Migration Act 1958 (Cth), ss.357A, 359, 359(1), 359(2), 359A, 359A(1), 359A(1)(b), 359A(4)(b), 359B, 359B(2), 359B(4), 359C**,** 359C(1), 359C(1)(a), 359C(2), 359C(2)(a), 360, 360(1), 360(2)(c), 363A, 379A(4), 379C(4), 422B, 424A, 424A(1)(b), 483A

Migration Regulations 1994 (Cth), reg.4.17(4), Sch.2 cl.100.22, 100.221, 100.221(2), 100.221(4), 100.221(4)(c)(ii), 100.221(4A)

Applicant A87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 919

Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447

Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31

Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201

Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 598

Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1679

Sun v Minister for Immigration [2004] FMCA 582

SZAQR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1687

SZELA v Minister for Immigration & Anor [2005] FMCA 1068

VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471

W258 v Minister for Immigration & Multicultural Affairs [2001] FCA 1622

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(1)

Order that a writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 11 March 2002 in matter N00/02917.

(2)

Order that a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 10 May 2000.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

This is an application brought in the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) ("the Migration Act"), which was filed on 6 April 2004. The applicant's original application suffered from a significant lack of precision, claiming: "I would like the Federal Court to look at my case again and allow me to stay in Australia to be with my daughter who is living with her mother as we are separated, I also have a court order in place to see my daughter every week ...". The application referred to the applicant's fear of returning to Lebanon, and said: "I have losse a 60% from my memory from the accident ...". As is apparent, the application was brought without any legal assistance by a person with disabilities.

The solicitors for the first respondent initially suggested to the Court and to the applicant that he was seeking judicial review of a decision made by the Migration Review Tribunal ("the Tribunal") dated 6 April 2004, in which it rejected an application to it made by the applicant on 29 March 2004. In that application, the applicant requested a review of a "decision" said to have been made on 3 December 2003. He said in his application:

I don't agree that I should return to Lebanon, because I have done nothing wrong, I have a car accident but I have been punished for that, I have a daughter who will remain in Australia and I would find it very difficult to live without her, I would like the department to reconsider their decision and grant me permanent residence ...

The Tribunal's 6 April 2004 decision declined to exercise jurisdiction on the ground that the application was invalid because: "you are not the subject of any decision to refuse to grant or cancel a visa or any other MRT reviewable decision".

The applicant filed an amended application in the Court on 17 August 2004, which referred to this decision as the "decision that is the subject of this application", but made claims in similar terms as in his original application. It attached various documents, which I eventually received in evidence as having possible relevance to discretionary issues. These included medical reports, including an August 2004 opinion that the applicant was suffering "anxiety state/panic attack (neurotic)" secondary to head injuries from a motor vehicle accident in August 2000. They also included documents establishing the applicant's marriage in Tripoli on 20 June 1998 to Lina Mokbel, and a letter from solicitors dated 6 November 2003 addressed to the applicant at Silverwater Correctional Centre. They enclosed sealed orders made by the Family Court on 28 October 2003 in accordance with terms of settlement between the applicant and Ms Mokbel, which gave him rights of contact with his child Iesha Elrifai born 15 June 1999 and gave Ms Mokbel rights of residence.

At a directions hearing before me on 3 February 2005, I listed the matter for hearing on 19 May 2005, and directed the first respondent to file a supplementary court book or affidavit explaining the background to the matter. This resulted in the affidavit of John Stuart Kettle sworn on 31 March 2005, in which Mr Kettle carefully summarised his investigation of his client's files. He described a lengthy immigration history, commencing with the applicant being granted a subclass 309 (spouse provisional visa) in November 1998 consequent upon his marriage to Ms Mokbel, who was an Australian citizen. His visa ceased to have effect in May 2000 when the applicant was refused a permanent residence subclass 100 (partner) visa in circumstances which I shall explain below. The applicant then lodged an application for review by the Tribunal, which was concluded by its decision on 11 March 2002 in which the delegate's decision was affirmed.

Mr Kettle's affidavit said that, while this appeal was pending, the applicant was on 5 August 2000 "involved in motor vehicle accident whilst escaping police custody. Accident resulted in death of passenger". On 4 December 2001 the applicant was "convicted for dangerous driving causing death. Sentenced to 4 years imprisonment with a 2 year non-parole period". On 3 December 2003 he was "released from prison and transferred to Villawood IDC". It seems reasonable to assume that at that time he was given a letter indicating an intention to deport him, and that such a communication provided the "decision" which the applicant sought to have reviewed by the Tribunal in his application of 29 March 2004 to which I have referred above. Mr Kettle's affidavit revealed that, in the intervening period, the applicant had made unsuccessful attempts to apply for a protection visa and also made numerous applications and appeals concerning bridging visas. It is unnecessary for me to give details of these activities.

I was informed that the applicant is at present not in detention, and is enjoying access to his daughter.

At the hearing appointed for 19 May 2005, I was relieved when Mr Killalea of counsel appeared for the applicant under direct client instructions. He sought an adjournment to allow him an opportunity to advise the applicant. I adjourned the case until 9 August 2005, and allowed the applicant to file a further amended application.

The application which was ultimately addressed by Mr Killalea was the "3rd Amended Application" filed on 17 August 2005 by leave given at the hearing. This identifies the decision sought to be reviewed by the Court as the Tribunal's decision of 11 March 2002 which affirmed the refusal of a permanent residence visa. The visa is described by the delegate as a "Spouse (100) subclass of the Spouse (Migrant)(BC) visa class" and by the Tribunal as "a Partner (Migrant)(Class BC) visa". Its true description is not a significant matter, since it is common ground that the critical criteria to be satisfied at the time of decision are found in cl.100.22 of Sch.2 to the Migration Regulations 1994 (Cth) ("the Migration Regulations").

The first respondent did not object to this identification of the subject matter of the proceeding, and I consider that her concession was very reasonably given in the circumstances. Documents relevant to this decision were presented to the Court in a supplementary Court Book.

Counsel for the first respondent did not, at the hearing, concede that relief in relation to the Tribunal's 2002 decision should be given if jurisdictional error were found, and I gave her leave to make submissions after the hearing going to the issue of whether relief should be refused in the exercise of the Court's discretion by reason of delay or other conduct of the applicant. However, no such submissions were filed, and I therefore shall not address any issues of discretion. In the background circumstances I have described above, I consider that the first respondent's decision not to raise discretionary arguments was entirely appropriate.

At this point, it is convenient to record my appreciation of the exemplary conduct of all legal representatives in this proceeding. Their co-operative actions and reasonable concessions have focused the case upon points of substance and have enabled me to deliberate upon them without extraneous distractions. The applicant has been fortunate to have obtained the assistance of Mr Killalea.

To understand Mr Killalea's submissions, it is necessary for me to trace the procedures followed by the delegate and the Tribunal in relation to the refusal of the permanent "spouse" visa.

This should be understood in the light of alternative qualifications under which the applicant could qualify for the visa. The first pathway, was provided in item 100.221(2) of Sch.2 to the Migration Regulations. This required, at the time of a decision to be taken no earlier than two years after the application was made, that the applicant still held his provisional visa and that he still "is the spouse of the sponsoring spouse". The second pathway, in item 100.221(4) could be satisfied if the applicant would have met that qualification "except that the relationship between the applicant and the sponsoring spouse has ceased", and if:

(c) after the applicant first entered Australia as the holder of that visa - either or both of the following circumstances applies:

(i) either or both of the following:

(A) the applicant;

(B) a member of the family unit of the sponsoring spouse or of the applicant or of both of them;

has suffered domestic violence committed by the sponsoring spouse;

(ii) the applicant:

(A) has custody or joint custody of, or access to; or

(B) has a residence order or contact order made under the Family Law Act 1975 relating to;

at least 1 child in respect of whom the sponsoring spouse:

(C) has been granted joint custody or access by a court; or

(D) has a residence order or contact order made under the Family Law Act 1975; or

(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

A careful reading of item 100.221(4)(c)(ii) shows that, in effect, an applicant (i.e. the sponsored spouse) must first establish under A or B that he or she has rights of custody, access, residence or contact relating to a child. He or she must then establish under C, D or E that his or her separated spouse (i.e. the sponsoring spouse), has either rights of custody, access, residence or contact under a court order or is subject to a maintenance obligation in relation to the child. Thus, for reasons which are not clear to me, any obligations to pay maintenance on the part of the applicant are irrelevant to his or her entitlement to a visa. Unfortunately, but understandably, the correspondence sent to the applicant by the Department appears to have confused him in this respect.

Other confusion can arise from the complex structure and language used in this provision. In particular, subtle distinctions about the sources of parental rights and obligations are implied by the different formulations in each of sub-paragraphs A to E. Thus, contrasting A with B, an applicant can satisfy A by showing rights of "custody" or "access" according to ordinary and non-technical meanings of those terms and independently of the terminology of "residence" and "contact" used in orders made under the Family Law Act. Moreover, contrasting A with C, an applicant does not need to have "custody" or "access" pursuant to a court order, but a sponsoring spouse's rights must be sourced under a court order. Another matter touched upon in argument before me is whether a sponsoring spouse can have a "formal maintenance obligation" for the purposes of E, by reason only of the provisions of the Child Support legislation or of an assessment made under that legislation. As is apparent in the correspondence sent to the present applicant, the Department's policies and correspondence seeking to implement these criteria has found difficulty describing them in a way which an ordinary applicant could understand.

In the present case, the applicant was told in November 1998 that he had been granted a temporary spouse visa. The letter said:

This temporary visa will remain valid until a decision is made on your application for a permanent visa. The processing for the permanent visa will begin close to two years after you applied. The Department of Immigration and Multicultural Affairs (DIMA) will contact you at the Australian address provided in your application. The processing office in Australia for your application is The Rocks. If you change your address in Australia you must advise DIMA of your new address by writing to the processing office in Australia. The attached information form "Migrating to Australia as a spouse or prospective spouse" provides further details on procedures.

It would seem that the applicant then came to Australia, and fathered a child of the marriage, but that his marriage broke down. By letter dated 26 July 1999 an officer of the Department of Immigration wrote to him, saying: "this department has been informed that the relationship on which your application was based is no longer continuing". The officer said that the application could "continue to be assessed" in three circumstances, including "you are a proven victim of domestic violence in that relationship" or "maintenance obligations or custody/access rights in respect of any children have been granted to the Australian citizen/permanent resident spouse". The letter invited the applicant to send documents establishing one of these circumstances.

In correspondence which it is unnecessary for me to recount in detail, the applicant agreed that he was divorced, and explained a difficulty in obtaining evidence of his parenthood and liability to pay maintenance. It seems that Ms Mokbel registered the birth without showing the name of a father. The applicant told the Department that she had signed forms for the applicant to be registered as the father, and he had given her money to do this, but she refused to lodge the forms. The applicant also showed the Department an assessment by the Child Support Registrar of his liability to pay child support to Ms Mokbel. His letters do not suggest that he was receiving any professional assistance in his dealings with the Department, nor that he was conversant with the relevant regulation.

A delegate on 10 May 2000 refused the visa. Her statement of reasons recited the terms of item 100.22 in their full complexity, and gave the following reasons for concluding that the applicant did not satisfy item 100.221(4):

4.4 The applicant was requested to provide additional information/documentation if the relationship on which this application is based was no longer continuing. The applicant provided an assessment from the Child Support agency in regards to child support to be paid by him to Ms Mokbel for the child Iesha.

The notice of Child Support Assessment does not relate to custody, access, residence or contact of the child and is not made under the Family Law Act. The existence of a maintenance obligation is only relevant where the applicant had custody/access/residence or contact order and the sponsoring spouse has the maintenance obligation. In this case it is the applicant that has the maintenance obligation, not the sponsoring spouse; therefore, the evidence of the child support assessment is not relevant.

There is not evidence before me that the applicant or a member of the family unit has suffered domestic violence committed by the sponsoring spouse.

There is no evidence before me that the applicant or the sponsoring spouse has been granted custody of a child, access or any orders under the Family Law Act 1975.

The applicant therefore fails to meet the requirements of subclause 100.221(4).

On 6 June 2000 an application for review by the Tribunal was lodged on behalf of the applicant by "Worldwide Migration Services". It said: "submission will follow". However, it seems that the applicant did not have the funds to employ the services of a migration agent any further.

On 10 July 2001, the Tribunal received a letter from the applicant which informed it that he had sustained "brain injuries" as a result of a motor vehicle accident and enclosed evidence of serious physical and psychiatric disabilities. He also indicated financial difficulties and said: "I would like to ask you to urgently review my application". On 19 July 2001, he told the Tribunal that he had "withdrawn my documents" from his agent's office. On 1 August 2001 he sent to the Tribunal documents, including further assessments under the Child Support scheme and photographs of his wedding and of him holding his child.

In my opinion, it should have been apparent to the Tribunal at this stage, that the applicant was not receiving any professional assistance, that he did not understand the reasoning of the delegate, and that he was unlikely to understand the requirements of item 100.221(4) and its interaction with item 100.221(2).

On 10 October 2001 the Tribunal sent to the applicant a letter having significant procedural implications in the matter. It purported to contain two formal invitations:

i)

An invitation under s.359A(1) "to comment" on "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review"; and

ii)

An invitation under s.359(1) to give "information that it considers relevant".

Under the scheme of the Act, if either of these invitations complied with the formal requirements of ss.359, 359A and 359B, and if the applicant failed to respond within the short times specified, then he lost his entitlement to attend a hearing before the Tribunal to discuss his case and present evidence. Moreover, the Tribunal became empowered at any subsequent time to "make a decision on the review without taking any further action" to obtain comments or information from him, and was expressly prohibited from allowing him to attend a hearing (see ss.359C, 360, and 363A). These effects were common ground in argument before me. It is unnecessary for me to set out and discuss the relevant legislation in full, since this has recently been performed by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201, on appeal from Sun v Minister for Immigration [2004] FMCA 582.

The present Tribunal did make its decision without inviting the applicant to a hearing, upon an opinion that the applicant had failed to respond to a valid invitation to comment under s.359A. In this situation, it was common ground that the Tribunal's decision would be affected by jurisdictional error for which relief could be given under s.39B of the Judiciary Act 1903 (Cth), if the Court found that in fact the applicant had not been validly "invited" under either s.359 or 359A for the purposes of s.359C(1) or (2) respectively. This is the clear effect of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (see Sun in the Full Court (supra) at [42]).

It was not contested by Mr Killalea that the applicant in fact did not respond to either of the invitations within the time provided. However, he argued that there were defects in relation to their sending and contents, which prevented either of the invitations being capable of constituting invitations for the purposes of either s.359C(1)(a) or (2)(a).

28.

The letter sent to the applicant said:

INVITATION TO COMMENT ON INFORMATION

I am writing about your application to the Tribunal for review of a decision on a Subclass 100 (Spouse) visa.

The Migration Act 1958 (the Act) contains provisions intended to ensure both a fair and speedy review process. These include opportunities for review applicants to respond to material before the Tribunal, as well as limits on further opportunities if there is a failure to provide comments within a specified period.

Section 359A of the Act states that the Tribunal must explain, and invite comment on, 'particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review'.

You are invited to comment, in writing, on the following information:

• Information on the Department's file indicates that your relationship with the sponsor on which your application is based no longer exists.

This information is relevant to the review because the Migration Regulations require, for the subclass of visa that you have applied for, that your spouse sponsor you. If the above information is true, you may not meet the requirements for the visa for which you have applied and therefore the Tribunal may have no option other than to affirm the Department's decision.

The above information does not include information that you gave the Tribunal for the purpose of the application, or information that, under the Act, is non-disclosable.

Your written comments should be provided within 28 calendar days of the date of notification of this invitation. As this letter has been posted, you will be considered to have been notified of this invitation to comment 7 working days after the date of this letter. Please note that 'working days' do not include weekends or public holidays.

If you are unable to provide comments within this period, you may request in writing that you be allowed additional time in which to respond. Such a request would need to include reasons for the extension and to be received before the end of the above period. The Tribunal will consider any request for an extension carefully, and advise you, in writing, whether an extension of time has been granted.

If you make comments, the Tribunal will consider your comments carefully. If the Tribunal is still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the Tribunal.

If the Tribunal does not receive any comments within the period allowed, it may, under section 359C of the Act, make a decision on the review without taking any further action to obtain your comment. In addition, you will not be entitled to appear before the Tribunal.

REQUEST FOR INFORMATION

Section 359(1) of the Migration Act 1958 allows the Tribunal to seek information that is relevant to the review of a decision. Accordingly, the Tribunal is now asking you to provide the following information:

• Evidence that you have custody of; or joint custody of; or access to Iesha Elrifai Mokbel, OR

• Evidence that you have a residence order or contact order made under the Family Law Act 1975 relating to Iesha Elrifai Mokbel.

Please provide this information in writing within 35 days of the date of this letter. If you are unable to provide the requested information within the time limit, you may ask the Tribunal to allow you additional time in which to respond. Such a request should be made within the period above and should include your reasons for seeking an extension.

Any information you provide will be considered carefully by the Tribunal. Please telephone me if you have any questions. You may reverse the charges if this office is outside your local area.

As I understood them, Mr Killalea's contentions in relation to the invalidity of the invitations contained in this letter were:

i)

The invitation under s.359A was invalid because it did not comply with the Tribunal's obligation under s.359A(1)(b) to "ensure, as far as is reasonably practicable, that the applicant understands why (the information) is relevant to the review" before inviting his comments on it. In particular, the Tribunal made no attempt to ensure that the applicant would understand that he could qualify for the visa under one of the alternative pathways of item 100.221(4) even if his marital relationship no longer existed.

ii)

In this respect, the invitation was incorrect or misleadingly by implicitly suggesting that the applicant must satisfy item 100.221(2), in its statement that "the Migration Regulations require, for the subclass of visa that you have applied for, that your spouse sponsor you".

iii)

To avoid misleading or intimidating the applicant, the Tribunal should have said something to ensure that he understood that he might avoid being unable to qualify under item 100.221(2) by presenting evidence that he had access to his daughter (whether or not under court order) and that her mother had custody under a court order or, at least, was under a "formal maintenance obligation" under Child Support legislation.

iv)

The Tribunal also should have drawn to the applicant's attention when inviting him to comment on information disqualifying him under item 100.221(2), that the regulations contained an alternative qualification under item 100.221(4A). The amendment introducing this provision made it part of the Regulations applicable to the case, although it was not extracted by the Tribunal in its reasons nor addressed by it. It provided exempting criteria which have no apparent relevance to the applicant's situation, but this, Mr Killalea argued, was irrelevant to the Tribunal's duty under s.359A(1)(b).

v)

The Tribunal's purported compliance with s.359A(1)(b) also miscarried because the letter said that it "may have no option other than to affirm the Department's decision". Mr Killalea argued that the correct reference should have been to "the decision of the delegate of the Minister for Immigration".

vi)

The letter could not be regarded as an invitation under s.359A, because the "information" upon which the applicant was invited to comment was information that he himself "gave for the purpose of the application" in a letter to the Department. By reason of s.359A(4)(b), "this section does not apply" to such information. Mr Killalea acknowledged that on current authorities which construe the exclusion's reference to "the application" as a reference to "the review application", this contention must fail (c.f. VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at [20] and cases cited).

vii)

The invitation under s.359A was invalid because it was "illusory", since it raised for the applicant's comment an issue which he patently did not contest before the Department nor before the Tribunal. As I understood this contention, it was not alleged that the sending of the invitation in those circumstances was an abuse of a power conferred by s.359A(1) by reason of being sent for an improper purpose. Rather, the contention relied upon an implicit limitation in the power to invite comments, and thereby trigger s.359C(2), against its use in relation to an uncontested issue of fact so that the invitation was not a "meaningful" invitation.

viii)

In relation to the s.359(1) invitation to provide information, Mr Killalea argued that in its terms it did not purport to be an invitation for "additional information" under s.359(2). The absence of express or implicit reference to "additional" information, meant that the applicant had not been "invited under section 359 to give additional information" within s.359C(1). The Tribunal at no stage of its subsequent procedures treated it as coming within that provision, and did not rely upon the applicant's failure to respond as a ground for dispensing with a hearing.

ix)

If the letter did amount to an invitation for "additional information", it was invalid for the purposes of s.359C(1), since it did not comply with the requirements of s.359B(2) by "specifying" "a prescribed period" as the time for responding. Its specification of "within 35 days of the date of this letter" could not accord with reg.4.17(4) and 379C(4) since these had the effect of deeming receipt of the letter "7 working days" after postage, and 28 days would then be needed to be allowed for response (i.e. the letter should have allowed a minimum of 37 days for response).

x)

The letter was also invalid as an invitation for "additional information" because it requested "evidence", and not "information".

I have decided that the s.359A invitation was made without compliance with the requirements of s.359A(1)(b) for reasons broadly raised by the contentions made in paragraphs (i) to (iii) above. The Tribunal therefore was not authorised by s.359C(2) and s.360(2)(c) to dispense with inviting the applicant to a hearing. I shall explain my reasons below.

For reasons which I shall give, I have also accepted the contentions identified in (viii) and (ix) above, so that the Tribunal was not so authorised by reference to s.359C(1). It follows that the Tribunal affirmed the delegate's decision without complying with its s.360(1) duty to invite the applicant to a hearing, and that this amounted to a jurisdictional error on the authorities cited above.

I accordingly do not need to address the other contentions made by Mr Killalea concerning the Tribunal's invitations in its letter of 10 October 2001. Nor do I need to address alternative submissions he made on the assumption that the Tribunal properly dispensed with a hearing, but which argued that its subsequent proceedings were vitiated by procedural fairness, and that its reasoning revealed misconceptions of the evidence or of the law.

I shall now explain these two conclusions.

Neither counsel referred me to authorities which provide illumination as to the content of the Tribunal's duty to "ensure, as far as practicable, that the applicant understands why [the particularised information providing the reason, or a part of the reason for affirming the decision] is relevant to the review". This duty applies to the Migration Review Tribunal under s.359A(1)(b) as a condition of its making a valid invitation for comment. It also applies to the Refugee Review Tribunal under an identical provision in s.424A(1)(b).

Counsel for the first respondent referred me to some cases relating to the latter Tribunal, where the Federal Court rejected submissions that there was non-compliance with that provision, but these do not contain a general discussion (see Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [96]- [119], Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1679 at [26]-[27], W258 v Minister for Immigration & Multicultural Affairs [2001] FCA 1622 at [29]-[30], SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 598 at [47]-[48], Applicant A87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 919 at [22], [45] and [48], and SZAQR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1687 at [4] and [9]). Perhaps this is because most of the cases are refugee matters, in which the duty is readily complied with by the Tribunal making a brief reference to the relevance of the information to issues of credibility or acceptance of refugee claims. Other aspects of ss.359A and 424A have, of course, received intensive judicial examination.

An important theme in the Court's construction of the ambit of the duty to invite written comments is found in the judgments of Allsop J, where he identifies the section as directed at a procedural fairness concern that an applicant should be apprised what adverse information is likely to be relied upon by the Tribunal, in order that he or she is able to identify and deal with the issues of relevance to the review. In Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at 432 he said:

[116] The question as to whether information would be the reason or a part of the reason for affirmation is ultimately decided, in my view, by whether it can be characterised as sufficiently important to the reasoning process in the rejection of the appellant's claims, for fairness to warrant that the applicant be told of it so that he or she can understand and be able to meet the integers or elements that make up the Tribunal's reason or conclusion thus far reached (hence "would") for finding adversely to the applicant.

At [119] Allsop J applied his test of "fairness" as to what an applicant should be told in an invitation for comment, when finding that there had been a failure of compliance in that case with both the requirement of particulars of information under para.(a) and of explanation as to its relevance under para.(b). I followed this approach in SZELA v Minister for Immigration & Anor [2005] FMCA 1068 at [51], where I suggest that:

the object of s.424A(1)(b) is, in combination with the "particulars" required under para.(a), to allow an applicant to focus his attention upon the adverse material so as to allow him to appreciate its potential significance in the case and to allow him a real, rather than a token, opportunity to prepare a response.

This concern of the provision has similarities with a concern underlying "common law" principles of procedural fairness. However, as SAAP emphasises, the requirement of a written invitation for comments, which must comply with formal conditions as to its content and service, may give an applicant protections which go beyond the requirements of procedural fairness. They may expand the content of procedural fairness obligations on the Tribunal, as well as exhaust them (see ss.357A and 422B).

Moreover, if formal conditions on the procedures for inviting comments have not been followed, it is irrelevant that an applicant may have been accorded what would otherwise be regarded as sufficient opportunities to meet the adverse information. As Kirby J said in SAAP:

[175] It may be difficult for some to appreciate the importance of written communications of critical facts in a legal setting. But the Parliament understood the need for it and so provided in s 424A of the Act. A written communication will ordinarily be taken more seriously than oral exchanges. People of differing intellectual capacity, operating in an institution of a different culture, communicating through an unfamiliar language, in circumstances of emotional and psychological disadvantage will often need the provision of important information in writing. Even if they cannot read the English language - or like the appellants, any language - the presentation of a tangible communication of a potentially important, even decisive, circumstance from the Tribunal permits them to receive advice and give instructions. (see also McHugh J at [83] and Hayne J at [208]).

These considerations suggest that the express obligation on the Tribunal under s.359A(1)(b) is directed at ensuring that the applicant will understand the relevance of the information to the review when being asked to comment upon it. To achieve this object, it should not be construed in a technical way, but so as to achieve a practical object that the particular applicant who will receive the invitation will, in his or her real circumstances known to the Tribunal, have a sufficient appreciation of the relevance of the information to the live issues which will be addressed and decided by the Tribunal. The explanation must be sufficient to allow the particular applicant to understand the relevance of the adverse information to the issues, i.e. sufficient to allow him a real opportunity to comment appropriately upon both its truth and its significance to the review.

The obligation of disclosure and explanation imposed on the Tribunal under para.(b) in many respects goes further than obligations under equitable or commercial duties of disclosure. However, the approach of the Courts in those areas when considering the significance of omissions of disclosure can illustrate what may be required of the Tribunal to comply with the present duty. In particular, I consider that it must be clear that the Tribunal is at least under a negative duty to ensure "as far as is reasonably practicable" that the explanations given with the invitation to comment could not, by omission of pertinent commentary, mislead or distract an applicant from appreciating the real issues which arise in the review (c.f. in relation to misleading silence in trade or commerce: Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31 at 32, and 38-41). When the Tribunal is aware of disabilities facing an applicant in his or her understanding of the issues in the review, it must ensure against the possibility that the terms of the invitation for comment might insufficiently allow that person properly to understand the relevance of the information to all issues and to respond in a properly informed way (c.f. under principles of unconscionability: Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 at 467).

The duty to ensure that the applicant's ability to respond appropriately is properly informed, must also take account of the penal effects of a failure to respond within the short time which the legislation requires to be specified. As I have indicated above, the penal effect is potentially to deprive the applicant of any opportunity to attend a hearing. The Tribunal's consideration of whether its invitation will sufficiently allow the particular applicant to understand the relevance of the information to his review, must therefore take account of the realities facing the particular applicant in responding to it within the time specified. This further emphasises the need for clear and realistic explanations of relevance, and a duty to ensure that explanations are not worded in a way which is obscure or might have a misleading or intimidating effect on the applicant's ability or motivation to respond by presenting a "comment".

In my opinion, the s.359A invitation in the present case failed to comply with these requirements. In particular, the explanation given in the letter was potentially misleading as to the relevance to the review of the cessation of the applicant's marriage. This was due to its omission to explain that he might be able to meet alternative criteria and which were provided for in item 100.221(4) and which might be available to the applicant in the circumstances known to the Tribunal.

It was also due to statements in the invitation which were, at least, obscure and incomplete as to the effect of item 100.221(2) on the issues which were relevant to the review. The statement that "the Migration Regulations require ... that your spouse sponsor you" was, at least, unacceptably ambiguous as to whether the applicant would fail just because his wife no longer sponsored him. In relation to the sentence which followed that statement, I do not accept the Minister's submission that the applicant would sufficiently have been informed by the use of "may not meet the requirements" to understand that the requirement to which his attention was drawn might not be fatal. A lawyer familiar with the difference between "may" and "will" and conversant with the whole of item 100.221 might have appreciated what was not said in this explanation. However, on the information known to the Tribunal, it should have understood that the applicant was not such a person, and that he was probably not being assisted by such a person.

These points combine with a further point made by Mr Killalea, which was that the information upon which the applicant was invited to comment was - or would have appeared to him to be - the information which had been given by the applicant himself to the Department and which patently was not contested by him. The Tribunal should have appreciated that its inadequate explanation of the issues arising in the review might then have had an intimidating or misleading effect on the applicant. In the context, the letter might appear to suggest to the applicant that the requirement of a continuing relationship was fatal to his case, and that there was nothing he could usefully say in response by way of "comment". I consider that the Tribunal should, at least, have pointed out to him clearly that the Regulations might allow him alternative pathways to qualify for the visa, so as to raise in his mind the appropriateness of responding by invoking one of those pathways.

I do not accept that the Tribunal achieved this obliquely in the "request for information" which comprised the second part of its letter of 10 October 2001. That request was framed as an independent demand, unrelated to the s.359A invitation to comment. Moreover, the letter nowhere explained the "relevance" of the information requested, and appears to have been framed to avoid alerting the applicant to his alternative pathways to qualification for the visa. It made no suggestion which might have helped the applicant to understand that he could satisfy the s.359A invitation if he foreshadowed in a timely "comment" that he hoped to provide documents such as were requested. I am inclined to think that the whole letter was drafted with the object of disguising this fact, but do not need to make a finding in this respect. I find that the possibility that the applicant might not understand this should have been apparent, and in my opinion this illustrates the failure of the Tribunal to comply with s.359A(1)(b).

Reading the letter as a whole and in the light of the material which was then before the Tribunal, I do not consider that either prior to making the invitation for comment, nor when making it, did the Tribunal "ensure ... that the applicant understands why it is relevant to the review". Simple additional explanations of the issues arising in his review and the relevance to them of information that his marital relationship had ended were plainly "practicable" in the circumstances. The Tribunal was not, therefore, able subsequently to rely upon this letter as making a valid s.359A invitation.

I do not consider that compliance with s.359A(1)(b) requires findings about subsequent events, and in particular as to whether, in fact, the applicant misunderstood the issues arising under items 100.221(2) and (4) or was misled about them by the letter. On the approach taken in SAAP, it is irrelevant whether non-compliance in fact had a prejudicial effect on the applicant. However, I accept that in some cases an applicant's subsequent responses might assist the court to appreciate what measures of explanation should have been given by the Tribunal when making its invitation for comments. But hindsight should be used cautiously.

In the present case, the applicant's subsequent responses to the Tribunal's letter tend to confirm that the explanations of relevance in the s.359A invitation were deficient. The short history shown in the Court Book was:

i)

On 8 November 2001, the Tribunal received a letter from the applicant which said: "Regarding to your last letter which is you asking me to provide some documents. To provide you that documents I request extension time from 6 to 8 weeks. Thank you for your co-operate".

ii)

The Tribunal responded on 15 November 2001 in a letter which, without explanation, treated the applicant's request as one to extend the time to provide comments rather than for providing documents. By doing so, the Tribunal might have thought that it was assisting the applicant to keep alive his right to a hearing, by allowing the extension permitted under s.359B(4). However, this thinking was left obscure and would not have been apparent to the applicant. The extension given was then framed by a convoluted reference to 28 calendar days from the date of notification of this letter. I do not consider that this letter, or the circumstances in which it was written, should be viewed as dispelling or remedying the deficiencies affecting the original s.359A invitation.

iii)

On 10 January 2002, the Tribunal received a letter from the applicant telling it: "I've been sentenced for 2 years jail due to my car accident on 5/08/2000 would like to provide me another extension time from 10 weeks to 12 weeks". He gave the name of a friend "to act on behalf of me and to get the requested documents".

iv)

The Tribunal responded on 21 January 2002:

EXTENSION OF PERIOD TO PROVIDE COMMENTS

The Tribunal has received your request for an extension of time to provide comments dated 2 January 2002. The Presiding Member has agreed to this extension and has granted you a period of three weeks from the date of this letter. The effect of this is that you have until 11 February 2002 to respond. The Tribunal is able to accept your friend, Mr Abdul Ichrakie, as your appointed representative.

Unfortunately, because the information was not provided by 21 December 2001 after an initial request for an extension of time was granted, you are no longer entitled to a hearing. However, the Presiding Member will consider carefully any information that you wish to submit to the Tribunal. If no further information is received by 11 February 2002, the Tribunal will proceed to finalise your application on the basis of the papers before it.

Attached is a copy of the original request for information dated 10 October 2001. Please contact me if you have any questions. You may reverse the charges if this office is outside your local area.

v)

On 8 February 2002, the applicant wrote to the Tribunal asking for more time, saying: "due to the difficulty of getting the evidence and I'm trying very hard to get it".

vi)

The Tribunal responded on 14 February 2002, refusing the request. It said: "The Member will proceed to finalise the case on the basis of the evidence before the Tribunal. However, the Member will consider any further information received before the case is finalised".

vii)

No further communication came from the applicant before the Tribunal handed down its decision on 11 March 2002. Its significant reasoning was:

38. The visa applicant appears to claim that his circumstances are captured by subparagraph 100.221(4)(c)(ii). The Tribunal has examined all of the evidence provided by the visa applicant in relation to his alleged role as a father of Iesha Mokbel, the daughter of his former spouse, the sponsor. On the basis of the birth certificate for Iesha and the results of the NSW Registry search provided by the visa applicant, there is no evidence that he is the father of Iesha as claimed. The visa applicant has provided no evidence that he has any custody or access to or residence or contact order in respect of Iesha Mokbel.

39. He has provided evidence of initiating a child support arrangement in respect of Iesha and it is accepted that he paid some money to the sponsor for this purpose. However, this does not establish the facts required in order for him to meet 100.221(4)(c)(ii).

40. On the evidence before it the Tribunal finds that the visa applicant does not have any custody or access to or residence or contact order in respect of Iesha Mokbel, and therefore does not meet 100.221(4)(c)(ii).

This is a history which confirms my opinion of the inadequacy of the explanations accompanying the Tribunal's s.359A invitation to comment, rather than showing the converse. It suggests that the applicant never appreciated the necessity to provide a "comment" as distinct from "some documents", and that he misunderstood the letter as only making a demand for the "evidence" identified in the Tribunal's s.359(1) request. I can find no indication that he was aware that he might have responded simply to the separate s.359A invitation by submitting a "comment" which claimed reliance upon an item 100.221(4) pathway. This tends to confirm my opinion that the s.359A invitation was framed in an inadequate way which may unfairly have induced the applicant not to respond by way of "comment". As I have indicated above, I do not consider that I must make a finding that, in fact, he was so induced.

For the above reasons, I consider that the Tribunal incorrectly regarded its invitation for comments, with one extension of time, as a valid invitation for the purposes of s.359C(2) and 360(2)(c). As a result it erroneously formed the opinion, expressed in its letter of 21 January 2002, that the applicant was "no longer entitled to a hearing". This gave rise to a jurisdictional error affecting its decision.

My reasons for concluding that the Tribunal was not authorised to dispense with a hearing under s.359C(1) and s.360(2)(c) can be expressed more shortly.

Section 359(1) gives the Tribunal a broad power to "get any information that it considers relevant". Without limiting that power, s.359(2) allows the Tribunal to "invite a person to give additional information". Only if a request for information is made to an applicant under the latter power, and if the formalities of content and service are complied with under s.359B, can a failure of an applicant to give information provide a basis for refusing a hearing. It is therefore necessary to consider whether the Tribunal intended its request at the end of its letter of 10 October 2001 to be made under s.359(2).

Looking at the terms of the letter it clearly did not. The letter invoked only s.359(1) and not s.359(2), and its request: "the Tribunal is now asking you to provide the following information" did not follow the language of s.359(2). No warning was given that a failure to provide the "evidence" requested could have any effect on the applicant's procedural rights. Moreover, as counsel for the Minister ultimately conceded, the 35 day time in which the information was requested did not comply with the 28 days + 7 working days requirement of the legislation in relation to an invitation for "additional information" (see ss.359B(2), 379A(4), 379C(4) and reg.4.17(4)).

All these elements lead me to conclude that the request made to the applicant for "evidence" was not intended to be, and as a matter of law did not, amount to his being "invited under section 359 to give additional information" for the purposes of s.359C(1). My opinion in this respect appears confirmed by the fact that the Tribunal itself did not rely upon that provision when subsequently deciding that the applicant was not entitled to a hearing, but relied solely upon s.359C(2).

If I am wrong in this respect, then I accept Mr Killalea's submission that the specification of time for response was inconsistent with the legislation, and that this rendered the letter legally ineffective as a s.359(2) invitation for additional information for the purposes of s.359C(1). In this respect, I would follow the reasoning of Walters FM in Sun (supra) at [50-51], which was not disapproved by the Full Court.

For the above reasons, I consider that the applicant has established that the Tribunal's decision was affected by jurisdictional error, and he is entitled to relief in relation to that decision. As I have indicated, no ground for refusing relief based on discretionary considerations has been argued on behalf of the Minister. I shall hear the parties in relation to costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Smith FM