Education Services for Overseas Students Act 2000, s.20

Migration Act 1958, ss.116, 353, 359, 359A, 359B, 359C, 360, 362A, 363A,

Migration Regulations 1994, rr.2.43, 4.17, clause 8202 schedule 8

Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 1884; (2001) 115 FCR 253

M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; (2006) 91 ALD 629

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Jing Shan Sun [2005] FCAFC 201; (2005) 146 FCR 498

Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138

NAWR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1520

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

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Quan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 764

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592

Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218; (2005) 149 FCR 1

Wang v Minister for Immigration and Citizenship [2007] FCA 488

The decision of the second respondent made in matter 060649393 is unlawful, void and of no force and effect.

(1)

There be an order in the nature of certiorari bringing in to court and quashing the decision of the second respondent in matter 060649393 made on 4 October 2006.

(2)

There be an order in the nature of prohibition prohibiting the respondents from giving effect to that decision.

(3)

There be an order in the nature of mandamus requiring the second respondent to rehear and determine, according to law, the applicant's application for review of the decision of the delegate of the first respondent that was made on 4 October 2006.

(4)

The first respondent pay the applicant's costs fixed in the sum of $5,000

This is an application filed on 17 November 2006 seeking judicial review of a decision of the Migration Review Tribunal ("the Tribunal") signed on 4 October 2006. That decision affirmed a decision of the first respondent's delegate to cancel the applicant's student visa.

The applicant is a 22 year old male citizen of India. He most recently entered Australia on 28 June 2006 as the holder of a student (temporary) (class TU) visa valid until 25 March 2007. The visa was subject to condition 8202 of schedule 8 of the Migration Regulations 1994 ("the Regulations").

On 21 July 2006, a delegate of the first respondent cancelled the applicant's student visa pursuant to s.116 of the Migration Act 1958 ("the Act") based on a breach of condition 8202 in so far as it required the applicant to attend at least 80% of his scheduled classes in each term and semester. On 28 July 2006, the applicant applied to the Tribunal for review of the decision of the delegate. On 16 October 2006, the Tribunal handed down its decision affirming the decision of the delegate cancelling the applicant's student visa.

On 17 November 2006, an application for judicial review of the Tribunal's decision and a supporting affidavit were filed in this court. On 9 March 2007, the applicant filed an amended application and contentions of fact and law and on 23 April 2007, the first respondent filed contentions of fact and law.

Section 116 of the Act relevantly provides that:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(g) a prescribed ground for cancelling a visa applies to the holder.

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

Regulation 2.43 of the Regulations relevantly provides that:

(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

(b) in the case of a Student (Temporary) (Class TU) visa:

(A) the visa holder has not complied with condition 8202; and

(B) the non-compliance was not due to exceptional circumstances beyond the visa holder's control.

Condition 8202 is set out in Schedule 8 of the regulations and relevantly states that:

(3) A holder meets the requirements of this subclause if:

(a) in the case of a holder whose education provider keeps attendance records -- the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

(i) for a course that runs for less than a semester -- for the course; or

(ii) for a course that runs for at least a semester -- for each term and semester of the course; and ...

Section 20 Notice

On 7 June 2006, a notice under s.20 of the Education Services for Overseas Students Act 2000 ("the s.20 notice") was sent to the applicant by Monash College. The letter stated that:

This notice is sent to you pursuant to section 20 of the Education Services for Overseas Students Act 2000 because Monash College Group Pty Ltd (trading as Monash University English Language Centre; Monash College) has determined that you have breached condition 8202 of your student visa. Particulars of the breach are as follows:

8202(3)(a) In the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled.

Particulars of the breach - failure to meet 80% attendance

Monash College Group Pty Ltd (trading as Monash University English Language Centre; Monash College) has determined that in the term running from 27/02/2006 to 26/05/2006, you attended 76% of the contact hours scheduled. As a result, you have failed to comply with condition 8202(3)(a) of your student visa. ...

On 4 July 2006, the applicant reported to an office of the first respondent's Department. He was given a Notice of Intention to Consider Cancellation of his visa under s.116 of the Act. The notice invited the applicant to attend an interview on 19 July 2006. At the interview, the applicant agreed with the College's report of his low attendance. He provided a medical certificate for one day and said he had stomach problems. On 21 July 2006, a delegate of the first respondent cancelled the applicant's student visa pursuant to s.116 of the Act. The applicant applied to the Tribunal for review on 28 July 2006.

The s.359 and s.359A notice

On 28 August 2006, the Tribunal wrote to the applicant and invited him to comment on information pursuant to s.359A of the Act and to provide additional information pursuant to s.359(2) of the Act. The Tribunal invited the applicant to comment on the following information:

In the term running from 27 February to 26 May 2006, you failed to attend at least 80% of scheduled contact hours.

This information is relevant to the review because it indicates that you may have breached condition 8202 of your visa.

The Tribunal asked the applicant to provide the following additional information:

Evidence and/or information about any exceptional circumstances beyond your control to which the alleged non-compliance was due.

Your written comments and additional information should be received at the Tribunal by 4 September 2006. If you are unable to provide comments or additional information by 4 September 2006, 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 4 September 2006. The Tribunal will consider any request for an extension carefully and advise you, in writing, whether an extension of time has been granted.

If the Tribunal does not receive any comments or additional information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your comments or to invite you to appear before the Tribunal. (emphasis in the original)

Provisions relating to comments and additional information

Section 359B of the Act relevantly provides that:

(a) invited under section 359 to give additional information; or

(b) invited under section 359A to comment on information;

the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2) If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

...

(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

Regulation 4.17 of the Regulations relevantly provides that:

(1) This regulation applies, for subsection 359B (2) of the Act, if a person is invited to give additional information, or to comment on information, other than at an interview.

...

(3) If the invitation relates to an application for review of a decision to cancel, or a decision not to revoke the cancellation of, a visa that applies to a person who is not a detainee, the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 5 working days after the day on which the invitation is received.

Section 359C of the Act relevantly provides that:

(a) is invited under section 359 to give additional 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 additional information.

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

(b) does not give the comments 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.

Section 360 of the Act relevantly provides that:

(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.

Section 363A of the Act provides that:

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.

The effect of these provisions is that, as the applicant's visa had been cancelled, the prescribed period for the applicant's response to the s.359 and s.359A letter was five days after receipt of the letter. If the applicant did not respond within that time, the Tribunal was not obliged to invite the applicant to a hearing. There was argument before this court about whether, if the applicant did not respond within time, the Tribunal not only had no obligation to invite the applicant to a hearing but was in fact prohibited from inviting the applicant to a hearing. This matter is discussed below under ground 3.

On Wednesday 30 August 2006 at 4:21pm, the applicant's migration agent sent a letter by facsimile to the Tribunal under s.362A of the Act asking for a copy of all documents held by the Tribunal. The request was made on the Tribunal's form, which had two boxes that could be ticked, one asking to arrange an inspection of documents at the Tribunal's office and one asking for a copy of documents.

A file note was made by a Tribunal officer on Friday 1 September 2006 at 3:28pm. It stated that:

i spoke to the Receptionist at Issac Brott's office. i left a message & said to her if someone from their office can come and pick up the 362A documents that i had photocopied for their clients case. otherwise, i will be mailing it. i asked if they wanted to pick up the documents because the 362A is due on Monday, as i did not hear from them i have sent the 362A by mail.

On Friday 1 September 2006, a copy of the Tribunal's file was posted to the applicant's agent.

On Monday 4 September 2006 at 2:35pm, the day the applicant's response was due, the applicant's agent faxed a letter to the Tribunal stating that he had not received the documents. He asked for an extension of time of five working days. A handwritten note on the Tribunal's copy of the letter states:

Not granted - (1) Agent has had ample time to get access to Trib. files. (2) 359A etc response is not contingent on access. [signed and dated 5/9/06]

By facsimile sent on 5 September 2006 at 2:28pm, the Tribunal advised the applicant's agent that the request for an extension of time had not been granted.

By facsimile dated 14 September 2006, the Tribunal invited the applicant to the handing down of the Tribunal's decision on

22 September 2006. On 20 September 2006, the applicant's agent wrote to the Tribunal, claiming that although the applicant agreed with the school's report of low attendance, the applicant's breach of condition 8202 was due to exceptional circumstances. The applicant claimed that he had been diagnosed as suffering from dyslexia whilst a student in India over ten years ago and enclosed a report from a psychologist, Simon Forbes, and a letter from the applicant's doctor in India. The agent submitted that the applicant's dyslexia established exceptional circumstances beyond his control.

On 21 September 2006, the Tribunal wrote to the applicant's agent and advised that the handing down scheduled for the following day had been cancelled because of the submission made on 20 September 2006. On 16 October 2006, the Tribunal handed down its reasons for decision.

In its reasons for decision, the Tribunal recounted the history of the matter before the Tribunal:

[14] On 28 August 2006, the Tribunal wrote to the review applicant, inviting him pursuant to s.359A of the Act to comment on information that in the term running from 27 February to

26 May 2006, he had attended less than 80% of the contact hours scheduled, and pursuant to s.359(2) of the Act, to provide additional information in relation to any exceptional circumstances beyond the review applicant's control to which the alleged non-compliance was due.

[15] The review applicant did not respond within the prescribed period, and pursuant to s.359C of the Act, the Tribunal decided not to take any further steps to obtain the additional information or comments on the basis that the review applicant had made no effort to furnish any submissions or supporting documents, or otherwise prosecute his appeal since lodging the application. The Tribunal was also precluded by s.360 and s.363A of the Act from inviting the review applicant to a hearing, and therefore resolved to determine the review on the information then before it.

[16] On 21 September 2006, the Tribunal received a submission from the agent, which concedes that the review applicant failed to meet the attendance requirements of condition 8202(3)(a), but attributes that non-compliance to exceptional circumstances beyond his control. In an accompanying psychologist's report (T1, ff.75-86), this circumstance is said to be dyslexia, with which the review applicant was diagnosed about ten years ago.

In its findings and reasons, the Tribunal determined that:

[27] The issues to be decided by the Tribunal are therefore whether the alleged non-compliance occurred, and if so, whether it was due to exceptional circumstances beyond the visa holder's control.

[28] The review applicant has not disputed the provider's claim in the NCN that he failed to attend at least 80% of scheduled contact hours in the term in question, and the Tribunal therefore finds, on the uncontested evidence of the provider, that he failed to attend at least 80% of scheduled contact hours in the term running from 27 February to 6 May 2006.

The Tribunal then considered whether the applicant's non-compliance was the result of exceptional circumstances beyond the applicant's control, saying:

[32] The consideration of whether there were exceptional circumstances beyond a visa holder's control require a determination of the truth or credibility of any factual claim by the visa holder in relation to their circumstances; whether those circumstances are of an exceptional kind; and whether they were beyond the control of the visa holder, insofar as he or she could neither prevent their occurrence nor mitigate any adverse impact. Before the decision to cancel the review applicant's visa can be affirmed, the Tribunal must however, be satisfied that the non-compliance was not due to exceptional circumstances beyond the review applicant's control.

[33] The review applicant has claimed that his non-complicance was due to illness, and has provided the delegate with a single medical certificate, covering one day. Even if the absence covered by that certificate were credited to him, it is clear to the Tribunal that his attendance at scheduled contact hours in the term in question would not reach 80%. The review applicant has also claimed to have been ill on other occasions, but has provided no supporting certificates or other evidence to the delegate or this Tribunal.

[34] The review applicant has latterly claimed to suffer from dyslexia, and has furnished a psychologist's report which describes the impact of this learning disability on his academic progress (T1, f.75). However, the report fails to draw any connection between the review applicant's dyslexia and his failure to attend at least 80% of scheduled contact hours in the academic period in question. Whilst the Tribunal fully accepts that dyslexia may well adversely affect the review applicant's scholastic performance, it is far from apparent how it might exert a similar influence over his attendance. The Tribunal notes as an aside that in any event, there appears to be no suggestion that the review applicant's academic performance (condition 8202(3)(b)) was unsatisfactory, notwithstanding the alleged dyslexia. [emphasis in the original]

On the basis that the applicant had failed to satisfy the Tribunal that his non-compliance with condition 8202 was due to exceptional circumstances beyond the applicant's control, the Tribunal concluded that it had no alternative but to affirm the delegate's decision.

The first ground of review by the applicant was that the decision was affected by jurisdictional error in that the Tribunal failed to accord procedural fairness to the applicant and failed to act in accordance with its obligations under the law in that:

The Tribunal failed to comply with section 359A(1) of the Migration Act 1958 in that it failed to give to the applicant in writing particulars of information which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review by the Tribunal. In a letter dated 28 August 2006 the Tribunal wrote to the applicant:

"In the term running from 27 February to 26 May 2006 you failed to attend at least 80% of contact hours scheduled" .... This information is relevant to the review because it indicates that you may have breached condition 8202 of your visa".

but did not state specific details of which contact hours were scheduled or which it was alleged the applicant attended and did not attend.

The applicant's written submissions on this ground were as follows:

1-Denial of Procedural fairness -

(a) 359A letter not containing particulars

[20] Section 359A of the Act provided, as a matter of procedural fairness, that the Tribunal was obliged to give the applicant written "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."

[21] The letter from the Tribunal did not satisfy this requirement as it stated only that:

"In the term running from 27 February to 26 May 2006, you failed to attend at least 80% of scheduled contact hours." (CB 62.7)

[22] This is merely a statement of the allegation that the applicant breached the condition. It is invalid and inadequate for the purposes of section 359A as it did not give particulars of the information, but only a bald assertion of the regulatory breach, "you failed to attend at least 80% of contact hours scheduled". Thus the notice did not comply with the requirements of section 359A(1)(a) of the Act in that it did not contain particulars of the alleged breach of Condition 8202(3)(a). It did not contain particulars in that it did not state specific details of which contact hours were scheduled or which it was alleged the applicant attended and did not attend. Thus the applicant was not in a position to verify or to dispute or to explain or to comment on the information.

[23] Failure to comply with section 359A is a jurisdictional error rendering the decision invalid. (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, [2005] HCA 24 (18 May 2005). Thus the Tribunal fell into jurisdictional error in this case.

The first respondent's written submissions were as follows:

[40] The applicant claims that the 28 August 2006 letter did not satisfy the requirements of s359A(1)(a) because it did not give particulars (or adequate particulars) of the alleged breach of condition 8202(3)(a). Specifically, the applicant complains that it did not state specific details of which contact hours were scheduled or which it was alleged the applicant attended and did not attend.

[41] The Minister submits that there was no breach of that section by the Tribunal. In Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196; (2001) 113 FCR 396, the Full Court of the Federal Court considered the equivalent statutory provision for refugee matters (s424A(1)(b)). Justice Allsop, in particular, addressed the scope and purpose of this provision and particulars of adverse information. At 429 [105] [actually 104] His Honour held:

"The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant (cf Tin, supra at [52] to [54]).

(see too Elrifai v Minister for Immigration [2005] FMCA 1484 at [34]- [40]).

[42] It is submitted that applying a common sense approach to the content and context of the 28 August 2006 letter, the applicant was fairly informed of information adverse to his case so that investigation could be made and steps could be taken to meet it and that there was no breach of s359A. The particulars provided were that he failed to attend at least 80% of his scheduled contact hours for a specified time period and that the relevance of this information was that it indicated that he may have breached condition 8202 of his visa.

In oral submissions, the applicant relied upon Wang v Minister for Immigration and Citizenship [2007] FCA 488 at [28] to [29] where Besanko J said:

The Full Court considered the obligations in s 424A of the Act in Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138. In material respects, that section is in the same terms as s 359A. The Court held that the Tribunal had failed to comply with s 424A(1)(a) and s 424A(1)(b). The Court said (at [40]-[41]):

As mentioned above, the obligation on the Tribunal was to 'ensure, as far as is reasonably practicable', that the respondent understood why the information set out in the s 424A letter was relevant to the review. No practical or other difficulty stood in the way of the Tribunal telling the respondent that the information which it had received about his letters of support caused it to disbelieve or doubt the content of those letters. Yet the s 424A letter did not explicitly tell the respondent that the relevance to the review of the information which it had received about his letters of support was that the information indicated that the content of the letters was false. The Tribunal's failure to state explicitly the relevance to the review of the information concerning the respondent's letters of support is of importance because of the opaque nature of the particulars of the information provided to the respondent by the s 424A letter; the use that the Tribunal could make of the information as particularised was not self-evident.

It is to be noted that the case involved a breach of both of the subparagraphs, whereas this case involves an alleged breach of subparagraph (b). It is also to be noted that the Court said that the use the Tribunal could make of the information as particularised was not self-evident. In my opinion, there may well be cases where the relevance of the information to the review is self-evident and no letter or explanation is required to satisfy the requirements of s 359A(1)(b). However, in this case I think that the Tribunal was required to do more than it did. The Tribunal should have advised the appellant that the non-certification by the university that her academic results were at least satisfactory would constitute a breach of a condition attached to her student visa. It may not have been necessary for the Tribunal to go on and say that in those circumstances cancellation of the visa was mandatory but, at the very least, the Tribunal should have advised the appellant that the information was relevant because it would constitute a breach of a condition attached to her visa.

The applicant submitted that the particulars in the present case were also opaque and inadequate. Nevertheless, the applicant conceded that both Wang and Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 to which Wang refers mainly concerned the adequacy of the explanation of the relevance of the information rather than the adequacy of the particuars that had been provided of the information. Counsel for the applicant advised the court that he was not aware of any cases that had dealt specifically with the question of the adequacy of particulars in a s.359A or a s.424A letter.

The applicant also referred to the High Court's decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 by way of analogy. The applicant argued that the High Court in SZBEL had required the Tribunal to identify with particularity the live issues in the matter before it unless they were the same as the issues before the delegate. The applicant argued that, similarly, s.359A also required the Tribunal to identify the relevant information with a degree of particularity.

The applicant drew an analogy with criminal proceedings where it is necessary for the charge to state with particularity the alleged offence and its time and date. The applicant argued that the Tribunal had the details of the applicant's attendance record at Monash College and should have provided those attendance records to the applicant.

In oral submissions, the first respondent argued that the applicant had been fairly informed of the relevant matters. He knew that his attendance was at the heart of the case and at no stage has he taken issue with the question of his attendance. The first respondent relied on the decision of Smith FM in Elrifai v Minister for Immigration & Anor [2005] FMCA 1484 at paragraph 40 where it is said that:

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.

38.

Elrifai was primarily concerned with the adequacy of the explanation rather than the adequacy of the particulars of the information.

After the hearing before this court the parties were invited by the Court to file further submissions on the following:

At paragraph 33 of its reasons for decision, the Tribunal considered whether there were exceptional circumstances beyond the applicant's control in view of a medical certificate provided by the applicant. The Tribunal said:

Even if the absence covered by that certificate were credited to him, it is clear to the Tribunal that his attendance at scheduled contact hours in the term in question would not reach 80%.

It appears that the Tribunal could not have made that calculation without reference to the information contained in the attendance records at Court Book 24 to 25: Quan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 764. In the circumstances, it may be that the detailed information contained in the attendance records was part of the reason for the Tribunal's decision. However, that detailed information was not included in the section 424A letter.

In Quan, Jacobson J noted at [33] that:

A percentage figure based upon the proportion that the total number of days attended at the school bears to the total number of days of the semester, in no way meets the statutory test which follows from the provisions of condition 8202 and the definition of "contact hours".

The first respondent filed supplementary written submissions which relevantly stated that:

[12] Having made its finding of non-compliance with condition 8202, the Tribunal considered whether the non-compliance was due to exceptional circumstances beyond the applicant's control (see [29]). It was in its consideration of this aspect of the case, and in particular the applicant's claim to have been ill, that the Tribunal made its comments in paragraph 33. It is therefore submitted by the Minister that the Tribunal's comment in paragraph 33 that "[e]ven if the absence covered by that certificate was credited to him, it is clear to the Tribunal that his attendance at scheduled contact hours in the term in question would not reach 80%" was obiter and therefore not a reason or part of its reason for affirming the decision under review. This was because the Tribunal had already found that the attendance was less than 80% and at this juncture it was considering only whether or not that non-compliance was due to exceptional circumstances beyond the applicant's control. It was the existence of any exceptional circumstances implicit in the medical certificate that was the centre of the Tribunal's reasoning process at this point. The Tribunal did not need to consider the medical certificate and its relationship with the percentage of scheduled contact hours attended other than to determine whether the medical certificate evidenced something that was an exceptional circumstance beyond the applicant's control. The Tribunal did consider whether the applicant's illness constituted exceptional circumstances beyond his control and found that it did not. Therefore, even if the Tribunal did consider the content of the attendance records to make its comments in paragraph 33, it did not use that information as a reason or part of its reason and therefore it was not required to put the particulars of the information to the applicant in writing.

[13] Alternatively, it is submitted by the Minister that any use the Tribunal made of the content of the attendance records to calculate hours and attendance rates through (sic) was part of its thought processes and determinations which cannot be information for the purposes of s359A.

Sub-section 359A(1) of the Act provides as follows:

(1) Subject to subsection (2), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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 provision turns on information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. The Tribunal in the present case was apparently in possession of the record of the applicant's attendance in term 1 of 2006. However, the Tribunal did not refer to the record of the applicant's attendance in its findings and reasons or, indeed, in its summary of the evidence before it. The Tribunal referred a number of times to the s.20 notice and the fact that it stated that for the term running from 27 February to 6 May 2006, the applicant had attended only 76% of the contact hours scheduled. The Tribunal made no particular reference to any particular absences of the applicant as indicated in the record of attendance. The Tribunal noted that the applicant did not dispute the level of attendance specified in the s.20 notice and, on the basis of the uncontested evidence, found that the applicant had failed to attend at least 80% of the scheduled contact hours for the term running from 27 February to 6 May 2006.

However, the Tribunal was then required to consider whether the applicant's failure to attend at least 80% of the scheduled contact hours was due to exceptional circumstances beyond the applicant's control. In considering this question, the Tribunal came to the conclusion that if a medical certificate covering one day were credited to the applicant he would still not reach an attendance rate of 80% of the scheduled contact hours.

I do not accept the first respondent's argument that the Tribunal's conclusion about the medical certificate was obiter. The Tribunal could not end its consideration of this matter with the finding that the applicant had failed to attend 80% of his scheduled contact hours. The Tribunal was obliged to consider whether there were exceptional circumstances beyond the applicant's control which explained his failure to attend 80% of scheduled contact hours. The Tribunal considered the medical certificate for that purpose. The Tribunal evidently considered that if the applicant had been unable to attend on a particular day for medical reasons that might have constituted an exceptional circumstance beyond his control.

I do not accept the first respondent's argument that the Tribunal did not use the information in the attendance records because its calculation of the contact hours was a matter of its own thought processes. It is well established that the Tribunal's own thought processes are not information within the meaning of s.359A. A calculation is a thought process. However, in this particular case, the calculation had to have been a calculation based on how many contact hours there were in term one, how many contact hours the applicant had missed, how many contact hours there were on the day covered by the medical certificate and what percentage of the total contact hours for term one were missed or not covered by the medical certificate. That calculation could only have been made on the basis of the information in the attendance record. Accordingly, that information was part of the Tribunal's reasons for affirming the decision and was information within the meaning of s.359A of the Act.

As a result, the Tribunal was required to give the applicant particulars of the information contained in the attendance record. The Tribunal frequently does this by furnishing a photocopy of the attendance record. It is not an onerous obligation. The Tribunal in this case failed to give the applicant any particulars of the information contained in the attendance record. Therefore, the Tribunal failed to give adequate particulars of information that was part of the reason for its decision. The Tribunal thus breached s.359A of the Act and accordingly fell into jurisdictional error.

I should also add that there is an air of unreality about this ground. The court book shows that there were letters from Monash College in March and April 2006 advising the applicant that he could view his attendance records at a particular web address. I infer from that fact that the detail of the applicant's attendance was readily available to him. I also note that the applicant argued that if he had been given the dates and times of his absences by the Tribunal, he could have made submissions about exceptional circumstances relating to those dates and times. However, the applicant did in fact make a submission on

20 September 2006 after he presumably had received the details of the attendance records. He made no submissions about exceptional circumstances beyond his control on any particular date. Nevertheless, compliance with s.359A is a strict requirement the breach of which results in jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592.

The second ground relied upon by the applicant was that the decision was affected by jurisdictional error in that the Tribunal failed to accord procedural fairness to the applicant and failed to act in accordance with its obligations under the law in that:

The Tribunal did not extend time for the applicant to comply with its letter dated 28 August 2006 said by the Tribunal to be given under sections 359 and 359A of the Migration Act 1958, although the reason for the request for the extension of time was that the applicant was still waiting on material from the Tribunal in order to make a response, and the consequence of a refusal to extend time was that the applicant might lose the right to appear before the Tribunal at a hearing under section 360 of the Migration Act 1958. The Tribunal thus acted in breach of its obligations including those under sections 353, 359, 359A, 359B and 360.

Additionally, it was said that the decision was affected by jurisdictional error in that the Tribunal acted so unreasonably that no reasonable Tribunal could have so acted in that:

The Tribunal did not extend time for the applicant to comply with its letter dated 28 August 2006 said by the Tribunal to be given under sections 359 and 359A of the Migration Act 1958, although the reason for the request for the extension of time was that the applicant was still waiting on material from the Tribunal in order to make a response, and the consequence of a refusal to extend time was that the applicant might lose the right to appear before the Tribunal at a hearing by operation of sections 359C(1), 359C(2), 360(3) and 363A of the Migration Act 1958.

The applicant's written submissions on this point were as follows:

(b) Refusal to extend time - unfair

[24] The Tribunal denied procedural fairness in not extending, under section 359B(4) of the Act, the time for the applicant to comply with the section 359 and 359A letter, given that the reason for the request was that the applicant was still waiting on material from the Tribunal. The request for documents from the Tribunal was the more important given the defects in the Tribunal's letter considered against the requirements of section 359A.

[25] The Court should infer that the handwritten note on the request for extension of time reveals the Tribunal's reasons for its decision not to extend time. Given the failure of the Tribunal's letter of 28 August 2006 (CB 62-63) to provide the particulars required by section 359A of the Act, it is submitted that the Tribunal's note discloses reasons which are unfair. The note said:

"Not granted - (1) Agent has had ample time to get access to Trib. Files. (2) 359A etc response is not contingent on access. (illegible signature) 5/9/06" (CB 70)

[26] The following were factors in the case:

• The tight timetable prescribed by Regulation 4.17 for the applicant to respond to a letter given under section 359 or 359A (5 working days);

• the drastic result for the applicant of the loss of a right to a hearing if he responded outside the time permitted;

• the absence of particulars in the purported section 359A letter;

• the need for the documents sought from the Tribunal to supplement the Tribunal's purported section 359A letter and to explain the detail of the alleged breach of the condition;

• the fact that the Tribunal had taken 2 of the 5 days (from 30 August to 1 September 2006) to respond to the request for documents;

• the fact that the Tribunal had posted the documents on Friday 1 September 2006 with the consequence that they were not received by 4 September 2006,

Given these factors, the applicant respectfully submits that the Tribunal's refusal to grant the requested extension of time was an exercise of a discretionary power in a manner which was unfair.

[27] Section 357A of the Act provides:

"(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."

[28] The power to extend time under section 359B(4) is in the Division headed by section 357A. Unfair exercise of the discretion under section 359B(4) is therefore a denial of procedural fairness, and thus a jurisdictional error.

[29] The Tribunal thus acted in breach of its obligations including those under sections 353 (which requires "a mechanism of review that is fair, just, economical, informal and quick"), 359, 359A and 360.

...

3 - Unreasonable refusal of discretion to extend time

_[35] The refusal to extend time was also, in the circumstances of the case (as set out in detail above in relation to Ground 1 - Unfairness), so unreasonable that no reasonable Tribunal would have so acted. It was thus beyond jurisdiction. (_Associated Provincial Picture House Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229-30 per Lord Greene MR).

The first respondent's written submissions on this point were as follows:

The applicant contends that the Tribunal denied him procedural fairness in not extending, under s359B(4), the time for him to comply with the 28 August 2006 letter. However this ignores the fact that s359B(4) is a discretionary and not in obligatory or imperative terms. The Tribunal was not obliged to grant him an extension of time. The Tribunal considered the exercise of power under the Act and made a decision. The decision was to refuse to grant a prescribed further period. There was no legal error in the Tribunal's approach. It did not breach s359B(4) or rules of procedural fairness.

At the oral hearing, the applicant emphasised that the denial of an extension of time in the circumstances of this case was unfair because if the applicant failed to respond within the requisite time to the s.359 and s.359A letter, his right to a hearing would be extinguished and the Tribunal would have no power to conduct a hearing. The applicant referred in oral submissions to paragraphs 36 and 37 of the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 where Gleeson CJ said:

[36] As French J observed in NAAV v Minister for Immigration and Multicultural and Indigenous [2002] FCAFC 228; (2002) 193 ALR 449 at 542 [399], the Act is "replete with official powers and discretions, tightly controlled under the Act itself and under the Regulations by conditions and criteria to be satisfied before those powers and discretions can be exercised". In that case, and a number of related cases heard at the same time, the Full Court of the Federal Court dealt with several different kinds of challenge to decisions under the Act, and the operation of s 474 in relation to each of them. Here we are concerned with only one kind of challenge, involving a claim of denial of natural justice. A rejection of the Commonwealth's global approach to the operation of s 474 does not mean that the opposite conclusion follows in relation to every possible kind of challenge to a decision.

[37] The principles of statutory construction stated above lead to the conclusion that Parliament has not evinced an intention that a decision by the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice, shall stand so long as it was a bona fide attempt to decide whether or not such a visa should be granted. Decision-makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question. People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If Parliament intends to provide that decisions of the Tribunal, although reached by an unfair procedure, are valid and binding, and that the law does not require fairness on the part of the Tribunal in order for its decisions to be effective under the Act, then s 474 does not suffice to manifest such an intention.

The applicant relied on unfairness as well as unreasonableness in the Wednesbury sense. The applicant argued that the tight timetable, with drastic consequences to the applicant, meant that it was unfair that the Tribunal did not extend time. It was put to the applicant's counsel by the court that the applicant had the opportunity to arrange to attend the Tribunal and inspect the file which may have avoided the delays in the mail. The applicant argued that even if the Tribunal thought that the applicant's solicitor should have gone about matters in a different way, the Tribunal still needed to give the applicant himself fairness. The applicant's counsel was also asked whether the applicant could have obtained the relevant information himself from the College website referred to in the two letters addressed to the applicant mentioned above. The applicant pointed out that there were two different versions of the applicant's attendance records that were lodged with the Tribunal and there was no evidence that the records on the website were accurate or up to date.

The first respondent argued in oral submissions that the power to extend time under s.359B(4) of the Act was entirely discretionary and entirely within the jurisdiction of the Tribunal. The first respondent argued that there was nothing to indicate that there had been unfairness to the applicant in this case and there was no breach of any provision of the Act. The first respondent referred to the decision in NAWR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1520 where the Tribunal declined to give an extension of time. Paragraphs 36 and 40 of that decision are as follows:

It follows that the applicant was not entitled to an oral hearing and that the RRT was empowered to make a decision on the review without taking any further action to obtain the additional information. The RRT appreciated that it had a discretion to proceed in the manner contemplated by s 424C(1) and exercised that discretion adversely to the applicant. The RRT also recognised that it had a discretion under s 424B(4) to extend the period for a further prescribed period but declined to do so. It explained in its reasons why it had taken that course. The RRT committed no error by taking into account the fact that the applicant had had ample opportunity to provide details to support his claim, had failed to respond to requests for further information on previous occasions and, in the RRT's view, was unlikely to respond to further invitations to provide additional material.

...

There is no basis for concluding that the RRT acted in bad faith: see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749, at 756, per curiam; Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, at [21], per curiam. The RRT in the present case correctly identified the provisions relevant to the exercise of its discretion and exercised that discretion. The fact that it did so adversely to the applicant does not establish that the RRT preferred "mere whim or fancy...to considered judgment" or that it acted with a want of bona fides. Nor is there any thing that would support a finding that the RRT was biased or that a reasonable observer would entertain an apprehension of bias on the part of the RRT.

I do not accept the first respondent's submission that the Tribunal's refusal to grant an extension of time is necessarily completely impervious to review. While the decision is a discretionary one, if it is shown to have been infected by jurisdictional error, it will be amenable to review.

I do not accept the applicant's contention that the paragraphs cited above from S157 mean that there is an independent ground of judicial review consisting of acting in a way that strikes the court on review as being unfair. My understanding of paragraph 37 of Gleeson CJ's reasons is that his Honour was concerned with procedural fairness as that concept is generally understood rather than with notions of fairness in a general sense. His Honour was also specifically concerned with s.474 of the Act and the intention it manifested or, more correctly, did not manifest. Gleeson CJ held in the subsequent paragraph of his reasons that a decision taken in breach of the rules of natural justice is not within the scope of the protection afforded by s.474 of the Act.

I do not accept that general notions of unfairness are sufficient to found jurisdictional error in refusing an extension of time. However, I do note that in NAWR, which was decided at the peak of the perceived strength of s.474 of the Act, Sackville J nevertheless considered that a refusal of an extension of time that was made in bad faith or with bias or on the basis of a mere whim or fancy could be set aside. There are of course many other grounds that are now recognised as jurisdictional error.

The first matter that the applicant relies upon as showing unfairness is the tight timetable prescribed by regulation 4.17 and the loss of the right to a hearing if the applicant responded out of the time permitted. Those matters are provided for by statutory provisions. The applicant does not challenge the validity of regulation 4.17. The prospect of the loss of the right to a hearing was explained in the s.359 and s.359A letter and was a matter that should have been well known to the applicant's adviser who was both a migration agent and a solicitor. I do not consider that the Tribunal's refusal of an extension was unfair in any reviewable way, in the context of the tight timetable prescribed by the relevant statutory provisions and the particular circumstances of this case.

The applicant also referred to the absence of particulars in the purported s.359A letter as evidence of unfairness. The applicant's solicitor did eventually lodge a submission, apparently after receiving all relevant documents from the Tribunal, but it did not address the particular days and times when the applicant was absent from College. In the circumstances, I consider that it is artificial to say that the Tribunal acted unfairly or unreasonably where the absence of the particulars complained of had no bearing on the case put forward by the applicant at a time when he was armed with full particulars of all relevant information.

The applicant also relies on the fact that the Tribunal took two of the five available days to respond to the request for documents. It does not strike me as unreasonable for the Tribunal to take 48 hours to respond to a request for documents.

The applicant further relies on the fact that the Tribunal posted the documents on the Friday 1 September 2006 with the consequence that they were not received by 4 September 2006. The file note before the court, which I accept is accurate, shows that the solicitor's office was telephoned at 3:28pm on 1 September 2006 and the solicitor was invited to collect the documents. The solicitor did not respond and the documents were mailed. It was, accordingly, within the power of the applicant's solicitor to have obtained the documents on Friday

1 September 2006. I note that Mr Brott's office is at 453-459 Little Bourke Street, Melbourne while the Tribunal is located at 460 Lonsdale Street, Melbourne. I do not consider that the Tribunal acted unreasonably in posting the documents when there was no response to the invitation to collect them.

Additionally, the applicant's solicitor could have arranged to personally inspect the Tribunal's file pursuant to s.362A of the Act and to then ask for any specific documents that he required. I have no reason to doubt that an inspection of the documents could have been arranged relatively quickly and copies provided more or less immediately. In my view, the tight timetable prescribed by regulation 4.17 makes it incumbent upon anyone acting as a migration agent to act very promptly to obtain any documents that he seeks for the purposes of responding to a letter under s.359 or s.359A of the Act. I consider that it was open to the Tribunal to consider that the agent had had ample time to access the Tribunal's files. I also consider that the Tribunal was correct in saying that the s.359 and s.359A regime was not contingent upon such access. These reasons were not arbitrary or capricious or otherwise indicative of jurisdictional error.

In relation to the applicant's argument that the Tribunal acted in breach of its obligations are s.353 of the Act, I note that in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, the High Court held that s.420 of the Act, which is substantially the same, was a provision of general exhortation that did not confer substantive rights. Although the general scheme of the Act has changed since Eshetu, the general statement by Gaudron and Kirby JJ at [77], that "there is no basis for concluding that [s.420] operates to mandate specific procedures to be observed by the Tribunal or the method by which it is to reach its decision" still applies. In any event, I do not consider that the Tribunal did breach any obligation that it might have to conduct itself in a manner that is fair and just. Accordingly, ground 2 is not made out.

The third ground of review relied on by the applicant was that the decision was affected by jurisdictional error in that the Tribunal failed to accord procedural fairness to the applicant and failed to act in accordance with its obligations under the law in that:

The Tribunal failed in breach of section 360 of the Migration Act 1958 to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decisions under review when:

(i) there was a new obligation on the Tribunal to invite the applicant to a hearing because there were new issues arising consequent upon the Tribunal's receipt and consideration of information submitted by the applicant's solicitor and migration agent and received by the Tribunal on or about 20 September 2006;

(ii) Further or in the alternative sections 359C(1), 359C(2), 360(3) and 363A of the Migration Act 1958 did not bar the applicant from appearing at a hearing before the Tribunal, nor the Tribunal from inviting the applicant to a hearing because the refusal of the Tribunal to extend the time for the applicant to respond to the Tribunal's request under section 359 and invitation under 359A was invalid because it was unfair or it was so unreasonable that no reasonable Tribunal would so have acted.

The applicant's written submissions in relation to this ground were as follows:

(c) - Failure to invite to a hearing

[30] The Tribunal is generally obliged to invite an applicant to it to give evidence and present arguments relating to the issues on the review pursuant to section 360 of the Act. If, however, section 359C(1) of the Act applies because the applicant was invited to give information under section 359 or comment under section 359A, but did not do so before the time prescribed (5 working days pursuant to Regulation 4.17) had passed. In such a case there is no entitlement to a hearing under section 360 and no power to invite under section 363.

(i) Reception of new information gives fresh obligation for Tribunal to invite to a hearing

[31] The obligation of the Tribunal to invite the applicant to a hearing is an obligation which may arise afresh in the course of a review if the Tribunal becomes aware of new "issues on the review" pursuant to section 360 of the Act. (A new obligation to invite the applicant to a hearing arose following the provision of information on behalf of the applicant on 20 September 2006. (CB 78-89)

(ii) Section 360 obligation still applied because Tribunal's refusal to extend time was unfair or unreasonable

[32] For the reasons given above, the Tribunal was unfair (and also unreasonable) in not extending the time for the applicant to respond to the letter of 28 August 2006. Therefore the applicant should not be taken as being in breach of the time for responding to that letter, and thus not within the scope of section 359C.

[33] Thus the applicant did not lose the right to a hearing under section 360.

The first respondent's written submissions on this ground were as follows:

[44] The applicant claims that upon receiving new information (the psychology and medical reports) on 20 September 2006, the Tribunal was obliged to invite the applicant to a hearing - despite the fact that he had earlier lost an entitlement to a hearing due to his failure to respond, in time, to the 28 August 2006 letter.

_[45] The Minister submits that there is no fresh obligation upon the Tribunal and the applicant's ground of review must fail. Section 360(3) of the Act provides that a consequence of an applicant failing to provide information or comments to the Tribunal in a timely way following an invitation to do so is that the applicant ceases to have an entitlement to appear before the Tribunal. Section 363A of the Act operates to remove any residual discretion the Tribunal may have had to permit an applicant to appear notwithstanding his or her loss of an entitlement to do so (_M v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1247, (2006) 91 ALD 629 and Minister for Immigration and Multicultural and Indigenous Affairs v Sun [2005] FCAFC 201, (2005) 146 FCR 498). It is not possible for the Tribunal to "re-enliven" an applicant's right to appear.

Section 363A of the Act is as follows:

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.

At the oral hearing the applicant argued that the cases of M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; (2006) 91 ALD 629 and Minister for Immigration and Multicultural Affairs v Sun [2005] FCAFC 201; (2005) 146 FCR 498 concerned a situation in which only one set of circumstances had given rise to the obligation to invite the applicant to a hearing but in the present case, there was the initial set of circumstances and then a second set of circumstances consisting of the information provided in the submission dated 20 September 2006 that gave rise to new issues before the Tribunal and a fresh obligation to provide a hearing.

The first respondent, at the oral hearing, referred specifically to paragraphs 26(b) and paragraphs 39 to 46 of M which are as follows:

[26] The applicant alleged that the Tribunal had committed a number of procedural errors in dealing with his case. Each of these errors, it was alleged, constituted a jurisdictional error. He identified the errors as being:

...

(b) Even if the applicant had, by operation of ss 359C, 360 and 363A of the Act, ceased to have an entitlement to an oral hearing, it remained within the discretion of the Tribunal to conduct such a hearing. It had failed to recognise that it had such a discretion and, as a result, had failed to consider whether or not it should conduct an oral hearing.

...

[39] Section 360 of the Act ensures that, subject to certain limited exceptions, all applicants are invited to appear before the Tribunal to give evidence and make submissions in support of their applications. One of the exceptions, provided for in

s 360(2)(c) of the Act arises where s 359C(1) of the Act applies to an applicant. Section 359C(1) of the Act so applies where an invitation to provide additional information has been extended under s 359 and that information has not been provided within the time stipulated in the letter of invitation. An applicant to whom one of the exceptions provided for in s 360(2) of the Act applies 'is not entitled to appear before the Tribunal': see s 360(3) of the Act. Had the legislative scheme contained nothing more of relevance, an applicant whose circumstances brought him within one of the exceptions provided for in s 360(2) of the Act could be said to have lost the right to an invitation to appear before the Tribunal but might, in the exercise of the Tribunal's discretion, nonetheless, be extended an invitation.

[40] In the present case the Tribunal did not consider that it had such a discretion and therefore did not consider the exercise of such a discretion. So much is evident from the extract from its reasons which appears above at [14]. The Tribunal held that the applicant was not entitled to appear before it 'and pursuant to

s 363A cannot be permitted to do so'.

[41] The applicant's argument in support of the second alleged error hinges on the proper construction of these provisions and, in particular, the effect of s 363A of the Act.

[42] The applicant placed principal reliance on the joint judgment of Wilcox and Branson JJ in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218. That case, like the present, involved a failure of an applicant to make a timely response to an invitation (in that case extended under s 359A of the Act) with the result that the Tribunal dealt with the application on the papers. The Tribunal said that it did this in accordance with s 359C of the Act. Judicial review was sought in the Federal Magistrates Court. Relevantly, the Federal Magistrate held that:

'the Tribunal was under no obligation to make any decision regarding whether it would or would not allow the applicant a hearing. In particular, subsection (1) of s 360 did not apply to the applicant's case. Clearly s 359C(1) did apply to the applicant. Accordingly, it follows that there has been no failure of the discretion.'

On appeal it was contended that the Federal Magistrate had erred by finding that the Tribunal was under no obligation to make any decision as to whether it would or would not allow the applicant a hearing. In dealing with this ground their Honours in Uddin said:

'[59] The appellant contended that the Tribunal made its decision to affirm the cancellation of the appellant's visa on the false assumption that since he was not entitled to a hearing before the Tribunal, the Tribunal could not afford him a hearing.

[61] We accept that the Tribunal was free, had it wished to do so, to accord the appellant an oral hearing. We see no reason to conclude that the Tribunal thought otherwise. The reference in its reasons for its decision to the appellant being 'no longer entitled' to a hearing suggests a correct understanding of the legal position. Nothing in the reasons for decision of the Tribunal suggested that it proceeded on an assumption that it was not empowered to grant the appellant a hearing. In the circumstances that happened the Tribunal was entitled to decide the matter before it in the way that it did.'

The other member of the Court, Bennett J, agreed with Wilcox and Branson JJ on this point.

[43] It does not appear that either the Federal Magistrate or the Full Court was referred to s 363A of the Act. This also appears to have been the case in two decisions of the Federal Magistrates' Court which were also relied on by the applicant: see Ramnares v Minister for Immigration and Multicultural Affairs [2004] FMCA 683 at [19] and Sharma v Minister for Immigration and Multicultural Affairs [2006] FMCA 20 at [11] and [14]-[22].

[44] It is to be noted that, in each of these three cases, the applicant did not succeed, notwithstanding the failure of the court to consider the effect of s 363A of the Act. In each case this was because the Court was not prepared to infer that the Tribunal had not turned its mind to the exercise of an assumed discretion to invite the applicant to appear before it, even though the Tribunal did not refer specifically to having considered the exercise of such a discretion in its reasons.

[45] Counsel for both parties referred me to a more recent Full Court decision in which the effect of s 363A of the Act was dealt with. That decision was Minister for Immigration and Multicultural and Indigenous Affairs v Jing Shan Sun [2005] FCAFC 201; (2005) 146 FCR 498. Sun was primarily concerned with the efficacy of multiple invitations being given by the Tribunal to an applicant under ss 359 and 359A of the Act. The Court held that there was no provision of the Act which would prevent the Tribunal giving multiple notices in the course of dealing with a particular application. The Court considered that there would be cases in which the Tribunal might be obliged to act in this way. In this context the Court observed (at 509):

'Section 363A would not prevent the Tribunal from acting in that way. It says that the Tribunal does not have power to permit a visa applicant to do a thing in relation to a review if the visa applicant is, by a provision in Pt 5, not entitled to do that thing. Section 360(3) disentitles a visa applicant from appearing before the Tribunal if any of the circumstances in s 360(2) apply, relevantly here if s 359C(2) applies to the first respondent. Consequently, s 363A would appear to disempower the Tribunal from allowing the first respondent to appear before the Tribunal in the present circumstances. But there is no provision disentitling the visa applicant from providing such information to the Tribunal as that visa applicant considers to be pertinent. And notwithstanding that s 359C(2) applies to that visa applicant, such information may include information provided belatedly pertaining to information referred to in an invitation under s 359A. That was what the Tribunal gave the first respondent the opportunity to do ... in the present matter.' (Emphasis added)

Counsel for the Minister relied on the sentence which has been emphasised in the quoted passage. Counsel for the applicant acknowledges the potential relevance of the sentence for present purposes but emphasises the Court was expressing itself tentatively and that what it said did not form part of the ratio of the decision. Section 363A has been in the Act since 1995. It was introduced by the Migration Legislation Amendment Bill (No 5) 1994 (Cth). The explanatory memorandum which accompanied the Bill stated that the new s 363A 'ensures that the IRT has no discretion to allow a person (including any assistant or representative) to do something where a provision provides that the person is not entitled to do that.' Counsel for the applicant very properly drew my attention to this part of the memorandum. Not surprisingly, it was relied on by counsel for the Minister.

[46] In my view s 363A of the Act has the effect contended for by the Minister. Section 360(3) of the Act provides that a consequence of an applicant failing to provide information to the Tribunal in a timely way following an invitation to do so is that the applicant ceases to have an entitlement to appear before the Tribunal. Section 363A of the Act operates to remove any residual discretion the Tribunal may have had to permit an applicant to appear notwithstanding his or her loss of an entitlement to do so. The language of the section is clear. The construction which I have placed upon it is consistent with the observation of the Full Court in Sun and the terms of the explanatory memorandum. To the extent that the dictum in Sun may be said to be inconsistent with that of the Full Court in Uddin the differences are relevantly explicable by the absence of any reference to s 363A of the Act in the joint reasons in the latter case.

The first respondent argued that if the right to a hearing was lost, the provisions of s.363A of the Act prevented that right being revived. The applicant also relied on the Full Federal Court decision in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218; (2005) 149 FCR 1.

Although the Full Federal Court in Uddin at [61] states that the Tribunal was free to accord the applicant an oral hearing where the applicant had failed to make a timely response to an invitation under s.359A of the Act, it appears that the Full Court was not referred to s.363A of the Act or to Jing Shan Sun, which had been decided a few weeks earlier. As a consequence, it might be thought that the relevant aspect of the decision of the Full Federal Court in Uddin was per incuriam. However, as an inferior court, that is not something that I can decide. In Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 1884; (2001) 115 FCR 253, Whitlam and Katz JJ, with whom French J agreed, said at [39] to [41]:

[39] In Foster v Northern Territory of Australia [1999] FCA 1235 at [32] (French, Tamberlin & Sackville JJ, 31 August 1999, unreported), a Full Court of this Court exercising original jurisdiction described submissions made by the applicants before it that a particular decision of the High Court of Australia did not bind the Full Court as "an invitation to revisit the decision on the basis that not all materials or arguments that could have been put before the Court were put before it". The Full Court continued, "The applicants' submissions amount to an invitation to find that the decision of the High Court was made per incuriam". In rejecting that invitation, the Full Court quoted approvingly what Moffitt P had said in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177:

"The per incuriam rule is not available to a court in relation to a decision of a court superior in the hierarchy. It is a rule which applies only to a review by a court of its own decision. An equivalent result cannot be achieved by regarding a binding decision of the superior court as distinguishable on the basis that it did not decide the question which it did by making the order that it did, but that it only decided the question apparently argued before it or on the basis that its reasons were its decision."

The Full Court in Foster also, without quoting it, invited attention to what Lord Diplock had said in Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1131. Lord Diplock's remarks, which had been quoted by Moffitt P in Pro_c_tor at 179, had foreshadowed those later made by Moffitt P in Proctor_._

[40] In addition to what had been said by Moffitt P in Proctor and by Lord Diplock in Cassell_, we note that a majority of the Judicial Committee of the Privy Council (Lords Diplock, Simon of Glaisdale and Cross of Chelsea and Sir Thaddeus McCarthy), relying on_ Cassell_, had expressed a similar view about the operation of the per incuriam rule in_ Baker v The Queen [1975] AC 774 at 788 (as had the sole dissentient, Lord Salmon, at 795). The majority had pointed out that to permit the use of the per incuriam rule by a court inferior to the court the precedential effect of whose decision was in issue "would open the door to disregard of precedent by the court of inferior jurisdiction by the simple device of holding that decisions of superior courts with which it disagreed must have been given per incuriam".

[41] We agree with the approach to the per incuriam rule taken by the courts (including a Full Court of this Court) to which, and the judges to whom, we have referred above. Contrary to the Algamas' submission, it would not have been open to the primary Judge in the present matters to conclude that Win had been decided per incuriam and that therefore, even if its rationes decidendi had included a ruling about the construction of the new subs 425(1) of the Act, that ruling did not bind him.

Contrary to Uddin, the earlier decision of the Full Federal Court in Jing Shan Sun noted that s.363A of the Act "would appear to disempower the Tribunal from allowing the first respondent to appear before the Tribunal in the present circumstances." The decision of the Full Federal Court in Jing Shan Sun was unanimous. The use of the words "would appear" suggests that the statement was somewhat tentative. That may be because that issue was not central to the decision in Jing Shan Sun.

On the other hand, the conclusions of Tracey J at [46] of M are central to the decision and are firmly expressed and cogently explained. However, his Honour's decision of Tracey J was not made in the appellate jurisdiction of the Federal Court. Strictly speaking, it is not binding upon me, and nor is the passage from Jing Shan Sun cited above. I consider that the conclusion on this point in M is plainly right. Notwithstanding my view, it appears that I am bound by Uddin, which is more recent Full Federal Court authority than Jing Shan Sun, and in which the relevant statements were more clearly part of the ratio decidendi.

In the present case, unlike Uddin, there was a clear statement that the Tribunal considered that it had no discretion to invite the applicant to a hearing. The Tribunal said at [15] that it was "precluded" from inviting the applicant to a hearing by s.363A of the Act. On the authority of Uddin, the Tribunal's failure to consider that it had a discretion to invite the applicant to a hearing was a jurisdictional error. Accordingly, ground 3 is made out.

As two of the three grounds have been made out in this case, the application must be allowed with costs.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Riley FM