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Fairness under threat: Procedures at the Migration and Refugee Review Tribunals

Feature Articles

Cite as: November 2012 86 (11) LIJ, p.44.

Federal Court decisions highlight the risk of applicants losing the right to a review hearing unless they respond promptly when invited to comment on information adverse to their case.

By Roz Germov

Both the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) have a statutory obligation to provide a mechanism of review that is fair, just, economical, informal and quick.1 The provisions governing the conduct of reviews by both tribunals are the mechanism by which these statutory objectives are to be achieved and are referred to as the Code of Procedure.2 These codes of procedure are expressed to be an exhaustive statement of the natural justice hearing rule in relation to the matters that are dealt with therein.3

It is settled law in Australia that non-compliance with the mandatory provisions of these procedural codes will constitute jurisdictional error because the decision would not be made in accordance with express statutory requirements.4

Statutory obligations

Two central elements of the codes of procedure are the tribunal’s mandatory obligations to:

  • invite the review applicant to comment on information adverse to their case; and
  • if the relevant tribunal is unable to make a favourable decision “on the papers”, to invite the applicant to attend a hearing before the tribunal.5

The tribunal is only obliged to invite the applicant to comment if the information is specifically about the review applicant or another person and if it would be the reason or part of the reason for affirming the original negative decision made by a delegate of the Minister for Immigration and Citizenship.6 If the relevant tribunal cannot make a favourable decision on the papers, it must invite the applicant to attend a hearing.

The structure of the legislation follows a logical sequence in that the statutory provision imposing the obligation to invite the applicant to comment on adverse information comes before the provision imposing the obligation to invite the applicant to a hearing.7 It is arguable that this is the way Parliament intended the tribunals to fulfill their procedural fairness obligations: namely, by empowering the tribunals to obtain as much essential information as possible to enable them to make a favourable decision “on the papers”, failing which they are then obliged to proceed to the more resource-intensive option of inviting applicants to appear before them to give oral evidence. However, these provisions have been construed as not imposing a strict chronological structure on the tribunals.

In SZEYJ v MI,8 the RRT sent an invitation to comment and an invitation to a hearing to the applicant on the same day. It received no response to either invitation. Lloyd-Jones FM held that the sequential approach outlined above was rejected by the High Court in SAAP,9 in which the majority favoured “an ambulatory” approach to the construction of the provisions in the code of procedure applicable to the RRT. This meant that the RRT could invite an applicant to comment pursuant to s424A of the Migration Act 1958 (Cth) (MA) at any time. Lloyd-Jones FM in SZEYJ referred (at [20]) to the judgment of Mansfield J in SRFB v MIMIA10 as supportive of the non-sequential approach. In the paragraph extracted by Lloyd-Jones FM, Mansfield J stated that “the normal sequence is that the procedure contemplated by section 424A will be adopted before the hearing”. Mansfield J pointed out a rigidly sequential approach would preclude the RRT from inviting the applicant to comment on further information received after the hearing.

While this construction is correct, this precept was subsequently construed by the courts as also enabling the tribunals to issue invitations to comment and to attend a hearing at the same time, with the effect that if a response is not received to a hearing invitation by the specified time, the hearing invitation is rescinded. In the writer’s view, this is an unfortunate development for review applicants.

Limitations on right to oral hearing

The recent cases of Giri11 and Nam v MI12 further demonstrate that a rigid chronological sequence is not mandatory because when an invitation to comment had been issued, the right to a hearing was conditional upon the applicant responding to that invitation within the specified time.

Section 359C(2) of the MA provides in relation to the MRT:

“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 views on the information.”13

The reference to “the information” in s359C(2)(b) means the information that is the subject of the particular invitation to comment. If the tribunal receives new adverse information, it is obliged to invite the applicant to comment thereupon if that new information would be the reason or part of the reason for affirming the primary decision.

Section 360(2)(c) of the MA provides that the applicant is not entitled to appear before the tribunal if s359C applies to the applicant.14 In relation to the MRT, the courts in Giri and Nam held that this was reinforced by s363A of the MA, which provides:

“if . . . a person is not entitled to do something, or to be assisted or represented by another person, then unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person”.

Giri was decided at first instance by Cameron FM, who refused to follow the approach taken by Driver FM in Kumar v MI.15 Nam was decided by Riley FM, who held that Cameron FM’s construction of the applicable provisions was correct. Both cases concerned invitations to comment and to appear at a hearing that were issued on the same day. The invitations to comment contained a warning that failure to respond within the specified time would result in losing the entitlement to a hearing.

In Kumar, the MRT issued an invitation to comment on adverse information by a certain date. Seven days later, it issued an invitation to attend a hearing. It cancelled the hearing because the applicant had responded to the invitation to comment three days after the specified due date. Driver FM held that the Tribunal was not legally entitled to cancel a hearing in such circumstances.

Driver FM held that if an applicant was invited to a hearing before the time to respond to the invitation to comment had expired, the Tribunal could not rescind that invitation. The Tribunal’s invitation to attend a hearing was validly issued at the time.

In Hasran v MIAC,16 MIMIA v Sun17 and M v MIMA,18 it was decided that the Tribunal could not invite an applicant to attend a hearing once the time to respond to an invitation to comment had passed. However, Driver FM distinguished those cases on the basis that no hearing invitation had been issued: at [55]. At [50], His Honour further pointed out:

“It is also true that s363A provides that the Tribunal does not have the power to permit a person to do something that he or she is not entitled to do. It follows that if the Tribunal is not authorised to issue a hearing invitation, an applicant is not entitled to attend a hearing. It does not follow, however, in my view that an applicant is not entitled to attend a hearing to which he or she has been lawfully invited.”

His Honour noted that the hearing opportunity is central to the review process and a fundamental guarantee of procedural fairness. In depriving the applicant of a hearing, “the Tribunal caused actual unfairness because Mr Kumar was deprived of the opportunity of persuading the Tribunal that there existed exceptional circumstances bearing on the discretion to cancel his visa”: at [51]. A failure to respond to an invitation to comment issued pursuant to s359A meant that the Tribunal could make a decision without taking any further action to obtain the applicant’s views, but did not authorise the Tribunal to make a decision without regard to action already taken to obtain the applicant’s views, such as a hearing invitation: at [49]. Section 363A did not prevent the Tribunal from holding a hearing, as it had the power to issue a hearing invitation at the relevant time. The Minister did not appeal against Driver FM’s decision in Kumar.

In Giri, Cameron FM held that s360(3) operated to disentitle the applicant from the right to a hearing when the applicant failed to respond to an invitation to comment, regardless of whether a hearing invitation had been issued or not: at [21]. He found that the cases of M, Sun and Hasran did not support Driver FM’s construction of s360. In Hasran, the Full Court held that a failure to respond to an invitation to comment triggered the cascading operation of ss359C, 360(2) and 360(3). As the applicant had failed to respond within the time specified, he was a person to whom s359C(2) applied. This attracted the operation of s360(3), which disentitled the applicant from appearing at a hearing. This in turn attracted s363A, which disempowered the Tribunal from permitting the applicant to attend a hearing: at 417[26-2].

In Nam, Riley FM concluded (at [13]) that Cameron FM’s decision was correct, for the same reasons as stated in Cameron FM’s decision.

Although Cameron FM’s decision in Giri was appealed to the Federal Court, the appellant did not appear at the hearing of the matter before Greenwood J. In relation to Driver FM’s approach to ss359A and 360, in dismissing the appeal, his Honour remarked:

“For my own part, there seems to be at least some force in this approach to ss360, 363A and 359C. However, the construction of these sections has been definitively established by the Full Court of this Court in Hasran as a matter of principle both in terms of the approach to construction in Hasran itself and the affirmation by the Full Court in Hasran of the reasoning in M. Since that approach to construction has been adopted by a Full Court of this Court, the decision must be applied and followed”: at [46].

Practical implications

It is possible that this issue will be revisited if the Full Court can be persuaded that Hasran was wrongly decided. As the case of Nam shows, the practice of issuing invitations to comment and invitations to a hearing at the same time seems to the writer to be rather confusing and contradictory.19

Invitations to comment typically state that the Tribunal has not made up its mind about the adverse information, whereas hearing invitations typically state that the Tribunal is unable to make a favourable decision on the material before it. It appears peculiar that the Tribunal has come to that conclusion before it has had a chance to consider the applicant’s response to the invitation to comment.

Subject to their client’s instructions, practitioners should always respond to an invitation to comment as fully as possible, or seek an extension of time before the time specified for response expires. Regulation 4.18 of the Migration Regulations 1994 prescribes the periods by which the time can be extended. As the extension applies from the time the request is received, it is desirable to make the request shortly before expiry of the date specified for the response.20

However, the ability to respond to an invitation to comment may well be contingent on the applicant’s capacity to pay for professional assistance with the response. The decision in MIAC v Saba Bros Tiling Pty Ltd21 shows that a brief response to the effect that the applicant prefers to proceed to an oral hearing can satisfy the requirements of s359A, as the legislation does not stipulate any minimum quality standard for responses: at [29]–[32]. It was held to be a jurisdictional error for the MRT to proceed to a negative decision without holding a hearing.

Even if the right to a hearing has been lost, applicants can still make written submissions and provide further documents to the Tribunal.22

The Explanatory Memorandum to the Migration Legislation Amendment Bill (No. 1) 1998, which introduced the current versions of ss359C, 360, 424C and 425, stated that the amendments were intended to prevent tribunal hearings from being unnecessarily delayed, and in relation to ss359C and 360, the purpose “is to allow the Tribunal to make a decision without any delay if the applicant fails to respond to a request for further information or comment within the prescribed period”.23 Although the aim of these provisions is to expedite the review process, there is nothing in the Explanatory Memorandum that suggests that it was intended that the two procedures were to be conducted simultaneously. The provisions were inserted to enable the Tribunal to proceed to a decision without seeking further information or holding a hearing if the applicant did not respond to an invitation to comment. The present construction of the provisions fulfills the statutory objectives of being economical and quick but, in the writer’s view, not the objectives of being just and fair. As the appellant was not present or represented before Greenwood J in Giri v MIAC24 it is arguable that the issue may not be definitively settled law and is therefore open to further challenge.

ROZ GERMOV is a member of the Victorian Bar practising extensively in immigration and refugee law, and a registered migration agent. She was a member of the Refugee Review Tribunal (Sydney, 1993–96) and acted as counsel for the applicant in Nam v MI.

1. Sections 353 and 420 of the Migration Act 1958 (Cth) (MA) respectively.

2. Sections 357A–367 (MRT) and 424A–429 (RRT).

3. Sections 357A (MRT) and 424A (RRT).

4. S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2; SAAP v MIMIA [2005] HCA 24; (2005) 215 ALR 162.

5. Sections 360 (MRT) and 425 (RRT).

6. Sections 359A(1) (MRT), 424A(1) (RRT).

7. Sections 359A and 360 (MRT) and 424A and 425 (RRT).

8. [2006] FMCA 1718 at [17].

9. Note 4 above.

10. [2004] FCA 268 [32].

11. Giri v MIAC [2011] FCA 928, upholding the Federal Magistrates Court decision in Giri v MI [2011] FMCA 282.

12. [2011] FMCA 340.

13. The RRT has an equivalent provision in s424C(2).

14. Section 425(2)(c) for the RRT.

15. [2010] FMCA 614.

16. [2010] FCAFC 40; (2010) 183 FCR 413.

17. (2005) 146 FCR 498.

18. (2006) 155 FCR 333.

19. In Nam, the applicant received the two invitations on the same day and his representative sought an adjournment of the hearing until after the Christmas holiday period. The request was refused but the MRT extended the time to respond to the invitation to comment until Christmas Eve. There was no response to the invitation to comment because the applicant and his representative were under the impression that the hearing would take place in the first week of January given that the MRT had refused the adjournment. However, the MRT affirmed the decision on 31 December.

20. See regs 4.35 and 4.35A–4.35C for the RRT.

21. [2011] FCA 233.

22. Sections 358 (MRT) and 423 (RRT).

23. Schedule 1, item 22; similar amendments were made in relation to the RRT: Sch 3, item 6.

24. Note 11 above.


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