FEDERAL COURT OF AUSTRALIA

Kohli v Minister for Immigration and Border Protection [2018] FCA 540

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The Applicant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding, Mr Sumit Kohli, first arrived in Australia in February 2009. He is a citizen of India.

2    In August 2016, he was convicted of two offences relating to the driving of a motor vehicle whilst intoxicated and driving whilst disqualified.

3    Also in August 2016, the Department of Immigration and Border Protection notified Mr Kohli of the cancellation of his then visa under s 501(3A) of the Migration Act 1958 (Cth). In February 2017, a delegate of the Minister notified him that a decision was made not to revoke the cancellation of the visa.

4    An application was made to the Administrative Appeals Tribunal seeking review of the February 2017 decision. Mr Kohli was unrepresented before the Tribunal, appearing on his own behalf. The day before the Tribunal hearing, the Respondent Minister caused to be provided to Mr Kohli a “package … that … contained more than 200 pages of documents relating to [his] criminal record and dealings with the police”. In August 2017, the Tribunal affirmed the decision under review: Re Kohli and Minister for Immigration and Border Protection [2017] AATA 1326.

5    In September 2017, Mr Kohli then filed in this Court an Originating Application for Review of a Migration Decision.

6    The First Respondent is the Minister for Immigration and Border Protection (the “Minister”); the Second Respondent, namely the Administrative Appeals Tribunal (the “Tribunal), has filed a submitting appearance save as to costs.

7    Mr Kohli appeared before this Court represented by a Solicitor; the Minister appeared represented by Counsel.

8    The Originating Application is to be dismissed with costs.

The Grounds of Review

9    The two Grounds as set forth in the Originating Application were there stated to be as follows:

Grounds of application

1.    The Tribunal denied the Applicant a proper hearing.

Particulars

The Tribunal was aware that the Applicant had been provided on the day before the hearing with a substantial amount of evidence obtained by the Minister. The Tribunal did not inquire as to whether the Applicant had been able to properly consider that evidence or would require further time to do so.

2.    The Tribunal exceeded its jurisdiction by proceeding with the hearing in breach of a fundamental right of the Applicant.

Particulars

The Minister’s representative asked the Applicant whether he had committed certain offences for which he had not been charged. The Tribunal allowed the questioning to proceed without advising the Applicant of his right to decline to answer those questions for the reason that the answers might incriminate him. It is not within the Tribunal’s jurisdiction to conduct a hearing in a manner which denies an Applicant such a fundamental legal right.

Fundamental to both Grounds are questions as to the extent to which the Tribunal should make inquiries of an unrepresented party or take steps to advise an unrepresented party of his rights.

A denial of procedural fairness

10    The first of the two Grounds relied upon in the Originating Application has two aspects to it, namely:

    the provision of a substantial volume of material by the Respondent Minister to Mr Kohli, who was then in custody, the day before the hearing was scheduled to commence; and

    the failure on the part of the Tribunal to make an inquiry as to whether Mr Kohli had had an adequate amount of time to consider the material.

It is concluded that this first Ground has not been made out.

11    It was common ground in the present proceeding that the Tribunal was required to comply with the rules of procedural fairness: see Kioa v West (1985) 159 CLR 550 at 584 per Mason J; Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442 at 454 to 455 per Lockhart, Wilcox and Burchett JJ. Indeed, s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) only reinforces that requirement by expressly providing that the Tribunal is to “ensure that every party to a proceeding … is given a reasonable opportunity to present his or her case”. That requirement, it has long been recognised, is not to ensure that a party takes the best advantage of the opportunity; the requirement is to ensure that a party is given a “reasonable” opportunity to present his case: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J (“Sullivan”).

12    There is potential difficulty in giving content to such common law and statutory requirements.

13    As a general proposition, the content of the common law requirement of procedural fairness (as too with the content of the requirement imposed by s 39) inevitably depends upon the facts and circumstances of any individual case. Those circumstances would include the complexity of the legal and factual issues posed for resolution; the nature and extent of any personal difficulty confronting any particular party; and the relevance or impact of any particular procedure or aspect of the hearing upon the final conclusion reached. In Abram v Bank of New Zealand [1996] ATPR 41-507, Hill, Tamberlin and Sundberg JJ made the following observations as to the appropriate steps that a judge should take in respect to an unrepresented litigant (at 42,347):

What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.

14    If reference is made to the requirement imposed by s 39 of the Administrative Appeals Tribunal Act, it has been concluded that that section may require the Tribunal to itself ask questions of relevance to any particular concern it may have: Teuila v Minister for Immigration and Citizenship [2012] FCAFC 171 at [20], (2012) 59 AAR 98 at 104 to 105 per Edmonds, Flick and McKerracher JJ.

15    The New South Wales Court of Appeal has concluded that a party has been denied a reasonable opportunity to present his case before the Administrative Decisions Tribunal of that State in circumstances where there had been a misunderstanding as to directions given by the Tribunal, which meant that the party was not afforded an opportunity to make submissions on a critical issue: Jones v Ekermawi [2009] NSWCA 388.

16    The circumstances in which a party has been held not to have been given a reasonable opportunity to present his case, accordingly, are as various as the facts themselves.

17    Of present importance, however, is the requirement imposed by s 39 upon the Tribunal to “ensure” that a party is afforded a reasonable opportunity to present his case. The section imposes upon the Tribunal a requirement not only to conduct a hearing in a procedurally fair manner but to “ensure” that a party has such an opportunity. The Tribunal, at least to this extent, is not a passive by-stander in the hearing as it progresses; it is the body entrusted with the responsibility to “ensure” that a party has a reasonable opportunity to present his case.

18    Such a requirement is not surprising. It has also been recognised as potentially forming, in an appropriate case, a requirement of a fair hearing in a court: Titan v Babic (1994) 49 FCR 546. Mr Titan was a passenger in a motor vehicle which was involved in a collision. Damages were claimed. A Master of the Supreme Court of the Australian Capital Territory awarded Mr Titan $61,500 in damages. Mr Titan unsuccessfully appealed to the Full Court of the Supreme Court of the Australian Capital Territory. One of the ground relied upon was procedural error on the part of the Master in allowing or insisting that the matter proceed to finality where the hearing date ought to have been vacated or adjourned. In dismissing an appeal from the decision of the Full Court of the Supreme Court to this Court, Northrop, Neaves, Ryan, French and O’Loughlin JJ contemplated the prospect of requiring the making of inquiries of an unrepresented party as follows (at 554 to 555):

The question remains whether the Master should have allowed Mr Titan an adjournment to call witnesses. Where it is apparent that a party who does not have legal representation has misunderstood procedural requirements so that he or she is not in a position to complete the presentation of evidence, an adjournment might be considered in the interests of justice provided that no irreparable substantive or procedural injustice is done to the other party involved. In any such case the granting of an adjournment will be a matter of discretion. In this case there was no application for an adjournment nor does there seem to have been any intelligible explanation to the Master of Mr Titan’s failure to arrange his witnesses. It may be that in some cases a tribunal should, to avoid possible injustice, inquire of an unrepresented person the reason for the failure properly to prepare his or her case. Again, that is a matter of discretion limited by the necessity that the tribunal be, and appear to be, impartial as between the parties. This was not a case in which the Master was obliged to undertake such an inquiry. On the face of the record there was no procedural error on his part and the Full Court was correct in the way that it dealt with this issue. It follows that there was no occasion before the Full Court and none before this Court to receive the additional evidence which Mr Titan sought to tender.

19    The failure on the part of an unrepresented party to seek an adjournment does not, however, preclude an argument that he has nevertheless been denied the opportunity referred to in s 39: Sullivan (1978) 20 ALR 323 at 343. Deane J there observed (emphasis in original):

A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case ... The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment … In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.

20    The germ of a potential denial of procedural fairness in the present proceeding can be found in the service of the material upon Mr Kohli the day before the hearing without any indication given by the Respondent Minister as to the potential relevance of the material or any indication as to whether the Respondent Minister would be asking the Tribunal to consider the entirety of the material or only some parts of it.

21    This germ of a potential denial of procedural fairness began to take root when it emerged that the Tribunal at the outset of the hearing was aware that a substantial volume of material had been served upon Mr Kohli the day before but failed to make any inquiry of an unrepresented applicant as to whether he had had an adequate opportunity to consider that material. The making of such an inquiry would have been consistent with the requirement imposed by s 39(1) to “ensure” that he would be given a reasonable opportunity to present his case. But no such inquiry was made. In different circumstances, it may well be that the failure to make such an inquiry would amount to a departure from the requirement imposed by s 39(1).

22    But the germination of any potential denial of procedural fairness was considerably impaired when it emerged during the course of the hearing before the Tribunal that of the volume of material served upon Mr Kohli:

    much of that material he had seen before, being (for example) Court Attendance Notices,

and that, of the material he had not seen before, that material was substantially confined to:

    a six page Customised Report compiled by the New South Wales Police Force; and

    two Alcohol and Other Drug Residential Rehabilitation Assessment Reports (one dated 20 June 2016 and the other dated 23 August 2016).

23    The strengths of the argument advanced on behalf of Mr Kohli centred upon the following facts:

    that he was in custody with limited opportunity to consider the volume of material served upon him, that opportunity including an opportunity to distil from the material served that which he had previously seen and that which was new material and thereafter to comprehend the potential relevance of the new material;

    that the volume of material produced was quite bulky, without any indication being given as to the relevance of the material or any part of it or the particular parts of that material which would assume prominence in the Respondent Minister’s case to the Tribunal; and

    the absence of any inquiry being made by the Tribunal as to whether Mr Kohli was ready to proceed.

In different circumstances, the requirement imposed by s 39(1) to “ensure” that a party is given a reasonable opportunity to present his case may well require (at the very least) an inquiry being directed by the Tribunal to an unrepresented party as to whether he is ready to proceed where the Tribunal has knowledge of the service of a volume of material upon him immediately before a hearing.

24    The weaknesses of the argument, however, were:

    that there was no direction made by the Tribunal or other express obligation imposed upon the Respondent Minister to serve the bundle of documents upon Mr Kohli in advance of the hearing – the bundle of documents being (on one characterisation) a bundle of documents intended to be used for the purpose of cross-examination;

    an assessment made during the course of the present hearing that Mr Kohli was a well-educated and articulate person with a keen appreciation of that which was of relevance to his case; and

    that an examination of the transcript of the Tribunal hearing exposes Mr Kohli being ready, willing and able to answer all such questions as were put to him in cross-examination – including cross-examination directed to the documents that he had not seen until the day before the Tribunal hearing.

25    If the opportunity to be afforded by the common law and as reinforced by s 39 is directed to ensuring that in fact a party is given an opportunity to be heard, as opposed to a possible perception that may otherwise have arisen as a consequence of the service of the documents at a late stage, there has been no practical or substantive unfairness.

26    The first Ground is thus rejected.

A breach of a fundamental right?

27    The second Ground as raised in the Originating Application focusses upon:

    a finding made by the Tribunal that Mr Kohli was “flaunting his driving ban”; and

    an absence of any advice or caution being extended to Mr Kohli during the Tribunal proceedings that he had a “right not to answer a question if the answer could tend to incriminate him, and that no negative inference could be drawn if he chose to exercise that right”.

28    The finding made by the Tribunal was as follows:

[24]    Additionally, the applicant advised at hearing that in 2016 he was employed as a pizza delivery driver. Despite saying that this was not his main job, he conceded that he was a delivery driver on a part-time basis; flaunting his driving ban. He was adamant that he never worked as a delivery driver while intoxicated but conceded (reluctantly) that he did work when sober. The applicant’s New South Wales driver’s license had been disqualified as of 16 October 2015. The applicant’s employment as a pizza delivery driver, when his driver’s license was disqualified, shows a blatant disregard for the law.

29    The cross-examination of Mr Kohli by the solicitor then appearing for the Minister before the Tribunal, which presumably played a part in the making of this finding, was as follows:

Then the following paragraph says that you’re currently employed as a delivery driver by Lorenzo’s Pizza and receive $600 a week in pay, and you gave them some information about what your spend is?—Yes.

Now, the second to last paragraph on that page, which is the last paragraph before the heading “Full Facts” it says in the last sentence, that you’re currently employed as a delivery driver flouting your driving ban. You were a delivery driver whilst disqualified from driving, Mr Kholi. Is that true?—Well, it would be really part-time. Not always. And that’s what they asked me what I was doing, why was I driving. I had no other thing to say, so I said that.

A little later there was also the following exchange between Mr Kohli and his cross-examiner:

Did you deliver pizzas whilst you were intoxicated?—No.

So, then it follows that you must have also been driving during your disqualification when you were sober?—I have not been driving, like I said, those dates you asked me, when I came …

Well, how can you be a delivery driver without driving, Mr Kholi?—That was not the work I was doing there. I wanted to have, like, a …

You carried someone else’s licence, didn’t you, so that when stopped you could try and get away that way, didn’t you?—I have not been a delivery driver for pizzeria, like, regularly or constantly or on a basis at all, that I would do something to have a fake licence and make the deliveries. It’s only been …

It’s been more than zero occasions, hasn’t it?—It was only during that time when he gave me the licence, that I did it, otherwise I didn’t.

Okay. How often did you do it during that time? I’m not talking about constantly, which is the word you used, but how often?—It was if they were busy, the shop was busy, then I would help them.

That was during the times you were sober, wasn’t it?—I would just try and help them.

It was during the times you were sober, wasn’t it, Mr Kholi? There are two possible answers, Mr Kholi. Either you were driving for them whilst intoxicated, or you were driving for them whilst sober. Which one was it?—It was not intoxicated at all.

30    The submission advanced on behalf of Mr Kohli in relation to the second of his Grounds as set forth in his Originating Application, was that the “Tribunal fell into jurisdictional error by failing to advise the Applicant of his rights with respect to questioning that could breach his common law privileges”.

31    Counsel on behalf of the Respondent Minister quite properly accepted that the privilege against self-incrimination is a fundamental common law right and that the privilege “is one deeply rooted in the law as a fundamental right” and is “not merely a rule of evidence available in judicial proceedings” but is “available generally, even in a non-curial context, as the foundation of an entitlement not to answer a question”: Griffin v Pantzer [2004] FCAFC 113 at [44], (2004) 137 FCR 209 at 228 per Allsop J (as his Honour then was), Ryan and Heerey JJ agreeing. “It is the privilege of any witness in any proceedings to refuse to answer an incriminating question”: Lee v New South Wales Crime Commission [2013] HCA 39 at [184], (2013) 251 CLR 196 at 268 per Kiefel J (as her Honour then was).

32    In the context of a hearing before the Tribunal, in Tsiamis v Comcare [2013] FCA 684, (2013) 60 AAR 506 at 511 the following observations were made in respect to the interplay between s 39 of the Administrative Appeals Tribunal Act and the privilege against self-incrimination:

[19]    There is no denial of a “reasonable opportunity” for the purposes of s 39 of the Administrative Appeals Tribunal Act in circumstances where a witness properly invokes a privilege against self-incrimination. Although s 33(1)(c) of that Act provides that the Tribunal is not bound by the rules of evidence, that freedom does not carry with it the ability to require a witness to answer questions which (for example) may expose him to self-incrimination. The privilege against self-incrimination is “one deeply rooted in the law as a fundamental right”: Griffin v Pantzer (2004) 137 FCR 209 at [44] per Allsop J (as his Honour then was) (Ryan and Heerey JJ agreeing). It is a privilege available generally “even in a non-curial context, as the foundation of an entitlement not to answer a question or produce a document”: Griffin v Pantzer [2004] FCAFC 113 at [44]. A “reasonable opportunity” does not require a hearing in which a witness may be compelled to abandon a privilege the common law has long recognised.

33    It may also be accepted for present purposes that the Tribunal may deny an unrepresented party procedural fairness in circumstances where it fails to advise the party of the right to invoke the privilege against self-incrimination: cf. SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64, (2007) 159 FCR 1. All three members of the Full Court there concluded that there had been a denial of procedural fairness occasioned by the failure on the part of the Refugee Review Tribunal to advise the applicant in that proceeding of an entitlement to refuse to answer questions that would disclose confidential communications between himself and his lawyer. Lander J expressed his conclusion as follows (at 16):

[75]    In my opinion, the Tribunal was under an obligation to advise the appellant that he was entitled to refuse the questions which the Tribunal asked of him if they were to disclose the contents of a confidential communication with his lawyer had for the purpose of obtaining or giving legal advice or assistance or for use in the proceedings before the Tribunal.

[76]    That obligation arises because the Tribunal, like any other administrative decision-maker, is not entitled to exercise a power to destroy a freedom of communication which the law seeks to protect. The Tribunal was in the same position as an administrative decision-maker who has the power to require documents to be produced. The decision-maker should not exercise the power to require a party to produce documents which are subject to legal professional privilege. A decision-maker should not purport to exercise a power to require a person to answer a question which the law would excuse that person from answering.

[77]    In my opinion, the Tribunal, when conducting its inquiry and in the exercise of its inquisitorial function, should advise a person of their right to claim privilege against self-incrimination or legal professional privilege if it appears that a question asked of the person may give rise to a legitimate claim of that privilege.

[74]    A decision-maker who exceeds the authority or power given by the Act under which the decision-maker is empowered to act commits jurisdictional error.

(Citations omitted.)

Justice Graham expressed the same conclusion as follows (at 22):

[112]    Accepting that a Tribunal Member will not necessarily have legal qualifications, nevertheless it seems that a Tribunal Member, who is obliged to provide a fair hearing, should refrain from calling on an applicant for review, who is likely to be unfamiliar with the law in relation to legal professional privilege, to disclose what are ex facie privileged communications, without contemporaneously advising that applicant of his or her right to decline to do so.

The third member of the Court, Rares J, likewise concluded as follows (at 30 to 32):

[160]    … I am of opinion that the tribunal did not proceed in a reasonable fashion in its questioning. This is because it did not take any step to advise the appellant to the effect that s 433(1A) entitled him to refuse to answer or to otherwise maintain his privilege. Curiosity in a tribunal member about the content of communications protected by legal professional privilege does not provide a reasonable basis for asking about that subject matter, any more than in the analogous position of a justice who is asked to issue a search warrant for counsel’s opinions when there is no reason to question that they are privileged.

[161]    The Minister did not advance any argument which justified the use of any power of the tribunal in the circumstances to ask the series of questions which sought and obtained revelation of the appellant’s legally professionally privileged discussions with his solicitor. This is not a case where there was a suggestion that the privilege would not be capable properly of being claimed. I am of opinion that there was an inviolable limitation or restraint on the tribunal’s power to ask questions in its inquisition, so that here, by doing what it did, it committed a jurisdictional error.

[162]    Apart from understandable human curiosity in the tribunal in the present case, there was no basis for asking the questions of the appellant except to discover what was privileged. The statute did not authorise the inquiry in express terms.

[163]    By exceeding its powers in asking and pursuing questions to elicit the content of the appellant’s conversation with his solicitor which was the subject of legal professional privilege, the tribunal committed a jurisdictional error. It failed to give the appellant a hearing according to law …

[168]    An applicant for review of a claim for a protection visa is in a position, in practical terms, where they would have much less idea of what legal rights they may have. Most will not even speak English. And, apart perhaps from a concept that this country is a democracy with independent courts and other state institutions, they will not have any idea or intuition that an official in the position of the tribunal would not be acting within his or her legal powers in asking questions or that they had a legal right to refuse to answer on the ground of legal professional privilege. The tribunal, on the other hand, could be expected to understand that s 433(1A) of the [Migration Act] operated to preserve the important common law right of applicants for review and witnesses to legal professional privilege.

[169]    In that situation, a reasonable exercise of the tribunal’s power to question an applicant for review or a witness about communications for which he or she could make a claim for legal professional privilege would require the tribunal to ask whether the applicant for review or witness:

•    wanted to obtain legal advice before answering the question; or

•    was aware of his or her right to claim that the subject was privileged.

34    Contrary to the submissions advanced by Counsel on behalf of the Respondent Minister, there is no reason to distinguish between questioning on the part of the Tribunal seeking to elicit information otherwise the subject of a claim for legal professional privilege and information otherwise the subject of a claim for privilege against self-incrimination. Each of the privileges is a long-established common law right.

35    In the context of the present proceeding, the Tribunal at no stage advised Mr Kohli of his right to invoke the privilege against self-incrimination.

36    On the facts, however, there were essentially only two lines of cross-examination where the privilege against self-incrimination could have been invoked, namely the cross-examination of Mr Kohli directed to:

    whether he was driving unlawfully; and

    a possible theft of money by Mr Kohli from his brother by the improper presentation of credit cards at ATMs.

37    Notwithstanding the importance that the privilege against self-incrimination plays in the common law and the continued importance of that privilege in proceedings before the Tribunal, the failure on the part of the Tribunal to advise Mr Kohli of his right to invoke the privilege occasioned him no practical injustice in circumstances where:

    he was under no continuing risk of being charged with any unlawful driving offence relating to the events described in the cross-examination; and

    he denied any wrongdoing in respect to the alleged theft – the transcript, indeed, exposing Mr Kohli as being well-familiar with the facts the subject of the cross-examination and a willingness to address those facts and deny wrongdoing.

38    Although the Tribunal may well have been required to advise Mr Kohli of his right to refuse to answer questions in cross-examination directed to the possible theft of monies from his brother, and obviously to have so advised him prior to any answer being given, there was no practical injustice suffered by Mr Kohli. The evidence going to either or both of these matters assumed little relevance in the ultimate reasoning and conclusion of the Tribunal.

39    Viewed in its entirety, the proceeding was one in which a well-educated (albeit unrepresented) party was not deprived of any meaningful opportunity to be heard by reason of any failure to advise him as to his rights against self-incrimination.

40    The second Ground is also rejected.

CONCLUSIONS

41    Neither of the Grounds of the Application have been made out.

42    The proceeding should thus be dismissed.

43    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The proceeding is dismissed.

2.    The Applicant is to pay the costs of the First Respondent.

Associate:    

Dated:    19 April 2017