Opanayaka Mudiyanselage v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 On or about 31 July 2002 the applicant filed an affidavit and draft order nisi in the High Court, which order was amended on 28 January 2003, seeking the issue of constitutional writs of prohibition and certiorari against the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") and the Migration Review Tribunal ("the Tribunal") in relation to the quashing of a decision of the Tribunal on 29 June 2000, affirming the decision of a delegate of the Minister to refuse the grant of a Change in Circumstance (Residence) (Class AG) subclass 806 - Family visa to the applicant. 2 It is apparent from the material and the applicant's submissions today that what he is seeking is the setting aside of the decision of the Tribunal and the opportunity for the Tribunal to re‑hear his case on the basis of him presenting further material to it. 3 On 7 February 2003 the High Court remitted the matter to the Federal Court. As the decision of the Tribunal was more than six months before the application was made to the High Court, the applicant requires an order for an enlargement of time within which to make his application for a writ of certiorari. Order 55 rule 17(1) of the High Court Rules provides that: "An order nisi for a writ of certiorari to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed, of an inferior court or tribunal, or of a magistrate or justices, shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be prescribed by any law." The High Court and this Court can enlarge that time under O 60 r 6 of the High Court Rules. 4 The applicant sought an extension of time in the papers filed in the High Court and it is necessary to consider that application as the threshold question in the matter which was set down for hearing this day. Having regard to the principles to be applied, it is relevant to understand the background to the proceeding. 5 The applicant arrived in Australia on 18 March 1996. At that time the applicant held a Tourist (Short Stay) subclass 676 visa and thereafter he was granted other visas which enabled him to extend his stay in Australia. 6 On 30 June 1997 he applied for a protection visa which was refused on 31 July 1997. He also applied for a further Sri Lankan (Temporary) (Class TT) subclass 435 visa, which application was refused on 3 October 1997. On 29 July 1998 the applicant applied for a Change in Circumstance (Residence) (Class AG) subclass 806 - Family visa in which application he claimed to be a special need relative of his sister. His sister was then and is now an Australian permanent resident. In support of his application, the applicant provided a letter dated 25 July 1998 signed by Dr A. K. Singh of the Endeavour Hills Medical Centre. The letter stated: "The above patient [the applicant's sister] is under my medical care. She has recently been depressed because of her brother's impending expiry of visitor visa. I believe an extension of his visa would help Mrs Godewatte's emotional state." 7 On 21 September 1999 the delegate of the Minister refused the application for the Change in Circumstance (Residence) Class AG subclass 806 - Family visa. On 29 June 2000 the Tribunal affirmed the decision of the delegate refusing a grant of the visa. 8 The only documentation before the Tribunal at that time was the letter from Dr Singh. In the Tribunal's decision it noted that in order to be granted a visa under Class AG, the applicant was required to satisfy all the criteria of one or more of the subclasses listed under Item 1107 of Sch 1 of the Migration Regulations 1994 (Cth). 9 The only claim which the applicant made in relation to the subclass 806 - Family was that he was a special need relative of his sister. In its reasons, the Tribunal set out the definition of "special need relative" in reg 1.03 in the following terms: "in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if: (a) the citizen or resident has a permanent or long‑term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and (b) the assistance cannot reasonably be obtained from: (i) any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or (ii) welfare, hospital, nursing or community services in Australia." 10 The Tribunal found that there was no evidence before it, nor were any claims asserted, in relation to the situations of death or disability. The Tribunal observed that that left for consideration the situations of prolonged illness and "other serious circumstances". The Tribunal noted that the applicant had not made any statements regarding either prolonged illness or other serious circumstances affecting his sister and that the only written evidence on the file which might relate to either of these categories was Dr Singh's letter. 11 The Tribunal noted that the letter was extremely brief and that Dr Singh did not describe the nature, treatment or prognosis of the condition, nor did Dr Singh indicate whether the applicant's sister was in need of substantial and ongoing assistance. The Tribunal noted that, although given the opportunity to provide more detailed medical evidence, the applicant had not done so. I will return to this issue. The Tribunal noted that the applicant's claims were not supported in any way by his sister who was the nominator for the purpose of the visa application, and that there were no written statements by the applicant's sister attempting to demonstrate a need for assistance. The Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa sought. The Tribunal therefore affirmed the decision of the delegate to refuse the grant of the visa sought by the applicant. 12 On 27 July 2000 the applicant requested the Minister to exercise his powers under s 351 of the Migration Act 1958 (Cth) ("the Act"). On 27 June 2002, the Minister decided not to consider exercising his power under s 351 of the Act. This decision was notified to the applicant by letter dated 8 July 2002. 13 On 31 July 2002 the applicant filed his application in the High Court. The applicant appeared before the Court unrepresented and made oral submissions. The applicant said that his complaint about the Tribunal was that the Tribunal did not consider his case properly. He contended that he and his sister were not summoned to the Tribunal for an inquiry and that the Tribunal made its decision without calling him and his sister to appear before it. 14 This submission in substance may be characterised as a claim that the Tribunal denied the applicant natural justice and a fair hearing. That submission and complaint must be considered against the background of what the Tribunal did before making its decision. At the time of the decision, the Act contained a number of provisions relating to the manner in which the Tribunal was to conduct its review of the delegate's decision. Sections 359, 359B, 359C, 360 and 379A were in the following terms: "359 Tribunal may seek additional information (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite a person to give additional information. (3) Subject to subsection (4), an invitation to an applicant must be given to the applicant by one of the methods specified in section 379A. (4) Subsection (3) does not apply if the applicant is in immigration detention because of: (a) a decision to refuse to grant him or her a bridging visa; or (b) a decision to cancel his or her bridging visa. … 359B Invitation to give additional information or comments (1) If a person is: (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. (3) If the invitation is to give information or comments at an interview, the interview is to take place: (a) at the place specified in the invitation; and (b) at a time specified in the invitation, being a time within 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. (5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to: (a) a later time within that period; or (b) a time within that period as extended by the Tribunal for a prescribed further period; and then the response is to be made at an interview at the new time. 359C Failure to give additional information or comments (1) If a person: (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. (2) If the applicant: (a) is invited under section 359 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. 360 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant.