FEDERAL COURT OF AUSTRALIA Djemal v Minister for Immigration & Ethnic Affairs [1999] FCA 1406 ORHAN DJEMAL v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS V 106 OF 1999 NORTH J 8 SEPTEMBER 1999 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 106 OF 1999 BETWEEN: ORHAN DJEMAL Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE: NORTH J DATE OF ORDER: 8 SEPTEMBER 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The decision of the Immigration Review Tribunal made on 15 February 1999 is set aside and the matter is referred to the Migration Review Tribunal for reconsideration according to law. 2. The respondent pay the applicant's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 106 OF 1999 BETWEEN: ORHAN DJEMAL Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE: NORTH J DATE: 8 SEPTEMBER 1999 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 15 February 1999 the Immigration Review Tribunal (the IRT) affirmed the decision of a delegate of the respondent, the Minister for Immigration and Ethnic Affairs (the Minister), to refuse a subclass 105 concessional family visa and a subclass 106 regional linked visa to Djem Mehmet, the visa applicant, on the application of Orhan Djemal, the applicant. The basis of the refusal was that the visa applicant failed to reach the qualifying score under the "points system" prescribed in the Migration Regulations 1994. The review to this Court is based in part on s 476(1)(a) of the Migration Act 1958 (Cth) (the Act) which provides relevantly, that: "(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act ... to be observed in connection with the making of the decision were not observed;" 2 The procedure with which the applicant contends the IRT did not comply is contained in s 360(1) which provides relevantly, that: "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." 3 The events relevant to this argument are as follows. Prior to the decision of the IRT, the applicant was represented by solicitors. On 9 July 1998 the applicant lodged an application for review with the IRT. On 16 November 1998 the presiding member of the IRT was advised by the solicitors for the applicant that the applicant would be providing written submissions in support of his application. On 13 January 1999 the IRT sent a fax to the solicitor for the applicant as follows: "I refer to the application lodged on 9 July 1998. On 16 November 1998, the Presiding Member was informed that, you will be providing submissions on 'usual occupation' in relation to this case. To date, we have not received this. The Presiding Member would like to know when you will be providing this information." 4 There was no response to the fax. On 22 January 1999 the IRT sent a letter to the applicant as follows: "Dear Mr Djemal, Re: Djem MEHMET (Visa Applicant) IRT Reference V98/01581(A) I am writing to inform you of your rights under Section 361 of the Migration Act 1958. Pursuant to Section 361, the Migration Act requires that I formally advise you of the following: 1. you may appear before the Tribunal to give evidence; and 2. you may give the Tribunal written notice within seven days of receipt of this letter that you wish the Tribunal to obtain oral evidence from a person or persons specified in that notice; and 3. you may submit additional written evidence to the Tribunal, or 4. you may withdraw this application. In other words, you have the right to a public hearing of your case and you may nominate additional witnesses from whom you would like the Tribunal to also take evidence. If the witnesses you nominate are unwilling to attend, the Tribunal may issue a summons for compulsory attendance. You should advise the Tribunal if the witnesses you specify would not willingly attend the Tribunal at your request. Please note that while the Tribunal will consider your wishes carefully, it is not obliged to take evidence from persons you nominate. You should also note that you may be responsible for any expenses payable to a person formally summoned at your request to give evidence at a hearing. You should only ask for a summons to be issued if you cannot otherwise arrange for the person to attend. A hearing is not necessary in all cases. If you believe that you have already given the Department of Immigration and Multicultural Affairs and/or the Tribunal all the available evidence, you may decide that a hearing will not be required. You may, of course, submit further written evidence at any time. The Tribunal will then make its decision based on the existing material and the relevant legislation. Please respond to the Request for Hearing form attached to this letter no later than 4:00 pm Friday, 5 February 1999, to advise your intentions regarding a hearing and to provide details of any witnesses whom you wish to nominate. ... [Emphasis in original] 5 On 4 February 1999 the visa applicant swore a statutory declaration which addressed the question of his usual occupation, that is, the occupation followed by him in the two years prior to the making of the application. This was a matter relevant to the application of the points system. By a letter dated variously 3 and 4 February to the IRT, the solicitor for the applicant enclosed the statutory declaration, made submissions about the meaning of usual occupation, and concluded: "In all the circumstances, I would submit that it is still possible for the Tribunal to make a favourable decision "on the papers" without the need for an oral hearing. However, if the Tribunal believes that it needs to take oral evidence from Mr Mehmet he (and if necessary, his uncle) are available to give oral evidence at any suitable time. I look forward to hearing from the Tribunal." 6 The letter was addressed as follows: "Deputy Registrar Immigration Review Tribunal Level 13 Citipower Building 628 Bourke Street MELBOURNE VIC 3000" 7 The letter bore a stamp indicating that it was received on 15 February 1999 by Citipower, which occupies part of the 13th floor, together with the IRT, at the address specified. The letter was not received by the IRT until 23 February 1999. In the meantime on 15 February 1999 the IRT had made its decision in the absence of the letter and its enclosures from the applicant's solicitors. 8 Mr Mosley, who appeared as counsel for the Minister, contended that the letter from the IRT dated 22 January 1999 gave the applicant an invitation to appear before the IRT at a hearing as is required by s 360. On its face there is much to commend this approach. The IRT had been most forbearing in the face of what seems like considerable delay and lack of responsiveness by the applicant's solicitor. Mr Lancy, who appeared as counsel for the applicant, contended in essence, that the invitation to appear must be a genuine and reasonable opportunity to appear. No such opportunity was given in the peculiar circumstances of this case because no warning was given to the applicant that the IRT intended to make a decision against him in the absence of any further response by the applicant. 9 The letter from the IRT dated 22 January 1999 referred to and addressed matters referred to in s 360(1) of the Act. The letter enclosed a Request for Hearing form as follows: "REQUEST FOR A HEARING Please tick the appropriate box/es Ł I do not think it is necessary for the Tribunal to hold a hearing R I would like the Tribunal to hold a hearing to take oral evidence from me Ł I would also like the Tribunal to take evidence from the following witnesses: ..." 10 This form was a convenient administrative mechanism which allowed the IRT to determine whether the applicant required a hearing. It thus permitted, in respect of a positive response, the IRT to make all the practical arrangements necessary for the conduct of such a hearing. 11 However, allowing the applicant to request a hearing did not of itself invite the applicant to appear as required by s 360(1). The matter can be tested this way. If the IRT had asked the applicant if he wanted a hearing and the applicant indicated in the positive, s 360(1) would not have been complied with unless there was in fact a hearing. The notification under s 360(1) and the administrative step taken in this case to obtain an indication from the applicants that the applicant desired a hearing were steps preliminary to the forwarding of an invitation to appear required by s 360(1). 12 Where the applicant indicates that no hearing is required, s 360(1) will have been satisfied. Where the applicant indicates that a hearing will be required, s 360(1) will usually be satisfied by the IRT notifying the applicant of the time, date and place of hearing. But where the applicant makes no response, as in the present case, no invitation to appear has been given for the purposes of s 360(1). In such circumstances the IRT is bound to fix a hearing time, date and place and invite the applicant to attend at the specified place at the specified time. Thus in my view the IRT failed, in the unusual circumstances of this case, to comply with s 360(1). It therefore failed to comply with a procedure required by the Act to be observed under s 476(1)(a). 13 Mr Mosley argued that the matter should not be returned to the IRT, but rather that the Court should determine that the applicant was not engaged in his usual occupation as defined in the Migration Regulations for the purpose of the allocation of points under the points system. "Usual occupation" is defined in reg 2.26(5) to mean: "...an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa." 14 Mr Mosley contended, on the facts before the IRT, the applicant could not succeed in establishing the elements of "an occupation for gain or reward for a continuous period". It would therefore be futile, he contended, to return the matter to the IRT. I do not accept this argument. The question raised is one of fact on which the applicant seeks to lead evidence at a hearing. Whether he falls within the definition will be determined by the evidence he leads. It is the function of the IRT not the Court to determine the facts. 15 Thus, the decision of the IRT made on 15 February 1999 is set aside and the matter referred for reconsideration to the Migration Review Tribunal which, by agreement of the parties is the successor to the IRT. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 8 September 1999 Counsel for the Applicant: Mr R S Lancy Solicitor for the Applicant: Wimal & Associates Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 September 1999 Date of Judgment: 8 September 1999