Are the Section 359 notices from the AAT Valid? Have applicants been wrongly denied an oral hearing?
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law 20 August 2021
I have come to the conclusion that there is a serious doubt as to whether the so-called Section 359 notices are valid for the purpose of stymying the right to an oral hearing before the AAT (the Administrative Appeal Tribunal). In this blog I focus on notices purportedly delivered by email.
It may mean that many people may have been wrongly denied a hearing by the AAT. As always the information seeking regime of the AAT is complex.
Section 359 states, as relevant:
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies — by one of the methods specified in section 379A; or
The Tribunal, of course is the Administrative Appeals Tribunal which means one must go to the Administrative Appeals Tribunal Act to determine who has authority to do something as the “Tribunal”. Here we start with Section 3:
“Tribunal:
(a) means the Administrative Appeals Tribunal established by this Act; &
(b) in relation to a proceeding, means the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding; &
(c) includes a member, or an officer of the Tribunal, exercising powers of the Tribunal.”
An “an officer of the Tribunal” is defined in s24PA of the AAT Act as:
“The Registrar may, by writing, appoint a person to be an officer of the Tribunal if:
(a) the person is:
(i) a member of the staff of the Tribunal referred to in subsection 24N(1); or
(ii) an APS employee made available to the Tribunal; or
(iii) …; &
(b) the Registrar is satisfied that the person has appropriate qualifications and experience.”
All these supposed section 359 notices are sent by email which then brings in s379A which says:
“Transmission by fax, email or other electronic means
(5) Another method consists of a member or an officer of the Tribunal, transmitting the document by:
(b) email; or
to:
(d) the .., email address.., provided to the Tribunal by the recipient in connection with the review;”
So these s359 notices cannot be sent by a junior staff member. These notices are often not signed and the notices themselves don’t say that the notice is issued by either a member or an officer of the Tribunal.
The notices themselves don’t even say that the notice is issued under s359.
IDF Callian QC AC (former Justice of the High Court of Australia) stated in his report to the Commonwealth Attorney-General, “Review: section 4 of the Tribunals Amalgamation Act 2015 (CTH)” dated, 18 December 2018:
1.6: “The Members have made an affirmation or oath of office. The expectation of the community would be that a Member and not a Public Servant conduct every episode (event) of an applicant’s application.”
There is no warrant therefore to allow junior staff who are not ‘officers’ to do things as the ‘Tribunal’.
In my experience the AAT is trigger happy about using s359C which states:
Section 359C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; &
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
In summary these s359 notices appear to be done by junior staff, are unsigned and don’t even claim to be notices under s359. Hence in my view these notices are not valid and don’t activate s359C. In my view many applicants may have been improperly denied a hearing.
These notice provisions need to be interpreted & applied strictly. Years ago I had a case involving notices sent by post where the sloppy procedures of Immigration were revealed. The case was Han v Minister for Immigration [2007] FMCA 246 . There the court said:
“22.As s.494B(4)(a) makes clear, however, the dispatch of the relevant document must take place within three days of the date of the document. There is no express finding by the tribunal that the decision letter was dispatched within three days of the date expressed on its face. Such a finding is implicit in the tribunal's reasons – that must be so because without such a finding, there can be no finding that the letter was given to the applicant by one of the methods prescribed by s.494B.
23.There was, however, simply no evidence before the tribunal that supports such a finding. The material that was before the tribunal permitted of a finding that the decision letter had been dated (s.494B(4)) & that it had been dispatched by prepaid post (s.494B(4)(b)) to the last address for service provided to the first respondent by the applicant for the purposes of receiving documents (s.494(4)(c)(i)). But there was nothing that would permit of any inference that the dispatch took place within three days of the date of the letter.
24.The error operated so as to lead the tribunal to deny itself jurisdiction.”
The same concept probably applies to these s359 notices sent by email in the sense that they may not have complied with ss359 and 379A.
Because of the consequences for not complying with a s359, it follows that the AAT itself must strictly comply with the procedures for sending out a notice under s359! A useful analogy of the approach which needs to be taken in such cases, is to properly understand what is done to people as a result of the an unfair and unjust application of ss 359, 359C, 379A & 379C, are the words of the Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188:
37.The Minister’s obligation to engage in an active intellectual process with significant & clearly expressed relevant representations made in support of a revocation request is also consistent with the following observations of the Chief Justice in Hands v Minister for Immigration & Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed):
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form & shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation & the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression & pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
(Emphasis added).
Devasting consequences flow from denying a right to a hearing for an applicant before the tribunal.