FEDERAL COURT OF AUSTRALIA

Masikula v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1495

MIGRATION – application for Bridging visa refused – application to Migration Review Tribunal for review of refusal – applicant in immigration detention – in course of hearing before Tribunal applicant is handed letter containing particulars of information which Tribunal considered was the reason of part of the reason for affirming decision under review – no opportunity for applicant to read the letter – instead, Tribunal member paraphrased the part of letter which member saw to be relevant to applicant – parties agreed that Tribunal’s decision should set aside and matter remitted – draft reasons for judgment already prepared – reasons published setting out agreed ground on which appeal is allowed and matter remitted.

Migration Act 1958 (Cth) s 359A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 applied

PECELI MASIKULA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 374 of 2005

LINDGREN J

21 OCTOBER 2005

SYDNEY

BY CONSENT, THE COURT ORDERS THAT:

1. “Australian Government” be removed as second respondent to the appeal and in lieu thereof, the Migration Review Tribunal (‘MRT’) be joined as second respondent to the appeal.
2. The appeal be allowed.
3. The orders of the Federal Magistrates Court made on 22 February 2005 be set aside and in lieu there of there be:

(a)    an order in the nature of certiorari quashing the decision of the MRT dated 12 October 2004; and

(b)   an order in the nature of mandamus that the MRT reconsider the matter according to law.

4. The first respondent pay the appellant’s costs as agreed at $2500.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant (‘Mr Masikula’) appeals from a judgment of the Federal Magistrates Court of Australia (‘FMCA’) given on 22 February 2005 (Masikula v Minister for Immigration [2005] FMCA 211).  The FMCA dismissed an application for review of a decision of the Migration Review Tribunal (‘the Tribunal’) made on 12 October 2004 (MRT file number N04/05546).  The Tribunal had affirmed a decision of a delegate of the respondent (respectively, ‘the Delegate’ and ‘the Minister’) refusing to grant Mr Masikula a Bridging Visa E (Class WE) (subclass 050).  According to the Tribunal’s reasons for decision, the Delegate’s decision was made on 6 August 2004, but the correct date was 29 September 2004.

2                     Mr Masikula had previously applied for the same kind of visa on 4 August 2004.  A delegate of the Minister refused to grant the visa on 6 August 2004 and Mr Masikula applied to the Tribunal for review of that decision on 8 August 2004.  The Tribunal affirmed that delegate’s decision on 16 August 2004 (MRT file number N04/04397).

3                     This appeal has followed a somewhat unusual course.  The appeal was listed for hearing on 4 July 2005, at which time the appellant was unrepresented.  At that hearing, I made an order under Order 80 rule 4 of the Federal Court Rules referring the appellant to the Registrar for referral to a legal practitioner.  Since then, Mr Dobbie of Parish Patience Immigration Lawyers has represented Mr Masikula on a pro bono basis.  The last submission was received on 30 August 2005.  I prepared a preliminary draft of reasons which would have led to my allowing the appeal, but on a ground (non-compliance with s 359A) not raised by Mr Masikula.

4                     I had the proceeding re-listed on 27 September 2005, raised the ground of non-compliance with s 359A with the parties’ legal representatives, and granted Mr Masikula leave to file a further amended notice of appeal raising that ground and a further ground which Mr Masikula’s solicitor wished to raise – reasonable apprehension of bias.  I also fixed a timetable for further submissions.

5                     Mr Masikula filed his further amended notice of appeal and supporting submission.  Before I had read those submissions, or received the Minister’s submissions, the parties reached agreement that the appeal should be allowed and the matter be remitted to the Tribunal.

6                     The question arises how to convey to the Tribunal the ground on which, by consent, the appeal was to be allowed and the matter remitted.  In the unusual circumstances, I decided to finalise my draft reasons and provide the draft to the parties so that they might agree that the reasons stated in the draft represent the ground on which they were consenting to the making of today’s orders.  They have so agreed.

7                     There was some debate over whether the reasons should be published on whether it should be left to the Minister to inform the Tribunal of the ground.  The parties agreed that it was a matter for me to decide whether to publish the reasons, and I have decided to do so, for two reasons.  First, the reasons represent the most ample and best way of conveying to the Tribunal the ground on which the appeal is being allowed.  Secondly, although the fact that the orders are being made by consent will deprive the reasons of any precedential authority, I dare to suggest that they may perhaps be of some persuasive value. 

Background facts

8                     Mr Masikula was born in Fiji on 28 January 1944 and is a citizen of that country.  He entered Australia on 4 April 1998 on a Subclass 676 (Tourist (Short Stay)) visa.  On 15 July 1998 he was granted a Subclass 686 (Tourist (Long Stay)) visa.  On 14 April 1999 he lodged an application for a Subclass 806 (Special Eligibility (Residence)) (Class AO) visa, claiming that he was the carer of his sister and brother-in-law.  On 14 April 1999, Mr Masikula was granted a Bridging A (Class WA) visa.

9                     On 25 February 2000, a delegate of the Minister refused the application for the Carer’s visa.  On 23 March 2000, Mr Masikula applied to the Tribunal for review of that decision, but the decision was affirmed by the Tribunal on 7 November 2001.

10                  From 14 March 2003, Mr Masikula was granted a series of Bridging E (Class WE) visas, the last of which expired on 10 July 2003.

11                  On 28 March 2003, Mr Masikula made a request to the Minister under s 351 of the Migration Act 1958 (‘the Act’) in relation to the Tribunal’s decision refusing his application for the Carer’s visa, but on 3 June 2003 the Minister decided not to intervene in his case.

12                  Mr Masikula remained in Australia unlawfully after 10 July 2003, and was found at his place of work on 30 July 2004 and taken into detention at Villawood Detention Centre.

13                  As noted at [2], on 4 August 2004 Mr Masikula applied for a Bridging E (Class WE) visa, but the application was refused by a delegate of the Minister.  The ground was that Mr Masikula failed to meet the primary criteria for the grant of the visa.  Subsequent events in relation to that application are referred to at [2].

14                  In his further application dated 27 September 2004 for a Bridging E (WE) visa Mr Masikula stated that he was making arrangements to lodge an application for a substantive visa, namely, a Remaining Relative visa (Class BU).  He also stated that he had all the documents ready to be lodged within two to five days.  As noted at [1], the Delegate refused the application on 29 September 2004.

15                  On 30 September 2004, the Tribunal received Mr Masikula’s application for review of the Delegate’s decision of 29 September 2004.  On 1 October 2004, the Tribunal wrote to Mr Masikula acknowledging receipt of his application, informing him that the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) had been asked for copies of all documents relating to his application, and inviting him to provide to the Tribunal any documents which he wished it to consider and which he had not already provided to the Tribunal or to the Department.

THE LETTER UNDER section 359A of the act

16                  On 6 October 2004, the Tribunal wrote to Mr Masikula inviting him to appear before it to give evidence and to present argument in relation to his application for review.  The letter advised that an ‘in-person hearing’ had been set down for Monday 11 October 2004 at 10.30 am, and that arrangements had been made for a Fijian interpreter to be present.

17                  At the hearing on 11 October 2004, Mr Masikula was handed a letter addressed to him from the Tribunal of that date (‘the s 359A letter’).  The letter informed him that s 359A of the Act provided that the Tribunal must explain and invite comment on ‘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’.  The letter invited Mr Masikula to comment ‘at an interview prior to the hearing’ on information which the letter then set out.  That information extended over some two pages.  The first page was as follows:

“There is no indication from the material contained on the Department file that you continue to meet clause 050.212 for the grant of a Bridging E Visa.  The grounds on which a Bridging E Visa may be granted are:

·        That you are making, or are the subject of, acceptable arrangements to depart Australia. (subclause 050.212(2)).

You have not provided any evidence that you have purchased a current plane ticket or made a travel booking to facilitate your departure.

There is no evidence before the Tribunal that you have presented a valid passport or travel document to the Department.

You have stated that your post location interview that you wish to stay in Australia and intend to lodge a substantive visa.  You also gave evidence to this effect at your last Tribunal hearing on 16 August 2004.

·        That you have a valid application for a substantive visa that has not been finally determined; or that the Minister is satisfied that you will apply for a substantive visa.  (subclause 050.212(3)).

There is no evidence that you currently have a substantive visa application before the Department.

·        That you are the subject of, or are the family member of a person who is the subject of judicial review proceedings as prescribed by the criteria (subclause 050.212(3A), subclause 050.212(4), subclause 050.212(4AA)).

There is no evidence that you are the subject of any judicial review proceedings.

·        That you have become unlawful because your visa was cancelled under subsection 140(1) or (3) of the Act and you have applied for a review of that decision or the Minister is satisfied that you will make such an application.  (subclause 050.212(5)).

·        That you have become unlawful because your visa was cancelled under subsection 140(1), (2) or (3) of the Act because another person’s visa was cancelled under section 137J of the Act and that person has applied for revocation of that cancellation, or a review of the decision not to revoke the cancellation of the visa, or the Minister is satisfied that he/she will make such an application (subclause 050.212(5A)).

·        That you are currently the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351, 391, 417 or 454 of the Act (subclause 050.212(6), subclause 050.212(6A)).

There is no evidence that you are the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351, 391, 417 or 454 of the Act.

·        That you are in criminal detention (subclause 050.212(7)).

There is no evidence that you are currently in criminal detention.

·        That you currently hold a bridging E visa and meet certain other criteria (subclause 050.212(8)).

·        That you have had an application for a Spouse (Migrant) (Class BC) visa an Interdependency (Migrant) (Class BI) visa or a Partner (Migrant) (Class BC) visa refused and you or the Minister have applied for a judicial review of this decision (subclause 050.212(9)).

This information is relevant to the review because, if the information is true, it may indicate that you do not continue to meet clause 050.212 and do not satisfy the requirements of clause 050.212 for the agent of a Bridging E Visa.  It is necessary to meet clause 050.212 at the time of application and to continue to do so at the time of decision.’ (emphasis in original)

18                  The letter continued by advising Mr Masikula that if the Tribunal were to find that he did meet one or more of the above criteria, the Tribunal might go on to decide whether he would abide by conditions which would be attached to a Bridging E Visa.  The letter then set out the following information contained on Departmental files, relevant to whether he would abide by conditions:

‘●        You have remained in Australia unlawfully on 2 occasions:  from 14 December 2001 to 14 March 2003 and 10 July 2003 to 30 July 2004;

  ●       At your post location interview, you admitted to working at ‘Visy Recycling’ at East botany [sic] since July 2000 to 30 July 2004.  Departmental information indicates that you had no visa or permission to work during this period.  Your visas granted from 15 July 1998 to 27 May 1999 and 17 March 2003 to 10 July 2003 had condition 8101 (no work) attached;

            and

  ●       You claim that your family in Australia would support if you were released from immigration detention.  There is no evidence before the Tribunal to this effect.’ (emphasis in original)

19                  The letter then explained to Mr Masikula that this information was relevant to the review because, if it was true, it indicated that he had not complied with the Act and the Migration Regulations in the past.  The letter indicated the particular conditions of a Bridging E Visa by which he might not abide, specifically, 8101 (no work) 8401 (report as directed), 8505 (must reside at a specified address), 8506 (must notify of any change of address), 8511 (presenter valid), and 8512 (depart by specific date), among others.

20                  Finally, after referring to s 359(2) of the Act, the Tribunal invited Mr Masikula to provide further information, being:

‘●        Evidence indicating how he would support himself should he be released from immigration detention;

  ●       Evidence indicating how much security could be lodged should one be requested; and

  ●       Evidence indicating how he would pay detention costs should he be released from immigration detention.’

21                  No relevant ‘interview’ took place between the handing of the letter to Mr Masikula and the hearing.  The letter was handed to him at the hearing.

22                  By consent, the tape recording of the hearing by the Tribunal is in evidence and I have listened to it.  The hearing lasted some 19–20 minutes.  About four minutes into the hearing, the s 359A letter was handed to Mr Masikula.  The course of the hearing thereafter was, in effect, governed by the ‘dot point’ primary criteria set out in the s 359A letter (and at [16] above).  Having caused the letter to be handed to Mr Masikula, the Tribunal member took him through the five primary criteria under which a comment in bold face appears (not the other four).  In substance, the member obtained Mr Masikula’s comments in response and satisfied himself that Mr Masikula did not meet them.  The member then told Mr Masikula that in the circumstances there was no alternative but for the Tribunal to affirm the Delegate’s decision.  It was not necessary, the member explained to Mr Masikula, for the Tribunal to go on to consider the conditions which would be attached to a Bridging E visa in Mr Masikula’s case and the question whether Mr Masikula would abide by those conditions.

23                  As noted above, on 12 October 2004 (the day immediately following the hearing), the Tribunal made its decision affirming the Delegate’s decision.

the proceeding before the fmca

24                  In the FMCA, Mr Masikula was not represented.  The learned Federal Magistrate noted a number of matters put by Mr Masikula but did not find that his arguments were ‘coherent’.  He said that there were ‘strong compassionate matters that would tend to support the comments by Ms Francois of counsel [for the Minister] that [Mr Masikula] had not been well served by his migration agent.’ (at [20])  The Federal Magistrate noted that Mr Masikula asserted that he was seeking to apply for a substantive visa, but had not done so.  The Federal Magistrate concluded that there was no reviewable error.

Grounds of appeal

25                  In his notice of appeal to this Court, Mr Masikula stated under the heading ‘Grounds’ simply ‘religious persecution’.

26                  Once he was legally represented, however, Mr Masikula sought to file an amended notice of appeal propounding the following ground:

‘1.        His Honour erred in concluding that there was no reviewable error by the Migration Review Tribunal (Reasons at 29) as the Tribunal failed to follow procedures that it was required to follow under the Migration Act 1958.

Particulars

(a)   The Migration Review Tribunal failed to give a s 359A notice to the Appellant in relation to the following information that it relied on as the reason or part of the reason to affirm the decision under review:

(i)                 That a differently constituted Migration Review Tribunal had made a finding that even if the Appellant had a valid passport and ticket or the funds to purchase a ticket, he would not depart Australia.

(ii)               That evidence in August 2004 was that the Appellant did not have a valid passport and that his passport expired in 2001.

(b)   The Migration Review Tribunal breached s359B of the Act:

            (i)         The s359A notice issued on 11 October 2004 was given        by hand to the Appellant at the hearing.  However, the         Tribunal failed to give the Appellant two working days   after the giving of the notice to provide comments and         or further information in response to that notice,           making a decision on 12 October 2004, in breach of     s359B(3) (and see Regulation 4.1892)(a)).’

27                  These grounds of appeal can be understood only in the light of further background facts.  At para 44, the Tribunal observed:

‘As is noted above the evidence of the visa applicant indicates that he has a valid passport although the Tribunal notes that this contradicts evidence in August 2004 that he did not have a valid passport and that his passport expired in 2001.  No passport was sighted by the Tribunal.  The visa applicant stated at the hearing that if released from immigration detention, he would pursue avenues to ascertain whether he could apply for permanent residence.  This indicates that the visa applicant at time of application and at the time of decision did not have an intention to depart Australia nor he was the subject of acceptable arrangements to depart Australia.’  (my emphasis)

The reference to ‘evidence in August 2004’ is a reference to para 32 of the reasons for decision of the Tribunal, differently constituted, on 16 August 2004, which stated:

‘The visa applicant stated that he wishes to remain in Australia.  He has a passport with his migration agent.  He has signed documents to renew his passport, and would need to check with his lawyer who says that he has processed it.  He does not have a ticket to return to Fiji.  He intends to apply for a family reunion visa.’

28                  In para 40 of the Findings and Reasons section of those earlier Reasons for a Decision, the Tribunal had stated:

‘Even if the visa applicant had a valid passport and a ticket or the funds to purchase a ticket, and does have the formal means of departing Australia, the Tribunal is not satisfied that he would.  Accordingly, he does not meet subclause 050.212(2).’

29                  It is true that the letter did not refer to what the differently constituted Tribunal had said, or to the evidence that was before it, in relation to the matter of Mr Masikula’s passport, apart from a statement that there was no evidence before the Tribunal that he had presented a valid passport or travel document to the Department.

consideration

30                  Section 359A of the Act provides, relevantly, as follows:

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

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

            (b)        ensure, as far as is reasonably practicable, that the applicant                      understands why it is relevant to the review; and

            (c)        invite the applicant to comment on it.

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

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

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

31                  Commendably, the Minister did not object to the raising of the grounds described in the amended notice of appeal, although they were not raised in the FMCA.  Commendably again, the Minister has not objected to the raising of the grounds in the further amended notice of appeal.  Although the Minister’s stance is not conclusive (since the integrity of the appellate process is also involved), her consent and the considerations that the appellant was not represented before the FMCA and that the proposed grounds of appeal are arguable, persuade me that in the interests of justice the appellant should have leave to file the further amended notice of appeal.  In order to save the necessity of amendment of titles, I will also grant leave to file the amended notice of appeal, even though it is superseded by the document entitled ‘Further Amended Notice of Appeal’.

32                  The appeal should be allowed because the Tribunal’s decision involved jurisdictional error, consisting of a failure to comply with s 359A of the Act.  The following are my reasons for this conclusion.

33                  Compliance with s 359A is mandatory, and non‑compliance with it entails jurisdictional error: cf the majority judgments in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (‘SAAP’), a decision on the comparable s 424A, relating to the Refugee Review Tribunal’s similar obligation.

34                  The Minister does not dispute that the s 359A letter given to Mr Masikula contained particulars of information which s 359A obliged the Tribunal to give to him.

35                  Since Mr Masikula was in immigration detention, s 359A(2)(b) obliged the Tribunal to give the information and the invitation to comment on it, to Mr Masikula by a method prescribed for the purposes of giving documents to such a person.  The information is that referred to in para (a) of s 359A(1) and the invitation is that referred to in para (c) of s 359A(1).

36                  Regulation 5.02 of the Migration Regulations 1994 provides that for the purposes of the Act and those Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.   In the present case, the s 359A letter was given to Mr Masikula in person in the course of the hearing before the Tribunal.

37                  Subsection 359B(1) provides, relevantly, that if a person is given an invitation under s 359A to comment on information, the invitation is to specify the way in which the comments may be given, being the way the Tribunal considers appropriate in the circumstances.  In the present case, the s 359A letter specified ‘at an interview prior to the hearing’.  I infer that that was the way the Tribunal considered ‘appropriate’ in the circumstances of this case.

38                  The Tribunal wrote to Mr Masikula on 6 October 2004 inviting him to attend ‘an in-person hearing’ on Monday, 11 October 2004 at 10.30 am.  He was not interviewed ‘prior to’ that hearing.  That is to say, he was not given the opportunity to provide his comments in the way that the Tribunal considered appropriate.

39                  Subsection s 359B(3) provides that where, as here, the comments are to be given at an interview, the interview is to take place:

            ‘(a)      at the place specified in the invitation; and

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

40                  No place or time for a pre-hearing interview was specified in the s 359A letter.

41                  Regulation 4.18(2) of the Migration Regulations 1994 provides, relevantly, that the prescribed period within which the interview is to take place starts when the person receives the invitation and ends at the end of two working days after the date on which the invitation is received.

42                  Since Mr Masikula received the invitation in the course of the hearing, s 359B(3), when read with reg 4.18(2), provided that the interview was to take place within two days, that is to say within two working days, of the date of the hearing itself.

43                  In SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs  [2005] FCA 769 (‘SZDQL’), Sackville J accepted (at [50]) that the Refugee Review Tribunal did not contravene s 424B(3)(b) of the Act (comparable to s 359B(3)(b)) ‘by holding the interview at the very hearing at which the invitation had been extended …’.  His Honour was concerned only with the time limit – the time within which the interview was to take place.  This is made clear by his observations at [51].

44                  Like Sackville J in SZDQL (at [53]), I am not required to decide if the expression ‘is to’ in s 359B conveys the same mandatory force as the word ‘must’ in s 359A does.  The reason why I am not required to decide this is that in the present case the Tribunal did not comply with s 359A(1) itself.

45                  I have read the transcript and listened (twice) to the tape recording of the hearing.  Although the member handed, or caused to be handed, the s 359A letter to Mr Masikula, an elderly man who describes himself as ‘illiterate’ and who is at least illiterate in English, there was no opportunity for one word of the letter to be read by the interpreter and translated into Fijian for Mr Masikula.  Rather, the member read out the first criterion (‘That you remaking, or are the subject of, acceptable arrangements to depart Australia’), discussed with him whether he had a passport and ticket, and then paraphrased, explained and elaborated upon the remaining four bullet point primary criteria under which observations in bold type face appear (see [17] above).  It was the member’s words that were translated by the interpreter, although some of those words could, no doubt, be found in the primary criteria.

46                  The remainder of the letter (see [18]-[20] above) was not even paraphrased, because the member explained to Mr Masikula it was irrelevant because he did not meet the primary criteria.

47                  The member’s final words to Mr Masikula were:

‘If you had been able to answer yes to any of those [the primary criteria] then I would have been able to go on and consider the secondary criteria which is given your immigration history to date would you be likely to comply with the conditions attached to a Bridging Visa even if it was given to you.  So because I haven’t been able to tick any of the primary ones I’m not able to look at that.  All of that is set out in that letter.  If you want to follow this through further you need to speak to your immigration lawyer.  Okay.  I hope I’ve made that very clear.’

48                  It may be that the member’s paraphrase of the five primary criteria in question was exemplary.  It may be that it gave Mr Masikula a better understanding of them than the bare translated letter would have done.  It may be that the answers elicited by the member from Mr Masikula made it plain beyond argument that he did not satisfy the primary criteria for the visa.

49                  According to the majority judgments in SAAP, these considerations are irrelevant.  According to those judgments, the presence of the word ‘must’ in each of s 359A(1) and (2) had the effect of making it mandatory for written particulars of the information to be given to Mr Masikula and of making a failure to comply with that requirement a jurisdictional error: SAAP at [71], [77] per Mc Hugh J; [154], [173] per Kirby J; [183], [208] per Hayne J.

50                  In the present case the member might just as well have handed the s 359A letter to Mr Masikula in a sealed envelope to be read later, told him to fold it up and put it in his pocket, or not have handed it to him at all.  He was given no opportunity to read the letter, such as by way of an adjournment when the interpreter could have translated it to him.  The member used the bullet point primary criteria in the letter as speaking notes for himself, but it was only his spoken words which, in translation, were heard by Mr Masikula.

51                  The information and invitation referred to in s 359A(1) were therefore not given to Mr Masikula by the method mandated by s 359A(2), although some information and an invitation to respond to that information were given to him orally by the member.

52                  This conclusion makes it unnecessary for me to consider the reasonable apprehension of bias ground of appeal.  As noted earlier, I have not read any submissions in relation to the further amended notice of appeal.

conclusion

53                  The reasons set out above are the reasons why, by consent, the appeal is being allowed and consequential orders are being made.

54                  The parties have agreed that the respondent should pay the appellant’s costs of the appeal in a sum of $2500.

Associate:

Dated:              21 October 2005