AAT invitation to provide information, including documents, under s 359 must be complied. If you failed to comply with the AAT invitation to provide information, the Tribunal may make a decision on your review application without taking further action to obtain the information. You will lose any entitlement to appear before the Tribunal to give evidence and present arguments.
Even if the AAT does not send you an invitation to provide information, you may give to the Tribunal a written statement in relation to any matter of fact that you wish the Tribunal to consider (s 358(1)(a)). You or your immigration lawyer may also provide written arguments relating to the issues arising to the decision under review (s 358(1)(b)).
If the Tribunal issue you a s 359 AAT invitation to provide information, it must have regard to that information in making its decision (s 359(1)). The AAT may invite, either orally (including by telephone) or in writing, you to give information (s 359(2)). If the Tribunal issue you a s 359 invitation to provide information, it must use one of the methods specified in s 379A (for e.g., by hand or handing to a person at your last residential or business address or by prepaid post or similar means or by fax or email or other electronic means) (s 359(3)(a)). The Tribunal will also advise you the specified way which the information you may give to it (s 359B(1)).
If you are issued with a s 359 AAT invitation to provide information and failed to provide that information within the prescribed period listed in the invitation (s 359B(2)), the Tribunal may make a decision without taking any further action (s 359C(1)).
If you failed to comply with the AAT invitation to provide information, you will lose your right to appear before the Tribunal (s 360(3)). Usually s 360(1) requires the AAT to invite you to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. However, s 360(2)(c) states if you are affected by s 359C(1) because your failed to comply with the AAT invitation to provide information, you will not be entitled to appear before the Tribunal (s 360(3)).
If you failed to comply with the AAT invitation to provide information, the Tribunal does not have power to permit you to appear before it (s 363A): Hasran v MIAC [2010] FCAFC 40.
You should be aware that the Tribunal does not make your case; it is for you to satisfy the Tribunal and meet the requirements of the Migration Act and Migration Regulations. In short, you must provide as much detail as is necessary to enable the Tribunal to establish the relevant facts.
Sometimes the Tribunal may also issue you a written s 359A AAT invitation to provide information or comment if it consider there are clear particulars that it considers would be the reason, or a part of the reason, for affirming the decision under review (s 359A(1)(a)).
Sometimes when you are appearing before the Tribunal, it may also issue you a s 359AA AAT invitation to provide information or comment if it consider there are clear particulars that it considers would be the reason, or a part of the reason, for affirming the decision under review (s 359AA(1)).
Failing to comply with ss 359A and 359AA have the same consequences.
In short, a failure to respond to the AAT invitation to provide information will cascade the operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A (Hasran v MIAC [2010] FCAFC 40 at [27]).
By not responding to the AAT invitation to provide information or comment will cause s 359C(2) to apply to you. This in turn will cause s 360(3) to apply. This effect will cause you to lose your entitlement to appear before the Tribunal. And s 360(3) will cause s 363A to apply to the Tribunal, that is, the Tribunal does not have power to permit you to appear at an oral hearing (MIMIA v Sun (2005) 146 FCR 498).
If the AAT affirmed (refused) the Department decision to refuse you the visa or cancel your visa, you may apply to the Federal Circuit Court or FCC (click here to learn more).
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help prepare for your AAT hearing or deal with your AAT invitation to provide information or comment or click here to find how you may ask the AAT for an extension. If you are interested in applying for another visa, click here to find the right visa.
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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.
