Federal Court of Australia

Sino-Aus Motor Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 686

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to this appeal, and of the hearing before the Federal Circuit and Family Court of Australia (Division 2).

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

REASONS FOR JUDGMENT

DOWNES J:

Introduction

1    The appellant’s application for approval of the nomination of a position pursuant to reg 5.19 of the Migration Regulations 1994 (Cth) was rejected by a delegate of the first respondent (Minister).

2    The appellant applied for review of that decision by the second respondent (Tribunal) in December 2018.

3    On 9 October 2020, the presiding member of the Tribunal issued an instruction that a letter be issued under s 359(2) Migration Act 1958 (Cth) requesting updated and current information addressing certain criteria which was relevant to the review.

4    That same day, an email was sent by an employee of the Tribunal to the appellant’s migration agent, being the person nominated by the appellant to receive documents in connection with the review. One letter requested that certain identified information be provided by 23 October 2020.

5    The appellant accepted that the email was transmitted to the migration agent’s email address within the meaning of the Migration Act.

6    No response was received by the Tribunal to the request for information.

7    The Tribunal proceeded to conduct the review.

8    In its decision dated 17 November 2020, the Tribunal recorded that it had issued an invitation to the appellant to provide further information but that there had been no response. Its decision recorded that it had considered whether to send out a further invitation, but had decided not to do so. Its expressed reasons for not sending out a further invitation included that the appellant, which was represented, had the opportunity to receive professional advice as to the implications of not responding to the invitation.

9    The Tribunal affirmed the decision of the Minister.

10    The appellant applied for judicial review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia (Division 2).

11    That application was dismissed on 5 November 2021 and this appeal was accepted for filing on 29 November 2021.

12    For the reasons that follow, the appeal will be dismissed.

Relevant events leading to decision of Tribunal

13    On 21 March 2017, the appellant made an application for approval of an employer nomination of Ms Jing Jin for a permanent appointment (namely, the appellant’s office manager) in Australia. The application was lodged by Hourigan Visa & Migration Services Pty Ltd, which had the stated role of migration agent.

14    The appellant nominated Mr John Hourigan, migration agent, of Hourigan Visa & Migration Services Pty Ltd to be its “authorised recipient”. That is, Mr Hourigan was nominated to be the person authorised to receive all written correspondence that would otherwise be sent directly to the appellant.

15    The application stated that the Department of Immigration and Border Protection (as it then was known) prefers to communicate electronically. The application stated that all correspondence, including notification of the outcome of the application, will be sent to visas@hourigan.com.au (that is, Mr Hourigan’s email address).

16    On 5 December 2018, a delegate of the Minister refused the application. The notification of the refusal was sent by email to Mr Hourigan’s email address.

17    On 20 December 2018, the appellant made an application to the Tribunal for review of the delegate’s decision. Once again, Mr Hourigan was identified as the appellant’s representative for the purpose of the review and Mr Hourigan’s email address was provided.

18    The Tribunal sent an email to Mr Hourigan’s email address on 21 December 2018 which attached a letter. One of the letters was addressed to Mr Hourigan. The second letter was addressed to Ms Jin. There was no suggestion by the appellant that this email was not seen by Mr Hourigan.

19    A case note dated 9 October 2020 forms part of the records of the Tribunal relating to the appellant’s review application. It relevantly states:

The Presiding Member has instructed that a letter be issued under s.359(2) of the Migration Act requesting updated and current information addressing the relevant criteria in rr.5.19(2) and (4) of the Regulations.

20    On 9 October 2020, at 3:46 pm, the invitation was sent by an employee of the Tribunal to Mr Hourigan’s email address. The covering email concluded with these words:

Yours sincerely

Tanya I

For the Registrar

21    The email attached two letters, both of which appear to be standard form letters. The letters were not signed but concluded with the same words as the covering email (being from Tanya I, For the Registrar). They both commenced with the statement that, “I am writing on instruction from the Member …”.

22    One of these letters sought updated and current information addressing the relevant criteria in regs 5.19(2) and (4) of the Regulations. Examples of the types of information which could be provided were then listed. The letter also advised that, if the information was not provided within the period allowed or as extended, “we may make a decision on the review without taking any further action to obtain the information”.

23    The appellant was required to provide a response to the invitation by 23 October 2020. No response was provided.

24    Mr Hourigan did not see the invitation and the Minister accepted below that it did not reach his email inbox, although the reasons for this are not explained in the evidence. However, the invitation was accepted by Mr Hourigan’s server and the Tribunal ceased to have control over it. The email was delivered successfully (that is, sent) to Mr Hourigan’s email address at 3:46 pm on 9 October 2020. In the words of Mr Boccabella, counsel for the appellant, “it’s not in dispute that the email was transmitted for the purposes of the Act”.

Relevant statutory provisions

Migration Act 1958 (Cth)

25    The decision of the Minister was a Part 5-reviewable decision within the meaning of the Migration Act. Section 349(1) of that Act gave the Tribunal, for the purposes of the review of the decision of the Minister, all the powers and discretions that are conferred by the Migration Act on the person who made the decision. The “Tribunal” is defined in s 5(1) as “the Administrative Appeals Tribunal”.

26    Section 357A(3) requires that, in applying Division 5 of Part 5, the Tribunal must act in a way that is fair and just. Sections 359, 359C and 360 fall within Division 5.

27    Section 359(1) relevantly provides that, in conducting the review, the Tribunal may get any information that it considers relevant.

28    Section 359(2) confers power on the Tribunal to invite, either orally (including by telephone) or in writing, a person to give information. On the facts of this case, that invitation was required to be given by one of the methods specified in s 379A: s 359(3)(a).

29    Section 379A lists the methods by which the Tribunal can give documents to a person for the purposes of, relevantly, s 359. One of those methods is “a member or an officer of the Tribunal” transmitting a document by e-mail to “the last … email address … provided to the Tribunal by the recipient in connection with the review”: see s 379A(5).

30    Section 379C applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in s 379A: s 379C(1). If the Tribunal gives a document to a person by transmitting it by e-mail, “the person is taken to have received the document at the end of the day on which the document is transmitted”: s 379C(5).

31    Section 379G(1) provides that, if a person applies for review of a Part 5-reviewable decision and they “[give] the Tribunal written notice of the name and address of another person … authorised by the applicant to receive documents in connection with the review” (known as the “authorised recipient”), then the Tribunal must give to the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Where the Tribunal does so, it “is taken to have given the document to the applicant”: s 379G(2).

32    If a person is invited in writing under s 359 to give information and does not give information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information: s 359C(1).

33    Section 360 requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments unless, among other things, s 359C(1) applies.

Administrative Appeals Tribunal Act 1975 (Cth)

34    Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides:

2A Tribunal’s objective

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a)     is accessible; and

(b)     is fair, just, economical, informal and quick; and

(c)     is proportionate to the importance and complexity of the matter; and

(d)     promotes public trust and confidence in the decision-making of the Tribunal.

35    Section 3(1) of the AAT Act defines “Tribunal” as follows:

Tribunal:

(a)     means the Administrative Appeals Tribunal established by this Act; and

(b)     in relation to a proceeding, means the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding; and

(c)     includes a member, or an officer of the Tribunal, exercising powers of the Tribunal.

36    An “officer of the Tribunal” is defined in s 3(1) of the AAT Act as “the Registrar” or “a person appointed as an officer of the Tribunal under section 24PA”.

37    Section 24PA of the AAT Act, as it then was, conferred power on the Registrar to appoint, by writing, a person to be an officer of the Tribunal if the person was, relevantly, “a member of the staff of the Tribunal referred to in subsection 24N(1)” or “an APS employee made available to the Tribunal”.

Decision of the Tribunal

38    The Tribunal’s decision stated the following:

5.    On 9 October 2020, the Tribunal wrote to the applicant care of its authorised recipient and representative at the email address provided. The letter was issued pursuant to s.359(2) of the Act, inviting the applicant to provide current information addressing the relevant criteria under r.5.19(2) and r.5.19(4) of the Regulations by 23 October 2020.

6.    The Tribunal did not receive any response to its letter of 9 October 2020, nor the information invited to be provided, within the prescribed time for responding to the statutory invitation, nor was an extension of time sought. As the applicant failed to provide the information invited to be provided within the prescribed time, s.359C(1) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s comments/response or to obtain the information invited to be provided.

7.    The Courts have confirmed that where an applicant fails to give information within the prescribed period in response to an invitation issued under s.359(2) of the Act, ss.359C(1), 360(3) and 363A of the Act preclude the Tribunal from offering an applicant a hearing: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40. Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

39    The decision of the Tribunal further stated:

28.    In its invitation letter of 9 October 2020, the Tribunal invited the applicant to provide updated and current information addressing the criteria in r.5.19(4) not limited to information about the applicant’s current organisational structure, where the nominated position sits in relation to that structure and information about the need to employ the nominee in the nominated position.

29.    The applicant has not responded to the Tribunal’s invitation.

30.    The Tribunal has taken into account the information and documents provided to the Department including in particular the certificate from Skills Canberra, which included as [sic] assessment as at 16 August 2017 by Skills Canberra that at that time there was a genuine need for the applicant to employ a paid employee to work in the specified position under the applicant’s direct control. However, no updated information has been provided as to the applicant’s circumstances now, including whether the applicant has a genuine need now to employ a paid employee to work in the specified position under the applicant’s direct control.

31.    The Tribunal had a number of queries relating to the genuine need requirement that it wished to canvass with the applicant at a hearing. However, the Tribunal was not able to invite the applicant to a hearing as it did not respond to the s.359(2) invitation. The Tribunal has considered sending out a further general request letter; however, has decided not to do so as the Tribunal previously sent a request for information, to which the applicant failed to respond. Further, the applicant was represented, so has had the opportunity to receive professional advice relating to the requirements and the types of evidence that would be required to meet the criteria as per the Tribunal’s request, and the implications of not responding to the Tribunal’s invitation.

(emphasis added)

40    It is the emphasised passage in [31] of the Tribunal’s reasons which is the focus of this appeal.

41    On 19 November 2020 at 5:39 pm, the Tribunal sent an email to Mr Hourigan at his email address which attached two letters which advised Mr Hourigan of the Tribunal’s decision.

42    On 20 November 2020 at 8.01am, Mr Hourigan sent an email to Ms Jin and advised her of the Tribunal’s decision.

43    The appellant sought judicial review of the Tribunal’s decision.

Decision of the primary judge

44    On 5 November 2021, the primary judge dismissed the application.

45    Relevantly to grounds 1 and 4 in this appeal, the primary judge made these findings:

[13]    The first attack centred on the Tribunal’s reasoning at [31] of the decision record …

[14]    It was submitted that the discretion exercised by the Tribunal not to send out a further request for information miscarried, as the Tribunal member assumed a fact that was not correct. That being, Mr Hourigan had received the 9 October 2020 invitation letter and that a positive decision had been made not to respond to it. A significant consideration in the decision of the Tribunal to consider the matter on the information before it was the assumption, which Counsel for the applicant says is factually incorrect, that Mr Corrigan [sic] had received the 9 October 2021 letter and had advised the applicant in respect of the material sought. Had the Tribunal not referred to this factual error, then the decision to proceed in the way that it did, would be unremarkable.

…

[20]    In so far as it is asserted that the Tribunal should have made an enquiry or issued a further invitation to provide material, it was asserted that the reasons are unobjectionable and identify a rational basis for not issuing a further invitation. Nothing in the submissions of the applicant points to a decision that was unreasonable in that the Tribunal did not otherwise conduct a review in accordance with the Act. This is not a situation where the Tribunal had any information before it that the invitation had not been received. No “Bounce back” of the email was received by the Tribunal. The address that the email was sent to, was that of the applicant’s legal representative. The clear evidence is that the invitation was transmitted. It is not for the first respondent to have to explain why it is that Mr Hourigan says he did not receive the request.

[21]    The Court is satisfied that the email requesting the further information was properly ‘transmitted’ by the Tribunal in accordance with s 379A(5) of the Act on 9 October 2020 and by operation of s 379C(5) of the Act was taken to be received by the applicant at the end of the day on 9 October 2020.

[22]    In these circumstances it is hardly surprising that upon no response being received, the Tribunal determined to proceed on the basis of the information that was before it. The Court is not of the view, given the situation that the Tribunal found itself in, that there was a requirement for the Tribunal to exercise a discretion to issue a further letter or make an enquiry of the applicant’s representative. The Tribunal was entitled to assume the facts as it did. To find otherwise, that it was required to send out a further invitation to provide further information or make an enquiry of Mr Hourigan, would be to place a burden that is not clearly contemplated by the Act.

46    Relevantly to ground 2, the primary judge made these findings:

[24]    The second ground agitated by Counsel for the applicant is that the 9 October 2020 letter was invalid. The applicant suggests that [this is because the letter was not executed by an officer of the Tribunal].

[25]    … The Court does not accept this assertion. Firstly, evidence of a Delegation and Appointment pursuant to ss 10A(3) and 24PA of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) dated 30 June 2015 and signed by the Registrar, Ms Sian Leathem, was tendered in evidence.

[26]    That Instrument of Delegation at Schedule A appoints as “an officer of the Tribunal” the following persons:

Staff of the Administrative Appeals Tribunal

APS employees made available to the Tribunal, and

The Registrar and Deputy Registrar of the Supreme Court of Norfolk Island.

[27]    There is no evidence before the Court that Tanya I was not an employee of the Tribunal. Counsel for the applicant did not assert that. On the face of it, the Delegation is valid and the Court should not seek to go behind it. The presumption of regularity applies in respect of the Instrument of Delegation.

[28]    Counsel for the applicant asserted that pursuant to s 24PA of the AAT Act that the Registrar, in making the Delegation, could not possibly be satisfied in accordance with s 24PA(b) of the AAT Act that, all staff of the Tribunal were persons that had ‘appropriate experience and qualification’ to be appointed as an ‘Officer of the Tribunal.’ That would make a ‘Photocopy Clerk’ an ‘Officer of the Tribunal”. That could not possibly be correct. No evidence was before the Court as to what considerations were or were not undertaken by the Registrar before she signed the Instrument of Delegation. No evidence was before the Court as to the qualifications of Tanya I, the position she occupied and duties she undertook within the Tribunal. If the applicant seeks to attack the validity of the Instrument of Delegation, then the applicant bears the evidence of showing that the Instrument is invalid. There is no such evidence. The Court is thus bound to accept that the Instrument of Delegation is valid. Tanya I is therefore an Officer of the Tribunal and was authorised to send the letter of 9 October 2020.

[29]    In the Courts view, the letter is otherwise unremarkable. Counsel for the applicant’s submission that all notices under s 359 of the Act should not consent [sic] template letters written by junior staff having no particular relevance to particular issues of contention simply cannot be accepted. To a large extent, Counsel’s arguments and submissions for the applicant can be broadly described as submissions of what has happened is unfair and not in accordance with the overall objectives of the Tribunal to provide a mechanism of review that is “there just all economical and quick” [sic]. It was further asserted that any interpretation of any provision of the Act should be done so in a manner that is generally beneficial to the review applicant.

[30]    These assertions have little substance. The objectives of the AAT Act are aspirational not freestanding and imposing requirements of other sections within the AAT Act or other Acts. Many of the provisions of the Migration Act operate in a manner that may be described as harsh. The objective provisions of the AAT Act cannot operate in such a manner as to override specific provisions of the Migration Act in relation to the powers and duties of the Tribunal in the manner in which it conducts reviews of migration decisions.

Grounds of appeal

Ground 1

47    Ground 1 stated as follows:

The learned trial judge erred by failing to find that the AAT’s exercise of discretion under s359C of the Migration Act 1958 (Cth) miscarried and through the failure to exercise the discretion properly the AAT failed to conduct a proper review under Part V of that Act.

48    The ground relates to the exercise of discretion by the Tribunal under s 359C not to send a further request for information to the appellant under s 359, being something which it considered doing. To the extent that the appellant contends that the Tribunal’s conduct was unreasonable as part of its submissions in relation to ground 1, this contention is addressed below as part of consideration of ground 4.

49    In its reasons at [31], the Tribunal recorded that it had considered sending out a further general request letter but that it decided not to do so as:

(a)    the Tribunal had previously sent a request for information, to which the applicant failed to respond; and

(b)    the applicant was represented, so has had the opportunity to receive professional advice relating to the requirements and the types of evidence that would be required to meet the criteria as per the Tribunal’s request, and the implications of not responding to the Tribunal’s invitation.

50    The first aspect of these reasons in (a) invokes the prerequisites to the exercise of the power given by s 359C(1) Migration Act to make a decision on the review without taking any further action to obtain the information.

51    Leaving aside the issue raised by ground 4 of the notice of appeal, those prerequisites were met. The Tribunal had previously sent a request for information, being the invitation pursuant to s 359. That invitation had been transmitted by email within the meaning of s 379A(5) to Mr Hourigan, who was the appellant’s authorised recipient within the meaning of s 379G. As it was transmitted to the appellant’s authorised recipient, the Tribunal was taken to have given the document to the appellant, who is taken to have received it at the end of the day on which it was transmitted: ss 379C(5) and 379G(2). The appellant did not respond to the invitation before the time for giving the response to the invitation had passed.

52    It is apparent from the first aspect of its reasons that, as part of its reasoning process for deciding not to send out a further request for information, the Tribunal took into account that it had sent the invitation and that the appellant had failed to respond within the required time. It was therefore not the case, as the appellant submits, that the Tribunal’s exercise of discretion under s 359C was based solely on the proposition that the appellant had the opportunity to obtain professional advice.

53    Further, it is apparent from its reasons that the Tribunal considered whether it should send out a further request for information. It is therefore incorrect to submit, as the appellant does, that the Tribunal failed to consider whether to exercise the discretion under s 359C. Indeed, the manner in which the Tribunal exercised its discretion under s 359C is at the heart of ground 1.

54    As to the second aspect of its reasons in (b), the primary submission by the appellant is that the Tribunal made an error of fact and that the exercise of its discretion miscarried as a result.

55    As to this submission, the overarching question is whether the Tribunal’s decision was affected by jurisdictional error, not whether it made an error at all. In other words, the relevant question is whether the Tribunal’s decision was made in accordance with the authority conferred by the statute, or whether it exceeded the limits of the decision-making authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision-making authority: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 (Beach, Thawley and Cheeseman JJ) at [28].

56    In Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 75 ALJR 542; [2001] HCA 10, McHugh J (sitting as a single judge in the High Court’s original jurisdiction) stated at [35]–[36]:

… Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.

(citations omitted)

57    In CRU18 v Minister for Home Affairs (2020) 277 FCR 493; [2020] FCAFC 129 (Wigney, Jackson and Snaden JJ), the Full Court observed that:

(a)    an erroneous finding of fact will typically not be sufficient, in and of itself, to stigmatise a discretionary administrative decision as the product of jurisdictional error: [29]; and

(b)    a discretionary administrative decision that is materially premised upon an error of fact will rarely go beyond the jurisdictional authority of its maker simply because of that error. More needs to be established such as, for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality, that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function: [31]. See also BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 26; [2020] FCAFC 151 (Allsop CJ, Collier and Colvin JJ) at [29].

58    Before the primary judge and by its written submissions on this appeal, the appellant identifies the factual error as being the Tribunal’s “incorrect assumption” that the appellant had “received professional advice”.

59    In particular, it made these submissions (with emphasis added):

(1)    having regard to the Tribunal’s reasons at [31], the appellant received none of the professional advice which the Tribunal thought it had received because the email never arrived into the inbox of Mr Hourigan;

(2)    the appellant’s case is that the Tribunal’s discretion miscarried because it thought that the appellant had received professional advice about the consequences of not responding, which was incorrect;

(3)    it was not a proper exercise of discretion to decide the matter on the bald assumption that the appellant had the professional advice. To make a decision on that basis, the Tribunal needed evidence that the appellant had received professional advice or at least the professional advisor had received the email;

(4)    it was not suggested by the appellant that the Tribunal must in all cases send out a further invitation; the appellant’s case is that if the discretion not to send out a further letter is based on the assumption that the person received professional advice about the consequences of not responding, then the discretion miscarries if the assumption turns out to be wrong;

(5)    stripped to its bare essence, the appellant’s case is that the Tribunal’s discretion miscarried because it mistakenly thought or assumed that the appellant had received professional advice. Its discretion miscarried because it was informed by an incorrect assumption.

60    However, the Tribunal did not reach its decision on an assumption that the appellant had as a matter of fact received professional advice. Instead, it is apparent from its reasons that the Tribunal inferred that the appellant had the opportunity to receive professional advice (whether or not that opportunity was taken up as a matter of fact).

61    During the hearing, counsel for the appellant appeared to accept that the error, if there was one, related to the appellant having had the opportunity to receive professional advice. The appellant nevertheless submitted that the exercise of the discretion by the Tribunal was “flawed” because it was “based on an assumption that the appellant had an opportunity to obtain professional advice, which, as a question of fact, it never did have”.

62    For various disparate reasons which will be addressed in turn, this error was described by the appellant as “fundamental” with the consequence that the exercise of discretion failed and “the tribunal has not conducted a proper review”.

63    First, the appellant submitted that the Tribunal had made a “totally unwarranted assumption” that the appellant had the opportunity to obtain professional advice in that there was no evidence to support it. Tied to this submission was a further submission to the effect that, as there was no evidence, the Tribunal had misapplied s 379C(5) Migration Act such that the appellant was deemed to have not only received the invitation but was also deemed to have had the opportunity to receive professional advice. The appellant submitted that the deeming provision “simply doesn’t go that far”.

64    However, it is plain from its reasons that the Tribunal inferred that the appellant had the relevant opportunity from the fact that the invitation had been transmitted by it to the appellant’s authorised recipient (which transmission the appellant does not dispute) and that the appellant was represented (which the appellant also does not dispute). That inference was drawn (and was able to be drawn) from facts which were established by the evidence which was before the Tribunal when it made its decision. There was therefore some evidence before the Tribunal which supported the inference which was drawn and which was referred to by it expressly.

65    Further, there was additional evidence before the Tribunal which supported the inference that the appellant had the opportunity to obtain professional advice of the kind described by the Tribunal in its reasons. In particular, the Tribunal did not have any information before it to suggest that the invitation had not actually been received by Mr Hourigan. For example, nothing had been received by or was before the Tribunal to indicate that the email had not been transmitted correctly or that Mr Hourigan was no longer acting for the appellant or that the email address provided on the review application was not valid or could no longer be used to send emails to the appellant.

66    It is therefore not the case that the Tribunal made an “unwarranted assumption” which was not based on any evidence before it or that it formed the view that the appellant was “deemed” to have had the opportunity to obtain professional advice pursuant to s 379C.

67    Second, the appellant submitted that the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 are “relevant to administrative law”. The appellant cited the passage from House at page 505 as containing these principles:

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

68    In substance, the appellant submitted that House applies, that there was a mistake of fact within the meaning of the passage from House cited above and that this is “an independent ground of judicial review and jurisdictional error”. In support of these submissions, the appellant relied upon the statement in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 where the plurality stated at [75]:

In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”. House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.

(citations omitted; emphasis in submissions)

69    However, these submissions are misconceived. The passage from Li cited by the appellant does not support the appellant’s submissions: see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 per Nettle and Gordon JJ at [86]–[87]:

In Li it was observed that, in determining the standard of legal reasonableness, an analogy between judicial review of administrative action and appellate review of judicial discretion is apparent. While the plurality had regard to House v The King, the plurality’s observations were not directed to the proposition, and do not state, that a House v The King error must be established in the context of judicial review of administrative decisions. Rather, the analogy drawn by reference to House v The King was that, in the same way that an appeal court does not interfere with a lower court’s exercise of a judicial discretion just because the court might have exercised the discretion in a different way, similarly, in a judicial review context, a court should not interfere with an administrator’s exercise of a discretion just because the court would have exercised the discretion in a different way.

The analogy drawn in Li did not go on to state that the principles applicable to appellate review of judicial discretion also apply in relation to judicial review of administrative action. It did not provide any support for the contention that an evaluative approach by a primary judge on an application for judicial review is to be treated as analogous to an exercise of judicial discretion. In the case of judicial review of administrative action, a discretion given to an administrative decision-maker is not transferred to, or picked up by, the primary judge; nor is the primary judge’s review of the administrative decision the exercise of a discretion.

(citations omitted; emphasis original)

70    Third, the appellant submits that:

… in Minister for Immigration and Citizenship v Saba Bros Tiling [2011] FCA 233, Jagot J found that the issues involved in the analogous area of s359A and 359C of the Act are a ‘jurisdictional fact’ which the court can determine, which the court can determine for itself [sic]. In the appeal before this court, the AAT denied itself jurisdiction to consider sending out a further notice based on erroneous facts, following the reasoning in Saba, those matters are jurisdictional facts.

71    However, the Tribunal did not deny itself jurisdiction to consider sending out a further request for information. Rather, it considered sending out a further request for information but decided not to do so and recorded its reasons for its conclusion that it would not send out a further request. Those reasons included that “the Tribunal previously sent a request for information, to which the applicant failed to respond”. These were the type of jurisdictional facts to which Jagot J referred in Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; [2011] FCA 233 at [21] (albeit by reference to s 359C(2)) and which, in this case, the appellant accepts existed at the time of the relevant decision by the Tribunal. By contrast, the inference which was drawn by the Tribunal that the appellant had the opportunity to obtain professional advice was not a jurisdictional fact.

72    Finally, the appellant relies upon the decision of Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [113]:

In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, referred to in MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 at [83], the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. The Court said at [63] that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Migration Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error was tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. I do not regard that decision as stating or attempting to state exhaustively the circumstances in which error may or does go to jurisdiction.

73    However, this is not a case where any factual error of the Tribunal related to understanding or construing a claim advanced by an applicant and the Tribunal then basing its conclusion upon such a claim as misunderstood or misconstrued such that there was a failure to consider the claim. The passage cited above has no bearing on the facts of this case for this reason.

74    For these reasons, no error by the primary judge has been demonstrated and ground 1 fails.

Ground 4

75    Ground 4 states:

The learned trial judge erred by failing to find the decision of the AAT was unreasonable and/or that the AAT failed to conduct a proper review under Part V of the Migration Act.

76    The appellant submits that the length of the intervening period between the acknowledgement of receipt of the application in the Tribunal (21 December 2018) and the invitation being sent (9 October 2020), meant that the decision of the Tribunal not to make further inquiries was unreasonable. It submits that the exercise of discretion by the Tribunal was “flawed” because it was based on an assumption which was “associated with significant risk on any objective analysis of just being simply wrong”. It submits that “anything could have happened” during this period, and that making further contact with the appellant where there was no response to the invitation was an “obvious inquiry about a critical fact”. It submits that, if the Tribunal is going to rely on the fact that an applicant has had an opportunity to receive professional advice on the implications of not responding to the Tribunal’s invitation, then “it ought [to] find out whether it did or it didn’t” because an obvious inference from the lack of response “is that the person may not have received it”.

77    The appellant also relies upon s 357A(3) Migration Act which provides that, “In applying this Division, the Tribunal must act in a way that is fair and just”. It submits that, given the file had lain dormant for some time, a telephone call to the migration agent or a second email would be to “act in a way that is fair and just” and that s 2A AAT Act required the Tribunal to exercise its discretion in a way which “is proportionate to the importance and complexity of the matter”. It also submitted that public trust is not promoted if a decision of the Tribunal is made on an assumption which is not correct and that this also defeats the objective of being accessible.

78    The statutory power given to the Tribunal pursuant to s 359C is in the nature of a discretion, being one which involves a decision by the Tribunal as to whether it will make a decision on the review without taking any further action to obtain the information which it has requested or do something else, such as make a further request for information. It is subject to a presumption of law, namely that the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably: SZVFW at [4] per Kiefel CJ and [80] per Nettle and Gordon JJ; also Li at [63].

79    In Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 385 ALR 212; [2020] HCA 46 at [26], the High Court stated:

A requirement of legal reasonableness in the exercise of a decision-maker’s power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn “from the facts and from the matters falling for consideration in the exercise of the statutory power”.

(citations omitted)

80    It was observed by Kiefel CJ in SZVFW at [11] that the test for unreasonableness is necessarily stringent, and that is because the courts will not lightly interfere with the exercise of a statutory power involving an exercise of discretion.

81    In SZVFW, the applicants received two invitations from the Tribunal, one being to provide submissions or other written material and the second being to appear before the Tribunal. The applicants failed to respond to either invitation. Section 426A(1) Migration Act permitted the Tribunal to proceed to make a decision on the review without taking any further action, which is what it did. As in this case, the Tribunal was required to act in a way that is fair and just. In SZVFW, Kiefel CJ decided that the Tribunal had not acted unreasonably, observing at [13] that:

The Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. In reviewing a decision the Tribunal is required to act according to substantial justice and the merits of the case. Clearly enough s 426A is directed to the aims of efficiency contained within these objectives, although it is not to be exercised in a way which would be contrary to the others. Consistently with what has earlier been discussed, it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case.

(citations omitted)

82    In SZVFW, Nettle and Gordon JJ also decided that the Tribunal did not act unreasonably, stating at [68]–[69]:

The Tribunal is exhorted to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”, to “act according to substantial justice and the merits of the case”, and in applying Div 4 of Pt 7, within which ss 425 and 426A are located, to “act in a way that is fair and just”. Because Div 4 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”, the Tribunal acting fairly and justly is entitled to regard an applicant to whom it is satisfied that an invitation complying with s 425 has been sent as having had adequate notice of his or her opportunity to appear before the Tribunal when considering exercising the discretion under s 426A(1) in the event of non-appearance.

Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that “no sensible [Tribunal] acting with due appreciation of its responsibilities” could have taken that course.

83    A decision not to make a request for further information or to make an inquiry may be found to be unreasonable when the decision-maker has actual knowledge of, or is put on inquiry about, a critical fact which underpins the decision-making process.

84    For example, in CHK16, it was contended that it was legally unreasonable for the Immigration Assessment Authority not to exercise its power to obtain corrected submissions, involving potentially new information, when it knew that the submissions which it had received concerned the wrong person. The High Court agreed, stating at [27]–[29] that:

As Griffiths J correctly held in the Full Court, there is no general obligation on the Authority to advise referred applicants of their opportunities to present new information. Nor is there any general obligation upon the Authority to get new information. This is so even if the submissions are hopeless, or if they contain errors, even major errors, about facts or law. However, the power in s 473DC is still subject to the usual implication that it must be exercised within the bounds of legal reasonableness. Hence, this Court has held that a decision can be invalid if it is made in circumstances which exceed the high threshold of legal unreasonableness for the Authority’s failure to exercise the power in s 473DC to get new information.

The circumstances of CHK16’s case are extreme. The Authority was aware that CHK16 intended to provide submissions and that the submissions might contain new information. But it was apparent, as the Authority realised, that the submissions provided by the agent concerned a different person and that none of the personal information related to CHK 16 …

The legal unreasonableness of the failure by the Authority to get new information by requesting the correct submissions pursuant to s 473DC is plain …

(citations omitted)

85    Another example is found in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51. In that case, a delegate of the Minister cancelled a student visa. Attempts to notify the visa holder that the Minister was considering cancelling his visa had been unsuccessful and this was known by the delegate. At [50]–[51], Nettle J stated that:

In this case, the delegate was put on inquiry. As a result of the return of his letter of 3 February 2014 as “unclaimed”, he knew that the address shown in the records of the Department of Immigration and Border Protection as being the plaintiff’s address was not the plaintiff’s address. As a result of the return of his letter of 25 February 2014, he also knew that the address of the plaintiff supplied by the University was unlikely to be the plaintiff’s address. Inasmuch as the delegate knew that none of the communications which he had sent to the plaintiff had reached the plaintiff, the delegate knew that the plaintiff did not know that the Minister proposed to cancel the visa. As a result, the delegate also knew that the plaintiff would not have the opportunity, which ss 119-121 of the Migration Act contemplated that the plaintiff should have, of demonstrating to the Minister why the supposed ground of cancellation did not exist. Thus, until the prescribed time for responding under s 121(2) expired, it would have been apparent to the delegate, or it should have been, that it was more than usually important for the delegate to be as certain as reasonably possible that the proposed ground of cancellation existed, and thus for the delegate to be as certain as reasonably possible that the plaintiff was not in fact enrolled at the University.

… I consider this to be a case in which the delegate’s failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.

86    A third example is found in the recent decision of Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464; [2022] HCA 15. In that case, a letter was sent to the plaintiff inviting her to attend an interview in Melbourne on 31 January 2020. Departmental emails from August 2019 showed that the plaintiff was in New South Wales. The Department sent an email stating that it was prepared to reschedule the interview to be held in Sydney. The plaintiff responded to this email including a statement, “how can I make it to [Melbourne]”. No-one from the Department attempted to correct the plaintiff’s misunderstanding as to the location of the interview which she was being offered. English was not the plaintiff’s first language and she was homeless. The delegate refused to grant the plaintiff a protection visa for reasons including her non-attendance at the interview.

87    In that case, Gordon J stated at [32] that “the critical point is that it was apparent on the face of the email sent by the plaintiff” that “she did not realise that the Department was offering her an interview in Sydney”. Her Honour found at [36] that “no reasonable decision-maker could have ignored the plaintiff’s misunderstanding, particularly having regard to her circumstances, and proceeded to refuse to grant a visa for reasons that depended on the plaintiff’s [failure to attend an interview]”.

88    Turning to the facts of this case, the Tribunal was satisfied that the statutory procedure for inviting the appellant to provide further information had been followed. As the appellant had, without explanation, failed to respond to the invitation, “the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under [s 359C(1)] to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with” the appellant: SZVFW at [69].

89    The conclusion reached by the Tribunal, being that the appellant had the opportunity to receive professional advice, was an inference drawn by the Tribunal from facts which it recorded in its reasons, which facts were based on the evidence before it and which facts were correct. It was a rational inference having regard to those facts, and there was a logical connection between the inference and the evidence which was before the Tribunal: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135]. Further, the reasons of the Tribunal contained an evident, intelligible and plausible justification for deciding not to send a further invitation.

90    At the time of its decision, the Tribunal was aware that Mr Hourigan, a migration agent, was the appellant’s representative and that he was the authorised recipient of the appellant’s documents within the meaning of the Migration Act.

91    The Tribunal was also aware that the invitation had been transmitted to Mr Hourigan at his nominated email address as provided to the Tribunal and that this was not the first occasion that communications had been transmitted to Mr Hourigan’s email address (that is, by the delegate of the Minister as well as the Tribunal itself in December 2018).

92    The Tribunal was also aware that the invitation had contained an express warning that, if the requested information was not provided within the period allowed or as extended, “we may make a decision on the review without taking any further action to obtain the information”.

93    The Tribunal was aware that the period of approximately 22 months had passed since the application had been lodged and about 20 months had passed since the Tribunal had last communicated with Mr Hourigan by email.

94    The Tribunal was aware that it had not received any notification from the appellant during this period that anything in relation to service of documents on it had changed (that is, so far as the Tribunal knew, Mr Hourigan still represented the appellant and was still its authorised recipient).

95    The Tribunal was aware that it had not received any notification that the invitation had not been transmitted to or seen by Mr Hourigan.

96    Taking into account these facts of which the Tribunal was aware, it is not the case that, viewed objectively, there was a “significant risk” that Mr Hourigan no longer represented the appellant, that the invitation had not been received by Mr Hourigan or that the appellant had not had the opportunity to obtain professional advice on the implications of not responding to the invitation. While there was, of course, a risk that the explanation for the lack of response to the invitation was that the email had not been received, the likelihood that this was the correct explanation was low having regard to the facts which were known to the Tribunal. And of course, there is no guarantee that a second invitation by the Tribunal, also transmitted by email, would have been seen by Mr Hourigan.

97    At the time of its decision, the Tribunal did not know that Mr Hourigan had not seen the invitation and nor did it know that the appellant had not had the opportunity to receive advice as to whether to respond to it. Nor was it put on inquiry about these things by any particular event such as electronic notification that the email had not been transmitted successfully (being the equivalent to the return of the letter to the delegate as occurred in Wei).

98    In all of these circumstances, the Tribunal did not act unreasonably and the primary judge did not err in failing to make this finding.

99    For these reasons, no error by the primary judge has been demonstrated and ground 4 fails.

Ground 2

100    Ground 2 states:

The learned trial judge erred by failing to find that the document dated 9 October 2020 and set out at pages 126 to 130 of the trial, Court Book, was not a document for the purposes of s359 of the Migration Act and as such did not activate the powers under s359C in the event of a non-response to that document, with the consequence that the AAT failed to conduct a proper review under Part V of that Act.

101    In support of ground 2, the appellant submitted that, for the invitation to fall within s 359(2) Migration Act, it needed to be made by the Tribunal which, having regard to the definition in s 3(1) AAT Act, included a member or an officer of the Tribunal.

102    It submitted that, because the words “Tanya I For the Registrar” appeared on the invitation, it was not made by the Tribunal because “Tanya I” was not a member of the Tribunal and nor was she “an officer of the Tribunal”. It was submitted the consequence of this was that s 359C(1) Migration Act did not apply and therefore the Tribunal was required to invite the appellant to appear before it and give evidence and present arguments, presumably by reason of s 360(1).

103    Importantly, the appellant did not submit below (and nor was there any evidence) that “Tanya I” was not an employee of the Tribunal, as the primary judge noted at [27] of the reasons. Further, the appellant’s submissions on this appeal referred to the invitation as having been sent by an “employee of the AAT”. That “Tanya I” was an employee of the Tribunal is consistent with the documentary evidence in any event, including the case note dated 9 October 2020.

104    The status of “Tanya I” as an employee of the Tribunal defeats the appellant’s primary argument in relation to ground 2. This is because a “Delegation and Appointment” made by the Registrar of the Tribunal on 30 June 2015 pursuant to s 24PA AAT Act, as it then was, appointed “all persons from time to time occupying a position described in schedule A, while occupying such position, to be an officer of the Tribunal”. Schedule A to the Delegation and Appointment listed, relevantly, “[s]taff of the Administrative Appeal Tribunal” and “APS employees made available to the Tribunal”.

105    The appellant submitted that s 24PA AAT Act only came into force on 1 July 2015 and that it was therefore “[d]ifficult to see how a person could exercise a power before he or she has that power”. However, as the appellant’s counsel appeared to acknowledge during oral argument, this submission could not succeed when regard is had to s 4(2) of the Acts Interpretation Act 1901 (Cth).

106    The appellant also submitted that the Registrar can only appoint a person who the “Registrar is satisfied that the person has appropriate qualifications and experience”. The appellant submitted that the Registrar could not be satisfied that each and every staff member of the Tribunal, no matter how junior or inexperienced, had the appropriate qualifications and experience to be appointed as an officer of the Tribunal.

107    However, the appellant’s submission must be rejected as the appellant did not adduce any evidence attacking the formation by the Registrar of the state of mind described in s 24PA AAT Act (as it then was), viz. satisfaction that the nominated persons had “appropriate qualifications and experience”.

108    For these reasons, when the invitation was sent by her, “Tanya I” was an officer of the Tribunal and so the invitation was made by the Tribunal within the meaning of s 359(2) Migration Act.

109    For these reasons, no error by the primary judge has been demonstrated and ground 2 fails.

Associate:

Dated:    14 June 2022