FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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

THE APPEAL

1    This is an appeal against orders of the Federal Magistrates Court setting aside a decision of the Migration Review Tribunal (the Tribunal) for jurisdictional error and remitting the matter to the Tribunal for determination in accordance with law (Saba Bros Tiling Pty Ltd v Minister for Immigration & Anor [2010] FMCA 598).

2    The appellant is the Minister for Immigration and Citizenship (the Minister). The respondent, Saba Bros Tiling Pty Ltd (Saba Bros), applied to the Tribunal for review of a decision refusing its application for approval of an appointment under the Employer Nomination Scheme provided for in the Migration Regulations 1994 (Cth) (the Migration Regulations). The Tribunal refused Saba Bros’ application without having invited Saba Bros to appear before it for a hearing. The Tribunal considered that s 360(1) of the Migration Act 1958 (Cth) (the Migration Act) (which requires the Tribunal to invite an applicant “to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”) did not apply to Saba Bros because, as provided in s 360(2) of the Migration Act, s 359C(2) applied to it. Accordingly, s 360(3) was engaged and Saba Bros was “not entitled to appear before the Tribunal”. On review, the Federal Magistrates Court held that the Tribunal had been wrong to conclude that s 359C(2) applied to Saba Bros and so that, in determining the application for review without having invited Saba Bros to appear before it, the Tribunal had contravened s 360, such contravention being a jurisdictional error.

BACKGROUND

Statutory provisions

3    Section 347 of the Migration Act enables an applicant to apply for review of an “MRT-reviewable decision”. By s 349(1) the Tribunal “may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision”. Sections 349(2) and (3) provide that, on review:

(2)    The Tribunal may:

(a)    affirm the decision; or

(b)    vary the decision; or

(c)    if the decision relates to a prescribed matter – remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d)    set the decision aside and substitute a new decision.

(3)    If the Tribunal:

(a)    varies the decision; or

(b)    sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

4    Section 359A(1) of the Migration Act imposes obligations on the Tribunal in relation to its dealings with an applicant for review. Relevantly, it requires the Tribunal to:

(a)    give to the applicant… clear particulars of any information that the Tribunal considers would be the reason, or 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 its being relied on in affirming the decision that is under review; and

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

5    Section 359B(2) provides that, where an invitation is given under s 359A, the applicant’s comments on or response to the information must be given within the period specified in the invitation.

6    Section 359C(2) sets out the consequences if the applicant fails to respond or comment within the specified period. It provides that:

(2)    If the applicant:

(a)    is invited under section 359A to comment on or respond to information; and

(b)    does not give the comments or the response before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

7    Section 360 of the Migration Act is as follows:

(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.

8    Section 363A of the Migration Act further provides that:

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

Facts

9    On 21 May 2008, Saba Bros lodged with the Minister an “employer nomination” form in respect of a person named Mr El Chidiac. Saba Bros wished to obtain the Minister’s approval to employ Mr El Chidiac in a “nominated position” – that of a “wall and floor tiler”.

10    Saba Bros’ application was made under reg 5.19 of the Migration Regulations. Regulation 5.19 provides that the Minister must (respectively) accept or reject an employer’s application if certain criteria are or are not met.

11    On 9 October 2008, a delegate of the Minister refused Saba Bros’ application. The delegate’s reason was that, on 20 August 2008, Saba Bros had been issued with a “sanction notice” under s 140J of the Migration Act (which deals with breach of an undertaking by an approved sponsor of a person for a temporary visa). The sanction specified in the notice was effective for a period of three months. The sanction thus remained in force at the time the delegate made his or her decision on Saba Bros’ employer nomination application (9 October 2008). The delegate therefore considered that he or she was required by reg 5.19C(1C)(b) to reject the application.

12    On 27 October 2008, Saba Bros applied to the Tribunal for review of the delegate’s decision.

13    On 25 January 2010, the Tribunal wrote to Saba Bros. It is not in dispute that the letter (the Tribunal’s invitation) was purportedly sent under s 359A of the Migration Act. The letter included the following passages (emphasis in original):

[…]

Saba Bros Tiling Pty. Ltd. is invited to comment on or respond to information that the Tribunal considers would, subject to any comments or response it makes, be the reason, or a part of the reason, for affirming the decision that is under review.

The particulars of the information are:

    The applicant, Saba Bros Tiling Pty. Ltd., applied for approval of a nominated position under r.5.19 of the [Migration] Regulations on 21 May 2008. The delegate decided to refuse to grant the application on 9 October 2008. The delegate rejected the application of Saba Bros Tiling Pty. Ltd. for approval of a nominated position as an approved appointment as the employer was the subject of an action that is described in s.140L of the [Migration] Act (r.5.19(1C)(a)(iii) and r.5.19(1C)(b)).

    Saba Bros Tiling Pty. Ltd. then applied to the Tribunal on 28 October 2008 for review of the delegate’s decision.

    Regulation 5.19(1C)(b) provides that the Minister must reject an application if any of the requirements in paragraph (a) are not met. In issue in this case is regulation 5.19(1C)(a)(iii) which states that: “the employer is not the subject of an action that is described in section 140L of the Act”.

    Departmental records indicate that on 20 August 2008 a sanction was imposed on Saba Bros Tiling Pty. Ltd. The Department made a decision under section 140J to take the action set out in paragraphs 140L(e) and (g). These actions barred Saba Bros Tiling Pty. Ltd. from nominating a person or activity for 3 months.

This information is relevant to the review because the Tribunal may find that for the purposes of regulation 5.19(1C)(a)(iii), the applicant, Saba Bros Tiling Pty. Ltd. is the subject of an action that is described in section 140L of the [Migration] Act (as it existed prior to 14 September 2009) and in that case, the application must be rejected pursuant to regulation 5.19(1C)(b). The Tribunal may find that the reference to s.140L in regulation 5.19(1C)(a)(iii) is a reference to the now repealed s.140L or to the new section 140M which came into force on 14 September 2009. This may lead the Tribunal to find that the application must be rejected pursuant to regulation 5.19(1C)(b).

Saba Bros Tiling Pty. Ltd. is invited to give comments on or respond to the above information in writing.

[…]

If the Tribunal does not receive Saba Bros Tiling Pty. Ltd’s comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain its views on the information. Saba Bros Tiling Pty. Ltd. will also lose any entitlement it might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

14    On its face, the information identified in the letter is the imposition on 20 August 2008 of a three-month sanction. As noted above, the letter was sent on 25 January 2010. Accordingly, in the context of this appeal the Minister acknowledged that the information provided to Saba Bros by the Tribunal, at the time it was provided, could not have been the reason or part of the reason for affirming the decision under review.

15    On 22 February 2010, Saba Bros’ solicitors sent the following letter to the Tribunal (the 22 February letter):

We refer to section 351 notice [sic] and note adverse information therein. We have put the adverse information to our client, however we are instructed that he would still like the opportunity of an oral hearing.

16    On 23 February 2010, the Tribunal responded to Saba Bros. It noted that it did not regard the 22 February letter as either a response to or a comment on the information put to Saba Bros in the Tribunal’s invitation. It stated that, on this basis, the Tribunal considered that Saba Bros had lost its right to an oral hearing.

17    On 23 April 2010, the Tribunal made its decision without having invited Saba Bros to appear before it. The Tribunal acknowledged that, as the three-month period of the sanction had passed, Saba Bros’ application was not required (or able) to be refused on that basis. The Tribunal nonetheless affirmed the delegate’s decision as it was not satisfied that Saba Bros was making “adequate provision for training existing employees in work relevant to the business” (reg 5.19(2)). As such, the Tribunal determined that Saba Bros’ application was required to be rejected under regs 5.19(1C)(a)(ii)(A) and (1C)(b).

ISSUES FOR DETERMINATION

Preliminary observations

18    The principal issue for determination is whether, on the facts as indicated, s 359C(2) applied to Saba Bros as provided in s 360(2)(c) of the Migration Act. If s 359C(2) applied to Saba Bros, as the Tribunal considered it did, Saba Bros was not entitled to appear before the Tribunal and the Tribunal was bound to proceed with the review as it did (ss 360(3) and 363A). If s 359C(2) did not apply to Saba Bros, the Tribunal was obliged to invite Saba Bros to appear before it in accordance with s 360(1). Breach of this obligation, the effect of which would be to deny Saba Bros a hearing, would constitute a jurisdictional error (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 and Minister for Immigration v SZIZO (2009) 238 CLR 627; [2007] HCA 37 at [34] and [36]).

19    The Minister acknowledged that the question whether s 359C(2) applied to Saba Bros is a jurisdictional fact. As explained in Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135; [2000] HCA 5 (Enfield) at [28]:

The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.

20    Applying this language to the present case, the “criterion” is the application of s 359C(2). For the section to apply the requirements of both subsections (a) and (b) must be satisfied: that is, the applicant must both have been invited to comment on or respond to information under s 359A (s 359C(2)(a)), and must not have given the comments or response before the time for giving them had passed (s 359C(2)(b)). The “mandated outcome” if s 359C(2) did not apply was the issuing of an invitation by the Tribunal to Saba Bros to attend a hearing (s 360(1)). The “mandated outcome” if s 359C(2) did apply was the making of a decision by the Tribunal without issuing such an invitation (ss 359C(2), 360(2)-(3), 363A).

21    The two sub-questions comprising the jurisdictional fact whether s 359C(2) applied to Saba Bros (as noted, that Saba Bros had been invited to comment on or respond to information under s 359A (s 359C(2)(a)) and that it had not given the comments or response before the time for giving them had passed (s 359C(2)(b)) also involve jurisdictional facts.

22    While the Tribunal was bound to determine that these jurisdictional facts existed (in order to proceed to one of the two mandated outcomes), its determinations regarding those facts are not final. If a fact is a jurisdictional fact, the Court on review is bound to determine for itself whether it existed based on the evidence before it (Enfield at [38] and [50]).

23    The first of the sub-questions, relating to the issuing of an invitation to respond or comment, involves s 359A(1)(a). That section requires the Tribunal to give to the applicant “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”. There is no dispute between the parties to the present appeal that this section operates in advance of, and therefore independently of, the Tribunal’s ultimate reasoning in relation to any particular review (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [17]). As such, the reference to what the Tribunal “considers” is a reference to the Tribunal’s state of mind at the time the invitation is given (see, as to state of mind, Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31 at [24]). The issue in the present appeal is whether s 359A(1)(a) was engaged at all by the Tribunal giving to Saba Bros particulars of information that, at the time the particulars were given, could not on any rational view have been the reason or part of the reason for affirming the decision under review.

24    The second of these sub-questions, relating to the giving of a comment or response by Saba Bros, involves s 359A(1)(c). This section requires the Tribunal, if it gives particulars of information as provided for in s 359A(1)(a), to “invite the applicant to comment on or respond to it” (that is, to the information). The issue in the present appeal is whether Saba Bros did or did not give a response within time. By the terms of the legislation, and in contrast to s 359A(1)(a), this second sub-question has nothing to do with the Tribunal’s state of mind. The question is not whether the Tribunal considers the applicant to have commented on or responded to the information. The question is objective. On the facts of the present case, it is simply whether the 22 February letter did or did not “give the comments or response” as provided in s 359C(2)(b) (there being no question that, if any comment or response was given, it was given before the relevant time period had passed).

25    As the second sub-question involves a question of objective fact, it is appropriate to answer that question first, assuming for that purpose that (as the Minister contended) Saba Bros had been invited under s 359A to comment on or respond to information as provided in s 359C(2)(a). If this second sub-question is answered in the affirmative, it becomes unnecessary to decide the first sub-question, as if Saba Bros responded to the information in the Tribunal’s invitation within the relevant timeframe then: – (i) s 359C(2) did not apply to it, (ii) the Tribunal’s determination that this jurisdictional fact existed was erroneous, (iii) Saba Bros did not lose its entitlement to a hearing under s 360(1), (iv) the Tribunal, in making its decision on review without inviting Saba Bros to attend such a hearing, did not proceed to the appropriate “mandated outcome”, and so (v) the Tribunal fell into jurisdictional error.

Comments or response (s 359C(2)(b))

26    The Minister submitted that: – (i) as s 395A(1)(c) requires an applicant to comment on or respond to the information the subject of an invitation under s 359A(1)(a), a “mere acknowledgement of the receipt” of that invitation does not constitute a response to the information it contains, (ii) similarly, a bald statement that the applicant wishes to comment on the information at a hearing may constitute a response to the invitation but does not constitute a response to the information it contains, (iii) a “response” requires some kind of “minimal grappling” with the information in question so as to indicate the applicant’s position in relation to it, (iv) as such, neither of the statements made in the 22 February letter constituted a response in the relevant sense, (v) Saba Bros therefore failed to respond to the information by the prescribed date, (vi) as a result, Saba Bros forfeited its right to an invitation to appear before the Tribunal, and therefore (vii) Saba Bros was not entitled to, and the Tribunal could not give to Saba Bros, a hearing.

27    Saba Bros accepted that s 395A(1)(c) requires a response, not merely to the invitation, but to the information it contains. However, it submitted that: – (i) the word “respond” is contrasted in the relevant sections with the word “comment”, (ii) the two words have different meanings and provide an applicant with potentially distinct alternatives (either to respond to or to comment on the information), (iii) Saba Bros’ statement that it “noted” the information in the Tribunal’s invitation constituted a response to the information without comment, (iv) the statement that Saba Bros “still” wished to be afforded an oral hearing also constituted a response in that it acknowledged the allegedly adverse nature of the information and implied that it was not fatal to Saba Bros’ application, (v) as such, the 22 February letter constituted a response in the relevant sense, (vi) Saba Bros did not therefore forfeit its right to an oral hearing by failing to respond by the prescribed date, and so (vii) the Tribunal was bound to invite Saba Bros to appear before the Tribunal.

28    Saba Bros’ submissions are persuasive.

29    This is not a case where the applicant simply ignored the Tribunal’s invitation. To the contrary, Saba Bros’ solicitors forwarded to the Tribunal a letter specifically dealing with the Tribunal’s invitation and the information it contained. Although this letter erroneously referred to the Tribunal’s invitation as a “section 351 notice”, it is clear that the letter was sent in answer to that invitation. The question, accordingly, concerns only the quality of the solicitors’ letter and not the fact of it having been sent in purported answer to the invitation.

30    Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: “comment on or respond to” the information in the case of s 359A(1)(c), and “the comments or the response” in the case of s 359C(2)(b). This indicates that an applicant may either “comment on” or “respond to” the information in the invitation, or both comment on and respond to the information. The choice – to comment, respond or both – is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines “to comment” as “to make comments or remarks [upon]”; by contrast, “to respond” is simply “to answer in speech or writing; to reply”. An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.

31    It is true that s 359C(2)(b), read with s 359A(1)(c), requires a response to the information in the invitation. But beyond that the Migration Act imposes no minimum requirement of content for a response or a comment. Accordingly, on the face of the provisions, any reply or answer directed to the information itself will constitute a response.

32    Nothing in the context of or purpose underlying the relevant provisions indicates that the word “respond” should be given other than its ordinary and natural meaning of “to answer” or “to reply”. As Saba Bros submitted, the option of responding to (as opposed to commenting on) information under s 359A was inserted into the Migration Act by the Migration Amendment (Review Provisions) Act 2007 (Cth). If, as the Minister contended, a “response” requires an applicant expressly to state a position in relation to the information, the distinction between comment and response introduced by Parliament in 2007 would be rendered redundant.

33    On the basis of the ordinary and natural meaning of the terms contained in the relevant statutory provisions, the 22 February letter from Saba Bros’ solicitors constituted a response to the information raised in the Tribunal’s invitation. The letter said that Saba Bros’ solicitors “noted” the “adverse information” in the invitation and had put this adverse information to Saba Bros, but that Saba Bros had instructed the solicitors that it still wished to proceed with an oral hearing. The Minister contended that this was insufficient to constitute a response to the information because the “whole point of ss 359C(2) and 360 is that the applicant is not entitled to a hearing unless he or she has made some response to the information”. This submission, however, elides the consequences of not making a response or comment with the argument that such a comment or response must have some required content or quality. Contrary to the Minister’s submission, the fact that the consequence of not making a response or comment is the loss of the entitlement to a hearing which would otherwise exist supports a construction of s 359C(2)(b) which does not import into the section any subjective requirement relating to the content or quality of the comments or response.

34    The 22 February letter cannot be characterised as other than a response to the information. First, the letter characterised the information as “adverse information”. This indicates that the recipient of the letter had considered the information and concluded (albeit, in this case, erroneously) that it was adverse to the application for review. If the Minister were correct in saying that a comment or response must satisfy some minimum standard of content, then the mere characterisation of the information as “adverse” to Saba Bros’ application in the letter from its solicitors would suffice. Second, the letter said the information had been put to Saba Bros. Third, the letter said that Saba Bros had given instructions to its solicitors in the context of, and thus implicitly in response to, the information. Fourth, the instructions so given were communicated to the Tribunal as being to the effect that Saba Bros still would like the opportunity of an oral hearing. In so stating, the letter impliedly asserted that the information did not require the Tribunal to refuse Saba Bros’ application for review despite the recipient’s belief that the information was adverse to the application. The letter did not state why this was so, but the statutory provisions imposed no requirement that it do so. Brief the letter may have been; but it was a response to the information in the Tribunal’s invitation nonetheless.

35    As this response was provided before the time for so doing had passed, s 359C(2) did not, as a matter of objective fact, apply. Accordingly, the Tribunal was wrong to conclude that s 359C(2) (and so s 360(2)(c) and s 360(3)) applied to Saba Bros. As noted above, for s 359C(2) to apply the requirements of both s 359C(2)(a) (the fact of the invitation) and s 359C(2)(b) (the fact of a failure to respond or comment in time) had to be met. Under the circumstances, the requirement of s 359C(2)(b) was not met in relation to Saba Bros. Hence, the Tribunal was bound by s 360(1) to invite Saba Bros to appear before it but did not do so. This was a jurisdictional error.

36    For these reasons the Federal Magistrate was correct to set aside the Tribunal’s decision on the basis of jurisdictional error.

Invitation under s 359A (s 359C(2)(a))

37    Given the conclusions reached above in respect of s 359C(2)(b) it is not necessary to resolve the disputed question in respect of s 359C(2)(a). Nevertheless, it is appropriate in the circumstances that I also explain the conclusions I have reached in respect of that section. The jurisdictional fact in s 359C(2)(a) is that the applicant “is invited under section 359A to comment on or respond to information”. Accordingly, for the section to be satisfied, the Tribunal must have given to an applicant an invitation “under section 359A”. An invitation is given “under” s 359A if it is required or authorised to be given by that section (see, albeit in different contexts, Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 and Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7).

38    Section 359A(1) requires the Tribunal to give to the applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Minister submitted that the section imposed a single requirement only on the Tribunal: namely, that the Tribunal “consider” some information to meet the description of being “the reason, or a part of the reason, for affirming the decision under review”. The Minister said that to satisfy this requirement all that is needed is that the Tribunal, at the time of issuing the invitation, honestly believes that the information meets the description. The belief may be wrong, even wholly irrational, either in fact or law (or both), but provided that the belief is honestly held and the invitation given, the Minister said the applicant had been “invited under section 359A to comment on or respond to information”, so that s 359C(2) was engaged.

39    The Federal Magistrate rejected the Minister’s submissions on this issue on the ground that information which, on an objective view, could not be relevant to the decision under review was not “information” within the meaning of s 359A. I agree with the Federal Magistrate’s conclusion of jurisdictional error, but would express the reasons for that conclusion differently. In the present case, the Tribunal’s invitation of 25 January 2010, on its face, referred to a sanction which had been issued on 20 August 2008 and which operated for a period of only three months. Given the nature of the Tribunal’s jurisdiction under s 349 of the Migration Act and of the decision under review (relating to the approval of an employer nomination where approval must or must not be granted in circumstances set out in reg 5.19 of the Migration Regulations), the expired sanction notice could not have been a reason or part of the reason for affirming the decision at the time the Tribunal issued the invitation. At that time, the expired sanction notice was and necessarily would have remained legally irrelevant to the review.

40    The Minister submitted that the fact that the Tribunal was wrong about the relevance of the sanction notice was immaterial because, as explained in Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212; [2001] FCA 56 at [19]-[20], the Tribunal cannot be expected to know that any given piece of information is sound or reliable at the time it issues an invitation. According to the Minister, it may be inferred in this case that the Tribunal wrongly believed that the sanction notice was relevant because, for example, it wrongly thought that it was bound to make its decision on review on the basis of the circumstances as they existed at the time the Minister’s delegate made the original decision. This, said the Minister, would be no different from a case where the Tribunal acted on a view of the law which was subsequently held to be incorrect.

41    I am not persuaded by these submissions. The functions vested in the Tribunal by s 359A are part of a statutory scheme in which the Tribunal’s ultimate function is to determine applications for review, exercising the powers vested in it by s 349(1) and in accordance with the options available to it in s 349(2) of the Migration Act. It is inherent in those functions that the Tribunal must determine applications for review by applying the law and the facts as they exist at the time of the Tribunal’s decision. To infer that the Tribunal mistakenly believed otherwise is inconsistent with the fundamental nature of the jurisdiction with which it is vested and about which there is no dispute. Once this is accepted it is apparent that the Tribunal’s belief that the information contained in its invitation was relevant to the decision under review lacked any possible rational foundation. It asserted a legal impossibility: that, as at the date of the invitation (25 January 2010), a sanction notice issued on 20 August 2008 which had expired three months later would be a reason or part of the reason for affirming the decision under review. In other words, this is not a case where, when issuing the invitation, the Tribunal could not know whether the information in question was sound or reliable. Nor is it a case where, when issuing the invitation, the Tribunal simply made a mistake of fact or law. It is a case where, when issuing the invitation, the Tribunal asserted a legal impossibility. In so doing, in my view, the Tribunal did not act “under section 359A” as provided in s 359C(2)(a).

42    Expressing this conclusion – that in sending the invitation of 25 January 2010 the Tribunal did not act under s 359A as provided in s 359C(2)(a) – is one thing. Articulating principled reasons for it is another. Section 359A vests a function in the Tribunal conditioned on its consideration that information meets a certain description. I accept that this vests in the Tribunal a wide scope of action. But I do not accept that its scope is unlimited. The Minister accepted a limit of honesty and, perhaps, also good faith. Good faith requires not only an honest exercise of power, but also an exercise of power that is not motivated by matters outside the scope of the enabling statute (such as malice or the like). This must be so. If the Tribunal acted under s 359A other than honestly and in good faith, its action would be a nullity. It could not be said to have acted “under” s 359A as required in order to engage s 359C(2)(a). In such a case an applicant could not, by failing to comment on or respond to information contained in such an invitation, lose the right to a hearing. In my view, however, the requirement that the Tribunal consider the information to meet the relevant description involves another minimum standard. It is that the information, at the time the Tribunal issues the invitation, must be rationally capable of being seen as information that would affect the decision under review. If the information, at the time the invitation is issued, is not rationally capable of being seen as information that would affect the decision under review then, again, the Tribunal’s action in issuing the invitation is a nullity. The Tribunal could not be said to have acted “under” s 359A as required in order to engage s 359C(2)(a), and again no consequence to an applicant could flow from a failure to respond to or comment on the information contained in such an invitation. By this, I do not mean to import notions of manifest or Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). I mean no more than that the information, at the time the invitation is given, must be capable of being seen as referable to the statutory power to be exercised (that is, the Tribunal’s powers in relation to the application for review) on some rational basis.

43    There are a number of indications in the statutory scheme which support the recognition of this minimum requirement of bare rationality in respect of the exercise of the Tribunal’s function under s 359A. First, s 359A(1)(a) requires the Tribunal to give “clear particulars” of the information. The requirement that clear particulars be given suggests that the information must be capable of bearing in some way on the decision under review. Second, s 359A(1)(b) requires the Tribunal to ensure, as far is reasonably practicable, that the applicant understands why the information “is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review”. This reinforces the conclusion that the information, at the time the information is given, must be rationally capable of being explained as relevant to the review. Third, s 359A(1)(c) requires the Tribunal to invite the applicant to comment on or respond to the information. This indicates that the information must be capable of some rational response. Fourth, the consequences of not responding to the information contained in the invitation are serious. The applicant loses his or her entitlement to a hearing, and the Tribunal retains no discretion to afford the applicant a hearing if it alters its view. Fifth, the provisions in question constitute an exhaustive statement of the requirements of natural justice (s 357A of the Migration Act). It is inherently unlikely that Parliament intended its exhaustive statement of the requirements of natural justice to operate so as to deny an applicant a hearing merely because the applicant failed to comment on or respond to information that was not capable of being seen as referable to the statutory power to be exercised on some reasoned basis. Sixth, s 357A(3) of the Migration Act requires the Tribunal, in applying Div 5 of Pt 5 (the Division containing the relevant provisions), to “act in a way that is fair and just”. Inherent in the concepts of fairness and justice is the need for the exercise of statutory functions to be carried out not only honestly and in good faith, but also on some rational basis.

44    The recognition of this basic requirement that the Tribunal’s function be exercised on some rational basis is not inconsistent with the intermediate nature of the function. As outlined above, the issuing of an invitation under s 359A(1) enlivens other provisions which have serious consequences for an applicant. On the Minister’s case these consequences would apply even if, for example, the Tribunal itself recognised before making its ultimate decision that its invitation was based on information which was not merely wrong, mistaken or unsound, but which was incapable of ever having been in any way relevant to the exercise of the review power. In other words, it is the Minister’s case that by inviting comments on or a response to information incapable of ever being seen as referable to the statutory power to be exercised on some reasoned basis, the Tribunal may validly engage provisions the consequence of which is to remove the entitlement an applicant would otherwise have to a hearing. If another construction of the statutory provisions is open it should be preferred. For the reasons set out above, another construction is open: namely, to recognise that the Tribunal’s consideration within the meaning of s 359A (that the information would be the reason or part of the reason for affirming the decision under review) involves a state of mind actually and honestly held in good faith and in respect of information capable of being seen as referable to the statutory power to be exercised on some reasoned basis. If these basic requirements are not met then, for the purposes of s 359C(2)(a), the Tribunal has not invited the applicant “under section 359A to comment on or respond to [the] information”. In consequence, s 359C(2) does not apply; neither, therefore, do ss 360(2)-(3). Section 360(1), accordingly, applies and the Tribunal thereby is bound to invite the applicant to appear before it for a hearing. Failure to discharge this statutory obligation constitutes a jurisdictional error vitiating the Tribunal’s decision on the review application.

45    The Tribunal’s invitation of 25 January 2010 did not meet these minimum requirements. It may be inferred that the Tribunal acted honestly and in good faith. However, the information identified in the Tribunal’s invitation could not be seen as referable to the statutory power to be exercised on any rational basis. As noted, at the time the invitation was given, the information was incapable of being seen as information that would rationally affect the decision under review in any way. For these reasons, the Tribunal, in issuing the invitation, did not act “under section 359A”. It acted outside that power. The consequences identified above therefore followed. The Tribunal’s decision to affirm the decision under review is vitiated by jurisdictional error, being the erroneous conclusion that s 359C(2) applied to Saba Bros and the resulting contravention of the Tribunal’s obligation to invite Saba Bros to appear before the Tribunal as required by s 360(1) of the Migration Act. On this basis also, had it been necessary for me to so decide, I would have concluded that the Federal Magistrate was correct to set aside the Tribunal’s decision on the basis of jurisdictional error.

CONCLUSION

46    For the reasons given above the appeal must be dismissed with costs.

Associate:

Dated:    18 March 2011