Kaur v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellants pay the first respondent's costs, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The appellants have appealed a decision of the Federal Circuit Court of Australia (FCC) dismissing their application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) which affirmed a decision of a delegate of the first respondent not to grant the first appellant a Skilled (Provisional) (Class VC) visa. Only one ground of review was pursued by the appellants before the FCC, namely that: The Tribunal failed to act on correct principle, correctly applied, in that it wrongly thought it had no power to conduct a hearing whatsoever of any kind. 2 The ground took issue with [7] of the Tribunal's decision. At [7], the Tribunal stated: On 14 March 2017 the Tribunal issued a further invitation pursuant to s.359A. The relevant parts of the invitation are set out below. The invitation included particulars of information that were not included in the invitation issued by the MRT in June 2014. The deadline for the applicants to comment or respond was 28 March 2017. The invitation included a warning that if the Tribunal did not receive the applicants' comments or response by the deadline the applicants would lose any entitlement they might otherwise have to appear before the Tribunal to give evidence and present arguments. There was no response to the s.359A invitation dated 14 March. In the circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Hasran v MIAC [2010] FCAFC 40. See also SZHKA v MIAC; SXGOD v MIAC [2008] FCAFC 138 in which cases the Court considered the Tribunal's general obligations when a matter is remitted. 3 Paragraphs 6 and 7 of the FCC decision record as follows: The Applicants' submission, in summary, is that the Tribunal fell into jurisdictional error for the following reasons: a) the Tribunal found at paragraph [7] of the Decision that the Tribunal 'has no power to permit [the Applicants] to appear'; b) the finding above is wrong. The Tribunal did have the power to invite the Applicants to appear under section 363(3)(a) of the Migration Act 1958 ('Act'). This is so because the ability to exercise the power under section 363(3)(a) of the Act is permitted by the exception contained within section 363A of the Act; c) the power under section 363(3)(a) of the Act is available to be exercised irrespective of whether the Tribunal conducts a hearing as contemplated by section 360 of the Act; d) the Tribunal's misunderstanding of its powers had the consequence that the Applicants were denied a material opportunity to present their case before the Tribunal. In advancing the submission above, the Applicants accepted that: a) section 359C of the Act was engaged in this matter; b) the Applicants were invited to provide information to the Tribunal under section 359A of the Act; c) the Applicants did not provide information or a response within the required time period; d) the Applicants lost the right to the hearing, contemplated under section 360 of the Act. 4 The FCC concluded that the Tribunal was correct to hold that the appellants were not entitled to appear before the Tribunal by force of s 360 of the Migration Act 1958 (Cth) (the Act). On appeal, counsel for the appellants accepts that the effect of s 360 of the Act is that the appellants were not entitled to appear before the Tribunal at a hearing under s 360(1). However, it was contended that the Tribunal did have the power, nonetheless, to take evidence on oath or affirmation from the appellants under s 363(1)(a) of the Act or to summon the appellants to appear before the Tribunal to give evidence pursuant to the exercise of its powers under s 363(3)(a) of the Act. It was argued that the Tribunal therefore fell into legal error in holding that it did not have the power to permit the appellants either to give evidence or to appear before the Tribunal. For the reasons that follow the FCC was correct to hold that the Tribunal did not err in so holding. 5 Section 363 of the Act sets out the powers of the Tribunal for the purposes of the review of a decision to which pt 5 of the Act applies. Section 363 relevantly provides: (1) For the purpose of the review of a decision, the Tribunal may: (a) take evidence on oath or affirmation; (b) adjourn the review from time to time; (c) Subject to section 378, give information to the applicant and to the Secretary; or (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination. … (3) Subject to subsection (4), the Tribunal may, for the purposes of a review: (a) summon a person to appear before the Tribunal to give evidence; (b) summon a person to produce to the Tribunal the documents or things referred to in the summons; (c) require a person appearing before the Tribunal to give evidence either to take an oath or to make an affirmation; and (d) administer an oath or affirmation to a person so appearing. … 6 Section 363(4) is not relevant to the disposition of this appeal. 7 Section 363A provides: 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. 8 Relevantly, s 359C provides: (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. 9 Finally, s 360 provides: (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. 10 It was argued for the appellants that, despite the loss of the right to a hearing under s 360(1) of the Act by virtue of the combined effect of ss 360, 359C and 363A, the Tribunal still has "power" to invite or require a visa applicant to attend in person before the Tribunal to give evidence. The extension of the argument was that the power should be construed as a power to invite or require an applicant to attend a "hearing", albeit not a "hearing (by right)" under s 360(1) of the Act. It was submitted that the powers contained in s 363 are provisions that "expressly [provide] otherwise" for the purposes of s 363A. That is, whilst s 360(3) takes away the right of a visa applicant who, relevantly, has not responded to an invitation from the Tribunal to respond to information to have a hearing that meets the requirements of s 360(1), the subsection does not take away the ability of the Tribunal to exercise its powers under s 363. Accordingly, it was submitted, the Court should find that the Tribunal does have power to conduct a hearing with a review applicant, notwithstanding the statutory force of s 360. 11 Central to the appellants' argument was the proposition the Tribunal is an inquisitorial body conducting merits review and the powers given to the Tribunal by s 363 are expansive of the Tribunal's procedure to obtain evidence, without conducting a hearing, for the purposes of reviewing the decision in issue, such as to summon the visa applicant to appear before it at an interview, as distinct from a hearing of the type referred to in s 360(1). Counsel submitted that the "appearance" through the combined effect of sub-ss 363(1)(a) and (3)(a) is a different species of participation than the hearing contemplated under s 360(1). It was submitted that whilst an applicant may have lost the right to a hearing under s 360(1), the Tribunal had not lost the power to call for an appearance as contemplated by sub-ss 363(1)(a) and (3)(a). Accordingly, it was submitted, the Tribunal fell into error because the Tribunal only considered the effect of s 363 in relation to a hearing under s 360(1), but failed to consider the exercise of the powers in some different form of hearing. 12 The attempt to define the powers under s 363 as powers "expressly [providing] otherwise" to what otherwise is the clear legislative scheme that is to apply where there is a failure to give a response to a written invitation to the Tribunal under s 359A of the Act both disregards the clear legislative scheme and also Full Court authority. Section 360 of the Act is contained in the same part of the Act as ss 363A and 363, namely div 5 of pt 5 of the Act. The language of s 363A is clear. It operates to remove any discretion which the Tribunal may have had to allow persons to do something where a provision of pt 5 states that the person is not entitled to do it: Hasran v Minister for Immigration [2010] FCAFC 40; 183 FCR 413 (Hasran) at 417 [25]-[26]. Hasran is authority that the effect of s 360(3), where a person fails to give comments or a response to information in response to a written invitation by the Tribunal, is to enliven the application of s 363A of the Act, the effect of which is that the Tribunal does not have power to permit the visa applicant to appear before the Tribunal: Hasran at 417 [29]. Where, as in Hasran, the visa applicant has failed to respond to a Tribunal's invitation under either of s 359 or s 359A and is therefore a person to whom s 359C(1) or (2) applies, the operation of s 360(3) is thereby attracted: at 417 [28]. Critically for the purposes of s 363A, the powers contained in s 363 do not "expressly [provide] otherwise". Section 363 prescribes powers that may be exercised, but that provision must be read and construed in context. It does not, in terms, "expressly [provide] otherwise" to s 360(1), that the Tribunal has the power to permit a visa applicant to give evidence at some other "hearing", other than the hearing provided for under s 360(1). The powers contained in s 363 are for the purposes of a review of a decision to which the provisions of ss 360 and 363A apply. Contextually also is there no warrant for construing s 363 in the way in which the appellants contend. The appellants submitted that it would be an unlikely conclusion that it be intended that the Tribunal be relieved of any ability to take evidence from a visa applicant in circumstances where the visa applicant had failed to respond to an invitation under s 359A. However, that is the clear legislative scheme enacted by the provisions in div 5, pt 5 and the Tribunal cannot circumvent that legislative scheme by relying upon a general power prescribed under s 363 to summon a person to appear before the Tribunal to give evidence or to take that evidence on oath or affirmation in a "hearing" designated as other than a hearing under s 360(1). Accordingly, the appellants' construction is rejected and the appeal must be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Davies.