FEDERAL COURT OF AUSTRALIA

Haque v Minister for Immigration and Multicultural Affairs [2001] FCA 1077

MIGRATION – review of decision of Migration Review Tribunal – refusal of Student (Temporary) visa – Tribunal decision made without conducting a hearing – whether the Tribunal was under an obligation to invite the applicant to appear before it – whether Tribunal took “further action” to obtain the additional information – whether the Tribunal had extended the period within which the information was required to be given

Migration Act 1958 (Cth) ss 358, 359, 359B, 359C, 360, 476,

Migration Regulations 1994 regs 4.17, 4.18A, 5.03

Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 1275; 101 FCR 434 cited

MOHAMMED ASHADUL HAQUE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 592 of 2001

BRANSON J

SYDNEY

9 AUGUST 2001

THE COURT ORDERS THAT:

The decision of the Tribunal be affirmed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant has applied to the Court under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a judicially reviewable decision of the Migration Review Tribunal (“the Tribunal”).  On 18 April 2001 the Tribunal decided to affirm a decision of a delegate of the respondent to refuse to grant to the applicant a Student (Temporary) (Class TU) visa.

2                     The Tribunal made its decision of 18 April 2001 without conducting a hearing.  The only ground of review ultimately relied on by the applicant was that a procedure that was required by the Act to be observed in connection with the making of the decision was not observed (s 476(1)(a) of the Act).  The applicant submitted that the Tribunal was under a statutory obligation to “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” (subs 360(1) of the Act).  The respondent accepts that the Tribunal did not invite the applicant to appear before it.

3                     For the reasons which are set out below, I have concluded that, in the circumstances which happened, the Tribunal was not under an obligation to invite the applicant to appear before it.  As the only ground upon which the applicant sought review of the decision of the Tribunal has not been established, the decision of the Tribunal must be affirmed.

FACTS

4                     On 5 June 2000 the Tribunal received a hand written document from the applicant which requested the Tribunal to amend its address details for service of documents to show the address of his migration agent (wrongly described in the document as the applicant’s solicitor).  The Tribunal updated its records accordingly.

5                     By letter dated 10 November 2000 addressed to the applicant at his residential address, but copied to his migration agent, the Tribunal invited the applicant to give to it certain additional information.  Under cover of a letter dated 4 December 2000 the applicant’s migration agent provided a number of documents to the Tribunal.

6                     By letter dated 25 January 2001, addressed to the applicant care of his migration agent, the Tribunal invited the applicant to provide it with further information.  The letter asked that the information be provided within twenty-eight days of the date of the letter, and advised that a request could be made, within that time limit, for an extension of time.  Under cover of a letter dated 15 March 2001 the applicant provided additional documents to the Tribunal.  The letter of 15 March 2001 advised the Tribunal that the applicant had only been notified on 14 March 2001 of the Tribunal’s letter of 25 January 2001.  A handwritten note on the letter of 15 March 2001 requested the Tribunal to send letters or documents to the applicant’s home address.

7                     As is mentioned above, the Tribunal made its decision affirming the decision not to grant the applicant the visa sought by him on 18 April 2001.  In its written reasons for decision the Tribunal referred to the above correspondence and noted that as no response or request for an extension of time in which to respond was received by the Tribunal by the prescribed date, the applicant was not entitled to a hearing.  The Tribunal did, however, give consideration to the further information provided to it by the applicant under cover of his letter dated 15 March 2001.

STATUTORY PROVISIONS

8                     Part 5 of the Act is concerned with the review of decisions.  Division 5 of Part 5, which is constituted by ss 358-367, contains provisions applicable to the conduct of reviews by the Tribunal.  Sections 358, 359, 359B, 359C and 360 respectively relevantly provide as follows:

“358(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.”

“359(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 liming subsection (1), the Tribunal may invite a person to give additional information.

(3)                     Subject to subsection (4), an invitation to an applicant must be given to the applicant by one of the methods specified in section 379A.

(4)                     …”

“359B(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 or, if no period is prescribed, a reasonable period.

(3)               …

(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)               …”

“359C(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.”

“360(1)           The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

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

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

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

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

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

9                     Regulation 4.17 of the Migration Regulations 1994 (“the Regulations”) prescribes periods for the purposes of subs 359B(2) of the Act.  Regulation 4.18A of the Regulations prescribes periods for the purposes of subs 359B(4) of the Act.  Regulation 4.18A relevantly provides:

“4.18A   (1)     This regulation applies, for subregulation [sic] 359(B)(4) of the Act, if:

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

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

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

(2)               …

(3)               …

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

(5)               …

(6)               A response to the invitation is taken to be given to the Tribunal when a registry of the Tribunal receives the response.”

SUBMISSIONS OF THE APPLICANT

10                  The applicant contended that, in the circumstances of this case, the entitlement of the Tribunal to make a decision without conducting a hearing was conditional upon its not having taken “any further action to obtain the additional information” within the meaning of subs 359C(1) of the Act.  The applicant characterised the conduct of the Tribunal in accepting and considering the documents provided by the applicant under cover of his letter of 15 March 2001 as “further action to obtain the additional information”.  He submitted that by so conducting itself the Tribunal disentitled itself from making a decision without conducting a hearing.

11                  The alternative submission upon which the applicant relied was that, by accepting the documents provided by the applicant under cover of his letter of 15 March 2001, the Tribunal exercised its power under subs 359B(4) of the Act to extend the period within which the information was required to be given to the Tribunal with the consequence that the applicant was not a person who “[did] not give the information before the time for giving it had passed” within the meaning of subs 359C(1).

CONSIDERATION

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

13                  Paragraph 360(2)(c) relevantly calls for consideration to be given to whether “subsection 359C(1) … applies to the applicant”.  In my view, subs 359C(1) applies to the applicant within the meaning of par 360(2)(c) if the applicant is a person to whom pars (a) and (b) of subs 359C(1) apply.  That is, if the applicant is a person who was 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 subs 359C(1) do not add anything concerning the class of applicant to which the subsection applies.  They are words which authorise the Tribunal to adopt a particular procedure.  For these reasons I do not accept the premise upon which the first submission of the applicant is based.

14                  However, even if I am wrong in not accepting the premise upon which the first submission of the applicant is based, I do not consider that the Tribunal can be considered to have taken “further action to obtain the additional information” within the meaning of subs 359C(1) merely because it accepted documents provided to it by the applicant and considered them before reaching its decision.  The Tribunal itself initiated no action to obtain the documents other than the sending of its letter of invitation dated 25 January 2001.  The provision to the Tribunal of the documents by the applicant was prompted by the letter dated 25 January 2001 of which the applicant became aware, as he said, on 14 March 2001.  It was not the result of any further action by the Tribunal.  By the time that the Tribunal considered the documents, it had already obtained them.  Its consideration of the documents was not an action to obtain the documents.

15                  The first submission of the applicant must be rejected.

16                  The alternative submission of the applicant requires identification of when the time for giving the additional information invited under s 359 had passed.

17                  The Tribunal’s letter dated 25 January 2001 requested provision of the additional information within 28 days of the date of the letter.  Sub-regulation 4.17(4) relevantly prescribes the period within which additional information is to be given as a period which “starts when the person receives the invitation and ends at the end of 28 days after the day on which the invitation is received”.  It seems likely that reg 5.03, assuming it relevantly to be valid (as to which see Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 1275; 101 FCR 434), would operate to fix the time at which the applicant is to be taken to have received the invitation for the purposes of subreg 4.17(4).  It thus may be that the letter of invitation, which asked that the information be provided within twenty-eight days of the date of the letter, did not specify the period prescribed by the Regulations for the purposes of subs 359B(2).  However, as no submissions were addressed to me on this issue, it is not appropriate for me to reach a concluded view on it.  It is sufficient to note that both the period specified in the letter and, assuming the prescribed period to be a longer period, the prescribed period, had passed well before 15 March 2001.

18                  The applicant did not apply to the Tribunal for the period specified in the letter of invitation to be extended.  The Tribunal did not give consideration to extending the prescribed period nor did it purport to extend that period.  As the Tribunal has a discretion whether or not to extend a prescribed period, these facts sufficiently demonstrate, in my view, that the Tribunal did not exercise its statutory power to extend the prescribed period.

19                  Further the word “extend”, in its ordinary meaning, conveys the notion of stretching, enlarging or increasing the duration of the thing extended.  It does not, in my view, convey the idea of creating a second example of the thing.  This gives rise to another difficulty in the way of the applicant’s alternative submissions succeeding.  Even if it were otherwise to be accepted, it would lead to a situation in which there were two periods within which the additional information was to be given to the Tribunal.  This appears to be the necessary consequence of subreg 4.18A(4) which relevantly provides that:

“the period by which the Tribunal may extend the prescribed period starts when the person receives notice of the extended period and ends at the end of 28 days after the day on which the notice is received”.

However, subs 359B(4) speaks of “the extended period”.  That is, in the circumstances which happened, no extension of the period specified in the letter of invitation was capable of arising at the time of the receipt by the Tribunal of the documents provided by the applicant under cover of his letter of 15 March 2001.

20                  For the above reasons, it is not necessary for consideration to be given to whether, without express authority to do so, a power to “extend” a time may be exercised after the expiry of the prescribed time (as to which compare Re Macintosh and Thomas [1903] 2 Ch 394 and Secretary of State for Scotland v Tronsite Ltd (1978) SLT 34).

21                  The alternative submission of the applicant must also fail.

CONCLUSION

22                  As the only ground upon which the applicant sought review of the decision of the Tribunal has not been established, the decision of the Tribunal will be affirmed.

Associate:

Dated:                                          9 August 2001