CONSIDERATION
38 The first issue which falls for consideration is the construction of s 362A(1) of the Act. This subsection provides applicants in the Tribunal with an entitlement "to have access to any written material … given or produced to the Tribunal for the purposes of the review." The subsection does not, in terms, impose any obligation on the Tribunal. It does not prescribe a means or a process whereby an applicant might obtain access to documents which have been given to the Tribunal.
39 The subsection is plainly intended to be of assistance to applicants, many of whom will not have legal or other assistance in prosecuting their appeals to the Tribunal. A construction which furthers this objective is to be preferred to one which would render the provision of little practical assistance to applicants.
40 The principal meaning attributed to the word "entitle" in the Macquarie Dictionary is: "to give (a person or thing) a title, right, or claim to something; furnish with grounds for laying claim." The existence of the entitlement is separate from the process whereby the entitlement (in this case access to documents) might be secured.
41 The word "entitled" appears in many other provisions of the Act. A review of these provisions confirms the importance of identifying precisely what entitlement is being conferred. This is because, as the Minister, correctly in our view, accepts, an entitlement may give rise to a correlative obligation on some other party and the nature and scope of such an obligation will depend on the relevant entitlement.
42 A number of sections (see, for example, ss 20, 268BG, 306G, 374 and 436) provided that a person is entitled to payments by way of compensation in respect of expenses incurred in complying with obligations imposed by the Act. The sections are silent as to the processes whereby payment of the compensation is to be obtained. It is implicit in these provisions that, before any payment can be obtained, some calculation of the quantum of the compensation is undertaken and advised to the person or institution who is under the obligation (express or implied) to make the payment.
43 The word "entitled" is also used in various sections which deal with procedural protections such as entitlements to be heard in support of or against applications for extensions of time (ss 268CQ and 487S), having the assistance of another person when presenting arguments to the Tribunal (s 366A) and entitlements to observe the execution of warrants (ss 268CZ and 487U). The person on whom entitlements of this kind are conferred must assert the right before an obligation falls on some other party to facilitate its exercise.
44 A further example is provided by s 26 of the Act which empowers the Minister to take and retain documents about unlawful non-citizens which have been produced pursuant to notices given under s 18. Section 26(2) provides that:
The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Minister to be a true copy.
45 In both instances the word "entitled" is used in the sense of "right". The person who has produced the document under a coercive process is the person who would otherwise be entitled to possession of the document. He or she is also the person who is entitled to be supplied with a copy of the document. That right carries with it, in the context of s 26(2), an obligation on the Minister to supply a certified copy of the document to the person otherwise entitled to possession of the original.
46 No equivalent obligation to supply documents falls on anyone under s 362A(1). Such obligation as does arise is an obligation to facilitate access. Unless the Tribunal, on which the obligation falls, is aware that an applicant wishes to have access to a document which has been given to it, it will not be aware that access is desired and will not know that the occasion for the facilitation of access has arisen. There is no general obligation (express or implied) on the Tribunal to supply or provide all documents it holds relating to a particular review.
47 The next question which arises is whether Mr Singh had sought access to documents of the class into which the e-mail fell.
48 The terms of Mr Singh's request for information, which was made in June 2014, is set out above at [6]. In particular he asked for the assistance of the Tribunal in "producing any investigated factual information which stands against the genuine standing of my IELTS …". The factual information (such as it was) which was in the Tribunal's possession, on which the Tribunal's decision was based, is set out above at [8]. At the October 2014 hearing Mr Singh asked the Tribunal to make further enquiries to see whether there was any additional evidence to support the view that someone else had sat the IELTS. The Tribunal said that it would make further enquiries and advise him if such enquiries yielded any information which was adverse to his interests. The Tribunal made the enquiries. The response was a non-response. All that was contained in the 15 December 2014 e-mail was advice that no further information could be provided because the IELTS no longer held any relevant materials. That non-response did not contain any factual information relating to the question of who had sat the test. There was nothing in the e-mail which was material to the outcome of the review, even if it be accepted that the e-mail should have been treated as falling within the terms of Mr Singh's request for information made orally at the second Tribunal hearing.
49 The analogy, drawn by the trial judge, between access to Tribunal files and court files may not be considered to be entirely apt but nothing turns on it for the purpose of this appeal.
50 Mr Singh has not established any appealable error by the FCC. Grounds 1 to 3 must be rejected.
51 The remaining issue relates to the complaint that the Tribunal breached s 360 of the Act by conducting an unfair hearing.
52 The principal authority relied on by Mr Singh was Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157. In that case the applicant had requested that the Tribunal provide him with its entire file "including file notes, case notes etc, including investigation file if any": at 529 [7] (Allsop CJ, Murphy and Pagone JJ). The material was provided but some documents had been redacted purportedly because of a need to comply with provisions of the Privacy Act 1988 (Cth). At first instance the trial judge quashed the Tribunal's decision on the ground that the applicant had been denied procedural fairness as required by s 360 of the Act because he had not been given the redacted material.
53 The Minister's appeal succeeded on another ground but the Full Court held, obiter, that the trial judge had been correct to hold that the Tribunal had breached s 360.
54 The Full Court identified the purpose of s 360(1) as being to ensure that an applicant "is given a proper opportunity to present his or her case": at 540 [22]. Their Honours referred to the dictum in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 362; [2013] HCA 18 at [61] (Hayne, Kiefel and Bell JJ) that s 360(1) requires that "the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case". The Full Court then continued (at 540 [22]):
The extent of the duty imposed upon the Tribunal under s 360(1) must, however, be understood in light of the express terms of s 357A that the provisions of Pt 5, Div 5 are taken to be "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with".
55 The Full Court went on to hold that the Tribunal had contravened s 360 by refusing to provide access to the redacted material. Their Honours said (at 543 [25]) that:
The Tribunal's decision not to give [the applicant] access to the redacted material (by wrongly deciding not to provide access under s 362A(1)) meant that the Tribunal decided the Public Interest Criterion without the fair hearing to which [the applicant] was entitled under s 360 of the Migration Act 1958 (Cth).
56 For the reasons which we have already explained, the Tribunal did not, in the present case, do anything which breached s 362A of the Act. The adverse information, on which the Tribunal's decision was based, was available to Mr Singh at the second of the two hearings which it conducted. He had the opportunity to make any submissions which he wished in relation to that information. He drew attention to what he said was the inadequacy of that material.
57 There was nothing in the 15 December 2014 e-mail which in any way supplemented the information which was before the Tribunal and available to Mr Singh in October 2014. No practical injustice was suffered by Mr Singh when the Tribunal proceeded to make its decision on his appeal on the basis of the material which it had before it in October 2014 and on which Mr Singh had had the opportunity to make submissions.
58 This ground has not been made out.