FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Citizenship [2009] FCA 906 MIGRATION – cancellation of subclass 457 (Business (Long Stay)) visa – response to invitation under s 359A to provide comments within a specified time. Migration Act 1958 (Cth) ss 107, 109, 359, 359A, 359B, 359C, 360 and 363A SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 SURINDER SINGH, BALWINDER SINGH, SANDEEP KAUR and MANDEEP SINGH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL NSD397/2009 MOORE J 20 AUGUST 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD397/2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SURINDER SINGH First Appellant BALWINDER SINGH Second Appellant SANDEEP KAUR Third Appellant MANDEEP SINGH Fourth Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: MOORE J DATE OF ORDER: 20 AUGUST 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed with costs Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD397/2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SURINDER SINGH First Appellant BALWINDER SINGH Second Appellant SANDEEP KAUR Third Appellant MANDEEP SINGH Fourth Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: MOORE J DATE: 20 AUGUST 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate of 21 April 2009 dismissing an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") handed down on 10 October 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to cancel the appellant's visa. 2 The point raised in this appeal is a very short one. The relevant facts may be summarised briefly. The detail is irrelevant. The appellant was sent a notice under s 107 of the Migration Act 1958 (Cth). He then held a Subclass 457 (Business (Long Stay)) visa. He furnished material to the Department in support of a case that the visa should not be cancelled but it nonetheless was cancelled. He sought review of that decision by the Migration Review Tribunal. The Tribunal affirmed the cancellation decision. That decision was set aside by consent in the Federal Magistrates Court which quashed the Tribunal's decision and directed that the application of 10 May 2005 be determined according to law. The Tribunal differently constituted, continued to undertake the review of the cancellation decision. In so doing it sent the appellant a letter on 18 April 2008 in the following terms: … I am writing about your application for review of a decision on a Temporary Business Entry (Class UC) visa. You are invited to comment on information that the Tribunal considers would, subject to any comments you make, be the reason, or a part of the reason, for affirming the decision that is under review. You are invited to comment, in writing, on the following information: 1. On 30 June 2003 you applied for a Subclass 457 visa. In your application you stated that you worked as a curry chef with Mehta Foods, Amritsar Club between July 1990 and October 2002; 2. As part of your application for the Subclass 457 visa you provided a work reference from Mehta Foods, Amritsar Club dated 21 October 2002. This reference stated that you worked as a curry chef from 17 July 1990 to 20 October 2002; 3. In April 2004 the Department of Immigration and Citizenship received allegations that false or forged documents had been used for your application for a Subclass 457 visa. The allegations were that you had never worked as a curry chef and that you were out of India during the years 1990 to 2002. The information was that you were in Dubai between 1990 and 1995 and in Germany between 1995 and 2002; 4. In January 2005, during a site visit to the Amritsar Club, about 20 employees were shown your photograph and no-one recognised you. A cashier who had been employed at the Amritsar Club for the last three years did not recognise you. A waiter who had worked at the Amritsar Club for 10 years did not know you. No-one spoken to at the Club knew of anyone named Surinder who had worked at the Club. 5. Information before the Tribunal is that Mehta Foods is a catering company operating from the Amritsar Club; 6. During the site visit staff members also stated that the reference letter that you provided to the Department was not on Mehta Foods letterhead and that the stamp on the reference letter provided by you was different from the genuine stamp. Officers conducting the site visit were shown the genuine stamp of Mehta Foods and saw that it was not the same as the stamp on the reference letter submitted by you as part of your application for the visa. Staff also informed the officers that the signature purporting to be that of the owner, Mr Anil Mehta, on the letter provided by you, was not his signature. 7. Your Subclass 457 visa was cancelled on 28 April 2005. This information is relevant to the review because it indicates you gave incorrect answers in the visa application form, and that you provided bogus documents. It is a requirement of section 101 of the Migration Act 1958 (the Act) that no incorrect answers are given in the application form by a non-citizen and it is a requirement of section 103 of the Act that a bogus document not be given by a non-citizen to an officer, the Minister or a Tribunal performing a function or purpose under the Act. If the Tribunal finds that when you filled out your application for a visa you gave incorrect answers it will find that you have not complied with section 101 of the Act. If the Tribunal finds that you have provided a bogus document as part of your application, it will find that you have not complied with section 103 of the Act. If the Tribunal finds that you have not complied with sections 101 and/or 103 it may, subject to consideration of the circumstances prescribed in r.2.41 of the Migration regulations 1994, affirm the cancellation of your Subclass 457 visa. You are invited to give comments on the above information in writing. Your comments should be received at the Tribunal by 28 April 2008. If the comments are in a language other than English they must be accompanied by an English translation from an accredited translator. Unless the Tribunal is advised otherwise, the comments received by the Tribunal will be regarded as a joint response from all applicants. If you cannot provide your comments by 28 April 2008, you may ask the Tribunal in writing for an extension of time in which to provide the comments. If you make such a request, it must be received by the Tribunal before 28 April 2008 and the request must state the reason why the extension of time is required. The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted. If the Tribunal does not receive your comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments. 3 The representative of the appellant did not provide a written response to this letter by the due date. The Tribunal then proceeded to hear the matter and, in doing so, expressed the view that as the applicant had not provided comments in response to an invitation under s 359A, the applicant was not entitled to appear before the Tribunal. 4 The short point is this. It is tolerably clear that in the material provided by the appellant to the Department in response to the notice under s 107 and thereafter to the Department and the Tribunal in relation to its initial consideration of the review application, there was material which was responsive to the invitation in a letter of 18 April 2008. It was responsive in the sense that it dealt with the subject matter of most of the matters referred to in the numbered paragraphs of the letter. 5 The appellant contended both before the Federal Magistrate and in the appeal that this material provided before the letter of 18 April 2008 was sent constituted a comment or a response for the purposes of s 359C(2) and accordingly s 360(2) was not engaged. In the result, it was submitted, the Tribunal should have invited the applicant to appear before it to give evidence and present arguments. 6 Sections 359, 359A, 359B, 359C and 360 provide: S 359 (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) If an invitation is given to a person other than the Secretary, the invitation must be given: (a) except where paragraph (b) applies--by one of the methods specified in section 379A; or (b) if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B. S 359A (1) Subject to subsections (2) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies--by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA. (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information S 359B (1) If a person is: (a) invited in writing under section 359 to give information; or (b) invited under section 359A to comment on or respond to information; the invitation is to specify the way in which the information, or the comments or the response, 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 or a response, otherwise than at an interview, the information, or the comments or the response, 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 or a response, at an interview, (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. S 359C (1) If a person: (a) is invited in writing 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 359A to comment on or respond to information; and (b) does not give the comments or the response 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 view on the information. S 360 (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. 7 In my opinion, the sections do not operate in the way contended by the appellant. This aspect of the legislative scheme clearly contemplates a sequence of events: cf SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 per Kirby J at [155] – [158]. Sections 359 and 359A authorise the Tribunal to invite a person to give additional information or comment or respond to information respectively and the invitation must be made in the prescribed way. Importantly, s 359B(2) requires that the information or the comments or response is to be given within a period specified in the invitation or within a reasonable period. Unambiguously, this sub-section contemplates that the provision of the information or the comments or response is to follow the making of the invitation. Equally unambiguously, in my opinion, s 359C addresses a situation where the review applicant has failed to give additional information or provide comment or a response within the period established by s 359B(2). Section 359C focuses attention only on the period between the time the invitation is made and the time to respond has elapsed. Accordingly in a case such as the present, it is incumbent upon the review applicant to comment or respond to the information referred to in the invitation made under s 359A within that period. If the review applicant does not do so (as was the case in this matter) s 360(2) is engaged. 8 The Tribunal did not fall into jurisdictional error by not conducting a hearing and the Federal Magistrate was correct in so concluding. The appeal should be dismissed with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 20 August 2009 Counsel for the Appellants: M Newman Solicitor for the Appellants: Newman & Associates Counsel for the First and Second Respondents: A Markus Solicitor for the First and Second Respondents: Australian Government Solicitor Date of Hearing: 10 August 2009 Date of Judgment: 20 August 2009