Australian Immigration Daily News

Is there a difference between being given an opportunity to “comment” on adverse information at a merits review hearing before the Administrative Appeals Tribunal (formerly the Migration Review Tribunal) and being given the opportunity to “respond” to that information? 

And if there is a difference, what difference does it make? 

Judge Cameron of the Federal Circuit Court of Australia was called upon to answer these questions in the case of Shrivastava v Minister for Immigration & Anor, (2015) FCCA 483 (10 March 2015). 

The answers that His Honour provided in his judgment are important for any RMA who is representing a client before the AAT. For even though perhaps in “ordinary speech”, there may seem to be little difference between “commenting” and “responding”, for the purposes of the Migration Act there is actually a huge and important difference!  As the case illustrates, if the AAT affords only an opportunity to comment, rather than to respond, it may deprive a visa applicant of “procedural fairness”. The Tribunal may thus commit jurisdictional error, which could lead to the decision made by the Tribunal being vacated.

The Court’s decision in the Shrivastava case involved the interpretation of section 359AA of the Migration Act.

This section of the Act provides that at a hearing, the Tribunal may orally give the applicant “clear particulars of any information that (it) considers would be the reason or a part of the reason, for affirming the decision that is under review”.  Furthermore, section 359AA states that if the Tribunal provides this information to the applicant in oral form during the hearing, it must also invite the applicant to comment on or to “respond to” the information. Additionally, the section specifies that if the Tribunal member presents the adverse information in oral form at the hearing, it must also “advise the applicant that he or she may seek additional time to comment on or respond to the information” (including seeking an adjournment of the hearing).

The background of the Shrivastava case was that it involved an appeal against the Department’s refusal of a student visa application.

The visa applicant had provided letters containing financial information to the Department which were said to have been issued by the “chief manager” of a branch of the State Bank of India.  A departmental officer who had sought to verify the information in the letters called the bank branch and was told that the letters were fake and had not been issued by the branch, and, moreover, that the branch did not employ anyone in the role of a “chief manager”.

On the basis of the evidence provided by the bank during this call, the Departmental officer determined that the visa applicant had provided fraudulent information in support of his application.  The officer thus refused the application on the basis that the applicant did not satisfy Public Interest Criterion 4020, in that he had given, or caused to be given to the Department, bogus documents or information.

The visa applicant sought review of the refusal of his application, and, at the hearing before, the Tribunal member said the following words during his questioning of the applicant:

“All right. Well, I might just put that additional information to you pursuant to 4-2-4-3-5-9-A-A and you can comment. I, I did write to you, as I said I did write to you with the information that the department said they had talked to that branch and they’ve said that your documents were not true, were fake and were not issued by their branch. But the other thing that they did actually say was that they do not have anyone with a chief manager title in their, in that branch. Now, this is relevant because it may indicate to me that these documents which are all, have all been purportedly written by the chief manager or sorry, not by the chief manager, they’re not true. So that, that may mean that I, I would find that there is evidence that suggests that the documents aren’t true. Would you like to comment on what I’ve said now or….would you like a little break to think about what I said or would you like to comment in writing”    (emphasis added).

This choice of words led the Court to find that the Tribunal member had failed to comply with the requirements of section 359AA and that the Tribunal had therefore committed jurisdictional error.

It is noteworthy that the “invitation” given by the Tribunal member was limited to allowing the visa applicant to “comment on” the adverse information, and did not go further and allow the applicant to “respond to” the information.

Judge Cameron found that there is a genuine, legally significant difference between an invitation simply to “comment on” information and an invitation to “respond to” that information. His Honour held that, although the words “comment on” and “respond to” may appear to mean “much the same thing”, the differences are “material”.  In Judge Cameron’s view, the concept of “commenting” is narrower than the concept of “responding to” adverse information, with “commenting” being restricted in meaning to “offering commentary”, while “responding to” implying a right to “put more substantial material before the Tribunal” or to submit evidence “in rebuttal of the adverse information”.

Accordingly, Judge Cameron found that because the Tribunal member had not provided the applicant with an invitation to “respond to” the adverse information about the genuineness of the letters said to have been from the bank branch, in express terms the Tribunal had failed to comply with its obligation to provide the applicant with procedural fairness. 

Furthermore, Judge Cameron found that the Tribunal had also failed to comply with its duty under section 359AA to advise the applicant that he could seek additional time to respond to the adverse information.  His Honour determined that the words that were spoken by the Tribunal member a) asking the applicant if he wanted to comment on the adverse information straight away; b) whether he would like a “little break” to think about the adverse information; and c) whether he would like to comment on the adverse information in writing fell short of the requirement to positively inform the applicant that he had the right to seek additional time to comment on or respond to the information.  Therefore, by failing to tell the applicant, in exact words, that he could seek additional time to comment or respond, the Tribunal committed a second jurisdictional error that required its decision affirming the refusal of the visa application to be vacated. 

The result in this case highlights that the courts place great emphasis on safeguarding the rights of visa applicants to “procedural fairness”.  When it is apparent that there has been a failure on the part of the merits review tribunal to comply with statutory provisions that are designed to give applicants such rights to “due process” or natural justice”, the decision of the AAT is very likely to be overturned on the grounds of “jurisdictional error”.  

As readers of this blog will be aware, a RMA's ability to participate actively in a hearing before the AAT is extremely limited, especially compared to “usual” legal proceedings. Nonetheless, a RMA can certainly closely monitor the way in which a hearing before the AAT is conducted, and should at least formally state objections on the record in circumstances where it is clear that the Tribunal member is not complying with provisions of the Act relating to “procedural fairness”. 

 Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837