Australian Immigration Daily News

Under what circumstances can an applicant lose the right to appear at a hearing before the Tribunal?

Does a failure to give information, comments or response to a written invitation from the Tribunal within the time period specified by the Tribunal always result in the forfeiture of the right to a hearing?

This very important question concerning the procedural rights of applicants before the Tribunal was “re-visited” last week in a case that was decided by the Full Court of the Federal Court, Singh v Minister for Immigration and Border Protection (2017) FCAFC 67 (27 April 2017).

As readers will be aware, section 360(1) of the Migration Act requires the Tribunal to invite applicants to appear to give evidence and present arguments relating to the decision under review.

However, exceptions to this obligation on the part of the Tribunal to allow an applicant to appear are stated at section 360(2).

This section provides that the Tribunal doesn’t have to allow an applicant to appear if:

• The Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before  it (that is to say, the Tribunal considers that it should decide the merits review application favourably “on the papers”);
• The applicant consents to the Tribunal’s deciding the case without the applicant’s appearing before the Tribunal; or
• The applicant is subject to subsections 359C(1) or (2)

Subsection 359C(1) describes a situation where an applicant has been given a written invitation under section 359 to give information to the Tribunal and does not give that information to the Tribunal within the time specified by the Tribunal.

Likewise, subsection 359C(2) describes a situation where an applicant has been given an invitation under section 359A to comment or respond on information that the Tribunal considers to be the reason or a part of the reason for affirming the decision under review, and the applicant does not give comments or respond before the time given by the Tribunal has passed.

What about a situation, though, where the Tribunal has invited an applicant to appear at a hearing, and then, after the hearing invitation has been issued, the Tribunal then issues an invitation to the applicant under section 359A, and the applicant does not respond within the period allowed?

Does the failure to respond necessarily extinguish, or “wipe out”, an applicant’s entitlement to appear at a hearing before the Tribunal?

Or is it the case, as was argued by the applicant in the Singh case, that once a hearing invitation has been issued,  an applicant has an “accrued right” to a hearing, even if the applicant fails to respond to the invitation from the Tribunal to comment or respond?

In other words, is there a “temporal limitation” such that once a hearing invitation has been issued under section 360(1), the right to a hearing simply cannot be lost by reason of a failure to respond to a written information to give information under section 359, or to a written information to comment or respond under section 359A?

The answer given to this question by the Full Court in Singh is that the issuance of a hearing invitation does not confer upon an applicant an “accrued” or “fixed” right to a hearing.

Failure to respond to the invitation within the time specified by the Tribunal will result in the loss of the right to a hearing, even if a hearing invitation has been issued.

The Full Court arrived at this conclusion by having regard to sections 360(3) and 363A of the Act.

Subsection 360(3) provides that if subsection 360(2) applies – that is, that if the applicant has not given the information, comments or response in reply to an invitation, then the applicant has no entitlement to appear before the Tribunal.

And section 363A provides that if a provision of Part 5 of the Act, relating to Part 5 reviewable decisions, states that a person is not entitled to do something, then the Tribunal has no power to permit the person to do that thing.  Effectively, then,  since 360(3) says that a person is not entitled to appear before the Tribunal if she/he does not provide information, comments or response within the time specified by the Tribunal, then the Tribunal has no power to allow that person to appear at a hearing.

This latest decision follows, and is consistent with 3 earlier court decisions that also address the issue of the loss of the right to a hearing:

• Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) FCAFC 201. In this case the applicant asked for more time to respond to a s 359A invitation to comment after  the time specified for a response had expired; at the time of the invitation to comment no invitation to appear at a hearing had been issued. Although the Tribunal had allowed more time for the response, the Full Court held that the failure to respond within the original time period specified by the Tribunal resulted in the applicant’s loss of the right to appear at a hearing.
• In M v Minister for Immigration and Multicultural Affairs (2006)  FCA 1247 a hearing invitation was originally issued under s 360(1); the hearing date was then vacated; a request for information was then made under s 359; and the time limit for giving the additional information to the Tribunal under 359 was not complied with.  It was held that the entitlement to a hearing had been lost and the Tribunal had no power to allow the applicant to appear.
• In Hasran v Minister for Immigration and Citizenship (2010) FCAFC 40 a comment invitation was issued under s 359A and was not responded to within time, with no hearing invitation having been issued. The Full Court held that Sun and M had correctly interpreted s 363A, namely that when requests for information, comment or response are issued under 359 or 359A and not answered within the time allowed, the Tribunal does not have power to allow an applicant to appear at a hearing.

Bottom line: failure to provide a timely reply to an invitation for information, comment or response under either s 359 or s 359A will result in an irretrievable loss of an applicant’s right to appear at a hearing before the Tribunal.

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