Consequences? Failure To Reply To Invitation To Comment or response from the Administrative Appeals

Requests for information, comment or response from the Administrative Appeals Tribunal
Exhausting the natural justice hearing rule

A feature of merits review under both Part 5 and Part 7 is that both are governed by an “exhaustive statement of the natural justice hearing rule” – ss 357A and 422B respectively. In both cases the effect is to replace the common law rule, which requires that a person affected by a decision must be given a real opportunity to know the case against them and to respond to any adverse information, with a formal set of procedures for the Tribunal to follow. If those procedures are correctly followed, then natural justice has been provided. Of course, if they are not correctly followed, then the Tribunal may be found to have fallen into jurisdictional error – SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.

Requests for information

The Tribunal may request a person to provide information, either in writing or orally – ss 359 and 424. In SZLPO v Minister for Immigration [2009] FCAFC 51 the Full Federal Court held at [110]-[114] that a document was not “information” within the meaning of MA 424. As a general rule, the Tribunal is not under any legal obligation to make inquiries using these powers – WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277. However, there may be circumstances in which failure to do so would constitute jurisdictional error. In Wei v Minister for Immigration and Border Protection [2015] HCA 51 Nettle J at [49] considered the authorities on this point.

Requests for comment or response

The Tribunal must invite the applicant to comment on or respond to information which the Tribunal considers may be the reason or part of the reason for affirming the decision under review (ss 359A and 359AA for Part 5 reviews, 424A and 424AA for Part 7), unless it comes under certain exemptions applying to information:

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

that the applicant gave for the purpose of the application for review; or

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

that is non‑disclosable information.

The term “non-disclosable information” is defined in s 5:

non‑disclosable information means information or matter:

whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:

prejudice the security, defence or international relations of Australia; or

involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or

whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or

whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;

and includes any document containing, or any record of, such information or matter.

In Minister for Immigration and Citizenship v Kumar [2009] HCA 10 the High Court held that para (c) of the definition would cover any information given to the Minister in confidence, to the extent that disclosure would have prevented the information being given. That would usually cover the identity of the informant, at least.

In Minister for Immigration and Citizenship v Saba Bros [2011] FCA 233 Jagot J of the Federal Court, on appeal, held that a bare response to information was enough to comply with s 359A, even without any substantial comment.

Information given by the applicant – the delegate’s decision record

In Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 the Federal Court held that where a copy of the delegate’s reasons had been given to the Tribunal by the applicant, any information contained in those reasons was information that the applicant had given to the Tribunal and therefore was exempt from the provisions of s 359A, with the result that the Tribunal was not required to comply with the requirements of that section with respect to such information. In AYZ15 v Minister for Immigration and Border Protection [2017] FCA 77 the same interpretation was applied to Part 7 reviews under s 424A. It is not a legal requirement when applying for merits review under Part 5 or Part 7 that the delegate’s statement of reasons be given to the Tribunal by the applicant.

Time limits for reply

Strict time limits for response apply – s 359B and regs 4.17 to 4.18 for Part 5 reviews; s 424B and regs 4.35 to 4.35A for Part 7 reviews. The Tribunal may extend the time for response for a further prescribed period.

The initial period runs from the date of notice. If an extension is requested, the legislation stipulates that it is to run from the date the applicant is notified of the Tribunal’s decision to extend time – regs 4.18A(4) and 4.18B(4) for Part 5, 4.35B(2) and 4.35C(2) for Part 7. This would mean that if the extension is requested and granted before the initial period expires, the extended period or part of it will run concurrently with the original period.

In Bautista v Minister for Immigration and Border Protection [2018] FCA 1114 Collier J found reg 4.18A to be arbitrary in its operation and at [53] declared it to be invalid. Her Honour said at [78] that, absent any validly prescribed further period, the Tribunal must use its discretion to set the period of extension. This would apply by analogy to reg 4.35B for Part 7.

In calculating the periods, the day of notice is not counted, and if the final day falls on a day that is not a business day the response can be given on the next business day – Acts Interpretation Act s 36.

Failure to respond to a request

A very important aspect of the Tribunal’s powers to request information, or comment or response, is that a failure to comply with a request under any of these provisions means that the applicant is no longer entitled to a hearing before the Tribunal – ss 359C and 424C.

In Part 5 reviews, the fact that the applicant is not entitled to a hearing means that the Tribunal is prevented from conducting a hearing – s 363A. There is no equivalent to this stipulation in Part 7, meaning that the Tribunal in Part 7 reviews still has a discretion whether to invite the applicant to a hearing or not.

Losing the right to a hearing can seriously damage an applicant’s chances of success in the appeal, but the Tribunal is still obliged to consider all of the evidence before it and its decision can be challenged in the Courts if it was affected by jurisdictional error – Bajwa v Minister for Immigration [2018] FCCA 3995.