Federal Court of Australia

Kaur v Minister for Immigration and Citizenship [2026] FCA 271

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration and Citizenship”.

2.    The appeal be dismissed.

3.    The appellants pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

RAPER J:

1    By notice of appeal filed 13 June 2024, the appellants appeal from the whole of the judgment of the Federal Circuit and Family Court of Australia handed down on 17 May 2024: Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 441 (primary judgment or PJ). The appellants, Ms Kaur and Mr Singh, are citizens of India. On 21 November 2018, the appellants applied for a Student (Temporary) (Class TU) (Subclass 590) visa under s 65 of the Migration Act 1958 (Cth). Ms Kaur, the first appellant, was the primary visa applicant and prospective student. Mr Singh was the secondary visa applicant. On 25 March 2019, a delegate of the first respondent (Minister) refused to grant the visa and the appellants sought review of the decision in the former Administrative Appeals Tribunal.

2    On 23 April 2020, the Tribunal sent an email to the appellants requesting that they provide further information by 7 May 2020. The email informed the first appellant that, if she did not respond, the Tribunal may not take any further action to obtain the information, and that "[she] will also lose any entitlement [she] might otherwise have had under the Migration Act 1958 to appear before [the Tribunal] to give evidence and present arguments" (the invitation). The appellants did not provide any further information. On 15 May 2020, the Tribunal affirmed the decision of the delegate. On 15 June 2020, the appellants lodged an application for judicial review of the Tribunal’s decision in the FCFCoA. On 17 May 2024, the FCFCoA dismissed their application.

3    By notice of appeal, the appellants advanced one ground of review namely that the primary judge erred in concluding that the invitation issued by the Tribunal, purportedly pursuant to s 359 of the Migration Act on 23 April 2020, was valid. It was submitted that the invitation was invalid because it did not include a statement as to the legal consequence of any failure to provide information within the prescribed period, namely that the Tribunal would be prohibited from holding a hearing by operation of ss 360 and 363A. Whilst not formulated as a ground below, it formed part of the argument and I am prepared to accept it is not a fresh ground in the strict sense for which leave is necessary. Accordingly, the issue for this Court is whether the primary judge was correct to find that the invitation issued pursuant to s 359 was valid.

4    However, just before the hearing, the appellants sought to rely on two further grounds. The first is related to ground one, where by deployment of the words “fair and just” in s 357A(3), the appellants appeared to contend that they ought not only have been notified in the letter of the legal consequence of any failure to provide information but also that there was no preclusion on the power of the Tribunal to nonetheless decide to take into account any information it received up to the date of the hearing. Further, they contended that the Tribunal failed to conduct the review in the prescribed manner by failing to write an additional letter to inform the appellants that they had lost the right to appear before the Tribunal but that the Tribunal would receive and consider any further comments or a response to the request for information up until the time of the Tribunal’s decision. By proposed ground three, the appellants appeared to contend that, by virtue of s 43 of the (then) Administrative Appeals Tribunal Act 1975 (Cth), and the fact that there were adverse consequences for not responding to the invitation, there was some additional obligation placed on the Tribunal, such that the letter was inadequate, because of the fact that it failed to inform the appellant of the “statutory consequence of failing to provide the requested information”.

5    For the reasons that follow, I refuse leave to rely on the new grounds and otherwise dismiss the appeal with costs.

The invitation

6    As will be apparent from the foregoing, the Tribunal’s reasoning for refusing the appellants’ application for judicial review of the Minister’s decision is not the subject of challenge on appeal. Rather, the challenge concerns the validity of the notice.

7    On 23 April 2020, the Tribunal wrote to the appellants regarding their review application alerting them to a number of matters. First, they were alerted as to the requirements of the student visa namely that the main applicant was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. Secondly, they were alerted to the need to “provide sufficient information” to satisfy the Tribunal that both of these visa requirements had been met. Thirdly, they were informed as to how they could provide this information, either online or by hard copy return. Fourthly, they were appraised of the fact that the Tribunal must have regard to Ministerial Direction No 69 “Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications” and a copy of that Direction was provided.

8    The letter went on to state the following (emphasis in original):

The written information requested in the Request for Student Visa Information form should be received by 7 May 2020. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

If you cannot provide the information by 7 May 2020, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 7 May 2020 and it 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 the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain 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.

Alternatively, if your circumstances have changed and you no longer wish to proceed with this application for review, please complete a withdrawal form by clicking on the link directly below.

Click here to access the online Withdrawal form

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.

..

9    The appellants did not respond to the invitation. The first appellant, Ms Kaur, the primary applicant below and prospective student, deposed in an affidavit before the primary judge that:

At the time the Tribunal sent its letter dated 23 April 2020 and at the time it made its decision on 15 May 2020, I was not enrolled in a course of study.

However, at this time I expected that I would be invited by the Tribunal to present my case at a hearing. I had every intention of enrolling in a Diploma of Community Services before such a hearing. I ultimately did get enrolled in this course on 19 April 2021 as it was very relevant to my field of work.

…..

The Tribunal decision

10    The appellants did not attend a Tribunal hearing. The Tribunal identified that the correct issue to be decided was whether the appellant is currently enrolled in a registered course of study in accordance with cl 500.211 of the Migration Regulations 1994 (Cth). Clause 500.211 required that, at the time of the decision, the appellant was enrolled in a course of study. The appellant did not claim to meet any of the alternative criteria in cl 500.211.

11    The Tribunal found that the first appellant had not provided any evidence of being currently enrolled in a registered course of study. This is a critical fact of which the Tribunal must be satisfied at the time of determining the application for review.

12    Therefore, the Tribunal was not satisfied that, at the time of determining the application for review, Ms Kaur was enrolled in a course of study and accordingly cl 500.211 was not met. The Tribunal found that the criteria for the grant of a Student visa were not met. Accordingly, the decision under review must be affirmed.

The primary judgment

13    By amended application, the appellants advanced one ground of judicial review namely that the Tribunal committed jurisdictional error by failing to invite the appellants to appear before the Tribunal to give evidence and present arguments as required by s 360(1) of the Migration Act. The appellants submitted, amongst other things, that the invitation purportedly issued by the Tribunal pursuant to s 359 of the Migration Act was invalid, thus the Tribunal was obliged to hold a hearing pursuant to s 360(1) and fell into jurisdictional error by not doing so. The purported invitation was said to be invalid because it was misleading and did not accurately describe the consequences of non-compliance with the notice. It was said that the following aspect was misleading:

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain 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.

(Emphasis in original)

14    The appellants submitted that a misleading invitation constitutes a denial of procedural fairness, particularly in circumstances where the appellants were unrepresented. It was said that the Tribunal was required to give some assistance to the appellants to ensure they had sufficient information about the practice and procedure of the Court, as Division 5 of Part 5 of the Migration Act does not address the assistance the Tribunal should give to unrepresented litigants, such as to displace the common law rules of procedural fairness on this matter by reason of s 357A of the Migration Act (see: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421).

15    The appellants submitted that the effect of s 363A of the Migration Act was not conveyed to them, instead the invitation suggested to the appellants that the Tribunal retained a power which it did not have. In other words, the Tribunal did not convey to the appellants that it was prohibited by s 363A from conducting a hearing pursuant to s 359 if the information was not provided.

16    The Minister submitted that the invitation was valid in that the Tribunal complied with s 359(2) of the Migration Act as it "invited" the appellants to give certain information in writing. In this context, the word "invite" bears its ordinary meaning. Thus, it requires nothing more than the performance of the formal act of requesting information (see Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; 238 CLR 489 at [25] per French CJ, Reydon, Crennan, Kiefel and Bell JJ; Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 at [21] per Stone, Jacobson and Jagot JJ). The Tribunal otherwise complied with its obligations regarding issuing an invitation under s 359.

17    The Minister submitted that neither the Migration Act nor the Migration Regulations require an invitation issued pursuant to s 359 to state the effect of s 363A, nor the consequences of not responding to the invitation within the relevant period under s 359. The appellants conflated the requirements of s 359 with those of s 360 or alternatively sought to import obligations pertaining to s 360, which is an incorrect approach. The Minister submitted that the Federal Court has construed that s 360(1) of the Migration Act, and the analogue in s 425(1) of the Migration Act, impose a substantive obligation concerned with more than the simple issue of an invitation to attend a hearing. Whether that obligation is discharged turns on whether the applicant can adequately give evidence and present argument. As a result, even if there is a misleading statement made by the Tribunal, which the Minister does not concede, this will not result in a breach of ss 360 or 425 of the Migration Act, unless it resulted in the applicant not having been afforded sufficient opportunity to present their case.

18    The Minister submitted that the appellants’ reliance on s 357A(1) of the Migration Act is misplaced, as s 359 of the Migration Act is not a statutory formulation of any aspect of the natural justice hearing rule. The exercise of a discretion to invite someone to provide information is not subject to any procedural fairness obligations that may be found in other areas of Division 5 of Part 5 of the Migration Act. Further, the Minister submitted that the appellants incorrectly contended, and relied on, transposing procedural fairness principles that are applicable to curial hearings to administrative decision-making. The Minister asserted that the question of whether the appellants' natural justice is denied is answered by reference to the framework for decision making under Division 5 of Part 5 of the Migration Act, where there is no general obligation on the Tribunal to assist an applicant in making their case.

19    The Minister finally submitted that the appellants contention "fails on the facts", and that the invitation issued under s 359 of the Migration Act was not apt to mislead them. The Minister submits that it is not necessary for the Tribunal, in the invitation, to address the terms and effects of s 363A of the Migration Act in order to put the appellants on notice of the consequences of not responding to the application.

20    The primary judge identified that the sole issue for the Court to determine was whether the invitation issued by the Tribunal pursuant to s 359 of the Migration Act was within its powers. The primary judge set out the relevant provisions, including ss 357A, 359, 359C and 360, in Division 5 of Part 5 of the Migration Act as they provide a guide map to the conduct of review of this kind.

21    The primary judge noted that it was not in dispute that the appellants were issued with a written invitation pursuant to s 359 and that they did not respond to the invitation. His Honour was satisfied that the invitation complied with all of the relevant procedural requirements in that it was delivered in writing by one of the prescribed means to the appellants and provided a 14 day-time period for the provision of the information requested.

22    The appellants submitted that there is a difference between a lack of entitlement and a prohibition, and the invitation suggested that the Tribunal had power to allow the appellants to appear rather than the appellants lost the right to do so. The Court did not accept that submission or the construction sought to be placed on what are the clear words of the various sections. In so doing the Court considered both the text of the words of the section and the overall context of the words within both the section and Division 5 of Part 5 of the Migration Act.

23    The Court was not satisfied that there was any requirement within the text of s 359 of the Migration Act to reference s 360 of the Migration Act, either as a matter of construction or as a matter of procedural fairness, noting the effect of s 357A of the Migration Act and that the proceedings under review are administrative in nature and not curial.

24    The primary judge reasoned that it matters not to an applicant what mechanism by which an applicant loses the right to appear, other than the fact that they are made clearly aware of the impact of failing to provide the information within the time frame set.

25    The fact that the Tribunal has no residual power to allow an applicant to appear once the conditions under s 359C of the Migration Act are satisfied is not a matter that is required to be bought to the attention of an applicant in order to ensure the Tribunal does not mislead them. The Court found that the invitation was not misleading. The application was dismissed.

Relevant legislative provisions

26    The Tribunal identified that the issue in the proceeding was whether the appellant was enrolled in a course of study under cl 500.211(a) of the Migration Regulations. Clause 500.211 of the Migration Regulations, at the relevant time, was set out in the following terms:

500.211

One of the following applies:

(a) the applicant is enrolled in a course of study;

(b) if the application is made in Australia—the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;

(c) if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;

(d) if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.

27    Given the new proposed appeal grounds, it is worthwhile to have some understanding of the breadth of Division 5 of Part 5 which prescribes the extent of the Tribunal’s ability to conduct a review. The use of the descriptor “extent” is deliberate because the first provision in the Division, s 357A of the Migration Act, states that the "Division is to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". The provision is set out as follows:

357A  Exhaustive statement of natural justice hearing rule

(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3) In applying this Division, the Tribunal must act in a way that is fair and just.

28    In broad terms, the Division allows for an applicant to give documents to the Tribunal (s 358), gives the Tribunal the discretion to seek information, including from a person orally or in writing (s 359), sets out the extent of the Tribunal’s obligations to an applicant in circumstances where the applicant appears before the Tribunal to give oral evidence (s 359AA), sets out the extent of the Tribunal’s obligations to give to an applicant in writing clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review (s 359A), describes what the consequence of a failure to give information, comments or a response to a written invitation will be (s 359C), prescribes when the Tribunal must invite an applicant to appear (s 360) and if so invited, what the content of the letter must contain (ss 360A, 361), allows for the applicant to request the Tribunal to obtain oral evidence from a specific person (s 362), sets out the extent to which the applicant may have access to written material given or produced to the Tribunal for the purpose of the review (s 362A) and sets out the consequences of and the Tribunal’s obligations if the applicant fails to appear before the Tribunal (ss 362B, 362C). The Division also prescribes the powers of the Tribunal for the purpose of a review of a decision (ss 363, 364), including that it does not have power to permit a person to do something he or she is not entitled to do (s 363A), the extent to which a review is to be in public (s 365), the extent to which the applicant may give oral evidence by telephone and be assisted by another person (ss 366, 366A), that other persons are not to be assisted or represented while appearing before the Tribunal (s 366B), the extent to which a person appearing before the Tribunal may appoint an interpreter for the purpose of communication (s 366C), that examination and cross examination are not permitted (s 366D), and the extent to which certain bridging visa decisions are to be made within a prescribed period of time (s 367).

29    The appeal gives focus to when the Tribunal may seek information under s 359 (as opposed to when it must under s 359A) and the consequence for an applicant, namely that there cannot be a hearing, if the applicant does not give information (by operation of ss 359C, 360 and 363A).

30    Section 359 of the Migration Act provided:

359 Tribunal may seek information

(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

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

(b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

31    Section 359C stipulated the consequence of a failure of a person to respond to an invitation issued, in part, under s 359 (namely that the Tribunal may make a decision on review without taking any further action). Section 359C was as follows:

359C Failure to give information, comments or response in response to written invitation

(1) If a person:

(a) is invited in writing under section 359 to give information; and

(b) does not give the information before the time for giving it has passed;

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

(2) If the applicant:

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

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

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

32    Section 360 provided for the circumstances where the Tribunal must (and is not required to) invite an applicant to appear:

360 Tribunal must invite applicant to appear

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

(2) Subsection (1) does not apply if:

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

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

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

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

33    Section 363A provided:

363A Tribunal does not have power to permit a person to do something he or she is not entitled to do

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

Consideration

The Tribunal was not required to include, in its invitation made under s 359, a statement as to the legal effect of providing no information in response, namely that the Tribunal had no power to conduct a hearing

34    The appeal concerns whether the primary judge erred in concluding that the invitation issued by the Tribunal purportedly pursuant to s 359 of the Migration Act on 23 April 2020 was valid.

35    The appellants allege that the purported invalidity arises from the invitation not being “real and meaningful” and containing a “misleading statement”. It was said to be so, as particularised in the Notice of Appeal in the following way:

(a) The invitation stated that if the appellant did not provide the information requested she may lose any entitlement she might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

(b) The invitation did not state that, by reason of s 363A of the Act, if the appellant did not provide the information requested the Tribunal would be prohibited from inviting the appellant to appear before it to give evidence and present arguments pursuant to s 360( 1) of the Act.

(c) The invitation was misleading because it did not set out the consequences of a failure to comply with the invitation in a complete or accurate way.

(d) A communication is not an "invitation" within the meaning of s 359 of the Act if it is misleading.

36    Accordingly, it was submitted that the alleged misleading nature of the letter was the fact that the letter did not “accurately describe the consequences of not complying with the invitation” namely that rather than stating, as it did, that the first appellant “will lose any entitlement” she might otherwise have to, under the Migration Act, appear at the Tribunal to give evidence and present arguments, the Tribunal would in fact be prohibited, by operation of s 363A, from inviting her to appear to give evidence and present arguments. As a consequence of the misleading nature of the invitation, the “invitation” was a hollow shell or empty gesture, citing Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; 183 ALR 188 at [31] per Goldberg J. Further, it was not real and genuine citing Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 at [37]. It was submitted that the authorities have recognised that an invitation will not be “meaningful” where the decision-maker makes misleading statements which may discourage an appellant from proceeding down a particular path in the proceedings: Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946; 92 FCR 315 at [33] per Tamberlain and Katz JJ.

37    It was submitted by the appellants that the impugned part of the notice, on their ordinary meaning, “convey that by not providing the information the appellants will lose the right to appear before the Tribunal to give evidence and present arguments. They do not convey that the Tribunal necessarily will not or does not have the power to give the appellants an opportunity to appear before the Tribunal to give evidence and present arguments”. Further, it was submitted that, absent the Tribunal indicating its absence of power, the “lay applicant” would assume that the “Tribunal retains some level of discretion” capable of being deployed in extenuating circumstances.

38    It was also submitted that the giving of an invitation that is misleading would also constitute a denial of procedural fairness and therefore necessarily be beyond the power in s 359 of the Migration Act. This is particularly so where, as here, the appellants were unrepresented, relying on AYXJ 5 v Minister for Immigration and Border Protection [2017] FCA 1037 at [22] where Perry J said that “the Court must ensure that an unrepresented applicant is in a position to decide in an informed way how she or he wishes to pursue his or her rights, but cannot assist an applicant to establish his or her case”.

39    As a consequence of either strand of reasoning (invalidity of the notice given in the letter or the claim of a denial of procedural fairness), the appellants submitted that, by virtue of that notice being invalid, the Tribunal was required to hold a hearing and not doing so constituted jurisdictional error.

40    For the following reasons, I can discern no error in the primary judge’s reasons. I do not accept that the appellants have established that the invitation was invalid nor that there was otherwise a denial of procedural fairness by reason of what was contained in or purportedly omitted from the notice.

41    I do not accept that anything in the letter was misleading. On its face, it informs in an emphatic way, by the use of “will”, in simple language, what the consequence of the appellants not providing information will be, namely that they will lose any entitlement that they might otherwise have under the Migration Act to appear before the Tribunal to give evidence and present arguments. I do not accept that the purported failure to refer to the Tribunal’s absence of power is misleading.

42    The terms of s 359 and what is required (and not required) are important in assessing whether the letter was “valid” for the purpose of that section. It is important to recognise that pursuant to s 357A, Division 5 of Part 5 is taken to comprise an exhaustive statement of the requirements of the natural justice hearing rule: Singh v Minister for Immigration and Border Protection [2017] FCAFC 67 at [62]. By way of s 359, the Tribunal has the discretion to ask for information. There is no obligation for it to do so.

43    By contrast, where the Tribunal is of the view that there would be a reason, or a part of a reason, for affirming the decision that is under review, by operation of s 359A, the Tribunal has the following obligations regarding what it is required to seek:

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

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

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

44    The consequence of an applicant not responding to the request for information under s 359 or 359A is that the Tribunal may make a decision without taking further steps to obtain the information (s 359C). Neither s 359 nor s 359C prescribe any requirements as to the substance nor the form of such an invitation beyond the fact that it should invite an applicant, either orally or in writing, to provide information. Notably, neither provision, in express terms, requires that the invitation set out the consequences of failing to respond to the invitation. This is to be contrasted with s 359A. That provision requires that the Tribunal must give clear particulars of the adverse information, ensure the applicant understands why the information is relevant and (importantly) the consequences of it being relied on in affirming the decision under review, and an invitation to the applicant to comment on or respond to it. The legislature, presumably deliberately, did not include this level of detail (or any) regarding the substance of an invitation issued under s 359.

45    Nevertheless, the letter in this case did set out one important consequence of failing to respond, being that the appellants would lose their entitlement to a hearing, in terms consistent with the terms in 359C(1).

46    The appellants submitted at hearing that there was a distinct difference between the circumstance of the appellants losing an entitlement to a hearing and the Tribunal being prohibited from holding a hearing. This was said to be particularly so in circumstances where the appellants were unrepresented. It was submitted that this additional factor (the prohibition by absence of power) should have been communicated to the appellants so that it was clear that a failure to respond would mean, categorically, they could not appear before the Tribunal to give evidence and make arguments in support of their application. As such, the appellants submitted that, after the words “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” the letter should have stated words to the effect of “and the Tribunal does not have the power to permit you to appear before us to give evidence and present arguments”.

47    I reject this submission. It may be accepted that the notice must not mislead. However, for reasons already given, I do not accept that it did that. I reiterate the use of the emphatic language in the letter: “will not” as opposed to “may not” was used. Further, I accept the Minister’s submission that it would be highly improbable that a lay applicant would understand the distinction between an entitlement and a power, and still less that such an applicant would be dissuaded from not responding in time only if this additional consequence was explained.

Proposed new grounds of appeal

48    The Court was informed, two days before the hearing, that the appellants would be seeking to amend and expand their appeal grounds. This is most unsatisfactory. It occurs after the appellants had filed their written submissions and their legal representatives had attended a case management hearing (and provided no indication of the same).

49    By r 36.10 of the Federal Court Rules 2011 (Cth), an appellant may amend a notice of appeal without the Court’s leave during the period of 28 days after filing the notice of appeal. The appellants’ proposed amended notice of appeal was filed over one and a half years after the originating application. It was not in dispute that the new grounds, being grounds two and three, were not advanced before the primary judge. Therefore, the appellants require leave to rely on them.

50    Leave to argue a new ground should only be granted where it is in the interests of justice, having regard to matters such as whether there is an explanation for not raising the point at first instance, whether there is prejudice to any party, and whether the new point has any merit: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48].

51    For the reasons which follow, I refuse to grant leave on the basis that the proposed grounds of appeal are without merit.

Proposed ground two

52    Proposed ground two alleges that the primary judge erred in failing to find that the Tribunal committed jurisdictional error by failing to conduct the review in accordance with the statutory duty imposed by s 357A of the Migration Act. The ground is supported by particulars (amended at hearing), which are reproduced in full below (emphasis omitted):

a. Section 357A requires the Tribunal to conduct a review that is fair and just.

b. (The appellant was self-represented before the Tribunal.

c. The Tribunal issued a letter requesting further information and stating that if the information was not provided within the time allowed, the Tribunal may decide the review without taking further action and that the applicant would lose any entitlement to appear before the Tribunal.

d. The letter did not explain the statutory consequences of failing to provide the requested information, including that: the operation of Part 5, Division 5 of the Act would prevent the Tribunal from inviting the appellant to attend a hearing, regardless of any explanation for the failure to respond;

a. the Tribunal would therefore lack any discretion to subsequently invite the appellant to appear at a hearing;

b. the Tribunal may nevertheless decide to take into account information it receives up to the date of the hearing in the appellant's absence; and

c. for the purposes of Part 5, Division 5 of the Act, the appellant had been accorded natural justice, which may affect the appellant's rights of review on the grounds of not being afforded procedural fairness.

e. the Tribunal did not write the appellant to inform her that:

i. she had lost the right to appear before the Tribunal and the hearing had therefore been cancelled; or

ii. the Tribunal would receive and consider any further comments or a response to the information requested until the time of the member’s decision.

in those circumstances, the Tribunal failed to conduct the review in a manner that was fair and just within the meaning of s 357A.

53    Proposed ground two was not advanced before the primary judge and, therefore, the appellants require leave to rely on it on appeal. The appellants were represented before the primary judge by solicitors and counsel, who prepared the application for judicial review as well as written submissions and appeared on behalf of the appellants at the final hearing. The appellants provided no explanation as to why, in these circumstances, the ground was not advanced below.

54    Effectively, the appellants allege that the Tribunal erred by failing to conduct the review in compliance with s 357A(3), which states that “in applying… Division [5], the Tribunal must act in a way that is fair and just”. There are, as the particulars reveal above, two bases for the alleged failure:

(a)    the invitation was required to contain the matters particularised under proposed ground two (d), namely (a)-(d); or

(b)    the Tribunal was required to write to the appellants, in the period subsequent to expiry of the period by which the appellants were to provide further information (7 May 2020) and before the date when the decision was made on 15 May 2020, again prompting the appellants to provide information in the manner which was done in Singh, as particularised in (e) to ground two.

55    The terms of s 357A state that Division 5 is an exhaustive statement of the natural justice hearing rule and, therefore, would appear to leave no room for the implication of the requirements of procedural fairness beyond what is already provided in Division 5: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [55] per Hayne, Kiefel and Bell JJ. In those circumstances, the plurality in Li considered the requirements in s 357A(3) and stated the following:

58. In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review. The act of the Tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.

59. A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.

56    The discretion cast on the Tribunal under s 359 is that the Tribunal may request information from an applicant that it considers relevant. The purpose of s 359 was considered by Griffiths J in Huynh v Minister for Immigration and Border Protection [2015] FCA 701; 232 FCR 497, where his Honour stated:

89. … The purpose of s 359 is to empower the Tribunal in its discretion to get information, either orally or in writing, which is relevant to the issues arising in the review. That purpose is not unlike the purpose of s 360 (see the comments in Li set out in [81] above). In a case where the Tribunal, in its discretion, determines to have a person give oral evidence at an interview it is plainly contemplated that this will occur before the Tribunal makes its decision. That is necessarily implicit in the obligation imposed by s 359(1) to have regard to relevant information which is obtained under that provision. And as is also the case with s 360(1), the opportunity for a person to give information in response to an invitation made under s 359(1) and (2) must be meaningful. The Tribunal has a discretion as to the questions which it will raise with a person whom it invites to give information at an interview, however, those questions must give effect to the requirement that the opportunity to give information is meaningful (see further below at [90]). As the Full Court stated in Singh at [51] what amounts to a “meaningful opportunity” to present evidence “will be fact dependent in each case”. In my view, this observation is equally applicable to an interview conducted pursuant to ss 359(2) and 359B(3).

57    Section 359 confers a discretionary power on the Minster and, therefore, the legal presumption that the discretion be exercised reasonably applies: Li at [26], [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ, [88] per Gageler J. The threshold for establishing legal unreasonableness is high and it is not a finding lightly made: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [33] per Allsop CJ, Besanko and O’Callaghan JJ. As has been observed, “the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [133] per Crennan and Bell JJ. In respect of the standard of legal reasonableness to be applied, the plurality in Li relevantly observed (footnotes omitted):

66. This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

67. In Klein v Domus Pty Ltd, Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority, requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

58    The appellants submitted that grounds two and three do not fall away if ground one is not made out. Rather, they submit that ground two develops and expands the bases of the invalidity of the notice.

59    As to the first basis, I do not accept, for the reasons already given, that there was any obligation on the part of the Tribunal to (and that it would unreasonable if it did not) refer in the invitation to the consequence for the appellants (the loss of any right to attend a hearing) and not to refer to the effect of the Tribunal’s lack of power to invite the appellants to hold a hearing.

60    As to the argument that the letter (or a subsequent letter) ought to have included an explanation that, notwithstanding any loss of entitlement to a hearing, the “Tribunal may nevertheless decide to take into account information it receives up to the date of the hearing in the appellant’s absence”, I reject this submission. I do not accept that the Tribunal failed to act in accordance with the statutory duty imposed on it pursuant to s 357A. For the reasons already given, the Division comprises an exhaustive statement. The Tribunal has the discretion, under s 359, to seek information and there is no stipulation of what is required in its notice to an applicant. The fact that the Tribunal maintains the discretion to receive and consider a written response even if it is late (without being able to hold a hearing), as recognised by previous authority (see Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201 at [47]; Singh at [19]), cannot amorph into some statutory obligation (or an allegation of unreasonableness if not done) to inform an applicant of the same.

61    Further, and notably, in Singh, the Tribunal had decided to provide the further prompt where there had been no response to a written invitation to comment on adverse information, pursuant to s 359A. Therefore, it involved the Tribunal taking a different approach, not mandated by the statute (nor found in that decision to be so mandated) in a different circumstance, namely where a notice had been dispatched under s 359A, as was required by that section.

62    Furthermore, the appellants sought to support their contentions by resorting to the reasoning in Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; 183 FCR 413. I am of the view that this case does not support their arguments. There were two letters in question, one made pursuant to s 359A, but with similar words as to loss of entitlement as in the case before me, and a subsequent letter. As to the latter, the Tribunal had determined not to grant an extension and stated that the applicant had “now lost any right …to appear before the Tribunal to give evidence and present arguments”. It was submitted that the letter purportedly denied the appellant the opportunity to put before the Tribunal further written material. However, the Full Court determined that the effect of the letter was such that it did not purport to deny the appellant an opportunity to do so but rather informed the appellant only of the fact that he had lost the opportunity to appear at a hearing: at [38]-[39].

63    The Full Court in Hasran went on to observe, at [39]-[42]:

40. As the Federal Magistrate said at [66], the letter of 5 August 2009 did not convey to the appellant that the Tribunal would not consider anything else that he may choose to put before it in writing.

41. In any event, the appellant did not make clear to the Tribunal what if anything he wished to put before it in addition to his statement of 3 June 2009. Nor did he give evidence before the Federal Magistrate that he read the letter of 5 August 2009 as denying him the opportunity to put any further written material before the Tribunal or as to what he wished to put before it.

42. As Gleeson CJ said in Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [37], procedural fairness is not an abstract concept; it is essentially practical and the concern is to avoid practical injustice. There was no practical injustice in the present case.

43. It follows in our view that there was no denial of procedural fairness.

64    The appellants purportedly sought to distinguish this aspect of the reasoning in Hasran from the present appeal on the basis that it is permissible for visa applicants to seek to satisfy a particular visa requirement during the hearing process, including seeking adjournments. In an affidavit of Ms Kaur (extracted above), Ms Kaur admits that she was not enrolled in any course of study at the time she was invited by the Tribunal to provide evidence on 23 April 2020, or when the Tribunal made its decision on 15 May 2020. It was submitted that Ms Kaur asserted in her affidavit that she expected that she would be asked to give evidence at a Tribunal hearing and that she was expecting to enrol in a Diploma of Community Service before that hearing. However, Ms Kaur did not give evidence that she read the s 359 letter as denying her the opportunity to put any further written material before the Tribunal. I cannot see how these facts, in effect, distinguish it such that the reasoning path in Hasran would not apply in this case.

65    Like Hasran, the letter in this case did not convey to the appellants that the Tribunal would not consider anything else that they may choose to put before it in writing. This form of letter was found to be valid for the purpose of s 359A in Hasran which contains more requirements for compliance than s 359 does.

66    It is also worth noting that the s 359 letter was not the only letter from the Tribunal notifying the appellants that they could provide information and material for the purpose of the review. Prior to the provision of the s 359 letter, the Tribunal sent a letter to the appellants dated 10 April 2019 that acknowledged receipt of the application for review and said that the Tribunal had not yet assessed the validity of the application. It also said that: “If you wish to provide material or written arguments for us to consider, you should do so as soon as possible”. While this letter does not categorically make it clear to the appellants that they can provide information up until the decision, it notified them that they may provide material or written arguments for the Tribunal to consider.

Proposed ground three

67    Proposed ground three contends that the primary judge erred in failing to find that the Tribunal committed jurisdictional error by failing to perform the statutory review required by the Migration Act purportedly per Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [137]. The particulars to proposed ground three allege that the Tribunal is required to conduct a review of the decision under review in accordance with the statutory scheme established by the Migration Act (particular a). They then repeat the factual matters and substance set out in particulars (b), (c) and (d) to proposed ground two and allege that, in those circumstances, the Tribunal failed to perform the statutory review required by s 360 of the Migration Act (particular (f)). It appears that particular (c) contains a typographical error where it refers to s 359A, where it intends to refer to s 359.

68    The relevant portion of Shi at [137] per Keifel J, is extracted as follows:

137 The respondent's argument does not distinguish between the powers given to the Tribunal by s 43(1) "[f]or the purpose of reviewing a decision" and the making of a decision, under pars (a) to (c), following upon that review and to give effect to it. Indeed the argument tends to ignore the powers, which are to permit the Tribunal to consider for itself what the decision should be. Such powers are not consistent with a role limited to the ascertainment of error.

69    It was almost impossible to discern from the appellants’ oral submissions the basis for this ground. It appeared to be that, by virtue of s 43 of the AAT Act, and the fact that there were adverse consequences for not responding to the invitation, there was some additional obligation placed on the Tribunal, such that the letter was inadequate, because of the fact that it failed to inform the appellant of the “statutory consequence of failing to provide the requested information”.

70    The appellants’ reliance on Shi and, in particular, [137] of that decision is misconceived. The principal question on appeal in Shi concerned the review by the Tribunal of a decision of the Migration Agents Registration Authority to cancel the appellant's registration as a migration agent.  The relevant part of the Migration Act under consideration in that decision was the application of Part 3 of the Migration Act, which concerned migration agents and the immigration assistance they may render, and Division 3, which dealt with registration of migration agents and conferred power upon the Authority. The question was whether, on that review, the Tribunal was restricted to a consideration of facts and events which had occurred at the time of the Authority's decision. The High Court determined that s 43(1) of AAT Act expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision-maker. The Tribunal stands in the shoes of the original decision-maker, for the purpose of its review: Shi at [134] per Kiefel J. This authority does not support the appellants’ claim that the primary judge erred in failing to find that the Tribunal committed jurisdictional error by failing to perform the statutory review required by s 360 of the Migration Act.

71    The appellants further submitted that there is, recognised by authority, a “critical distinction” between powers to get information that have no adverse consequences and those that, if not complied with, deprive an applicant of the entitlement to a hearing before the Tribunal citing SZNAV at [21] – [22] and SZKTI. The appellants submitted that the adverse consequences argument that was outlined by their Honours in SZKTI (then followed by the Full Court in SZNAV, although relating to a separate part of the Migration Act) bear upon the proper construction of the powers in s 359, at [21] - [22]. It was submitted that a proper construction of s 359 (and the adverse consequences which flow if no response is received) required the Tribunal to provide information as to the statutory consequences of not responding to the appellants.

72    The argument is without merit. I do not accept that the fact of there being adverse consequences was such that the purported additional obligation arose. I repeat the reasons already given above with respect to ground one and proposed ground two. The decisions in SZNAV and SKTI involved different provisions and facts. In any event, as I have already found, the appellants were informed of the adverse consequences of not responding in a simple way.

Conclusion

73    For the reasons given, the appeal must be dismissed, leave to rely on the new grounds refused and the appellants be required to pay the first respondent’s costs.

Associate:

Dated:    17 March 2026