRT paid regard to matters set out in a departmental instruction as representing government policy. There was no error in that approach so long as the MRT did not abdicate, or become diverted from, the proper exercise of its discretion (see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590). Amongst the matters which the MRT then said were to be taken into account (which were set out in its decision, along with other matters) was the following (which is repeated for convenience):

•    The circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)

61    This factor necessarily required attention. Counsel for the Minister accepted that the MRT was bound to consider such a matter. The central issue examined by the delegate and the MRT concerned the fact that the conditions for the grant of Mr Khan’s visa no longer existed. Attention was therefore required to the circumstances in which that ground for cancellation of his visa arose. The circumstances in which the ground for cancellation arose (my emphasis) are not the same matters as those which explain the MRT’s decision – namely, Mr Khan’s subsequent failure to obtain alternative sponsorship and employment arrangements. Nor is the necessity to give consideration to those circumstances adequately addressed by a sympathetic response to Mr Khan’s own version of events, which was given under the disadvantage of not knowing what the Department was told about why his employment had come to an end. On the version of events advanced by Mr Sangha, Mr Khan’s employment came to an end because the sponsor discovered that Mr Khan had misrepresented to it and the Department that Ms Akther was his wife and that he had provided a false document to Trades Recognition Australia. In my view, those were not neutral circumstances that lost significance at the time Mr Khan’s employment ceased. Nor were they rendered irrelevant or unimportant if the MRT accepted the suggestion that Mr Khan had been mistreated by his sponsor regarding the terms and conditions of his employment. If the accusations against Mr Khan were false, the loss of his employment might have been assessed in a different, and even more sympathetic, way. At the very least, it would have been relevant, in my view, to know what Mr Khan’s response was to those accusations. It is conceivable that his response may have revealed an extenuating or compassionate circumstance that outweighed his subsequent failure to find another sponsor.

62    A further point might be added. Section 352(4) of the Act required the Secretary of the Department to provide to the Registrar of the MRT each document that “is considered by the Secretary to be relevant to the review of the decision” of the delegate. Mr Sangha’s letters and fax were provided to the MRT. It might be inferred that they were given to the MRT for the reason that they were thought relevant to the review.

63    In my view, the MRT did not deal with the circumstances in which the ground for cancellation of Mr Khan’s visa arose and did not, on the material available to resolve the present appeal, give any consideration to those circumstances. I am not prepared to proceed upon the speculative assumption that the MRT’s approach was influenced by the provision to it of secret information which has never been disclosed and to which no reference at all was made. The suggestion is a surprising one. In my view, the better view of the MRT’s decision is that it did not believe it necessary to deal with the matters to which I have referred. That was an error of law and of jurisdiction.

64    The original term of Mr Khan’s visa has now expired but it was not suggested that the outcome of the proceedings lack importance for him. Section 48 of the Act has the effect that the cancellation of Mr Khan’s visa severely circumscribes his ability to apply for a further visa. If the cancellation decision was set aside by the MRT he would have a 28 day period in which he might apply in Australia for a further visa of a kind for which he might qualify, free of the limitations in s 48 of the Act. That is not to suggest that the MRT will, upon further examination, set aside rather than affirm the decision to cancel Mr Khan’s visa. However, it may not be said (and was not) that relief in this case should be withheld because it would be of no utility.

65    In my view, despite the fact that no error appears in the reasoning of the FMCA, jurisdictional errors have been identified in the processes and decision of the MRT. The appeal should be upheld and the orders of the FMCA set aside and in lieu thereof it should be ordered that the decision of the MRT be set aside. Mr Khan should have his costs of the

appeal.

Associate:

Dated:    23 February 2011

REASONS FOR JUDGMENT

FLICK J

66    The Appellant had been granted a Subclass 457 Business (Long Stay) visa on 10 October 2006 and had thereafter been employed as a chef at a restaurant. But the visa was cancelled.

67    The decision to cancel the visa was notified to the Appellant by letter dated 23 June 2009 and the Migration Review Tribunal affirmed the delegate’s decision on 19 February 2010. On 2 June 2010 a Federal Magistrate, in an ex tempore judgment, dismissed an application seeking review of the Tribunal’s decision: Khan v Minister for Immigration and Citizenship [2010] FMCA 383.

68    Given the importance of the issues potentially to be resolved, when the appeal first came before this Court on appeal on 25 August 2010 the proceeding was referred to a Court constituted by three Judges – rather than a single Judge as is otherwise contemplated by s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth). The hearing before the Court as it is presently constituted took place on 4 and 18 November 2010.

69    The opportunity has been taken to read in draft form the reasons for decision of Buchanan J. His Honour has there set forth the facts and the relevant statutory provisions in considerable detail and they need not be repeated. His Honour there also set forth the reasoning process of the Tribunal.

Section 116 and Departmental Guidelines

70    It should nevertheless be noted at the outset that the power being exercised adversely to the Appellant is that conferred by s 116 of the Migration Act 1958 (Cth), namely the power to cancel if the Minister is “satisfied that … any circumstances which permitted the grant of the visa no longer exist …”.

71    To aid in the administration of this discretion, a document described as a Procedures Advice Manual (“Manual”) has been prepared by the Department of Immigration and Citizenship. It has previously been described as “a collection of guidelines, to assist the officers who were required to consider applications for visas in the performance of their task”: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038 at [23], 142 FCR 43 at 48 per Gray J. Whatever may be the extent of its publication, it is apparently a document that is available to officers of the Department and to at least some migration agents. The relevant parts of the Manual were not produced to the Court but its contents were to a limited extent disclosed in the reasons for decision of the Tribunal. As there extracted, the Manual states that matters to be taken into account as a matter of government policy include “the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)”.

72    When exercising the discretionary power conferred by s 116, the delegate and the Tribunal were entitled to take into account government policy and such other matters as are set forth in the Manual: cf. Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69. Bowen CJ and Deane J there observed:

There are circumstances in which an administrative officer is precluded from taking into account the dictates of general government policy in the exercise of a power conferred upon him by virtue of his office. … Ordinarily, however, an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy. The propriety of paying regard to general policy considerations is most evident in a case such as the present where there are no specified statutory criteria for the exercise of the discretionary power and where the power is entrusted to a Minister of the Crown responsible to Parliament. Clearly, in considering whether a deportation order should be made in respect of the plaintiff in the present matter, the Minister was entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the Migration Act. Indeed, the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power.

The “government policy” there in issue was a policy statement as made by the Minister. The appeal from a decision of the Administrative Appeals Tribunal that the appellant be deported was there allowed and the matter was remitted to the Tribunal for a rehearing. The Minister’s decision to make the deportation order was then again affirmed: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In affirming the decision, the then President of the Tribunal (Brennan J) referred to the prospect of inconsistency in circumstances where a number of different people may be called upon to make a decision and continued:

When such a power is conferred upon more than one decision-maker, a tendency to inconsistency in making decisions may appear. …

Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. In matters of deportation, which so profoundly affect the interests of the deportee and his family and which are of relevance to the community at large, inconsistency born of the application of differing standards and values should be reduced as far as it is possible to do so: (1979) 2 ALD at 639.

See also: Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 52 per Davies, Lockhart and Gummow JJ; Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 691 to 692 per French J; Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 at [22], 91 ALD 435 at 439 per Downes P.

73    Although distinctions may be drawn between (for example) policies “made or settled at the political level” and others made “at the departmental level” (cf. Re Becker and Minister for Immigration and Ethnic Affairs (1977) 32 FLR 469), the Departmental policy in the present proceeding stands in relevantly no different position. The Tribunal was entitled to – and did in fact – apply the policy: cf. Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20 at [38] to [66], 182 FCR 115 at 120 to 123 per Spender, Emmett and Jacobson JJ. The policy serves both the purpose of directing attention to matters which are to be taken into account and the objective of attempting to ensure consistency in the administration of provisions such as s 116.

74    Those matters which a decision-maker is bound to take into account when exercising the power conferred by this section nevertheless remain to be determined by reference to the objects and purposes of the Act itself: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 to 40 per Mason J.

75    Whether or not the Manual identifies considerations going beyond those that must be taken into account when making a decision under s 116, those considerations which must be taken into account when making such a decision include “the circumstances in which the ground for cancellation arose”. Counsel for the Respondent Minister did not contend to the contrary. Consideration of a matter which must be taken into account requires that the matter be “really and genuinely” considered and requires “an active intellectual process”: cf. NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [212], 147 FCR 51 at 92 to 93 per Madgwick J (Conti J agreeing at [227] to [230]). Whilst care must be exercised to avoid trespassing into the merits of a decision (see: Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts [2009] FCA 330 at [37], 165 LGERA 203 at 219 to 220), there must nevertheless be a “proper, genuine and realistic” consideration of relevant material: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29], 74 ALD 124 at 130.

76    It is concluded that the Migration Review Tribunal failed to give these “circumstances” any such consideration and thereby committed jurisdictional error when it affirmed the delegate’s decision to cancel the Appellant’s visa.

The 13 October 2008 Letter

77    The decision to cancel the Appellant’s visa was most probably set in motion (at least in part) by a letter dated 13 October 2008.

78    That letter was sent by the restaurant manager, where the Appellant had been employed, to the Compliance Section of the Department of Immigration and Citizenship. It should be set forth in its entirety. It read as follows (without alteration):

We write to notify you of recent fraudulent behavior undertaken by one of our sponsored employees to your department.

Mr. Khan is currently sponsored by our business on a Business (long stay) 457 visa. We recently provided a letter whereby we agreed to sponsor his wife, as a dependant and join him in Australia.

Soon after her arrival to Australia, it came to our knowledge that she was actually his sister. Mr. Khan’s actual wife is currently on a student visa in Australia, Ms. Anwara Begum. They have provided false details and documents to the Department and were also deceitful and manipulative to us. As law abiding citizens we feel this sort of behavior must be sanctioned.

Further to this, we were also informed that Mr. Khan recently provided a signed employment reference to Trades Recognition Australia on behalf of our business yet we did not prepare or sign any such letter. We were not even aware that Mr. Khan required such a letter and still are unaware of the contents of the reference.

We have always endeavored to assist all our staff as and when necessary. We highly regard the migration system as it has assisted us in filling our short term staff needs by allowing us to sponsor staff when we have not been able to fill the positions domestically. Many of the staff that we have sponsored have indeed positively contributed to our business and passed on a great deal of expertise to our Australian employees.

Mr. Khan and his family however, are manipulating the Immigration system. They have demonstrated an extreme disregard of Australia’s laws and we do not in any way, endorse criminal behavior.

Many of our employees can/are willing to affirm the above statements and we have made an effort to notify you at our earliest opportunity.

Please also take note that we have not been satisfied with Mr. Khan’s skills as a Chef. He has not been as qualified/talented as we originally thought however we still continued to employ him because we were in need of staff and Indian chefs are not easy to come by.

However, the integrity of our business is of the utmost concern to us. Such deceit and fraudulent behavior is unacceptable so we hope that you will take appropriate action of all three family members at your earliest. As soon as possible, if you could cancel our sponsorship of his visa, it would be appreciated.

If you need any information or further particulars, we are happy to co-operate/assist in any way that we can so please do not hesitate to contact the undersigned.

The sentence typed in bold and in italics reproduces the form in which it appears in the letter sent to the Compliance Section of the Department.

79    This letter was central to a consideration of the circumstances in which the power conferred by s 116 was exercised in the present proceeding.

The Failure To Disclose the Letter

80    The 13 October 2008 letter was before both the delegate of the Minister who cancelled the Appellant’s visa and before the Migration Review Tribunal. But the contents of that letter were not disclosed to him.

81    Nor did the Tribunal expressly mention the letter in its reasons for decision.

82    The failure on the part of the Tribunal to make a copy of the letter available to the Appellant – or at least to disclose the substance of the allegations there made – exposes it to jurisdictional error on either of two further fronts, namely:

    as acknowledged in the Manual, the “circumstances in which the ground for cancellation arose” should have been expressly addressed by both the delegate and the Tribunal. Irrespective of the Manual, those circumstances were in any event considerations that had to be taken into account when exercising the power conferred by s 116. The 13 October 2008 letter and its contents were centrally relevant to that consideration. It is concluded that such general references as were made by the Tribunal in its reasons for decision to the circumstances in which the power of cancellation came to be exercised cannot be construed as the Tribunal giving the contents of the letter genuine and real consideration. Jurisdictional error on the part of the Tribunal is thus established. The contrary submissions advanced on behalf of the Respondent Minister as to the correct construction of the Tribunal’s reasons are rejected.

Alternatively:

    the information contained in the 13 October 2008 letter was also information that fell within s 359A of the Migration Act 1958 (Cth), namely information that “would be the reason, or a part of the reason, for affirming the decision that is under review …”. Provisions such as s 359A do not require the provision of all information that “could” form the basis for a decision: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 at [94], 113 FCR 396 at 427 to 428 per Allsop J (with Heerey J in concurrence at [1] to [4], at 398). But it would be odd to conclude that matters which the Department’s own guidelines or policy prescribe as matters to be taken into account are not matters that “would be the reason, or a part of the reason, for affirming the decision that is under review …”. Whether all such matters identified in the Manual would fall within s 359A may be doubted. But to conclude that the 13 October 2008 letter did not contain information of the kind described by s 359A would be to seriously circumvent the limited procedural protection still retained by s 359A. Like Buchanan J, considerable difficulty is experienced in reaching any conclusion that the Tribunal discarded consideration of the letter at the outset. In any event, silence on the part of the Tribunal and an omission of any reference to the letter or its contents, cannot preclude the application of s 359A. A failure to comply with s 359A constitutes jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140 at [12] to [14], 131 FCR 1 at 6 to 7 per Gray ACJ.

If the failure on the part of the Tribunal to expressly refer to the letter in its reasons for decision is to be construed as a failure to take the letter into account, that failure constitutes jurisdictional error; if the Tribunal’s reasons are to be construed as an acknowledgment that the letter was considered – but placed to one side at some stage in its deliberative processes, the information contained in the letter fell within s 359A and jurisdictional error was committed by not providing “clear particulars” of its contents to the Appellant.

83    Given the former conclusion, it is unnecessary to pursue the reach of s 359A further.

CONCLUSIONS

84    Some concern, it should be noted, is expressed with such submissions as were advanced on behalf of the Respondent Minister as to the limited consequences of a delegate or the Tribunal not taking into account those matters which are apparently set forth with some considerable detail in the Manual. Those persons who may have access to this Manual were not identified with any degree of precision. But the Manual may nevertheless be taken as a formal guide as to how the power conferred by s 116 is to be administered as a matter of practice. Where such guidance has been provided and where matters are there identified as matters that should be taken into account, it is not self-evidently correct to further conclude that a failure on the part of the Tribunal to properly apply the guidance provided has such limited consequences as was contended by the Minister. Consistency in the administration of provisions such as s 116 would not appear to be promoted if such consideration as is required to be given to the matters identified in the Manual is satisfied by the oblique or ambiguous references as made by the Tribunal in the present proceeding. In the absence of knowing more as to the circumstances in which the Manual has been prepared and its status as an aid to decision-making, little more may presently be said.

85    Concurrence is expressed with the orders proposed by Buchanan J.

Associate:

Dated:    23 February 2011

REASONS FOR JUDGMENT

YATES J:

86    I have had the advantage of reading in draft the reasons of both Buchanan J and Flick J. I agree that the appeal should be allowed and that orders should be made as proposed.

87    In my view, by failing to give particulars of the information constituted by Mr Sangha’s letters of 13 and 14 October 2008, the Migration Review Tribunal did not comply with its obligation under s 359A(1) of the Migration Act 1958 (Cth) (the Act). Its non-compliance constituted jurisdictional error on its part. In this connection I agree with the reasons that have been fully articulated by Buchanan J. Implicit in my conclusion is the rejection of the Minister’s submission that it should be inferred that the Tribunal did not at any relevant time consider that the allegations in those letters, which were plainly before the Tribunal, would be the reason or part of the reason for affirming the decision of the delegate.

88    Equally, having knowledge of those allegations, the Tribunal failed, for whatever reason, to deal with them when their truth or falsity clearly had a bearing on the discretion conferred by s 116 of the Act that was required to be exercised. In so doing, the Tribunal also fell into jurisdictional error. Once again, I agree with the reasons articulated by Buchanan J.

Associate:

Dated:    23 February 2011