Singh v Minister for Immigration and Border Protection

1. The unopposed application for an extension of time and the unopposed application for leave to adduce a fresh argument on appeal and, if those applications are granted, the appeal be heard by a Full Court.
2. By 3 November 2016 the first respondent file and serve an application book containing the material which was before the Migration Review Tribunal, the Federal Circuit Court and the material before this Court up to 9 September 2016.
3. Reserve costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NORTH J: 1 The applicant in the present proceedings seeks an extension of time within which to appeal to this Court, and seeks leave to adduce an argument which was not advanced before the Federal Circuit Court. The first respondent does not oppose those applications. 2 The new argument relates to the operation of s 360(3) of the Migration Act 1958 (Cth). In this case the applicant was invited to a hearing of his review and following that invitation was invited to provide information pursuant to s 359A of the Act. The applicant seeks to argue that in those circumstances the prohibition on a hearing expressed in s 360(3) does not apply. 3 It is arguable that this question was addressed by a Full Court in Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; 183 FCR 413 (Hasran), and decided adversely to the argument advanced by the applicant. 4 However, in Hasran and arguably in the authorities which it approved, the request to provide information was not preceded by an invitation to attend a hearing. Consequently, the applicant seeks to argue that Hasran is, on that basis, distinguishable. 5 The applicability of Hasran where the invitation to attend a hearing preceded the invitation to provide information was considered by Greenwood J in Giri v Minister for Immigration and Citizenship [2011] FCA 928 (Giri). His Honour concluded that there was force in the argument but that he should feel bound by Hasran because, whilst the Court did not address the particular facts arising in a case such as this, the Court articulated a principle applicable in such circumstances. 6 There is other authority supporting the applicant's argument: see Kumar v Minister for Immigration & Citizenship [2010] FMCA 614 (Kumar), a judgment which Greenwood J suggested expressed a view which has some force. 7 Further, in Giri Greenwood J expressed the view that Hasran addressed the matter from the point of principle. Thus, there is a question whether the Full Court in Hasran dealt with or intended to deal with the circumstance which arises in this case where there was an extant invitation to a hearing prior to the request for further information. 8 In Giri, Greenwood J was unaided by submissions from the appellant, who did not appear at the hearing. That case was therefore not an appropriate vehicle for a Full Court to address the question. 9 In view of the arguability of the applicant's position, as well as the doubt about the precise scope of the judgment in Hasran, it is desirable in the interests of the proper administration of justice that the legal question raised by the first ground of the draft notice of appeal be considered by a Full Court. It would be inconvenient to deal separately with that ground of appeal, and, consequently, the proceeding as a whole should be determined by a Full Court. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.