Australian Immigration Daily News

 How much time do you have to respond to a “section 359A” letter from the Administrative  Appeals Tribunal?

Recall that section 359A of the Migration Act  requires the Tribunal to give a visa applicant clear particulars of any information that it considers would be the reason, or part of the reason, for affirming the refusal of a visa application and to invite the applicant to comment on or respond to the information.

Recall further that section 359C provides that if an applicant is invited to comment on or respond to information under section 359A and does not do so within the time given to do so, then the Tribunal may proceed to make a decision on the review.

Additionally, under section 360 of the Act, if an applicant does not provide comments or respond to a 359A letter within the allowable period, then the applicant has no right to a hearing before the Tribunal.

So, knowing how much time you have to respond to a section 359A letter is extremely consequential – if you don’t respond within the allowable time, then your client will lose her/his right to a hearing due to the combined operation of sections 359C and 360.

How about something a bit more complex?  Suppose you have asked the Tribunal for an extension of time to submit comments or respond to information pursuant to a section 359A letter – how much time do you have then?

This question lies at the heart of what might seem to be a “technical” decision in the recently decided case of Bautista v Minister for Immigration and Border Protection (2018) FCA 1114 (27 July 2018).

The factual scenario of the case was as follows:

The applicant had sought a “permanent partner visa”.

The Department refused the application on the basis that the applicant was no longer in a spousal relationship with her sponsor.

After the applicant had sought merits review of the refusal, the Tribunal sent a letter to her under section 359A giving some “particulars” of the facts relating to the alleged cessation of the spousal relationship.

This original letter was sent to the applicant on 29 July 2014.  It specified that a response to the letter had to be received within 14 days, or by 12 August 2014. This 14 day period for providing a response to a section 359A letter is specified by regulation 4.17.

Here is the complexity:  on 7 August 2014, still within the 14 day period for responding to the 359A letter, the applicant’s migration agent sought a 14-day extension of time.

The Tribunal granted an extension. However, the extension of time was given only for a period of 14 days from the date that the extension of time was requested – until 21 August 2014 – and not from the expiration of the original deadline for responding (14 days from 29 July 2014, or 12 August). 

Had a 14 day extension of time been granted from the expiration of the original deadline for responding to the 359A letter, the response would have been due by 26 August.

In the event, the applicant’s response to the  359A letter was not received by the Tribunal until 22 August 2014. This submission was thus  made after  the extended deadline of 21 August 2014.

The Tribunal thus concluded that since the applicant had not responded to the section 359A letter within the extended period it had specified for giving a reply, the applicant had lost her rights to a hearing under section 360. So the Tribunal proceeded to affirm the refusal of the visa application. 

In the Federal Court (after an initial unsuccessful application for judicial review in the Federal Circuit Court) the applicant contended that the regulation upon which the Tribunal had relied to grant the initial extension of time of 14 days from the date that the request for the request had been made (7 August 2014) – regulation 4.18(4) - was invalid due to its inconsistency with section 359B of the Migration Act.

The Court (Justice Collier) reasoned that section 359B, by its express terms, empowers the Tribunal to grant a “further” period to an applicant to respond to a section 359A letter.  The Court found that regulation 4.18(4) is potentially inconsistent with section 359B, because, in certain circumstances, it may prevent the Tribunal from granting an extension of time (namely, if the request for extension of time is sought and granted on the same day that the 359A letter is received, for in that scenario the applicant would only have a total of 14 days from the receipt of the 359A letter to respond or submit comment on the information in the 349A letter). 

Accordingly, Justice Collier accepted the applicant’s submission that regulation 4.18(4) is invalid because it may prevent the Tribunal from granting an extension of time in which to respond to a 359A letter.

The practical implications of this ruling are that when an extension of time for responding to a 359A letter is granted, the time period for responding should run from the end of the initial 14 day period, and not from the date that the request for an extension of time is granted (as occurred in this case).

The Court also found in Bautista that the Tribunal had mistakenly concluded that the applicant had lost her right to a hearing because she had not responded to the 359A letter within the time period that had been allowed by the Tribunal.  This was because regulation 4.18(4) does not specify any specific period of time by which the Tribunal may extend the time for responding to the 359A letter.  Therefore, as a matter of law, the time period for responding had not actually “expired”, and so there was therefore no failure on the part of the applicant to file a timely response.

The moral of the story is that when an applicant seeks an extension of time to reply to a 359A letter, and the Tribunal does not grant an extension of time that runs from the expiration of the 14 day period initially granted to the applicant to respond, and where the Tribunal then concludes that the applicant had lost her/his right to a hearing by virtue of failure to respond timely to the 359A letter, there is a prospect that the Tribunal has committed jurisdictional error.

All perhaps somewhat “intricate” and “technical”, but important nonetheless, as the ultimate issue here is preserving the applicant’s entitlement to a hearing.