FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118

MIGRATION — Partner (Provisional) (Class UF) visa — appeal from a decision of the Federal Magistrates Court setting aside a decision of the Migration Review Tribunal affirming a decision to refuse a partner visa — where both married parties were previously married apparently for immigration reasons — where review applicant gave notice under s 361(2) of the Migration Act 1958 (Cth) to obtain oral evidence from nominated witnesses — witnesses present but did not give oral evidence in circumstances where Tribunal imposed a time limit due to the Tribunal’s “own commitment” — Tribunal had no genuine regard to the s 361(2) notice — breach of obligation in s 361(3) — breach of procedural fairness because of failure to give fair opportunity to present evidence and arguments — jurisdictional errors compounded by finding that family and friends engaged in a “web of deceit” — where no chance to answer web of deceit finding, the basis for which was not self-evident — consideration of the nature of the Tribunal’s review powers and obligations — jurisdictional error found —appeal dismissed.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1956 (Cth) ss 65, 353, 357A, 359A, 359C, 360, 360A, 361, 362, 366, 366A, 366D, 426

Migration Regulations 1994 (Cth) regs 1.15A, 2.03

Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57, referred to

Iyer v Minister for Immigration and Multicultural Affairs 192 ALR 71, referred to

Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82, referred to

SAAX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 356, cited

Narang v Minister for Immigration and Multicultural Affairs [2000] FCA 1515, cited

NAGR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 853, cited

Nourbakhshrad v Minister for Immigration and Multicultural Affairs [2001] FCA 1248, cited Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, cited

NAQS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1137, referred to

SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65, referred to

Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109, cited

Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59, discussed

Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188, referred to

W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211, referred to

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, referred to

NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121, referred to

National Companies Securities Commission v The News Corporation Ltd (1984) 156 CLR 296, cited

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, cited

Bretag v Immigration Review Tribunal [19910 FCA 755, cited

Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, cited

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, referred to

Kioa v West (1985) 159 CLR 550 at 584, referred to

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648, referred to

Minister for Immigration and Multicultural and Indigenous Affairs v WAFJ (2004) 137 FCR 30, discussed

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, applied

Moore v Guardianship and Administration Board [1990] VR 92, considered

Mahon v Air New Zealand Ltd [1984] 1 AC 808, referred to

R v Thames Magistrate; ex parte Polemis (1974) 2 All ER 1219, discussed

Re Hurd and Hewitt [1994] 120 DLR (4^th) 105, referred to

Hurd v Hewitt (1991) 13 AdminLR (2d) 223, referred to

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V JAMES MALTSIN AND MARGARITA BOGODIST

VID 1378 OF 2004

SPENDER, KENNY AND LANDER JJ

24 JUNE 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondents’ costs of and incidental to the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

SPENDER J

1                     I have had the advantage of reading in draft form the reasons for judgment of Kenny and Lander JJ.  I agree with those reasons, and the order their Honours propose.

Associate:

Dated:              24 June 2005

REASONS FOR JUDGMENT

KENNY AND LANDER JJ:

2                     This is an appeal from a judgment of the Federal Magistrates Court that “quashed and/or declared to be void and of no effect” a decision of the Migration Review Tribunal (“the Tribunal”) and remitted the matter to a differently constituted Tribunal to be determined according to law.  In reasons for judgment delivered on 19 October 2004, a Federal Magistrate held that, in making its decision on 31 March 2003 concerning a Partner (Provisional) (Class UF) subclass 309 visa, the Tribunal breached the rules of procedural fairness. 

3                     At the relevant time, the subclasses of a Partner (Provisional) (Class UF) visa included subclass 309 (Spouse (Provisional)).  By reason of reg 2.03 of the Migration Regulations 1994 (Cth) (“the Regulations”), the prescribed criteria for the grant of a visa of a particular class were those set out in Sch 2 of the Regulations.  At the relevant time, an applicant for a subclass 309 visa was required to show that he or she was the spouse, relevantly, of an Australian citizen or Australian permanent resident at the time of application and at the time of decision. 

4                     At the relevant time, sub-reg 1.15A provided, amongst other things, that a person was the spouse of another person if the two persons were “in a married relationship, as described” in sub-reg 1.15A(1A).  Sub-regulation 1.15(1A) stated that persons were in a married relationship if:

“(a)     they are married to each other under a marriage that is recognised as        valid for the purposes of this Act; and

(b)               the Minister is satisfied that:

(i)     they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii)     the relationship between them is genuine and continuing; and

(iii)   they:

(A)       live together; or

(B)       do not live separately and apart on a permanent basis.”

In forming an opinion as to whether two persons are in a married relationship for the purpose of a Partner (Provisional) (Class UF) visa, the Minister must have regard to the factors listed in sub-reg 1.15A(3).  Sub-regulation 1.15A(5) also provided that, if two persons had been living together at the same address for six months or longer, that fact was “to be taken as strong evidence that the relationship is genuine and continuing”.

5                     Ms Margarita Bogodist, who is the second respondent, is a Russian citizen currently residing in Moscow.  She has twice visited Australia — between 16 October 1997 and 16 February 1998 and between 28 March 1998 and 19 April 2000.  On each occasion, she entered Australia on a subclass 420 Entertainment visa (“entertainment visa”).

6                     Mr James Maltsin, who is the first respondent, is an Australian citizen.  He married Ms Bogodist in Melbourne on 10 April 2000, shortly before she left Australia for the second time.

7                     Ms Bogodist applied for a Partner (Provisional) (Class UF) subclass 309 visa on 18 July 2000.  Mr Maltsin was her nominator.  After a delegate of the appellant Minister refused Ms Bogodist’s visa application, Mr Maltsin applied to the Tribunal for a review of the delegate’s decision.  The Tribunal affirmed the delegate’s decision and, on 17 April 2003, Mr Maltsin and Ms Bogodist sought judicial review in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth).  A judge of this Court subsequently transferred the matter to the Federal Magistrates Court.  After a hearing, a Federal Magistrate gave judgment for them.

the decision of the federal magistrate

8                     In his reasons for judgment, the learned Federal Magistrate began by referring to the marital history of Ms Bogodist and Mr Maltsin.  Both had been previously married in circumstances similar to their present marriage.  Mr Maltsin had first married a Ms Naidrova in Russia in 1991 and had subsequently sponsored her coming to Australia.  Ms Naidrova left Mr Maltsin after her arrival in Australia and the couple divorced in 1995.  Mr Maltsin married a Ms Popova in Australia on 7 September 1997.  At the time of her marriage to Mr Maltsin, Ms Popova was a Russian citizen who held an entertainment visa.  Shortly after her marriage, Ms Popova applied for permanent residency, but her application was refused because a delegate of the Minister was not satisfied that her marriage to Mr Maltsin was genuine.  Mr Maltsin and Ms Popova divorced on 9 March 2000. 

9                     Ms Bogodist married a friend of Mr Maltsin in Australia on 17 April 1998 and applied for permanent residency shortly thereafter.  A delegate of the Minister refused this application because he was not satisfied that her marriage was genuine and continuing.  The Migration Internal Review Office (“MIRO”) confirmed the delegate’s decision on 11 February 1999 and, in March 1999, Ms Bogodist’s then husband advised the Minister’s Department that he did not intend to appeal because he was no longer living with Ms Bogodist and was filing for divorce.  At the same time, however, Ms Bogodist applied for a review of the MIRO decision without notifying the Department that she had separated from her husband.  During a hearing of her review application by the Immigration Review Tribunal in September 1999, Ms Bogodist conceded that her first marriage had ended but sought to substitute Mr Maltsin as her nominating spouse for the purposes of her application.  The Immigration Review Tribunal refused to permit her to substitute Mr Maltsin in this way and affirmed the MIRO decision.

10                  Referring to these matters, the Federal Magistrate observed:

“It will be clear … that on the face of the material … there is considerable concern over the previous relationship history of both applicants which would alert any reasonable [Tribunal] to the fact that credibility would be a major and significant issue in any further applications to be determined by a tribunal.  In matters of this kind where credibility is of significant importance it is hardly surprising to find that the applicants rely upon what is described as voluminous material seeking to assert the genuineness of their relationship and to otherwise rely upon and call witnesses who, it is believed, will corroborate the applicant’s case.  The requirements of procedural fairness and natural justice in an application where credibility is of crucial significance [become] far more important than may be the case in other applications where credibility and assessment of the individual credit of individual witnesses may not be as crucial”.

11                  After noting that it was common ground that the Tribunal hearing had a duration of approximately two hours and there was a great deal of material, his Honour set out the Tribunal’s introduction to the hearing as recorded in the hearing transcript.  After discussing various authorities, his Honour observed that, “if all the court was being asked to do … was to revisit a finding of fact reasonably open to [the Tribunal] in relation to the issue of credibility, then it should not be permitted to do so …”.  But this was not, in his Honour’s view, the true characterisation of the case which, properly understood, turned on whether there was a denial of procedural fairness by reason of the Tribunal’s failure to allow Mr Maltsin to have his witnesses give oral evidence before it.  Referring to the Tribunal’s introduction to the hearing, his Honour said:

“It seems clear to me in the circumstances that despite the fact that this was a complex case with voluminous material where credibility was a key and crucial issue, that the [Tribunal] as a result of its own commitment after or beyond 4 o’clock was only prepared to allocate a short period of time for this hearing and did not at any stage offer to make an arrangement, as it clearly had the power to do, for a further adjourned hearing to enable all the witnesses then requested to be available for oral evidence to give that oral evidence and be tested”.

12                  After referring to paragraph 80 of the Tribunal’s decision, his Honour concluded:

“It is clear that in finding that the [Tribunal] gave little weight to letters and declarations provided in support of the application in circumstances where two of the witnesses who were available for oral evidence were not given the opportunity to verify those letters and/or be tested.  It is equally clear that a finding that on the evidence there is a disclosure of what is described as ‘a web of deceit through the review applicant’s family and social connections’ that the [Tribunal] had made a significant and profound finding which could properly be regarded as of practical significance to the outcome of this application.

Hence, in my view, it is not to the point to assert, as asserted on behalf of the respondent, that there is a statutory option not to accede to a request for witnesses to be orally examined in circumstances where the witnesses are available and where the reason advanced for not hearing the witnesses is not a reason based upon any cogent assessment of their potential evidence, but rather to fit in with the time constraints imposed upon the applicants as a result of the [Tribunal’s] own commitment after 4 o’clock that day.  That does not provide a basis upon which it could properly be said that the [Tribunal] has reasonably concluded that it should not receive the oral evidence.  The mere fact that a representative at the time appears to have acceded to the request must be viewed in the light of the transcript where it was at least intimated that perhaps the other witnesses would be called to give evidence at a later time and that the most important witnesses were to be called that day.

13                  His Honour held that there was, in all the circumstances, a denial of natural justice in that the Tribunal “made significant and crucial findings of credit” including about the authors of certain documents without permitting them to give oral evidence, even though, at Mr Maltsin’s request, they attended the hearing to do so.  His Honour said:

“In circumstances where there are a modest number of witnesses proposed to be called, as in this case, namely, five, and where a time constraint is imposed in a complex matter with voluminous material and where credibility for obvious reasons is of crucial significance, the opportunity for witnesses to be called and for their evidence to be tested becomes more significant than it may be in other cases.  Hence, the requirement of the [Tribunal] to afford natural justice and procedural fairness by allowing those witnesses to be called either that day or, as a result of time constraints, on an adjourned date becomes significant.  To deny the applicants the opportunity to call that evidence in the present case, in my view, is a denial of procedural fairness and/or a breach of natural justice of the kind which is sufficient, having regard to the authorities to which I have referred, to constitute jurisdictional error”.

14                  Further, again referring to the transcript of the hearing, his Honour held that:

“[I]t is clear to me from the outset that the [Tribunal] had imposed both on itself and on the applicants a significant time constraint of a kind that in this particular case, having regard to the particular nature of the issues before it, constituted a denial of natural justice.”

15                  His Honour held that, in the circumstances, the fact that the applicants were represented before the Tribunal and “could have or should have sought an adjournment so that witnesses could be heard on another day or that the representative should have insisted on the witnesses being heard that day or indeed made other applications for prohibition in the Federal Court” was no answer to the lack of procedural fairness.  In this connection, his Honour observed:

“When parties represent applicants before the [Tribunal], it is understandable that to some extent an accommodation will be afforded to the [Tribunal] of the kind that occurred in this application, particularly when there is a confusing representation made by the [Tribunal] as to the possibility of not concluding the case before hearing all the witnesses.  In any event, what occurred was that the witnesses were not heard, and although subsequently written documentation was provided to the [Tribunal] explaining various matters, it is clear that that written documentation was then analysed and rejected without again giving the sources of part of that information an opportunity to give oral evidence and/or be tested.

In my view, that then compounds the initial denial of procedural fairness by not permitting, as requested, the potential witnesses to give oral evidence. … [I]nthe context of the tribunal’s statutory powers it has failed to comply with the request for witnesses to be heard and [for] reasons of its own convenience and [a] time constraint which in the context of this case was unreasonable.

…

In some cases a time constraint may indeed be a legitimate basis upon which a Tribunal may refuse to accede to [a] request for witnesses to give oral evidence.  In the context of the present case, however, I do not accept that the time constraint and adherence to that time constraint could properly be regarded as a legitimate basis for refusing the oral request.  There is no other material which would indicate a basis upon which the [Tribunal] had refused to accede to the request for oral evidence, even though there may be some reference by the representative to choosing more important witnesses or even a suggestion that some of the witnesses give the same evidence.”

His Honour concluded that the denial of the applicants’ request to obtain oral evidence from the witnesses was, in the circumstances, “a denial of natural justice and clearly a denial which had a bearing on the outcome of the hearing adverse to the applicants”.

the hearing and decision of the tribunal

16                  In order to evaluate the Federal Magistrate’s conclusion that there was a denial of procedural fairness, it is necessary to refer to the decision of the Tribunal and the hearing that preceded it.

17                  Before the Tribunal, the principal issue was whether Ms Bogodist was Mr Maltsin’s “spouse” within the meaning of reg 1.15A of the Regulations.  The Tribunal concluded that the relationship between them did not meet the description in reg 1.15A and affirmed the delegate’s decision on this basis. 

18                  In reaching this conclusion, the Tribunal found:

(a)    It was not satisfied that Mr Maltsin supported Ms Bogodist financially by her accessing funds from their joint account.

(b)   It was not satisfied that the evidence before it in relation to the parties’ financial affairs was credible or reliable.  Mr Maltsin had not been “forthright in his evidence about his financial situation”.  Ms Bogodist was “either ignorant of [Mr Maltsin’s] financial affairs or she [had] also deliberately withheld information on those matters”. 

(c)    It was not satisfied on the evidence that the parties lived together in Moscow as they claimed, “[b]ecause of concerns about [Mr Maltsin’s] motives for his frequent travel to Moscow and his general lack of credibility, as well as [Ms Bogodist’s] lack of knowledge of his business and financial affairs in Moscow”.

(d)   The parties had presented themselves as a couple, and had told friends and acquaintances that they were husband and wife. 

(e)    Mr Maltsin had misled the Department in order to support Ms Naidrova’s visa application.

(f)     Mr Maltsin married Ms Popova solely for the purpose of supporting her application for permanent residence in Australia, and that he was not in a genuine spousal relationship with her.  The likely reason for Mr Maltsin’s failure to notify the Department of the failure of his marriage with Ms Popova was to enable Ms Popova to obtain a visa fraudulently.

(g)    It was not satisfied that Ms Bogodist worked as an entertainer in Australia whilst she held an entertainment visa.  Ms Bogodist applied for two entertainment visas although she was not an entertainer. 

(h)    Ms Bogodist deliberately withheld from the Department information relating to the failure of her first marriage “in the hope that her previous spouse visa application would be successful” and her credibility in migration matters was “suspect”. 

19                  The Tribunal also found that:

“[Mr Maltsin] entered into two false marriages solely for the purpose of supporting his former wives’ applications for permanent residence.  The Tribunal finds, therefore, that [Mr Maltsin’s] credibility and reliability is brought sharply into question in relation to the current visa application.  The compliance of [Mr Maltsin’s] parents in at least one of those false marriages also brings their credibility and reliability into question in relation to the current application.  [Mr Maltsin’s] connections with business interests in Moscow, which may or may not be legitimate, suggests that the support given to the visa application by persons in Russia may not be genuine.  The Tribunal also notes [Ms Bogodist’s] lack of credibility in relation to her previous application for permanent residence on the basis of her former marriage.  Therefore, when taking into account the evidence before it, which appears to disclose a web of deceit throughout [Mr Maltsin’s] family and social connections, the Tribunal can not be satisfied to any degree of confidence that [Mr Maltsin’s] family and friends are witnesses of truth in this matter.  The Tribunal finds, therefore, that [it] can give little weight to the letters and declarations provided in support of the application.”

20                  The Tribunal concluded that:

“[D]espitethe large volume of material submitted both to the Department and to the Tribunal, … there is insufficient credible and reliable evidence upon which it can be satisfied that there was a genuine and continuing relationship between the parties, and that they had a genuine commitment to a shared life to the exclusion of all others at the time of application.

Accordingly, the Tribunal found that Ms Bogodist was not Mr Maltsin’s spouse as defined in reg 1.15A at the time of application and failed to satisfy an essential criterion for the grant of the visa that she sought.

grounds of appeal

21                  The Minister appeals against the judgment of the Federal Magistrate on the ground that his Honour erred in holding that the Tribunal’s decision was made in breach of the rules of procedural fairness on the basis that:

(1)       Section 361(3) of the Migration Act 1956 (Cth) (“the Act”) excluded the rules of procedural fairness in so far as they related to the Tribunal’s obligation to obtain oral evidence from persons nominated by Mr Maltsin (Ground 1);

(2)               Alternatively, even if the rules of procedural fairness applied, they did not require the Tribunal to hear oral evidence from all of the witnesses nominated by Mr Maltsin (Ground 2);

(3)               It was open to the Tribunal to require the hearing to be concluded within a two hour period, particularly as:

(i)         the rules of procedural fairness did not require the Tribunal to    “test” the evidence of witnesses before declining to accept their written evidence; and/or

(ii)        the acquiescence of Mr Maltsin and Ms Bogodist and their representative in the procedures adopted by the Tribunal in relation to the calling of witnesses and the length of the hearing constituted the waiver of any right to object to those procedures (Ground 3).

22                  Shortly before the hearing of the appeal, the respondents sought leave to raise two further questions by way of a notice of contention filed out of time, namely, whether the Federal Magistrate erred in not finding that there was jurisdictional error on the Tribunal’s part in failing to consider sub-reg 1.15A(5) of the Regulations and “in deciding it was satisfied for the purposes of s 65(1)(a)(ii) of the [Act] that the criteria in Cl 309.211 of the [Regulations] was [sic] not satisfied as at 18 July 2000 by reference to circumstances that occurred after that date and should properly have been considered in deciding whether the criterion in Cl 309.221 were satisfied”.   At the hearing of the appeal, the appellant submitted that the respondents should not be permitted to raise these questions, principally because they had not been raised before the Federal Magistrate: see, for example, Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 at 77-78 [25]-[26] per Mansfield J and 85-86 [58]-[62] per Gyles J.  The Court indicated that it would hear argument on the matters that the respondents sought to raise in their notice of contention and subsequently consider the matter of leave.

the parties’ submissions

23                  The appellant accepted that s 357A of the Act had no application to the appeal because in this case application was made to the Tribunal well before the commencement of that provision in July 2002: see Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 (“Miah”).  Referring to numerous authorities, including Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 (“Aala”) at 109 [60] per Gaudron and Gummow JJ and 142-143 [168] per Hayne, the appellant contended that, so far as the Tribunal was concerned, the content of the rules of procedural fairness was affected by Pt 5 of the Act (including ss 353, 359A, 360, 360A, 361, 366, 366A and 366D) which made comprehensive provision for the calling of witness to give evidence during the conduct of a review by the Tribunal.  Citing SAAX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 356 at [31] per Tamberlin, Mansfield and Jacobson JJ, Narang v Minister for Immigration and Multicultural Affairs [2000] FCA 1515 at [14] per Tamberlin J, NAGR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 853 at [17] per Madgwick J, Nourbakhshrad v Minister for Immigration and Multicultural Affairs [2001] FCA 1248 at [37] per Emmett J and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at 21 [43] per Gummow and Hayne JJ and 49 [124] per Callinan J, the appellant contended that, as he said in written submissions, s 362(3):

“expressly negates the proposition that the Tribunal errs if it decides not to comply with an applicant’s request that witnesses be called, provided that it ‘has regard’ to the applicant’s request.”

24                  The appellant submitted that the word “obtain” in s 362(3) of the Act meant “acquire or secure”, which, in the context of the Tribunal’s inquisitorial procedures, was equivalent to the receiving of evidence in a court.  There was, counsel submitted, no indication in the general legislative scheme that ss 360, 360A and 361 were confined to uncooperative witnesses.  The appellant submitted that the decision of Hill J in NAQS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1137 (“NAQS”) should not be followed, noting that his Honour was apparently not directed to the above-mentioned authorities, which took a wider view of the operation of s 426(3) (the counterpart provision to s 362(3) for the Refugee Review Tribunal).  The appellant contended that, if Hill J’s reasoning were accepted, then “the applicant’s right to advance evidence would depend upon the degree to which a witness was prepared to co-operate with the applicant by attending the hearing voluntarily”.

25                  Furthermore, the appellant submitted that there was no jurisdictional error in the Tribunal’s exercise of its discretion under s 361(3) of the Act, because, in deciding whether to have Mr Maltsin’s proposed witnesses give oral evidence, the Tribunal took into account all relevant matters — Mr Maltsin’s wishes, the available hearing time, and the importance of the evidence that the witnesses proposed to give.  In oral submissions, counsel for the appellant directed the Court’s attention to the Tribunal Member’s statement, at the commencement of the hearing, that she did not want Mr Maltsin’s best witnesses “missing out”; and that his representative told her that the evidence to be given by Mr Maltsin’s witnesses was “pretty much the same”.  The weight to be given these considerations was, so the appellant submitted, solely a matter for the Tribunal.  It was, so the appellant contended, open to the Tribunal to conclude that the evidence that might have been given by the other proposed witnesses was not of sufficient importance to warrant giving evidence orally.  Counsel for the appellant contended that the Tribunal was not obliged to hear all the evidence that an applicant might wish to call simply because it was relevant.  In oral submissions, counsel conceded that the transcript of the hearing before the Tribunal plainly showed that “speed and time were very much upper most” in the Tribunal Member’s mind, but he argued that she asked the right questions and the representatives’ answers enabled her to proceed as she did.  The appellant submitted that the Federal Magistrate erred by involving himself in the assessment of the weight to be given to the factors that were relevant to the exercise of the Tribunal’s discretion.

26                  Referring to SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [33] per Carr J, with whom Cooper and Finkelstein JJ agreed, the appellant also contended that it was not open to the respondents to complain about the procedure in the Tribunal because they “gave the Tribunal no indication that [they were] unhappy with the procedure that had been adopted, or that they wanted an opportunity to advance further evidence”. 

27                  Finally, the appellant submitted that there was nothing inherently procedurally unfair about the imposition of time limits, especially as the oral hearing was just one of a number of ways in which an applicant was afforded an opportunity of placing material and submissions before the Tribunal and the Tribunal was under no obligation to “test” the evidence of any witness.  In written submissions, after referring to Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54] per Sackville J, the appellant observed that:

“All of the witnesses must … have been aware that their evidence may be rejected.  They were aware of the ‘critical issue’ in the proceeding, and that is all that procedural fairness required.

That is particularly the case because the evidence of the witnesses in this case was principally corroborative evidence.”

Citing Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 (“Applicant S20/2002”) at 63 [12] per Gleeson CJ, the appellant contended that once the Tribunal rejected the evidence of Mr Maltsin and Ms Bogodist, the Tribunal was not obliged to hear from other witnesses “who would have attempted to corroborate the evidence that had already been disbelieved on credit grounds that plainly were open to the Tribunal”.  Counsel for the appellant submitted that, even if the Tribunal made findings about Mr Maltsin’s witnesses that were unfair to them, such unfairness could not invalidate the decision.  The decision in Mahon v Air New Zealand Ltd [1984] 1 AC 808 (“Mahon v Air New Zealand”) at 821, which was relied on by the respondents, was, in the appellant’s submission, distinguishable because the unfairness in that case concerned a person in a similar position to an applicant before the Tribunal, rather than a witness in the proceeding.

28                  The respondents sought to uphold the Federal Magistrates’ decision.  In written submissions, counsel for the respondents contended that:

“[T]hereferences to ‘obtain’ evidence in ss 361(2) and (2A) refer to a situation where an Applicant asks the [Tribunal] to exercise the powers given by s 363(1)(d) and (3) to “obtain” evidence from the Secretary or other person.  Therefore the limitation in s 361(3) only operates where a request is made ‘to obtain’ evidence from persons named in the notice.  It does not apply where the Applicant arranges for those persons to attend at hearing.”

Whilst the respondents’ counsel accepted that the Tribunal was not required to hear from a witness whose evidence was irrelevant to the matters before the Tribunal, referring to NAQS at [28]-[30] per Hill J, Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 (“Mazhar”) at 194-195 [31] per Goldberg J, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 (“SCAR”) at [37] per Gray, Cooper and Selway JJ, NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 (“NALQ”) at [30] per Ryan, French and RD Nicholson JJ, as well as s 361(1)(a) of the Act, he maintained that the Tribunal was required to hear orally any relevant evidence from the applicant and other persons who attended the Tribunal for this purpose at the applicant’s request.  The respondents submitted that the Tribunal’s failure to hear all the witnesses that Mr Maltsin wished it to hear resulted in practical injustice.  For example, according to the respondents:

“Photographs (with date stamps) of the parties taken on a boat owned by Mr Nismal were submitted to [the Tribunal] after the hearing … .  Mr Nismal had filed a statement .. .  The [Tribunal] concluded … that the Respondents were living together in December 1998.  Mr Nismal had attended the tribunal hearing but was unable to give evidence “due to time constraints” … .  His evidence may have persuaded the [Tribunal] the Respondents were living on that date as they said.”

29                  The respondents further submitted that, in any case, s 361(3) was not to be construed so as “to authorise the [Tribunal] to not comply with a request that evidence be obtained on the basis that this is inconvenient to the [Tribunal]”.  The respondents denied that their representatives’ conduct had constituted any relevant waiver.  Referring to Mahon v Air New Zealand Ltd at 821 per Lord Diplock, Aala at 116 [78] per Gaudron and Gummow JJ, National Companies Securities Commission v The News Corporation Ltd (1984) 156 CLR 296 at 316 per Gibbs CJ, and Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, the respondents contended that the Tribunal should not have found “a web of deceit throughout the review applicant’s family and social connections …”.  The respondent also submitted that, in the circumstances of the case, it was not open to the Tribunal to limit the hearing to two hours, since this allocation of time was plainly inadequate and “the compressed hearing did not comply with the requirements of [s 353(1)] of the [Act]”.  The respondents contended that patent errors or deficiencies in the Tribunal’s fact-finding were “the consequences of … conducting the review hastily”. 

30                  Referring to the Notice of Contention filed on their behalf, the respondents submitted that the Tribunal erred in failing to consider sub-reg 1.15A(5) of the Regulations, as evidenced by its failure to make a finding as to whether Mr Maltsin and Ms Bogodist lived together at the same address for at least six months before Ms Bogodist departed Australia (as under the Regulations she had to do in order to make her current visa application).  The respondents also contended that the Tribunal erred “in finding the criterion to be satisfied at date of application was not satisfied by reference to material that principally occurred after that date”.  Referring to Bretag v Immigration Review Tribunal [1991] FCA 755 and Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J, the respondents submitted that the Tribunal erred by making no finding about whether the respondents have lived together as married persons before Ms Bogodist left Australia.  The respondents submitted that there was ample material before the Tribunal that showed that they had been in just such a relationship for more than two years before she left Australia.  Moreover, the respondents submitted that a consequence of the Tribunal’s failure to hear from two witnesses (a Mr Conrad and a Mr Nisman) was that it did not hear relevant evidence relating to the applicability of sub-reg 1.15A(5) of the Regulations.  It was not enough, so the respondents said, that the Tribunal had before it written statements from these witnesses, because these witnesses were apparently among the people involved in what the Tribunal described as a “web of deceit”.

reasoning of the court

31                  The decision of the Tribunal may involve a jurisdictional error of the kind discussed in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) at 351-352 [82]-83] per McHugh, Gummow and Hayne JJ, as a consequence of a denial of procedural fairness, a failure to identify the correct issue or asking the wrong question, disregard of relevant material or reliance on irrelevant material and, in some circumstances, the making of an erroneous finding of fact or a mistaken conclusion: see also Aala at 89 [4] per Gleeson CJ, 109 [59] per Gaudron and Gummow JJ, 131 [132] per Kirby J and 143 [169] per Hayne J; and SGLB at [49] per Gummow and Hayne JJ.  Whether there has been a breach of the rules of procedural fairness or, indeed, any other kind of jurisdictional error ordinarily depends in large part on the terms of the governing statute.  Where there is an obligation to accord procedural fairness, what is practically required to discharge the obligation depends on the relevant statutory provisions, the nature of the enquiry, and the subject-matter and circumstances of the case: see Kioa v West (1985) 159 CLR 550 at 584-585 per Mason J; 614 per Brennan J and 633 per Deane J; also Aala at 109 [59] per Gaudron and Gummow JJ; and Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 652-653  per Deane J.

32                  In the present case, in reaching a decision regarding Ms Bogodist’s visa application, the Tribunal was, as the appellant conceded, obliged to observe the rules of procedural fairness: see Miah.  The content of these rules depends in part on Pt 5 of the Act, as it then stood, which sets out the legislative regime for the conduct of a review by the Tribunal.  Section 360 requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in the review (unless there had been a failure on the applicant’s part to comply with s 359C, or the applicant consents to the Tribunal deciding the review without her or him, or the Tribunal is disposed to make a decision in the applicant’s favour).  Pursuant to s 360A, the Tribunal must give the applicant notice of the day, place and time of the hearing. 

33                  By virtue of s 361 of the Act, the notice inviting the applicant to appear must also inform the applicant that the applicant can give the Tribunal written notice that she or he wants the Tribunal to obtain oral or written evidence from a named person or persons or other written material.  Section 361 of the Act relevantly provides:

“(1)     In the notice under section 360A, the Tribunal shall notify the          applicant:

(a)       that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and

            (b)        of the effect of subsections (2) and (2A) of this section.

(2)       The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(2A)     The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:

(a)               written evidence from a person or persons named in the notice;

or

(b)       other written material relating to the issues arising in relation to the decision under review.

(3)       If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice but is not required to comply with it.”

34                  In the present case, Mr Maltsin gave written notice to the Tribunal that he wanted the Tribunal to take oral evidence from himself and four other people, all of whom attended the hearing at the request of Mr Maltsin.  Further, his representative also indicated that Ms Bogodist, who was in Russia, would be contactable by telephone in the event the Tribunal wanted to speak with her.  As it happened, the Tribunal heard the oral evidence of only two of the people that Mr Maltsin had named in the notice.  Further, the Tribunal did not hear oral evidence from at least one other person who attended the hearing with Mr Maltsin, apparently for this purpose.  As we have seen, the appellant submitted that there was no error in this regard, particularly having regard to s 361(3) of the Act. 

35                  Part 5 of the Act specifically confers a number of powers on the Tribunal for the purpose of conducting a review.  The Tribunal may, for example, take evidence on oath or affirmation (s 363(1)(a)), adjourn the review from time to time (s 363(1)(b)), summon a person to appear before the Tribunal to give evidence or to produce documents (s 363(3)(a) and (b)), and allow evidence to be given by telephone (s 366(1)(a)).  Part 5 also contains provisions that expressly give or deny the applicant and other persons certain rights.  Thus, the applicant is entitled to have another person assist him or her before the Tribunal (s 366A(1)), but is not entitled to examine or cross-examine anyone appearing before the Tribunal to give evidence (s 366D).

36                  The provisions of Pt 5 of the Act, including ss 361(3) and 366D, emphasise that the Tribunal’s process is essentially inquisitorial in nature.  A review by the Tribunal is not to be conducted on the adversarial model of the courts.  Under the regime established by the Act, it is for the Tribunal, not the applicant, to gather the evidence for the purposes of a review and to decide the manner in which the evidence will be taken.  The use of the word “obtain” in sub-ss 361(2) and (2A) must be understood in this context.  In this context, it is the Tribunal, and not the applicant, who “obtains” or “acquires” the evidence for the purposes of a review, whether or not the evidence is volunteered or compulsorily acquired.  Unlike a court, the Tribunal does not “receive” evidence from a party to the proceeding.  Only the Tribunal can examine a witness whose oral evidence the Tribunal has determined to obtain.  On the respondents’ construction, the Tribunal would lose control of a function that defines its inquisitorial character.  One may illustrate this by the example discussed in the argument of the appeal.  If, for example, there were a hundred witnesses to a ceremony of marriage and an applicant gave notice that he wanted to call them all — to establish that he had been through the ceremony — then, assuming this was a relevant fact and they all attended the hearing, on the respondents’ argument, the Tribunal would be obliged to hear from all hundred witnesses.  Plainly enough, this would deny the Tribunal’s inquisitorial nature and defeat the objectives set out in s 353(1) of the Act. 

37                  It is in keeping with the Tribunal’s inquisitorial nature that the Tribunal does not err if it decides that, notwithstanding the applicant wants oral evidence to be obtained from persons named in a notice under s 361(2), it decides not to obtain such evidence, always providing that it acts in conformity with s 361(3) of the Act and has regard to the notice that the applicant has given.  In this circumstance, there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant. 

38                  It does not follow from this, however, that the appeal in this case should be upheld.  By virtue of s 361(3), the Tribunal is obliged to have regard to any notice given by an applicant under sub-ss 361(2) or (2A) of the Act.  This means that the Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes.  The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice.  As the respondents’ counsel said, the authorities establish that the invitation to appear before the Tribunal must be “real and meaningful and not just an empty gesture”: NALQ at [30]; SCAR at [37]; and Mazhar at 188 [31].  It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine.  The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (compare W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 (“W360/01A”) at [2] per Lee and Finkelstein JJ and [30]-[32] per Carr J)), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal.  These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”: see s 353(1).  The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.

39                  The real question in this case is whether or not the Tribunal gave genuine consideration to the notice given by Mr Maltsin under s 361(2) of the Act.  At the commencement of the hearing, the Tribunal Member specifically asked Mr Maltsin’s representative “about the value of the evidence” of the prospective witnesses.  This was, as the appellant said, a relevant inquiry. Even before she received an answer, however, the Tribunal Member made it plain that she did not have sufficient time on the day to hear much more than the evidence of Mr Maltsin and Ms Bogodist.  She introduced the hearing in the following way:

[Tribunal Member]:  Mr Burhala, this is obviously a pretty complicated matter simply because of the amount of material we've got to get through and I can't see that we're going to be able to take much evidence from your witness if we are going to get through the review applicant, the visa applicant.  Do you have a preference for which of the people in the back I see first before we run out of time? 

MR BURHALA:  Yes ... Conrad.

[Tribunal Member]:  I will give him a number one then.

MR BURHALA:  Yes.  His wife is actually pregnant and due at any time so he will probably have to go straight away.

[Tribunal Member]:  Probably.

MR BURHALA:  As soon as you hear the evidence.  And then - - -

[Tribunal Member]:  I am really – I am not asking about people’s convenience, I am asking about the value of the evidence to your case.  Which of the people has the most important evidence?

MR BURHALA:  The evidence that they will give is pretty much the same so the parents are probably the most important ones.

[Tribunal Member]:   Both of them, are they both necessary?  Would they give the same evidence?

MR BURHALA:  Similar evidence.  Probably the mother would be the best one to give the evidence.

[Tribunal Member]:  All right.  Of Mr Conrad, Ms Novamlinska and Mr Nesmal?

MR BURHALA:  Probably Ms Novamlinska because she has been recently on a trip to …

[Tribunal Member]:  I mean I am not saying I won’t hear from the others but I anticipate that we are going to run out of time and I don’t want your best witness missing out.

MR BURHALA:        No, that is fine.  I will say mother and Ms Novamlinksa.

[Tribunal Member]:  All right.  Now, for the people in the hearing room, as I have indicated, it is not that I don’t want to hear from you all, but we may run out of time.  What I am going to do first up is ask that everyone but the review applicant leave the hearing and you will be called in one at a time.  Some of you may end up just sitting in the waiting room and going home without coming back in.  I apologise for that, that is really just a matter of time. Thank you for coming anyway and I have noted that you are here.

Good afternoon, Mr Maltsin, I am sorry about all that preliminary stuff.  Now, I have to say to Mr Maltsin and you, Mr Burhala, because there are six files or something it is almost inevitable that I am going to make an error in the facts.  If I am doing that, if either of you note or notice that I have misconstrued something that is on the files please, especially you, Mr Burhala, if you could point me in the right direction.  I have done my best to get on top of it but it is an enormous amount of material and I would be grateful for guidance.

I am not asking you to give evidence, least you think that is a nice little opening, but am simply admitting that I am not perfect and I may get some things wrong and I would grateful for help.

40                  As already noted, the appellant relied, first, upon the statement made on Mr Maltsin’s behalf, that the witnesses’ evidence would be “pretty much the same”.  So far as the appellant is concerned, however, the difficulty with this statement is that it is not at all clear what was intended by it.  The statement may well have meant no more than that the prospective witnesses would give evidence about the principal matter in issue, namely, that Mr Maltsin and Ms Bogodist had a genuine and continuing commitment to one another.  Presumably, however, their evidence would have related to different events at various times and places.  This might have been significant for the outcome of the review.  For example, Mr Conrad, who is named in Mr Maltsin’s s 361(2) notice, had prepared a written statement that had been submitted to the Tribunal prior to the hearing.  In this statement, Mr Conrad referred to the fact that Mr Maltsin and Ms Bogodist had lived together at two separate addresses prior to Ms Bogodist departing Australia, as she was required to do for her current application, although he did not provide any relevant dates.  Had Mr Conrad given oral evidence, he might have provided the details concerning the length of time the couple had lived together at these addresses. This evidence might have permitted the Tribunal to make a finding that attracted the evidentiary effect of sub-reg 1.15A(5).  In any case, the transcript makes it plain enough that the Tribunal Member did not make any precise enquiry about the nature of the evidence that the prospective witnesses could give, or turn her own mind to the relative importance of their evidence.  Equally, the transcript shows that the Tribunal Member considered that the matter was “pretty complicated” on account of the volume of material and that it was “almost inevitable” that she would mistake the facts.  Bearing this in mind, this case was, it seems, one that called for the Tribunal to direct its mind to such matters.

41                  The appellant also relied on the fact that Mr Maltsin’s representative apparently accepted the course proposed by the Tribunal member.  Again, so far as the appellant is concerned, it is far from clear that Mr Maltsin’s representative was agreeing to a review in which some of Mr Maltsin’s witnesses would not be permitted to give oral evidence.  On the other hand, it is tolerably clear from the transcript that the matter uppermost in the Tribunal Member’s mind was that, come what may, the hearing was to finish by 4 o’clock because she had a commitment of her own after this time.  This latter point is confirmed by reference to the following passage in the transcript of the hearing:

Now, I don’t think there is anyone coming in here after us at half past 3.  There is no way we well get out of here in an hour but I have no intention of going beyond 4 o’clock because I have my own commitments then.  So we will do our best to get the best evidence for your case within that time and what I suggest to you, and I will also to your witnesses, is that because we are tight for time that you try and concentrate on the questions that I am asking and address them as closely as you possibly can.  People tend to waffle here because they get nervous and it is a very emotional time and waffling isn’t going to help your case.  All right?

So if you can try and listen to what I am after and try and address that as briefly as you can.  Now there is a lot of evidence in the file about your travel out of Australia.

42                  Other parts of the transcript confirm that the hearing was conducted under the pressure of time.  The transcript shows that the hearing was rushed, in order to conclude by the 4 o’clock deadline that the Tribunal had set.  For example, in answer to the Tribunal, Mr Maltsin described the ownership of his taxi licence, but the Tribunal stopped him with the comment, “Too much detail. I don’t need to know that.” Mr Maltsin gave evidence that he had withdrawn his sponsorship of Ms Popova in December 1999 or 2000, by way of a fax to the Immigration Department, to which the Tribunal Member said, “I have no chance of finding that in six files, I am sorry, and I am not going to spend a day looking for it.”  After telling Mr Maltsin at one point that “Well, … we haven’t got the time”, towards the end of Mr Maltsin’s evidence, the Tribunal Member said:

“[Tribunal Member]:  Yes. Now, we need to move along. Mr Maltsin, is there anything you would like to say to me at this point?

MR MALTSIN:  Yes, I would like to know - - -

[Tribunal Member]:  I didn’t ask – I am not answering questions.  Is there anything else you would like to say to me before I hear your witnesses?

MR MALTSIN:  Nothing further, but I want to ask you one question if possible.

[Tribunal Member]:  Well, ask it but I doubt whether I am going to respond.

MR MALTSIN:  In the thingumabob when they gave us the answer that we a non-genuine relationship, right, we said that my wife - - -

[Tribunal Member]:  In the decision?

MR MALTSIN:  In the decision they said that [my] wife has a child which does not exist.

[Tribunal Member]:  Well, I am not aware of that being a problem.

MR MALTSIN:  I just wanted to know where did that come from?

[Tribunal Member]:  I don’t know and I am not going to waste time talking about it because it is something that I am considering.”

43                  The Tribunal Member also showed a desire to hurry through Ms Bogodist’s evidence.  Towards the conclusion of her evidence, the Tribunal Member stated:

“We are getting very close to running out of time.  Is there anything you want me  to ask – just a moment Miss Bogodist.  Is there anything you want me to ask her before we go?  It really has to [be] very quick.”

Mr Maltsin’s representative inquired whether Ms Bogodist could be asked if Dr Belsky had referred her to hospital, to which the Tribunal Member said:

“Well, I asked about – I asked umpteen questions about that and I don’t see the point in asking another one.  I think we will finish up and get those other witnesses in the room.”

Shortly thereafter, the Tribunal Member observed:

“All right.  Now, we will get Mrs Maltsin in quickly, followed by Miss Novamlinska.”

44                  The Tribunal Member asked Mrs Maltsin when her son and Ms Bogodist began to live together, and Mrs Maltsin said in 1999, although she could not remember the month but she thought “somewhere in the middle”.  At this point, Mr Maltsin, the review applicant, apparently said:

“Can I be excused?  I have got to go out.  I can’t listen to this any more.  It is getting to a ridiculous stage.”

45                  At the end of her evidence in which she asked the Tribunal Member, “to let Rita come here as soon as possible”, the Tribunal Member said:

“All right, thank you.  Mr Burhala, it might be quicker if you go and collect the crowd.  I will only have time for one more and will you still want it to be Novamlinska?

…

All right.  So bring them all in so they can at least participate a little.  All right, thank you very much.

…

Now, you have all come in and been very helpful and supportive and I am afraid we have run out of time and I will only have five minutes with you.  English is all right with you.”

The transcript indicates that at the speed that the Tribunal Member intended to proceed, the English language was not “alright” with the witness.  There were numerous questions to which she gave no answer at all. 

46                  The hearing ended in the following way:

“[Tribunal Member]:  Thank you.  That you, you can – Mr Maltsin, it is your last chance.  We have run way over time and I can give you a brief response but not very long.

MR MALTSIN:  I don’t know what to say.  After getting so much - - -

…

[Tribunal Member]:  Look, I think we have all probably had enough today.  I think our brains are all probably stretched as far as they can be stretched with this matter today.

MR BURHALA:  Fine.  I understand.

[Tribunal Member]:  So I think we will call it quits and if there is anything that I – you know, in cool reflection, anything I need to address.  I mean there is no legal issue, it is really facts.  So in that regard I think it is just up to you what you put in if you put anything in at all.

MR BURHALA:  Okay.

…

[Tribunal Member]:  Yes, well, that is what I was about to say to you.  My job from this point, if [your] agent puts in any further material in that is fine I will take that into account, but at this stage I am taking into account as much as I can get on top of with all these files.  I would like to say I will be completely on top of every page, but I think that is not likely, but I will certainly do my best to absorb as much material as I can.  And certainly the material that has been provided in this Tribunal application, I will take into account every item of that and as much of the previous stuff as I can also, all the evidence that was given today including obviously the evidence on the telephone and weigh it all up, all right, in determining whether or not the relationship is genuine, was genuine at the time of application, and continues to be genuine at the time of decision, which is now or whenever I sit down to type it up.

The delay in this matter – do you want me to give you a stay to put in submissions.  I am not going to be finalising this within a fortnight so do you want a stay?

MR BURHALA:  I will have a submission next week given your indication that you may not finalise it in a week.

[Tribunal Member]:  Yes. I mean there is lots of work ahead of it. 
I would imagine that it would [be] four or five weeks before you are advised of the decision and that is simply the Tribunal’s workload and internal processing.  You can come to the Tribunal and receive the decision on the day or you can wait until it is posted out to you.  All right?  Now, we are very over time.  Thank you everybody for coming today and I am sorry you had that pretty boring wait out in the foyer there.  The hearing is now concluded and thank you for staying over.”

[Emphasis added]

47                  The haste in which the Tribunal proceeded may be reflected in the use in the course of the hearing of inappropriate language, as for example, the reference to the applicant’s material as “stuff”.  Be that as it may, the Tribunal Member stated that she fixed the two-hour limit because she had a commitment of her own after 4 o’clock, although she herself acknowledged on more than one occasion that the subject-matter of the review was complex because there was a great deal of material to comprehend.  It was, on its face, the very kind of case that called for, at the least, a measured approach to the evidence and arguments that the review applicant presented.  As it happened, the two-hour period fixed by the Tribunal led the Tribunal to hurry through the taking of evidence from Mr Maltsin and Ms Bogodist and to speed through such other witnesses as could be “fitted in”.  The Tribunal conducted the hearing with an eye principally on the clock, and the transcript shows that the Tribunal limited the taking of oral evidence as it did solely because the Member ran out of time.  The Tribunal did not in fact limit the taking of oral evidence by reference to such relevant considerations as the importance of the proposed evidence for the review, or the time the applicant might reasonably require fairly to put his case.  It follows that the Tribunal did not genuinely give regard to the notice that Mr Maltsin gave under s 361(2) of the Act.  It therefore acted in breach of its obligation under s 361(3) of the Act. 

48                  The Tribunal’s obligation under s 353(1) of the Act is related to the rule of procedural fairness that requires that a person in the position of the applicant in this case to have a reasonable opportunity to present his or her case: compare Minister for Immigration and Multicultural and Indigenous Affairs v WAFJ (2004) 137 FCR 30 (“WAFJ”) at [68] per French J (dissenting in the result), [114] per Lee J, and [122] per RD Nicholson J; W360/01A at [2] per Lee and Finkelstein JJ; and R v Thames Magistrates’ Court, ex parte Polemis [1974] 2 All ER 1219 at 1223 per Lord Widgery CJ, with whom Ashworth and Bristow JJ agreed.  In Polemis, the master of a ship, who was convicted of an oil pollution offence by a stipendiary magistrate, obtained a writ of certiorari setting aside the conviction because he was not given sufficient time to prepare his defence and was thereby denied natural justice.  The rules of procedural fairness required that Mr Maltsin be given a fair opportunity to put his case.  The Tribunal’s failure to have a genuine regard to his wishes concerning the oral evidence that it was to obtain and the apparent haste in which it set about obtaining oral evidence deprived him of this opportunity.  This is not a case in which it should be concluded that the apparent breaches could have no bearing on the outcome of the hearing. 

49                  The Tribunal’s breaches of s 361(3) of the Act and the rules of procedural fairness, discussed above, constitute jurisdictional errors of the kind discussed in Yusuf: see [30] above.

50                  In any event, the Tribunal’s failure to have genuine regard to Mr Maltsin’s wishes as set out in his s 361(2) notice and to accord him procedural fairness is compounded by the circumstances in which the Tribunal made a specific finding that there was “a web of deceit through the review applicant’s family and social connections”.  In Applicant S20/2002, Gleeson CJ considered a submission that a tribunal member erred by failing to assess an applicant’s evidence, in the light of corroborating evidence, for reasons that had nothing to do with the quality of that evidence.  His Honour said at 63 [12]:

“The essence of the complaint is that the tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant.  I do not accept that this is fair criticism of the tribunal’s reasons.  In my view, all that the member was saying was that, for reasons already given at length, she found the applicant’s/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering.  …  It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.”

51                  In the present case, the Tribunal took a different approach from that considered by the Chief Justice in this passage.  The Tribunal did not say that it did not believe Mr Maltsin and Ms Bogodist; and that therefore the corroborative evidence of friends and family was to be put to one side.  Rather, it said that it was not satisfied that Mr Maltsin and Ms Bogodist had a genuine and continuing commitment to one another, amongst other reasons, because their family and friends were not truthful.  At paragraph 80 of its reasons, the Tribunal said:

The Tribunal finds that the review applicant entered into two false marriages solely for the purpose of supporting his former wives’ applications for permanent residence.  The Tribunal finds, therefore, that the review applicant’s credibility and reliability is brought sharply into question in relation to the current visa application.  The compliance of the review applicant’s parents in at least one of those false marriages also brings their credibility and reliability into question in relation to the current application.  The review applicant’s connections with business interests in Moscow, which may or may not be legitimate, suggests that the support given to the visa application by persons in Russia may not be genuine.  The Tribunal also notes the visa applicant’s lack of credibility in relation to her previous application for permanent residence based on her former marriage.  Therefore, when taking into account the evidence before it, which appears to disclose a web of deceit throughout the review applicant’s family and social connections, the Tribunal can not be satisfied to any degree of confidence that the review applicant’s family and friends are witnesses of truth in this matter.  The Tribunal finds, therefore, that it can give little weight to the letters and declarations provided in support of the application”

[Emphasis added]

52                  That is, in this case, the Tribunal found that certain persons, some of whom who gave corroborative evidence, were deceitful, notwithstanding that the Tribunal found that Mr Maltsin and Ms Bogodist presented themselves as a couple to their friends (see [17] above) and at least one friend (Mr Conrad) was not permitted to give oral evidence.  It was, of course, open to the Tribunal to determine the weight to be given to the letters and declarations to which it referred and to reject the corroborative evidence of friends and family on the basis that it rejected the evidence of Mr Maltsin and Ms Bogodist (always providing that jurisdictional error was not otherwise involved).  It was, however, unfair in the circumstances to condemn as dishonest a group of individuals, some of whom had and some of whom had not prepared statements for the Tribunal, in circumstances where they had no chance at all to answer such an accusation, especially as the basis for the finding of dishonesty was not self-evident. 

53                  In Moore v Guardianship and Administration Board [1990] VR 902, Gobbo J held that the Board’s failure to provide the plaintiff and a person assisting her with an opportunity to respond to material in a report that was prejudicial to them constituted a breach of natural justice.  At 912, his Honour said:

It was submitted that Mr Shellard was not entitled to complain of the absence of natural justice as he was not a person in respect of whom an administration order was made.  As to the plaintiff herself, it was submitted that she made no objection.  These were bold submissions to say the least.  Mr Shellard would appear to have acted as the plaintiff’s representative at the hearing with the implied consent of the plaintiff.  As such he was entitled to the protection of the rules.  If Shellard was not the plaintiff’s representative, I am nonetheless not disposed to accept an argument that the rules do not apply.  In my view the rules of natural justice do not exist only for particular parties — they control the hearing and the way the board adjudicates the matter. 

[Emphasis added]

54                  Mahon v Air New Zealand may also provide some support for the proposition that, where the rules of procedural fairness apply, they control the hearing before the relevant administrative body generally and, at least in some circumstances, may enure for the benefit of persons other than an applicant: see, however, the discussion in Re Hurd and Hewitt [1994] 120 DLR (4^th) 105, reversing Hurd v Hewitt (1991) 13 Admin LR (2d) 223.  Although each of these authorities is distinguishable from the present case, each indicates that it is at least arguable that a denial of procedural fairness to a person other than an applicant before the Tribunal may in some circumstances impinge on the validity of the ultimate decision.  Alternatively, this may be a case in which the Tribunal’s “web of deceit” finding so lacked any reasonable foundation that, to adopt the language of Allsop J in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 (“NADH of 2001”) at [136]:

“To assert conclusions of this kind in this way may be seen as not to engage in a reasoning process, but to assert conclusions by a process that is no more than an intuitive, arbitrary or capricious response to the task.” 

In view of the errors already identified, however, it is unnecessary to determine whether a failure to act fairly as regards the respondents’ family and friends could amount to a jurisdictional error that would vitiate the decision, or an error of the kind described by Allsop J in NADH of 2001.  It suffices to say that the unfairness compounded the errors already identified.

55                  As already noted, the appellant submitted that Mr Maltsin gave up any right to complain about the Tribunal’s conduct in this regard because of what his representative said at the hearing and the fact that he did not make any complaint in the submissions filed on his behalf after the hearing.  In some circumstances, the failure to make an early complaint may lead a court to conclude that there was no denial of procedural fairness.  In the present case, however, the Tribunal also breached its obligation under s 362(3) of the Act; and an adverse finding about the proposed witnesses compounded this breach.  Moreover, the Tribunal gave the clear impression in its conduct of the hearing that there would be no further opportunity to present evidence orally and its mind in this regard was made up.  In the circumstances of the case, the appellant’s submission must be rejected.

56                  The appellant has not shown that in this case there was any relevant error in the decision and orders of the Federal Magistrate: see WAFJ at [120] per RD Nicholson J and the authorities there cited.  For the reasons stated, the appeal should be dismissed with costs.  In view of the conclusion reached above, it is unnecessary to consider the issues raised by the

respondent’s Notice of Contention, including whether leave to raise the new matters should be given.

Associate:

Dated:              24 June 2005