FEDERAL COURT OF AUSTRALIA

Vo v Minister for Home Affairs [2020] FCA 468

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Circuit Court of Australia on 18 March 2019 are set aside.

3.    The decision of the Administrative Appeals Tribunal made on 9 August 2018 is set aside.

4.    The appellant’s application is remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

5.    The first respondent is to pay the appellant’s costs of and incidental to this appeal to be taxed failing agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    The central issue in this appeal is a relatively narrow one. It is whether, having issued an invitation under s 360 of the Migration Act 1958 (Cth) (the Act) to Ms Vo, the appellant, to attend a further hearing before it, the Administrative Appeals Tribunal (the Tribunal) was obligated to proceed with that hearing. The Federal Circuit judge from whose judgment this appeal is brought concluded that the Tribunal was not so obligated ([2019] FCCA 844). Consequently, his Honour dismissed the appellant’s application for judicial review of the Tribunal’s decision which, in turn, affirmed an earlier decision of a delegate of the Minister, the first respondent, refusing Ms Vo’s application for a Partner (Temporary) (Class UK) visa.

FACTUAL BACKGROUND

2    Ms Vo is a Vietnamese citizen. She arrived in Australia on 5 November 2013 on a student visa. On 21 September 2014, she married Mr Duc Duy Pham, an Australian citizen who had immigrated to Australia from Vietnam in 2009. On 21 June 2016, after she had abandoned her studies, her student visa and associated bridging visa were cancelled. On 18 September 2015, Ms Vo lodged the application for a Partner visa to which this appeal relates. Mr Pham was her sponsor in that application.

3    After attending an interview before a Departmental officer on 28 September 2016, a delegate of the Minister rejected Ms Vo’s application on 1 February 2017. Ms Vo then made an application for merits review of the delegate’s decision to the Tribunal on 4 February 2017. As the Tribunal recorded in its decision (at [6]):

On 27 March 2018 [Ms Vo] appeared before the Tribunal to give evidence and present arguments. The Tribunal also heard oral evidence from the sponsor, Mr Pham, the sponsor’s mother, Thi Ngoc Le Thuy Nguyen, and witnesses Thi Hahn Phan, a family friend of the sponsor, and Nhan Thi Thanh Vo, [Ms Vo’s] sister.

4    The course of events following that hearing have given rise to this appeal. The Tribunal described them in its decision as follows (at [27]–[31]):

27.    Following the review hearing on 27 March 2018, on 27 June 2018 the Tribunal sought to provide [Ms Vo] with an extended opportunity to address any concerns or issues arising from the evidence before it. The Tribunal invited [Ms Vo] to a second hearing scheduled for 19 July 2018.

28.    On 27 June 2018 Ms Vo’s registered Migration Agent Ms Pamela Tieu wrote to the Tribunal requesting that the Tribunal delay this second hearing of 19 July to a date not before mid-September 2018, on the basis that she was on maternity leave until then and was the only person in the practice who could represent [Ms Vo], having had carriage of the matter since 4 February 2017. Ms Tieu also specified three dates on which she would not be available in September 2018.

29.    On 28 June the Tribunal responded to [Ms Vo] stating that, having considered the request, [she] was referred to section 366A of the Act, which provides that an applicant is entitled to have a person assist them at the hearing but that, unless there are exceptional circumstances, the assistant is not entitled to present arguments or address the Tribunal. It noted that Ms Tieu was not a sole practitioner and that it did not consider the circumstances exceptional. However in light of Ms Tieu’s carriage of the matter, the Tribunal said it would cancel the second hearing and put its concerns to [Ms Vo] in written form under section 359A of the Act.

30.    On 4 July 2018 the Tribunal wrote to Ms Vo, putting certain information that the Tribunal considered would, subject to [her] comments or response, be the reason or a part of the reason for affirming the decision under review. The Tribunal stated it had not made up its mind about the information. The information put to [Ms Vo] concerned issues on which the Tribunal invited comment or submissions.

31.    On 18 July 2018 [Ms Vo] responded with a statutory declaration commenting on the information in the Tribunal’s letter. A summary of [her] responses is reflected below, after each issue raised. Those issues were:

a.    The validity of a certificate issued under s376 of the Migration Act. Ms Vo did not comment on the validity of the certificate;

b.    The gist of information covered by the certificate that went further than the information shared with [Ms Vo] under s359AA at the hearing. This concerned a claim that [she] was living at the home of her sister at Gladys Street Doolandella, where her brother also lives and that a payment of $70,000-80,000 had been paid to the sponsor in instalments of 50 per cent for the purposes of seeking a visa: Ms Vo commented, in summary, that she and her sponsor had addressed this at the hearing, in that they believed their colleagues or fellow students had sought to discredit them before the Tribunal, and this should not outweigh their sworn evidence and that of their witnesses who claimed they had seen them living together;

c.    Transactions in the Westpac joint bank account showed approximately 90 per cent of transactions were made at Aspley, on the north side of Brisbane, and the remaining 10 per cent were made at Inala, on the south side. The Tribunal noted Inala is closer to Doolandella than to Springfield Lakes where the couple claim to live together. The Tribunal said and this might tend to suggest that Ms Vo is rarely in the suburb where she claims to cohabit with her husband: Ms Vo commented, in summary, that she works at Aspley therefore she makes many transactions there, and that the Vietnamese community preferred to transact at Inala, in cash; and further, she disputed the Tribunal’s assessment of the spending pattern breakdown within that 10 per cent of transactions on the joint account that are not made at Aspley;

d.    That the sponsor confined his financial transactions and income entirely to his private bank account and this might support a finding that the couple do not pool their resources: Ms Vo commented, in summary, that the parties pooled their resources even though their bank accounts were by and large separately operated but this was a typical set of arrangements for a young married couple.

e.    That the parties had not provided written evidence they jointly paid the $100-$150 amount they claim to pay to the sponsor's parents for residency: Ms Vo commented, in summary, that they paid amounts to Mr Pham’s parents in cash; Mr Pham submitted his mother had provided a declaration to support that a payment is made.

f.    That the sponsor’s evidence that he departs his parents’ home with Ms Vo at 8.30am to drop her off at group transport at Inala does not align easily with the salon’s opening hour of 9am, the most likely start time for staff: Ms Vo commented, in summary, that she did not start work until 10am because the salon was quiet between 9am and 10am;

g.    That the Tribunal did not have before it convincing evidence that [Ms Vo’s] parents were not prepared to continue to fund the study for which she came to Australia and then did not pursue, as is reflected in the Provider Registration and International Student Management System (PRISMS) database: Ms Vo commented, in summary, that her circumstances had changed since she came to Australia and met and married her husband and that the couple did not want to rely on her family to fund her study now she was married; and, that if she were granted a subclass 801 Partner visa her university fees would be significantly less;

h.    That the Tribunal did not have before it convincing evidence as to why she did not understand that her Bridging visa had been cancelled at the same time as her student visa, rendering her unlawful for three months until contacted by the Department: Ms Vo commented, in summary, that she was unaware of the Bridging visa issues because the cancellation letter was sent to her home address (where she claims to live with her husband) and not to her migration agent.

(Emphasis and errors in original)

5    Since the Tribunal’s letters of 27 June 2018, 28 June 2018 and 4 July 2018 mentioned at [4(27)], [4(29)] and [4(30)] above respectively are particularly significant in this appeal, it is appropriate to set their contents out in full below.

6    The letter of 27 June 2018 stated:

I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Partner (Temporary) (Class UK) visa.

We have considered the material before us but we are unable to make a favourable decision on this information alone.

You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case. We have arranged a hearing for:

If you are not able to attend the hearing you should advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.

We request that any additional documents or information that you may wish to rely on during the hearing be provided to us by 12 July 2018.

If you bring an original document to the hearing to submit as evidence, you should also bring a copy of the document. If you do not bring a copy, the original may not be returned until the end of the review.

The Member may wish to take evidence from Mr Duc Duy Pham. Please arrange for Mr Duc Duy Pham to attend the hearing.

The enclosed leaflet ‘Information about hearings - MR Division’ contains important information about hearings, dismissals and your rights.

Please read and complete the enclosed ‘Response to hearing invitation - MR Division’ form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written arguments sent to us should be in English or be translated by a qualified translator.

Please return the completed form to us within 7 days after receiving this letter.

If you have any questions, please email mrdivision@aat.gov.au, or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

(Emphasis in original)

The enclosed leaflet included details on a number of subjects, including: whether an applicant could bring anyone to the hearing; whether an applicant could ask the Tribunal to obtain evidence; whether the hearing would be held in private; and whether an interpreter would be provided at the hearing.

7    The letter of 28 June 2018 stated:

I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Partner (Temporary) (Class UK) visa.

On 27 June 2018 we sent a letter inviting you to attend a second hearing on 19 July 2018 the first hearing having taken place on 27 March 2018, to give evidence and present arguments relating to the issues arising in your case. On 27 June 2018 we received a request that the hearing be postponed until your representative, Ms Pamela Tieu of T Lawyers Pty Ltd, had completed her maternity leave in mid-September and further, that specific dates in September not to be selected in order to accommodate Ms Tieu’s other commitments.

The Tribunal has considered your request for a lengthy postponement of the hearing and is unable to accommodate it. You are referred to Section 366A of the Migration Act which provides than an applicant is entitled to have a person assist them at the hearing but that, unless there are exceptional circumstances, the assistant is not entitled to present arguments or address the Tribunal. The Tribunal does not accept that Ms Tieu’s circumstances are exceptional. It notes that Ms Tieu is not a sole practitioner and that T Lawyers have incorporated Nguyen Lawyers into the practice.

The Tribunal in holding the second hearing was seeking to provide you with an extended opportunity to address the concerns it holds about your case. You were offered an interpreter and representation by a migration agent at the hearing. The Tribunal accepts however that the matter has already had a hearing, with Ms Tieu as your representative, and that she is not available for a second hearing. The Tribunal has decided to cancel this second hearing scheduled for 19 July 2018 and put its information and concerns to you in written form under section 359A of the Migration Act. You will be invited to comment on them. You will receive this written correspondence in the near future. Depending on your response, the Member will decide whether another hearing is necessary.

If you have any questions, please email mrdivision@aat.gov.au, or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

(Errors in original)

8    The letter of 4 July 2018 stated:

I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Partner (Temporary) (Class UK) visa.

In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that we have not made up our mind about the information.

The particulars of the information are:

You are invited to make submissions on the validity of a certificate issued under s376 of the Migration Act, which is appended to this letter. The certificate applies to information given to the Minister for Immigration and Border Protection in confidence, and the Tribunal considers that the certificate is valid and that it gives the Member discretion to disclose the information it covers, however the delegate has advised that it contains material which might cause the person/s who supplied the information in confidence to unknowingly be identified.

In your hearing you were provided with the gist of the information covered by the certificate and given an opportunity to comment on it. You provided a response, as did your sponsor. The Tribunal wishes to exercise its discretion and provide you with further detail from this information.

The information given to the department in February 2016 claims that that you are living at the home of your sister at 18 Gladys Street, Doolandella, where your brother also lives. Further information, given to the department in July 2016, claims your sponsor entered into your relationship for a payment of $70,000-$80,000, paid in two instalments of 50 per cent, and that you and he were family friends who did so in order to fraudulently obtain a visa. You are invited to comment on the information.

The Tribunal has a number of other concerns arising from your evidence on which it invites you to comment.

Tribunal concerns

1)    Westpac joint bank account Transactions

Prior to the hearing you provided the Tribunal a series of account statements from your joint bank account at Westpac. These statements show that approximately 90 per cent of the transactions made on the account occurred at Aspley, the suburb where you work in your sister’s nail salon. Approximately 10 per cent of transactions were made on the south side of Brisbane, where you claim to live. The latter transactions were primarily made at Inala, which the Tribunal notes is a suburb closer to your sister’s home than to that of your husband’s parents in Springfield Lakes. The Tribunal has to date identified no transactions made in Springfield Lakes. This might tend to suggest to the Tribunal you are rarely in the suburb where you claim to live with your husband. At your hearing, the Tribunal asked your husband if he used the joint account. He said it was you who uses it, and mainly in Aspley, because that is where you work. He submitted that on the south side, people transact in cash. He said he did not contribute his income to the joint account because: “When I working at Rose Nails I contributed, but now, no, I am not working. My income now goes into my personal bank account and is mostly used for my expenses such as car insurance and payments and other personal expenditures.” He stated this personal account is at a different bank. The Tribunal has concerns about your sponsor confining his financial transactions and income almost entirely to his private account, because this use of separate accounts, given that you have set up a joint account, suggests that as a couple, you do not pool your resources. You claim you have agreed to jointly contribute to a payment to your parents-in-law for household expenses. You have not provided supporting evidence of how you pool your funds, or that you pay this amount regularly.

2)    Departure times in the morning

In the hearing, your sponsor submitted that his usual time of departure for university in the mornings is 8.30am. However he also submitted that he drives you to Inala on work days where you are picked up by group staff transport. The Tribunal estimates that the time required to travel from your home address to Inala is approximately 15-20 minutes. By this estimate, you could not meet your group transport until at least 8.45am, and then you would need to travel to Aspley to work. This has significance because it suggests you and other staff members do not arrive at your workplace until approximately 9.30am and this could be later than the time at which the salon opens. This would suggest your husband does not drop you at the departure point as claimed, and this tends to undermine the credibility of your evidence in relation to your household arrangements and your cohabitation status.

3)    Your immigration history

The Tribunal notes you were granted an opportunity to enter Australia as a temporary entrant on a Student visa to study in the higher education sector. Instead of pursuing the study plan you came to Australia for, you discontinued your degree course, for personal reasons, a few months after you applied for your Partner visa. The Tribunal notes your record in the Provider Registration and International Student Management System (PRISMS) system indicates the course was cancelled. You have given two reasons why you did not pursue your studies: that you did not want to ask you parents to provide tuition fees, and you wanted to support your husband by working. You have not provided supporting evidence that these were your motivations or that you family would not have been prepared to support you as a student, as they had clearly planned to do when you applied for entry to Australia. This is a concern to the Tribunal because it might suggest that instead of coming to Australia to study, you instead wanted to create conditions in which you could achieve permanent residency. The Tribunal notes that your father offered to provide witness support at the hearing. You are invited to provide comments or submissions from any relevant person on this aspect of your immigration history.

You addressed in submissions to the Tribunal that on 21 June 2016, your student visa was cancelled along with your Bridging visa A, but that while you clearly understood that your Student visa had been cancelled, you did not understand that the Bridging visa had also been cancelled. You became unlawful until September 2016, until you were contacted by the department and granted a Bridging visa E. The Tribunal does not have before it convincing evidence as to why you understood there had been one visa cancellation but not the other. The Tribunal is concerned that you might have knowingly become unlawful after you married your sponsor and chose not to apply for a further Bridging Visa in order to extend your stay in Australia.

You are invited to give comments on or respond to the above information in writing.

Your comments or response should be received by 18 July 2018. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

If you cannot provide your written comments or response by 18 July 2018, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 18 July 2018 and you must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

If you have any questions, please email mrdivision@aat.gov.au, or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

(Emphasis and errors in original)

THE TRIBUNAL’S DECISION

9    After setting out the details of Ms Vo’s application, the factual background to it and outlining the issues that arose, the Tribunal conducted a review of the claims and evidence Ms Vo had advanced before it. It then turned to consider each of the circumstances set out in reg 1.15A of the Migration Regulations 1994 (Cth). Having done so, it found that they provided no, or little, weight “in forming its view on whether the parties are in a married relationship” as defined by s 5F(2) of the Act. Under the heading “MAJOR INCONSISTENCIES AND CREDIBILITY CONCERNS”, the Tribunal then highlighted the details of its concerns about Ms Vo’s credibility. It emphasised that these concerns were separate from those that had been considered by the delegate. It considered those concerns under the following three headings:

(a)    “What time does [Ms Vo] arrive home from work? Inconsistency put under 359AA”;

(b)    “Where does [Ms Vo] live and were payments made? Third party allegations: put under 359AA and 359A; subject to s.376 certificate”; and

(c)    “Why was [Ms Vo] unlawful for a period? Issue put under 359A”.

10    Consistent with the first and second heading above, the transcript of the hearing before the Tribunal, on 27 March 2018, discloses that those issues were raised with Ms Vo at that hearing.

11    Noting that the information contained in the “dob-in” letter, the details of which are set out near the beginning of the Tribunal’s letter of 4 July 2018, appears to have been incorporated with the second item above, those concerns generally correlate to the three numbered items set out in the succeeding section of that letter under the heading “Tribunal concerns” (see at [8] above). The Tribunal began the “FINDINGS” section of its decision by referring back to the circumstances mentioned above and its credibility concerns and stating that it had concluded “that on balance, they weigh heavily against the parties being in a genuine spousal relationship” (at [67]). It then summarised its views on those aspects and ultimately concluded (at [74]) that it was “not satisfied that Ms Vo and Mr Pham have a mutual commitment to a shared life to the exclusion of others; are in a genuine and continuing relationship; and live together or not separately and apart on a permanent basis”. Accordingly, it was not satisfied that “the requirements of s.5F(2) are met at the time the visa application was made or at the time of this [the Tribunal’s] decision” (at [75]).

THE FEDERAL CIRCUIT COURT DECISION

12    Ms Vo raised one ground of review before the Federal Circuit Court as follows (at [9]):

1. The Tribunal erred by failing to afford the applicant a hearing as provided for by s. 360 of the Migration Act.

Particulars

(a) The Tribunal, having held one hearing on 27 March 2018, decided to issue an invitation to a further hearing to be held on 19 July 2018.

(b) The Tribunal having learned that the applicant’s solicitor was on maternity leave until September 2018, cancelled the further hearing and instead issued a letter purportedly under s. 359A of the Migration Act;

(c) That letter purportedly issued under s. 359A of the Migration Act, could not lawfully substitute for a hearing under s. 360.

(Emphasis omitted)

13    The Federal Circuit Court judge began his judgment by summarising the factual background to Ms Vo’s application and the Tribunal’s decision (at [1]–[7]). His Honour then set out the details of what he described as a “somewhat interesting occurrence” by quoting the paragraphs of the Tribunal’s decision set out earlier in these reasons (see at [4]). With respect to the 27 March 2018 hearing, he noted (at [11]):

If one looks at certain extracts of the transcript, it may be seen that there were time restraints on this hearing. These are seen at questions 155, 764 and 1045. At question 963, the interpreter apologies [sic] for having to rush because, it would seem, that the interpreter could not stay for long. Therefore, if there were issues that were not covered, s.360 mandates that there should be a further hearing.

14    The Federal Circuit Court judge then noted that an invitation had been issued for a further hearing but that, when Ms Vo asked for an adjournment, “the Tribunal purported to get around that fact that they needed another hearing by asking [Ms Vo] to answer queries pursuant to s.359A of the Act” (at [12]–[13]).

15    The Federal Circuit Court judge then turned to consider the argument that was advanced before him on Ms Vo’s behalf, namely (at [14]):

… [W]hen one analyses the supposed s.359A letter, it was seeking information pursuant to s.359 and was not a letter pursuant to s.359A of the Act. Therefore, because it is not a letter pursuant to s.359A of the Act, the Tribunal was obliged to hold a further hearing. In not holding the further hearing, the Tribunal has fallen into jurisdictional error.

16    This issue occupied the balance of his Honour’s reasons. After conducting an analysis of the contents of the Tribunal’s letter of 4 July 2018, and the four matters that were addressed in it (the dob-in letter and the Tribunal’s three credibility concerns), the Federal Circuit Court judge concluded (at [42]):

… It seems to me that because the letter had been, as the majority of what it was purporting to do, compliant with s.359A, that there only needed to be one aspect of that letter that complied with s.359A for there to obviate the need for another hearing, pursuant to s.360 of the Act.

17    Accordingly, his Honour concluded (at [43]): “In those circumstances, that letter was sent pursuant to s.359A of the Act. If that were so, then there was no need for another s.360 hearing and, therefore, there has been no jurisdictional error established.” Perhaps unsurprisingly, given the way in which the matter was argued before his Honour, he made no attempt to analyse the Tribunal’s letter of 27 June 2018, nor the terms of s 360 of the Act insofar as it concerned that letter.

CONTENTIONS

18    As was the case before the primary judge, Ms Vo’s written submissions in this appeal focused on s 359A of the Act and the Tribunal’s letter of 4 July 2018. However, in oral submissions, that focus changed to s 360 and the Tribunal’s letter of 27 June 2018. Ultimately, Ms Vo contended that the Tribunal plainly thought it was obligated to offer a further hearing when it issued the latter letter and, since it did not proceed to conduct the hearing to which it invited her, it had not discharged its statutory review functions and thereby committed jurisdictional error.

19    The Minister approached the matter from the inverse position. In his written submissions, he anticipated Ms Vo’s ultimate oral submission by contending that “the real issue in this appeal is not whether the letter of 4 July 2018 is properly to be categorised as being a letter under section 359 or 359A of the Act. Rather, the issue is whether, having already held a hearing, there was any obligation for the Tribunal to convene a further hearing”. With respect to the letter of 27 June 2018, he submitted that: “Essentially, then, the Tribunal appears to have, out of an abundance of caution or a concern for fairness, given information to [Ms Vo] following the hearing for her further comment”.

20    With respect to Ms Vo’s initial contention concerning the Tribunal’s letter of 4 July 2018, he contended that:

It was open to the Tribunal to issue [Ms Vo] the letter of 4 July 2018, and its letter did not retrigger any obligation for the Tribunal to convene a further hearing. Nor was there any other obligation in the circumstances requiring the Tribunal to invite [Ms Vo] to a further hearing. The primary judge was therefore correct to find that the Tribunal did not err in its approach.

CONSIDERATION

21    It is convenient to begin by analysing the purposes of, and processes required by, the four provisions of the Act that directly affect the outcome of this appeal. They are, in order, ss 359, 359AA, 359A and 360. All of those sections fall into Division 5 of Part 5. That Division is described in s 357A to “be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. Those provisions, and others within Part 5 of the Act relating to Part 5 reviewable decisions, are substantially similar in terms to the provisions in Part 7 of the Act relating to Part 7 reviewable decisions. In Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 (NAFF), the High Court described the manner in which the latter provisions operated in the following terms (at [23]):

Once an applicant had made a valid application for review of a delegate’s decision, the Act imposed on the Tribunal a duty to review that decision: s 414(1). It provided that the Tribunal might exercise all the powers and discretions conferred by the Act on the delegate: s 415(1). It obliged the Tribunal to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”: s 420(1). The Secretary of the Department was obliged to give the Tribunal a statement about the decision under review setting out the findings of fact made by the delegate, referring to the evidence on which the findings were based, and giving the reasons for the decision: s 418(2). The Secretary was also obliged to give the Tribunal all other documentary material in the Secretary’s possession or control, which the Secretary considered to be relevant to the review: s 418(3). There were provisions by which the applicant for review might supply, and the Tribunal might seek, information: ss 423 and 424. The Act also imposed duties on the Tribunal to supply the applicant with certain information for comment: ss 424A-424C. Section 425(1) compelled the Tribunal to invite the applicant to appear before it and detailed provision was made about the terms of that invitation: ss 425A and 426.

22    The first three of the four provisions mentioned above (ss 359, 359AA and 359A – which I will, for convenience, refer to jointly as the “359 provisions”) are directed to particular information and to the view the Tribunal takes of that information. The word “information” has been held to mean “knowledge communicated or received concerning some fact or circumstance” (see Minister for Home Affairs v Ogawa [2019] FCAFC 98 at [10] and see also SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18]).

23    Section 359 concerns information that the Tribunal considers is relevant to the review. Sections 359AA and 359A concern information that the Tribunal considers would be “the reason, or a part of the reason, for affirming the decision that is under review”.

24    Each of these 359 provisions serves a different purpose. Section 359 permits the Tribunal to seek information from “a person” for the purposes of the review (s 359(2)). It is implicit from ss 359(3) and (4) that the word “person” includes the Secretary. Since the text of that section does not contain any other extensions or any restrictions, it can therefore be concluded that it includes an applicant.

25    While s 359 permits the Tribunal to obtain information, ss 359AA and 359A permit the opposite, namely for the Tribunal to give information. Both provide that the information is to be given only to the applicant and for the purpose of him or her making comment on it. There are, however, at least two points of distinction between ss 359AA and 359A. First, while s 359AA applies within a hearing context, s 359A does not. Secondly, the exceptions prescribed in s 359A(4) are not expressed to apply to s 359AA. Those exceptions are:

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.

26    Turning lastly to s 360(1), it is in substantially identical terms to s 425. Both require the Tribunal to invite an applicant “to appear before [it] to give evidence and present arguments relating to the issues arising in relation to the decision under review”. In NAFF, this requirement (in s 425(1)) was characterised as a part of the Tribunal’s duty of review (see NAFF at [6] and [27]). The Court described the content of that duty in the following terms:

One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.

27    As Perram J explained in Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 (SZNVW) at [83], it is not so much that s 360 (or, in that case, s 425) requires the Tribunal to afford a fair hearing, but rather whether the process contemplated by Part 7 (in this matter Part 5) has been duly administered or carried into effect. If the Tribunal has failed to follow that process, it will have failed to properly discharge its statutory functions with respect to the conduct of the review (see SZNVW at [83] per Perram J; SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [51] per the Court).

28    The duty to review mentioned above is premised on there being “issues arising in relation to the decision under review”. In any particular visa application, those issues fall to be identified by the Tribunal itself (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [27] and [35] per the Court).

29    There are, however, three exceptions to the abovementioned duty prescribed by s 360(2). They are:

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.

30    In this matter, s 360(2)(a) and (b) did not apply because the Tribunal plainly had not decided the review in Ms Vo’s favour and she had not consented to it deciding the review without a hearing. However, the exception in s 360(2)(c) is worth noting. It arises if the Tribunal issues an invitation to a person under s 359, or an applicant under s 359A, and he or she does not respond within the required time (see s 359C(1) and (2) respectively).

31    Given the chronology of events in this matter, namely that the Tribunal’s letter of 4 July 2018 post-dated the invitation contained in its letter of 27 June 2018, the exceptions under s 360(2)(c) could not have arisen.

32    When issuing an invitation under s 360(1), the Tribunal is not required to give advance notice to an applicant of the issues to which that hearing relates. All the more so where those issues concern the applicant’s credibility (see AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494; [2010] FCAFC 156 at [39] per Besanko J). This undoubtedly explains why the Tribunal’s letter of 27 June 2018 does not provide any indication as to what issue or issues it was that caused the Tribunal to believe it was obligated to issue that invitation to Ms Vo in the first place. Hence, only the Tribunal knew what those issues were.

33    If an applicant receives an invitation under s 360(1), he or she is afforded a number of procedural rights connected with the ensuing hearing. They include to request the Tribunal to call witnesses (s 361), to have access to certain written materials before the Tribunal (s 362A), to request to have the assistance of another person at the hearing (s 366A) and to request to have the assistance of an interpreter at the hearing (s 366C). The leaflet enclosed with the Tribunal’s letter of 27 June 2018 adverted to all of these matters and a number of others. Hence, there is a number of procedural advantages to a hearing under s 360.

34    But the most important advantage of such a hearing is the opportunity it affords to an applicant to persuade the decision-maker in person of the merits of his or her application. All the more so where, as is often the case, issues of credibility loom large. In SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; [2008] FCAFC 138, Gyles J described this advantage in the following terms (at [28]):

… Usually, failure by an applicant to succeed will be because the truth of what the applicant has said has not been accepted by the Tribunal in some critical respect. It is, no doubt, for this reason that the Parliament has provided for a compulsory opportunity for an applicant to persuade the Tribunal face to face. That opportunity is only of real value if the face to face meeting is with the person making the decision. The face to face meeting is not just an opportunity for the applicant to put his or her best foot forward. It is the opportunity for the Tribunal member to explore issues that concern that member with the applicant.

35    An invitation to comment on information under s 359A does not offer these advantages. It does not offer the opportunity for a personal interaction with the decision-maker where the applicant can attempt to persuade that person that his or her version of the relevant events is true. It also does not provide the advantages of being assisted by another person or by an interpreter, assuming the Tribunal grants such requests. In short, it does not, in the words of s 360(1), allow an applicant to “give evidence and present arguments” at a face-to-face hearing before the decision-maker.

36    It is clear from the terms of the third paragraph of the Tribunal’s letter of 27 June 2018 that it thought it had a continuing duty under s 360(1) to invite Ms Vo to a further hearing at which she would be able to “give evidence and present arguments relating to the issues arising in [her] case” (see at [6] above). One must assume that the Tribunal was well aware of its obligations under Part 5 of the Act with respect to the conduct of its review of the delegate’s decision. It must therefore be assumed that it did not issue this invitation gratuitously.

37    For these reasons, I do not accept the Minister’s contentions that the Tribunal was acting out of an “abundance of caution” or trying to meet a concern for “fairness”. These sentiments can be rejected as otiose because, in this context, s 357A makes it clear that the Act contains the exhaustive provisions relating to fairness.

38    The Tribunal expressed its justification for this invitation differently in its reasons. It characterised it as “an extended opportunity” (see at [27] set out at [4] above). If this is read in context as defining the invitation to be an extension of its continuing duty to review the delegate’s decision until due completion, then it accurately describes that duty as outlined in NAFF above. If, instead, it is to be read as defining an attempt to provide something more than is required by the exhaustive provisions in Part 5 of the Act, it is as similarly otiose as the sentiments above.

39    In NAFF, the High Court concluded that the Tribunal member’s statement in her closing remarks at a hearing conducted under s 425 of the Act, that she would send the applicant a further set of questions after the hearing, provided a clear indication that the Tribunal considered that the review process was incomplete (see at [31]). In that circumstance, in the absence of an explanation such as a change of mind after due reflection about the issues concerned “by a letter to the [applicant] or in her detailed reasons for decision”, the Court concluded that the Tribunal member’s “original impression that the review process was incomplete had not altered on reflection, and was soundly based” (see at [32]). That conclusion led, in turn, to the Court’s ultimate conclusion that the Tribunal had failed to comply with its duty to conduct the review under the apposite provisions of Part 7 of the Act, including s 425(1) (see at [32]). The Court added that the power being exercised by the Tribunal was “a serious matter” and that the course contemplated by its exercise, once embarked upon, “was not lightly to be departed from” (see at [33]). It also held that, in such circumstances, the applicant was not required to provide evidence to explain what he would have done had the Tribunal sent the promised set of questions to him after the hearing (see at [34]).

40    In my view, all of these conclusions apply with equal force in this matter. The Tribunal’s letter of 27 June 2018 provided a clear indication that it considered the review process in respect of the delegate’s decision concerning Ms Vo’s application was incomplete.

41    The Tribunal’s letter of 28 June 2018 (see at [7] above) provided no explanation as to why that decision no longer applied. Indeed, in its second paragraph it reiterated the terms of its letter of invitation of the previous day: “to attend a second hearing … to give evidence and present arguments relating to the issues arising in [her] case”. If, notwithstanding the March 2018 hearing, the Tribunal thought, on 27 June, that it was obligated to have a further hearing to complete the review, one would have expected some clear and distinct explanation as to why that position had changed by 28 June 2018.

42    Neither of the reasons given in that letter for abandoning the further hearing shed any light on that subject, namely Ms Tieu’s unavailability and the fact there had already been a hearing under s 360. The Tribunal’s decision to adopt a different course, namely to send a letter under s 359A, also does not explain why the original course had been abandoned.

43    The Tribunal’s letter of 4 July 2018 and its decision record are similarly bereft of any explanation. The latter has already been addressed above (at [38]).

44    In short, the Tribunal has not provided any explanation as to why it did not conduct the hearing it had invited Ms Vo to attend and thereby complete the review process as required by Part 5 of the Act. That being so, I consider the Tribunal failed to comply with its duty to complete that review process and thereby committed jurisdictional error.

45    It necessarily follows that I also consider the primary judge fell into error by failing to identify and correct this jurisdictional error on the part of the Tribunal. In fairness to the primary judge, I would add that I consider he was led astray by Ms Vo’s original argument as expressed in her written submissions before him.

46    For these reasons, I consider that the primary judge’s decision and the Tribunal’s decision must both be set aside and the Tribunal must be ordered to determine Ms Vo’s application afresh according to law. The orders will be:

1.    The appeal is allowed.

2.    The orders made by the Federal Circuit Court of Australia on 18 March 2019 are set aside.

3.    The decision of the Administrative Appeals Tribunal made on 9 August 2018 is set aside.

4.    The appellant’s application is remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

5.    The first respondent is to pay the appellant’s costs of and incidental to this appeal to be taxed failing agreement.

47    I will hear from the parties on the costs of the judicial review application before the Federal Circuit Court of Australia.

Associate:    

Dated:    9 April 2020