FEDERAL COURT OF AUSTRALIA

MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended from Refugee Review Tribunal to Administrative Appeals Tribunal and the title to the proceeding be amended accordingly.

2.    The time in which an appeal from the orders and decision of the Federal Circuit Court may be filed is extended to 17 April 2015.

3.    The appeal be allowed.

4.    The orders of the Federal Circuit Court made on 27 February 2015 be set aside and in lieu thereof, the decision of the Refugee Review Tribunal made on 31 January 2014 be set aside.

5.    The application for review dated 19 December 2012 be remitted for determination by the Administrative Appeals Tribunal, differently constituted, according to law.

6.    The first respondent pay the appellant’s costs of and incidental to the application for extension of time and appeal, on and from 20 May 2015.

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

REASONS FOR JUDGMENT

The Court

1    The applicant seeks to appeal from the decision of the Federal Circuit Court dismissing his application for review of the decision of the Refugee Review Tribunal (now a division of the Administrative Appeals Tribunal) affirming the decision of a delegate of the Minister for Immigration and Border Protection not to grant him a protection visa. He requires an extension of time in which to do so.

2    This application and appeal were heard together with the application and appeal of the applicant’s brother, in proceeding VID 203 of 2015: see MZZMG v Minister for Immigration and Border Protection [2015] FCAFC 134.

3    For the reasons set out below, the extension of time will be granted and the appeal will be allowed. Since we have granted an extension of time we use the term “appellant” rather than “applicant” in these reasons.

BACKGROUND AND PROCEDURAL HISTORY

4    The appellant is a young Sri Lankan man of Tamil ethnicity. The appellant and his older brother arrived in Australia together by boat on or about 21 May 2012 and applied for protection visas on 20 September 2012. At the time, the appellant was still a minor. Protection visas were refused by the same delegate of the first respondent in separate decisions on 14 December 2012 in respect of the appellant and his brother. On 21 December 2012, both the appellant and his brother sought review by the Refugee Review Tribunal of those decisions.

5    At the hearing of the appeal, counsel for the appellant and his brother referred to their clients as “W” and “G”. So as to avoid any confusion in these reasons, and given we cannot use their names, we propose to do the same. In these reasons we shall generally refer to the appellant as “the appellant” and his brother as “G”.

6    The appellant and G both appeared before the Tribunal constituted by Member Corrigan on 25 February 2013 and on 8 May 2013. The appellant’s claims centred on his Tamil ethnicity. He claimed to fear persecution by the Sri Lankan authorities, as well as non-state actors uncontrolled by the authorities (such as the “grease devils”) on the basis of his Tamil ethnicity, or on the basis of suspicion that he was associated (now or in the past) with the LTTE. He also claimed to fear persecution on the basis of his membership of a social group of “failed asylum seekers” if he were returned to Sri Lanka. He claimed his father had disappeared in 2002, and he considered it was because his father was suspected of association with the LTTE. He claimed he and his family were harassed by the Sri Lankan authorities on many occasions, and that his mother had continued to be harassed since he and his brother had fled Sri Lanka in May 2012. G’s claims were of a similar nature.

7    In separate decisions given on 17 May 2013, the Tribunal, constituted by Member Corrigan, affirmed the delegate’s decisions to refuse the appellant and G a protection visa.

8    Although the evidence before us does not entirely explain the sequence of events, it appears that upon the appellant seeking judicial review of the Tribunal decision the Minister agreed that the decision should be set aside on the basis of jurisdictional error.

9    The orders of the Federal Circuit Court setting aside the decision were made by consent on 21 August 2013. The draft consent orders prepared by the parties drew the Court’s attention to the basis for the proposed orders in the following terms:

The First Respondent concedes that the decision of the Second Respondent handed down 17 May 2013 is affected by jurisdictional error in that the Second Respondent failed to consider the applicant’s claims in relation to the potential harm that a 17 year old may suffer in the course of a short term period of imprisonment upon return to Sri Lanka, which was an issue in the review.

10    The basis for the consent orders put forward, read together with the Tribunal’s reasons indicate that Member Corrigan mistakenly took the appellant to be aged 20, rather than 17, at the time of the review. By consent the application was remitted to the Tribunal, differently constituted, for determination according to law.

11    On remitter, the appellant provided written submissions to the reconstituted Tribunal, and appeared before it on 14 November 2013 with the assistance of his migration agent. Member Boddison was the Tribunal member constituted to determine the application for review. On 31 January 2014, the Tribunal (constituted by Member Boddison) affirmed the delegate’s decision to refuse the appellant a protection visa.

The second Tribunal decision (Member Boddison)

12    There does not appear to have been any material change in the nature and content of the appellant’s claims in the review conducted by the Tribunal constituted by Member Boddison. The Tribunal accepted (at [26]) that the appellant’s father was taken by the Sri Lankan Criminal Investigation Department and never seen again, noting the appellant’s account of his father’s disappearance accorded with general country information around that period (2002) concerning the treatment of Tamils suspected of assisting the LTTE.

13    The Tribunal did not accept (at [36]-[37]) that he or his family had been the subject of any adverse interest by the authorities or anyone else since 2002, having regard to factors including the “vague and changing nature of his evidence”, the implausible nature of the claims given he and his brother were respectively seven and nine years old in 2002, the implausible nature of the claims that his brother would tip him off about the visits or that the authorities looked for him at home over a period of ten years but never looked for him at work or school, and that his mother continued to reside in the family home and his sister was attending school. Accordingly the Tribunal found that the appellant did not face a real chance of persecution based on his membership of a social group (his family) or his imputed political opinion as a LTTE supporter now or in the reasonably foreseeable future. The Tribunal also rejected (at [42]) the claim in his protection visa application that there was an incident where a grease devil came to his home and broke the doors and windows while he was inside, having regard to his subsequent evidence to the Tribunal that he did not know anything about any grease devil incident or problem.

14    As to the claim that he feared harm on account of his Tamil ethnicity, the Tribunal had regard to his past experiences and to country information indicating a generally improved situation for Tamils since the end of the civil war. Although the Tribunal accepted there was a level of discrimination against Tamils, it did not accept (at [58]) that the appellant would face a real chance of persecution on account of his Tamil race or being a young Tamil male, his Hindu religion, membership of a particular social group (his family, or Sri Lankan Tamils) or imputed political opinion as a LTTE supporter now or in the reasonably foreseeable future, or that there was a real risk that he would suffer significant harm on return. The Tribunal also did not accept (at [73]) that he would face a real chance of serious harm as a failed asylum seeker returning from a western country.

15    The Tribunal accepted (at [74]) that upon return the appellant might be prosecuted under the Sri Lankan Immigrants and Emigrants Act for leaving Sri Lanka illegally, but found (at [78]) that this was a law of general application and that the available evidence did not indicate any discriminatory application or enforcement for a Convention reason. The Tribunal was satisfied that if charged the appellant would be held in remand for a short period in poor and overcrowded prison conditions, but did not accept that a short period of remand gave rise to a real risk of significant harm (at [79] and [83]-[85]). The Tribunal considered (at [87]-[88]) that there was no real risk of a prison sentence if convicted and the most likely penalty was a fine, which the Tribunal was satisfied the appellant could pay and so did not consider gave rise to a real risk of significant harm. The Tribunal also found (at [89]) that the appellant’s status as a failed asylum seeker or a returnee who may be charged with illegal departure did not give rise to a real chance of persecution.

16    Finally, the Tribunal considered the claims on a cumulative basis and found that even viewed cumulatively there were no substantial grounds for believing that the appellant would face a real risk of persecution on return. Nor did the Tribunal consider that the appellant was a person in respect of whom Australia had complementary protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth).

17    Many passages in the Tribunal’s decision record were identical (or identical but for syntactical modifications) to passages in the earlier Tribunal decision record of Member Corrigan, which had been set aside on 21 August 2013. This feature forms the underlying subject matter of the grounds of appeal before us.

The Federal Circuit Court decision

18    On 12 February 2014 the appellant lodged an application for judicial review of the Tribunal decision. By the time of the hearing on 10 February 2015 the appellant was represented by a solicitor acting pro bono, whose assistance had been secured only a few days prior to the hearing. Leave was granted to rely on amended grounds of judicial review. Those grounds of review are not relevant in the appeal. It was conceded before us that the particular allegations of jurisdictional error in the Tribunal’s decision raised on this appeal were not raised before the Federal Circuit Court.

19    On 27 February 2015, the Federal Circuit Court dismissed the application for judicial review, finding (at [22]) that the Tribunal applied the correct legal tests to the facts it found on the evidence, and that those facts were open for it to find on the evidence. It also noted (at [21]) it was a matter for the Tribunal what country information it obtained and what weight it gave that country information, referring to the reasons of the Full Court of this Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].

20    The Court concluded, at [22]-[23]:

The Tribunal conducted a proper examination of the matters claimed by the Applicant in its extensive reference to country information and puttage of matters to the Applicant in particular where it had issues as to inconsistencies in his evidence or the implausibility of it. Careful consideration was given to his varied claims. A logical and reasonable approach to the matter was exhibited in the Decision Record and the conclusion reached neither irrational nor unreasonable on the evidence. Credibility findings are of course a matter for the Tribunal and not this Court. There is no evidence of bias attending the decision and it is difficult to see how that ground was raised. The suggestion likewise that the Tribunal failed to give any proper consideration of the complementary protection provisions is not founded in fact. A thorough and legally accurate consideration is evident.

No jurisdictional error attends this decision and the application shall be dismissed with costs.

21    No appeal from the Federal Circuit Court decision was filed within the time set by r 36.03(a) of the Federal Court Rules 2011 (Cth). An application for an extension of time in which to file an appeal was made on 17 April 2015, accompanied by a supporting affidavit completed by the appellant in person. A referral for pro bono assistance under r 4.12 was made by the Court on 20 May 2015.

THE APPLICATION TO THE FULL COURT

22    The Minister did not oppose the grant of an extension of time in which to appeal, and the delay is short in any event. The affidavit of Ms Sarah Watson, a solicitor from Maddocks Lawyers, sets out the circumstances in which that firm accepted a pro bono referral made by the Court to represent the appellant. Counsel also accepted a pro bono referral to represent the appellant. Ms Watson deposes to her client’s instructions that he was not informed of his right to appeal from the Federal Circuit Court, and his reliance on his older brother G. Finally, she deposes to steps taken by G (on behalf of himself and the appellant) to try and secure legal assistance for an appeal, and the way in which G was provided with the requisite forms by a representative from a refugee and asylum seeker welfare organisation. We consider there is an explanation for the short delay in bringing the appeal and we consider it is in the interests of the administration of justice that an extension of time be granted.

23    The Minister did not oppose the raising of new grounds of jurisdictional error for the first time in this Court.

24    There are three grounds of appeal, identifying three alleged jurisdictional errors in the Tribunal’s decision. The appellant puts the second and third grounds as alternatives to the first ground although he accepts there is considerable connection between them.

25    The three grounds are:

1.    There was a constructive failure by the Tribunal to perform its function on review.

Particulars

On 17 May 2013, the Tribunal constituted by David Corrigan purported to make a decision under s 415(2) of the Migration Act 1958 (the Act) to affirm a previous decision of a delegate of the First Respondent (Minister) to refuse to grant the Appellant a Protection (Class XA) visa. The Tribunal (Corrigan) also prepared a written statement under s 430 in relation to the purported decision.

On 19 June 2013, the Appellant applied to the Federal Circuit Court for judicial review of the purported decision of the Tribunal (Corrigan). On 21 August 2013, the Court granted certain relief including a writ of certiorari quashing the purported decision of the Tribunal, and a writ of mandamus requiring a differently constituted Tribunal to re-determine the Appellant’s application for review.

On 31 January 2014, the Tribunal constituted by Wendy Boddison purported to affirm the delegate’s decision under s 415(2) of the Act. The Tribunal (Boddison) also prepared a written statement under s 430. Many passages in the written statement prepared by the Tribunal (Boddison) correspond to, and were copied from, the written statement previously prepared by the Tribunal (Corrigan).

Accordingly, and having regard to various factors, including without limitation:

(a)     the function of the Tribunal;

(b)     the fact that the Court had ordered the Tribunal to be differently constituted on remitter;

(c)     the fact that the copied passages derived from a written statement relating to a purported but invalid decision;

(d)     the fact that many of the copied passages were controversial;

(e)     the significant extent of the copying;

(f)     the fact that many of the copied passages comprised an evaluation of the individual circumstances of the Appellant, including the Appellant’s credibility, rather than merely setting out ‘country’ or general information;

(g)     the fact that neither the copying, nor the source of the copied passages, was acknowledged,

the Court should conclude that there has been a constructive failure of the

Tribunal (Boddison) to perform its function on review.

2.     Further or alternatively to 1, the Tribunal erred by considering and placing weight on the written statement prepared by the Tribunal on 17 May 2013.

Particulars

The Tribunal (Boddison) had no power to consider the written statement prepared by the Tribunal (Corrigan) on 17 May 2013. The Tribunal has power under s 416 of the Act to consider a written statement under s 430 in relation to an application for review that has been ‘determined’ by the Tribunal. However, the written statement prepared by the Tribunal (Corrigan) on 17 May 2013 did not relate to an application for review that had been ‘determined’ by the Tribunal. Accordingly, s 416 did not authorise the Tribunal (Boddison) to consider that written statement.

Alternatively, if the Tribunal (Boddison) had power to consider the written statement prepared by the Tribunal (Corrigan) on 17 May 2013, it was legally unreasonable for the Tribunal (Boddison) to give weight to that written statement in assessing whether the Appellant satisfied the criteria for a Protection (Class XA) visa. That written statement had no legal status. It was not part of the ‘record of the proceedings’. The written statement evidenced the past opinion of a particular individual – David Corrigan – regarding whether the Appellant satisfied the criteria for a Protection (Class XA) visa. But it was no part of the Tribunal’s decision to ‘review’ the purported but invalid decision of the Tribunal (Corrigan) on 17 May 2013. The function of the Tribunal (Boddison) was to ‘review’ the decision of the delegate on 14 December 2012. The past opinion of David Corrigan was irrelevant to the performance of that function.

3.    Further or alternatively to 1 and 2, the Tribunal failed to accord procedural fairness to the Appellant.

Particulars

The written statement prepared by the Tribunal (Corrigan) on 17 May 2013 contained information regarding the past opinion of a particular individual – David Corrigan – regarding whether the Appellant satisfied the criteria for a Protection (Class XA) visa. The Tribunal (Boddison) considered that that information would be the reason, or part of the reason, for affirming the decision under review. However, the Tribunal (Boddison) did not: (a) give the Appellant clear particulars of that information; (b) ensure as far as reasonably practicable that the Appellant understood why it was considered relevant to the review; and (c) invite the Appellant to comment on or respond to the information by one of the methods prescribed in s 424A(2) of the Act. Nor did the Tribunal comply with the alternative procedure in s 424AA. The information was not excluded by s 424A(3). Accordingly, the Tribunal failed to accord procedural fairness to the Appellant.

26    The majority of time in argument was devoted to the first ground, and rightly so. We have concluded that ground should succeed.

CONSIDERATION

27    The Minister accepts that Member Boddison copied passages from the Corrigan decision, including passages dealing with findings on credibility and whether she accepted the appellant’s claims, and inserted them into her own reasons. The issue both parties confronted in their well developed and helpful submissions was what follows from that fact. The Minister also accepts that the authorities suggest where copying of findings about an individual claim occurs such a decision must be subject to close scrutiny.

28    Both parties handed up competing versions of the second Tribunal decision with highlighting reflecting either the passages in the reasons which were copied from the Corrigan decision (the appellant’s version), or the passages which were not (the Minister’s version). No doubt each party considered the competing highlights better advanced the overall impression of how much of the second Tribunal’s decision was its own work. The Minister’s version also had edits identifying where the Minister submitted that rather than word-for-word copying there was some “paraphrasing” of the Corrigan reasons employed by Member Boddison. For the purposes of assessing whether a tribunal member brought her own independent mind to bear on what was the correct or preferable decision on the review, we do not consider there is a material distinction between word-for-word copying, moving words around into a different order (for example, in this case “broke windows and doors” at [23] in the Corrigan decision became “broke the doors and windows” at [21] in the Boddison decision), changing syntax or a word here or there. In each case it is the use of the opinions of another statutory officer as the Member’s own without attribution or disclosure that what appears in the reasons is not the work of that Member.

29    The appellant also relied on a table annexed to his submissions which demonstrates, by comparison, the overlap between the decisions of Member Boddison and Member Corrigan. As the appellant submits, it is apparent that the passages which are identical, or substantively the same, extend into findings in respect of the review itself and in respect of the appellant’s account of what occurred to him.

Ground One

30    As the appellant recognised, this ground could have been expressed in a variety of ways. There is not necessarily one “correct” characterisation of a miscarriage of the Tribunal’s task of the kind with which we are concerned. In Huluba v Minister for Immigration and Ethnic Affairs [1995] FCA 1561; 59 FCR 518 (about which we say more below), Beazley J characterised the error as a denial of procedural fairness. In LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166, the Full Court characterised it as a constructive failure to exercise the jurisdiction conferred by the Administrative Appeals Tribunal Act 1975 (Cth) on the Tribunal. In other cases, substantial copying has been contended to disclose bias: SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; 314 ALR 146; Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223. It could also be described as a failure to discharge the statutory function, and indeed that is one of the descriptions used in LVR (at [91]).

31    The Minister correctly submits that in each case it will be necessary to examine not only the extent of the copying, but its nature, context and degree. At a broad level, and subject to what we say below, the Minister is also correct that having conducted such an examination the Court must decide whether it is satisfied that the Tribunal brought its own independent mind to bear on what would be the correct or preferable decision on the review. We did not understand the appellant to quarrel with these propositions. The difference between the parties lies in the application of this approach to the second Tribunal decision, and the inferences which can be drawn from the nature, extent and context of the copying in this case.

32    A comparison with the Corrigan decision enables us to make the following findings about the Boddison decision:

(1)    Although not identified and not in issue, the first four paragraphs of the second Tribunal’s decision are substantially similar to the Corrigan decision. The next portion of its decision (headed “Relevant Law” and consisting of 14 paragraphs) is largely identical, although these parts of Refugee Review Tribunal decisions seldom differ between decisions.

(2)    The headings and sub-headings used by the second Tribunal are different to those used in the Corrigan decision.

(3)    The summary of the appellant’s claims in the second Tribunal decision is substantively identical to the Corrigan decision.

(4)    The finding explaining why the Tribunal accepted the appellant’s account of his father’s disappearance is substantively identical to the Corrigan decision, including findings about consistency in the appellant’s account of this event and consistency with country information.

(5)    The key claim made by the appellant, based upon the fact of his father’s disappearance (and the claimed reason for that disappearance, which the first and second Tribunals accepted) – namely, the authorities’ interest in the appellant between 2002 (when his father disappeared) and 2012 (when he fled Sri Lanka) – was rejected for eight identified reasons by Member Boddison. Three of those reasons are substantively identical, in form and content, to the Corrigan decision.

(6)    The very next paragraph, which is Member Boddison’s summary of why the appellant’s claims that the Sri Lankan authorities were and are interested in him should be rejected, is substantively identical to the Corrigan decision. The only part which is not a reproduction of what was in the Corrigan decision is a case reference.

(7)    The next, and separate, aspect of the appellant’s claims – whether he had been attacked by what are known in Sri Lanka as “grease devils” also contains three out of five paragraphs of reasoning substantively identical to that in the Corrigan decision. The appellant submitted these passages also contain a factual error (about the source of this claim – namely, that it was made in the appellant’s protection visa application rather than at a subsequent interview) which demonstrates Member Boddison had not read the protection visa application for herself. We accept the Minister’s submission that inference should not be drawn. It is also unnecessary to our conclusion on this ground.

(8)    Member Boddison then turns (at [43]-[58]) of the decision record) to deal with the appellant’s claims based on his ethnicity as a Tamil and his Hindu religion. In this part of her reasons again there are many passages which are substantively identical to the Corrigan decision. Some are word-for-word reproductions of what is said to be the applicable country information: that is, the selection of that material is Member Corrigan’s selection. Other parts mix a recitation of what the appellant said to Member Corrigan (by using the phrases such as “[a]t the hearing before the previous tribunal”) with what purport to be Member Boddison’s own findings (by the use of phrases such as “[t]he tribunal accepts”) but where what is “accepted” is what Member Corrigan stated in his reasons that he accepted.

(9)    A series of findings are expressed in this section by Member Boddison about what the country information (all of which is copied from Member Corrigan’s decision except information that post-dates his decision) shows. Those findings are substantively identical to the ones in the Corrigan decision – so much so that there appear to be no new or independent findings expressed to be based on the country information that post-dated the Corrigan decision. The parts which do not reproduce Member Corrigan’s findings are parts dealing with questions asked by Member Boddison of the appellant during the second Tribunal hearing. Notwithstanding that, in summarising and expressing her conclusions about why these claims must be rejected, Member Boddison uses passages from the Corrigan decision once again.

(10)    There then follows a substantial part of the decision record where the appellant does not allege there is any copying from the Corrigan decision. This part concerns the appellant’s claims to fear harm on return by reason of being a failed asylum seeker who departed Sri Lanka illegally. Some parts of this section relate to what was said by the appellant to Member Boddison during the second Tribunal hearing. A large part of this section consists of general findings about country information, expressed in general terms and not specifically about the appellant although applied to him by virtue of its presence in the reasons. Although the Minister placed some considerable weight on this section as evidence the Member brought an independent mind to her task, when its contents are examined that submission has less force. Although it is a long section, if we put to one side those paragraphs which recite the evidence given to Member Boddison at the hearing (but which make no findings), the remainder of this section is highly generalised. That is why it is not appropriate to conduct, as the Minister’s submissions invited us to, some kind of percentage analysis of the copying undertaken by Member Boddison. Even in the paragraphs containing findings as to why Member Boddison does not accept the appellant would face serious harm on return, or (in respect of complementary protection) a real risk of significant harm, the findings are expressed at a high level of generality. The single exception to this might be paragraph [74], but that is one paragraph amongst 30 paragraphs in this section. Their high level of generality and their failure to descend into much detail about the appellant’s particular circumstances (outside what might be said to be boilerplate phrases such as “the applicant’s individual circumstances”) give us no confidence that Member Boddison brought an independent mind to this decision, with the requisite examination of the circumstances of the particular applicant before her and her own assessment of them.

(11)    There then follows the “cumulative consideration” and “conclusion” of Member Boddison (at [90]-[94]). Although the appellant did not highlight these, we have compared them and only paragraph [90] of these five paragraphs differs from the words used by Member Corrigan to express his concluding opinions.

33    Having outlined what we consider to be the nature and extent of the copying, we turn to the three principal cases relied on by the appellant. The Minister’s submissions also engaged in detail with two of these cases, plus some other decisions to which we refer below.

34    The first case is Huluba [1995] FCA 1561; 59 FCR 518. We accept the appellant’s submissions that this is the case most closely similar to the present circumstances. In that case a tribunal member used what Beazley J found to be “substantial portions” of the report of the first decision-maker. Her Honour characterised the excess of jurisdiction involved in this copying as a denial of procedural fairness. There was some debate before her Honour whether the task of the second decision-maker (this being a case about decisions taken prior to the 1992 amendments to the Migration Act) was to review the first decision for error or to make a “new determination”. Her Honour concluded at 529:

However, the language used by the Department that there was to be a “new determination”, indicates that the matter was to be considered afresh and was not to be merely subject to review. It is in that context that the approach taken by the second decision-maker has to be considered.

35    We extract that, and her Honour’s use of the word “afresh”, so that later in these reasons we can address a criticism of the Minister about the approach taken by the appellant in his submissions. Noting that the decision was required to be made in accordance with the principles of procedural fairness, her Honour then continued (at 529):

Procedural fairness requires a decision-maker to apply an independent mind to the application subject of administrative action. A decision-maker is entitled to have regard to research and investigations carried out by others as well as to assessments and reports and recommendations prepared by others in the course of the administrative process. A decision-maker may have regard to and adopt, if thought appropriate, the reasoning of some other person involved in the administrative process. Thus a decision-maker could accept the reasoning of an officer whose function it had been to provide a recommendation and could adopt verbatim, such report or recommendation, provided at all times that the decision was the independent decision of the decision-maker. This case is different. The second decision-maker’s task was to make a new determination. In doing so there would have been no breach of the rules of procedural fairness for the second decision-maker to read and consider the findings of the first decision-maker. However, procedural fairness required that she reach an independent decision in the matter.

It is obvious from the passages set out above that the second decision-maker used substantial portions of the report of the first decision-maker. The coincidence of the language makes any other conclusion improbable. Those passages contain critical findings. The question arises, therefore, whether this coincidence of language demonstrates a failure by the second decision-maker to bring an independent mind to the determination of the application.

36    In Huluba the respondent submitted (as the Minister in substance submits before us) that it could not be inferred that a similarity of language meant that the second decision-maker had not brought an independent mind to the decision and that it was not improper for the second decision-maker to adopt the reasons of the first decision-maker after reading the first decision and the additional material which was lodged in further support of the application. The respondent submitted that because the Court could be satisfied that the second decision-maker had considered the fresh material, the second decision did not offend against the principles of natural justice. Her Honour rejected that submission and concluded (at 530):

I do not agree that, as was submitted by counsel for the respondent, that it was sufficient for the second decision-maker to consider the new material. Accepting that the new material was considered, there could still be a breach of procedural fairness. If a decision-maker adopted the reasoning of another without applying an independent mind to the matter, the consideration of other material could not cure the breach of procedural fairness that had occurred. In the present case, I consider that the use of the same language, sometimes in florid terms, on critical aspects of the decision-making process, makes it more probable than not that the second decision-maker did not apply an independent mind to the decision-making process. It follows that the applicant was denied procedural fairness by the second decision-maker.

37    Her Honour distinguished (at 530) what was said in Lek v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 297; 43 FCR 100 by Wilcox J, which concerned the use of standard paragraphs about the applicable law and about country information in Cambodia. Her Honour did so on the basis that the second decision-maker used material from the first decision-maker’s report which was specific to the applicant, and the impugned copied passages contained the decision-maker’s findings about whether the applicant’s fear of persecution in Romania was well-founded and the applicant’s credibility, which her Honour described as “critical factors” in both decisions.

38    The Minister did not submit we should find Huluba was wrongly decided. Nor did he seek to distinguish it. He made no submissions at all about it.

39    The second critical case is WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1293; 133 FCR 209, a decision of French J, as his Honour then was. In that case one tribunal member had copied text from the decision of another tribunal member about a different applicant. The appellant before us contended the copied passages in WAFK were either country information or “framework” parts of the decision. The Minister contended that is not how French J characterised the copying.

40    At [38] his Honour held that the coincidence of the text of country information did not support the inference of copying at all, because there “will be a good deal of commonality in the independent country information referred to by various tribunals and … similar citations will be made”. His Honour said that it may be the case that “Tribunal members are using similar surveys of relevant country information in similar cases and adopting a ‘cut and paste’ technique to incorporate those in their judgments” and he did not draw the inference for which the appellant in that case contended.

41    Most of the passages in WAFK were passages where the second tribunal had adopted text concerning conclusions on country information from another tribunal decision about a different applicant. There were (as the Minister submits before us) some passages impugned which were about the appellant himself and appeared to have been copied, in a considerable part but not identically, from other tribunal decisions about other applicants with the same ethnic background.

42    At [52], French J concluded:

It appears clear that the Tribunal has borrowed from the text of earlier Tribunal decisions or from some common source which is used in cases of this kind. While each case must turn upon its own circumstances, I am not satisfied that the mere fact of the use of common form text in relation to statements of general principle, general conclusions about country information and even findings of credibility in similar cases is necessarily indicative of jurisdictional error. It is, of course, in the latter area, that is to say findings of credibility in the particular case, that the Tribunal should be at pains to make it clear that it has given careful consideration to the detail of the application which it is required by the Act to review. I do not consider that resort by the Tribunal to common form texts for the purpose of findings of credibility in respect of a particular applicant is desirable. However, in this case the use of that text was sufficiently modified by reference to the particular circumstances of the appellant’s claims to indicate that the Tribunal was giving consideration to the appellant’s case.

43    This paragraph discloses two matters of significance for the approach we adopt. First, as French J observed, each case turns on its own circumstances, which is as it must be where the subject matter of the inference is whether a decision-maker has brought an independent mind to the determination of the review. Second, his Honour made it clear that the copying of credibility passages is of most concern. With the greatest respect to his Honour, we would characterise the matter as more than “[un]desirable”. It is an abdication of the Tribunal’s task.

44    The Minister’s submissions appeared to invite the Court to follow the outcome of French J’s analysis. Such an approach would be inconsistent with what his Honour recognised as the imperative for each case of copying to turn upon its own circumstances. In our view there are some critical differences between the circumstances in WAFK and those of the present appeal. First, most of the copying in WAFK concerned country information. The part concerning the appellant (see [46] and [49] of his Honour’s reasons) was very small (some six small sentences), was not all identical, was not anywhere near the kind of wholesale adoption which has occurred in the present appeal, and was not as central a credibility finding as those in the present appeal. Where the same text on a credibility finding was used (see [46] of his Honour’s reasons) it was quite generally expressed. Second, what was copied was not prior opinions of another Tribunal member about the individual claims of the same applicant.

45    In its circumstances, WAFK is distinguishable from the present appeal. In point of principle, we see no inconsistency between the approach taken by French J and the approach we take.

46    The third case is LVR [2012] FCAFC 90; 203 FCR 166. The proceeding concerned an Administrative Appeals Tribunal decision whereby applications for review (in relation to objections to assessments of GST and income tax and penalties imposed by the Commissioner) were dismissed for non-compliance with procedural directions made by the Tribunal.

47    In this decision the Full Court considered in some detail the applicable principles where there is copying by one decision-maker of passages from another source. In LVR the source was not another decision-maker, but the submissions of one of the parties to the review before the Tribunal. The Full Court described the circumstances early in the reasons (at [5]):

The reasons of the Tribunal extend to 59 paragraphs and, with the exception of a small number of words, phrases and sentences, were taken verbatim and without attribution from the written submissions filed in the Tribunal on behalf of the Commissioner. Approximately 95% of the paragraphs of the reasons were so taken from the Commissioner’s written submissions filed in the Tribunal before the hearing in the Tribunal on 24 June 2010 and a further three or four paragraphs of the Tribunal’s reasons were taken from the Commissioner’s written reply, dated 14 July 2010, to the written submissions of the appellants before the Tribunal.

48    The Full Court said, of that level of copying (also at [5]):

Of themselves, these circumstances would give rise to a serious concern that the Tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction. That jurisdiction in the present circumstances would include whether or not to exercise the discretion conferred on the Tribunal by s 42A(5)(b) of the AAT Act to dismiss the applications without proceeding to review the Commissioner’s decisions. The position in the present case is not, however, left at that level of generality because of an additional fact. Thus we do not need to decide and do not decide whether or not there has been a constructive failure to exercise jurisdiction.

49    The “additional fact” to which the Full Court referred was that the copying meant that the Tribunal failed to consider in its reasons an affidavit filed only very shortly before the submissions which it copied, and with which those submissions dealt only briefly. That additional fact led the Court to make the following finding (at [67]), when it turned to consider the way in which the Tribunal had copied the Commissioner’s submissions:

In our opinion, if the Tribunal had taken into account the Schokker affidavit this was where reference to it would have been made. As the Schokker affidavit went to compliance with the Relevant Directions it should have been dealt with, one way or another, by the Tribunal. It is unnecessary to go into detail because the Tribunal did not.

50    It was this omission which became the principal ground on which the Full Court determined the appeal. At [136]-[137] and [139] the Court held:

In our opinion, the Tribunal did not conduct that evaluation of the material in the Schokker affidavit, whether by reference to written submissions on behalf [of] the Commissioner or oral submissions on behalf [of] the Commissioner or otherwise. For the reasons we have explained, the Tribunal did not address compliance with reference to the Schokker affidavit although in a paragraph copied verbatim and without attribution from the Commissioner’s written reply submissions there is a reference to a submission which refers to the Schokker affidavit. Importantly, nowhere does the Tribunal refer to the detailed analysis of the Schokker affidavit by counsel for the Commissioner in oral submissions.

We find that the Tribunal did not have regard to the material in the Schokker affidavit and thus it failed to have regard to the appellants’ explanation relevant both to the question of breach of the Tribunal’s directions and to the exercise of the Tribunal’s discretion conferred by s 42A(5)(b) of the AAT Act.

….

Similarly, if it was the position, as put as a matter of speculation to us on behalf of the Commissioner, that the Tribunal did not refer to the Schokker affidavit because it did not advance the case of the appellants, then the Tribunal should have said so in its reasons.

51    In its reasons at [81] the Full Court acknowledged that there did not appear to be any Australian authorities about unattributed and wholesale copying of a party’s submissions by a tribunal, although there were some decisions about copying by judges which their Honours considered.

52    We agree with the appellant’s submission that at [89] in LVR the Full Court appears to have referred to both the reasoning and the conclusions of Beazley J in Huluba with apparent approval. Although the Full Court took a different approach to the characterisation of the kind of jurisdictional error which arises in circumstances where a decision-maker substantively copies findings, reasoning and conclusions from another source, we do not see these passages as the Full Court casting any doubt on the reasoning or outcome in Huluba. Characterisation is a matter on which reasonable judicial minds may differ.

53    The Full Court expressed (at [91]) a preference for an analysis that asks whether the decision-maker has “discharged its statutory role” and before us the Minister contends this is a more appropriate characterisation. It may be, for reasons more related to ground two of the appellant’s appeal, that even if that characterisation is adopted, there is also a denial of procedural fairness in a decision-maker copying the text and opinion of another Tribunal member as a substantial part of the determination of a merits review. In that sense, we should not be taken as suggesting there is anything erroneous in the approach taken by Beazley J in Huluba: the characterisation of a denial of procedural fairness may be an available characterisation in a given case. On the present appeal we characterise the error as a failure to discharge the Tribunal’s statutory task.

54    At [92] in LVR the Full Court set out some of the factors which might be considered in determining whether the copying resulted in the decision-maker exceeding her or his jurisdiction:

(i)     the function of the decision-maker and the source of that function;

(ii)     the source of the copied material;

(iii)     the subject-matter of the copied material;

(iv)     whether the copied material was controversial;

(v)     the similarity of the claim to the claim from which the material was copied;

(vi)     the extent of the copying;

(vii)     whether the copied material was up to date;

(viii)     whether the material was used in addressing the individual circumstances of an applicant, including credibility, particularly in evaluating the claim or application; and

(ix)     whether the fact of copying and the source of the copied material was acknowledged.

55    Contrary to the Minister’s submissions we do not consider the use by the appellant of this list distracted from the primary question of whether we are satisfied that Member Boddison brought an independent mind to all aspects of her task on review. Rather, those factors were designed to, and do, assist answering this question.

56    It has been said many times that the Refugee Review Tribunal (as it then was), in common with bodies such as the Administrative Appeals Tribunal, operates in an inquisitorial manner, and is under a duty to arrive at the correct or preferable decision on review according to the material before it, determining the substantive issues which arise on that review without restricting itself to any “case” put by an applicant: see for example Grant v Repatriation Commission [1999] FCA 1629; 57 ALD 1 at [17]-[18], referring to Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 424-425; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10] and [93], also referring to Bushell at 425.

57    If it were not already obvious from the nature of the task imposed on the Tribunal by Pt 7 of the Migration Act, the terms of s 421 of the Act make it plain that the task is discharged by a specific member of the Tribunal who is constituted to deal with that review. The Act deals in some detail with the constitution of the Tribunal, and its reconstitution in given circumstances. Some of those provisions are relevant to other grounds relied on by the appellant on this appeal. Those provisions also show that the statutory task is intended by Parliament to be performed by a particular member to whom that task is allocated. It is non-delegable. It is not to be performed by adopting the views of a differently constituted tribunal about the same applicant. Whatever the criticism might be of a decision-maker transferring across findings by another decision-maker about a different applicant and applying them to the applicant before the decision-maker, those criticisms pale against the wholesale adoption of the opinions of a previously constituted tribunal about the same applicant.

58    The emphasis of the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 136 ALD 547 at [32] that a tribunal on review must consider “for itself” whether it is satisfied a person meets the prescribed criterion for a protection visa is, with respect, an appropriate emphasis. The nature of the task was described by Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 at [71]-[73]:

In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision – in this case the grant of a protection visa – and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision. 



The Tribunal’s written statement of its reasons and, in particular, its statement of the findings on any material questions of fact, must be understood in this way. Indeed, so much follows from Minister for Immigration and Multicultural Affairs v Yusuf, where six members of the Court held that the Act’s requirement for the Tribunal to set out findings of fact was a requirement that focused upon the subjective thought processes of the Tribunal, not some objectively determined set of “material” facts. That is, it was held that the Act required the Tribunal to set out the findings it did make rather than findings it ought to have made. 



Necessarily, the findings that are recorded in the Tribunal’s written statement of its decision and reasons will reflect the matters that the applicant for review will have sought to agitate. No less importantly, the findings that are recorded will reflect what the Tribunal considered to be material to the decision which it made on the review. And what was material to that decision will depend upon the view that the Tribunal formed about the relevant legal questions that the review presented.

(Emphasis added; citations omitted.)

59    It need hardly be said that the extraordinary circumstances of the present appeal would not have been in the contemplation of their Honours when they described the nature of the review task and the purpose of discharging the reasons obligation under s 430. What the extract does reveal is the underlying assumption in a scheme such as Pt 7 (or for that matter any merits review scheme which has similar features, including constitution of a body by particular members) that the member constituted to the review will bring her own mind to bear on the issues arising in the review, freed not only from infections such as prejudgment or other bias but from the inevitable constraints on thought, consideration and reflection which flow from the adoption of not only the conclusions of others, but the way those conclusions have been formulated and framed in language.

60    As Beazley J stated in Huluba, merits review involves considering an application for review, and the arguments and claims put forward in it, “afresh”. In SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390; 168 FCR 1 at [20] – to which we refer below – Flick J spoke of a reconstituted tribunal being called upon to “resolve afresh the claims made”. That does not mean the merits review decision-maker considers matters uninstructed by what has gone before, whether at first instance or in other review applications which have not finally determined the merits review process. In our opinion “afresh” is simply a shorthand way of saying “with fresh eyes”, and is intended to encapsulate the essence of merits review, and indeed its strength in any robust process of administrative decision-making: namely, that within the limits of the applicable law, a new decision-maker brings her or his own perspectives, approach and reasoning to the claims made by an applicant for review.

61    We do not accept that Member Boddison considered the appellant’s claims “afresh” in this manner. As our findings at [32] above indicate, the adoption of Member Corrigan’s reasons, and reasoning, by Member Boddison is substantial and substantive. It includes many passages where there are findings about the credibility of the appellant’s claims, at a specific level. The structure of Member Boddison’s findings and conclusions under the heading “Consideration of claims and evidence” uses four sub-headings describing four aspects of the appellant’s claims, each of which she determines adversely to the appellant. Of those four aspects, three of them involve substantial and substantive copying from Member Corrigan’s reasons for decision. To this we add the first part of her reasons under the heading “Consideration of claims and evidence”, where she summarises the appellant’s claims in terms which are lifted from Member Corrigan’s reasons almost entirely, including paragraphs (such as [26]) which represent her findings.

62    There is a further particularly troubling aspect of the reasons where Member Boddison refers to evidence given before Member Corrigan. These references are in and of themselves orthodox, and the very kind of references one might expect to see in a second review concerning the same applicant. However, Member Boddison makes what purports to be a finding of her own but which is, in fact, a finding of Member Corrigan placed in her reasons in a way which appears as if it is a new finding made by her on reviewing the appellant’s evidence before Member Corrigan.

63    Paragraph [48] of the reasons, which is materially identical in its text to Member Corrigan’s reasons, is illustrative. We have highlighted the passages which purport to be Member Boddison’s findings but which are copied from Member Corrigan’s reasons at [49].

The applicant has provided a number of articles regarding violent incidents against Tamils. Some were undated but the others were during the period 2006-08. At the hearing, before the previous tribunal when asked how the articles directly related to him, the applicant stated that he was aware of one particular incident that was reported that occurred in their town. He said a father of a friend was shot dead and he does not know what happened to his friend. He said it probably occurred 8-9 years ago and he has not seen his friend after that. He said he did not know whether his friend disappeared or why his father was shot. The tribunal accepts that there and have been [sic] incidents of violence directed against Tamils by the authorities particularly prior to the ending of the war in 2009 and have taken these articles into account. The tribunal accepts that a friend’s father was shot. However the applicant was not able to give any details about why the father was shot or what has happened to his friend. There is no apparent link to the applicant and he has not claimed that he has been or will be targeted by anyone because of this incident. The tribunal does not accept that this incident which happened long ago means the applicant now or in the reasonably foreseeable future faces a real chance of persecution or faces a real risk of significant harm.

64    Paragraph [49] of Member Corrigan’s reasons was as follows (with Member Corrigan’s findings as copied by Member Boddison highlighted):

During the hearing, the interpreter and the applicant’s brother translated a number of documents that were on the applicant’s DIAC file at ff.31-35. They referred to a number of incidents [sic] regarding violent incidents against Tamils. A couple were undated but the others were during the period 2006-08. At the hearing, when asked how the articles directly related to him, the applicant stated that he was aware of one particular incident that was reported that occurred in their town. He said one a father of a friend was shot dead and he does not know what happened to his friend. He said it probably occurred 8-9 years ago and he has not seen his friend after that. He said he did not know whether his friend disappeared or why his father was shot. I accept that there are and have been incidents of violence directed against Tamils by the authorities particularly prior to the ending of the war in 2009 and have taken these articles into account. However, I have considered this information in the light of the general information (discussed below) about the situation for Tamils and the applicant’s individual circumstances. I accept that the applicant knew a friend whose father was shot. However, he was not able to give any details about why the father was shot or what has happened to the son. There is no apparent link to the applicant and there has been no claim made that the applicant has been targeted by anyone because of this incident. I do not accept that the incident which happened long ago means that the applicant now or in the reasonably foreseeable future faces a real chance of persecution or faces a real risk of significant harm.

65    Member Boddison’s paragraph [48] illustrates how, having referred to Member Corrigan’s decision it seems by way of background, she transposed his findings and language into her findings and language, but so as to appear as if she had formulated the finding. In fact it is a finding formulated and made by Member Corrigan and Member Boddison merely changed Member Corrigan’s words “I accept” to “the Tribunal accepts” and “he” to “the applicant”, but little more.

66    Taking all the circumstances into account, including reading the reasons published by Member Boddison as fairly as we can, we are not satisfied Member Boddison brought an independent mind to the consideration of the appellant’s claims. She failed to discharge the statutory task imposed on the Tribunal to consider an applicant’s claims on review for itself, afresh (as we have explained that term) and to make the decision which the Tribunal, as constituted, considers the correct and preferable one. The Tribunal’s task includes exposing the reasoning of that Tribunal, as constituted, for making material findings of fact and setting out the material on which those findings are based, not the reasons of some other decision-maker. Necessarily, a conclusion of this kind involves the Court forming an overall impression, and it is one on which it is possible reasonable judicial minds might differ. However, we have reached a clear and unanimous opinion that, having failed to perform the task imposed by the statute, the Tribunal’s decision must be set aside.

67    What we have said should not be taken to cast doubt on the proposition that it is legitimate, and indeed in many cases, necessary, for a differently constituted tribunal to have regard to what occurred during any hearing or process previously conducted by a tribunal in relation to the same applicant. However, the use to which a tribunal might legitimately put the specific findings and conclusions of a tribunal whose decision has been quashed is a matter we consider best left for a case where that issue must necessarily be determined.

68    We turn now to deal with a number of supporting arguments made by the Minister on this first ground.

69    The Minister emphasises the demands of high volume decision-making in his submissions, and we accept that a Court reviewing such decisions for jurisdictional error must keep those demands in mind. However, whilst high volume decision-making might justify the use of some standard paragraphs, it does not and has never been seen to justify anything other than active and full consideration of the merits in a particular review in order to decide what the correct or preferable decision is, nor can it camouflage jurisdictional error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 266. In LVR, the Full Court said (at [88]):

Further, different and more benign considerations arise with respect to the copying of common form material in high volume decision-making in relation to many similar claims, providing always that it is evident that this has not been done to the exclusion of a consideration of the merits of an individual case.

(Emphasis added.)

70    Submissions based on “high volume” decision-making can tend to suggest applicants, whose claims relate to matters of liberty and personal safety, are entitled to some kind of “short cut” version of administrative justice with patched together decisions. We fail to see where or how the terms of the Migration Act suggest that is the kind of review the Act contemplates. To the contrary, the Act recognises the seriousness of the subject matter of reviews by the Tribunal. It imposes standards designed to ensure thorough, considered and fair decision-making so that people are not removed from Australia in circumstances where Australia’s international obligations under the 1951 Refugees Convention are put at risk of contravention.

71    The Minister also relied on the observations of Nicholson J in Chu Sing Wun v Minister for Immigration and Ethnic Affairs [1997] FCA 99; 47 ALD 538 at 553, to the effect that decision-makers in refugee matters should not have to engage in “unnecessary re-wording” merely to avoid an inference that they did not apply an independent mind to the decision-making process. This submission should be rejected as having any relevance to what was done by the Tribunal in the circumstances of this appeal. If the effect of Nicholson J’s observations is confined to the proposition that it is permissible for the Tribunal, in pursuit of the objectives in s 420 of the Migration Act, to use standard paragraphs to set out the applicable law for the decision on review then we respectfully agree. Our agreement is of course subject to the qualification that in a given case it might be shown that those standard paragraphs are deficient in a material respect which could affect the validity of the Tribunal’s decision.

72    The circumstances of the present appeal do not concern “re-wording”, such as in the use of template paragraphs with which a decision-maker might begin and then refine and alter their content. Whether or not that process would be a lawful discharge of the statutory task would depend, as French J said in WAFK [2003] FCA 1293; 133 FCR 209, on an examination of the particular circumstances in a given case. This appeal concerns more than that. It concerns the Tribunal member adopting the reasoning processes, findings and conclusions of another member about the same applicant as if they were her own.

73    The Minister submits:

But Tribunal members may also consider it appropriate to copy material that is evaluative and even contentious, if the Tribunal member has first concluded that that material (or a modified version of it) accurately reflects his or her own views. In such a case, no error is made by copying material from another decision.

74    That submission should be rejected in the present appeal, if for no other reason than that it relies on a matter not established by the evidence: namely that the Tribunal member had concluded the copied material reflected her views. It is doubtful Member Boddison could be interrogated in a judicial review proceeding about her own intentions, motivations and reasoning processes: see Herijanto v Refugee Review Tribunal [2000] HCA 16; 170 ALR 379 at [16]; Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21; 170 ALR 575 at [10]. Whether later evidence of a decision-maker’s reasons would be admissible is also doubtful, unless Member Boddison was available for cross-examination: see French J in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263; 133 FCR 190 at [46]-[59].

75    Therefore the Minister’s proposition can only be established by way of inference. On the reasons as they stand we do not see how that is an appropriate inference, let alone a plausible one. Another inference might be that Member Boddison started with a copy of Member Corrigan’s reasons and his conclusions and then sought to change parts of them as she considered necessary only to reflect updated material, or what the appellant had said in the second hearing. If that was her process, it would also constitute a failure to discharge her statutory task. However, we need not go so far and the evidence does not permit us to draw any inference about how Member Boddison’s reasons came to be structured as they are. The Court should have regard to the Tribunal’s reasons as expressed in its decision record, which is what we have done.

76    The Minister’s submissions prominently featured the proposition that all Member Boddison did was to use the “text” composed by Member Corrigan, not his reasoning. The Minister sought to rely upon:

… the obvious possibility that Member Boddison might have thought that some claims should be rejected for the same reasons that they were rejected by Member Corrigan. Once Member Boddison reached that conclusion, to express that conclusion in the same language as Member Corrigan does not provide any basis to infer that she constructively failed to perform her function, or that she misconceived that function as involving review of the Corrigan decision.

77    That submission, and the Delphic distinction it seeks to draw between use of identical text and non-use of the ideas embodied in that text, should also be rejected. We are not persuaded that Member Boddison formed her own independent views about the same applicant and his claims using precisely the same words to express her reasoning as those used by another member on an earlier occasion.

Ground Two

78    The appellant’s contentions here are based in part on the proposition set out in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [51] per Gaudron and Gummow JJ that a tribunal decision affected by jurisdictional error is properly regarded in law as no decision at all, and in part on the proposition set out in Wang [2003] HCA 11; 215 CLR 518 at [16] per Gleeson CJ that the findings of a tribunal whose decision is set aside on judicial review will have “no legal status in [a] further review”.

79    Putting those propositions together, the appellant contends the second Tribunal had no power to “even consider (let alone copy from)” the first Tribunal’s reasons for decision. He further contends that s 416 of the Migration Act, and in particular s 416(d), does not empower the Tribunal to do so.

80    Section 416 provides:

Only new information to be considered in later applications for review

If a non-citizen who has made:

(a)     an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

(b)     applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:

(c)      is not required to consider any information considered in the earlier application or an earlier application; and

(d)      may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.

81    The appellant contends that the power in s 416(d) to “have regard to” a “decision” of the tribunal cannot support reference to a purported, but invalid, decision of a previous tribunal, because it could not be said that the previous tribunal “determined” the application for review. He also contends that by reason of the interpretative principle discussed in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trade Union of Australia [1937] HCA 9; 47 CLR 1 no more general power to do so should be implied into provisions such as s 424(1).

82    The Minister accepts in his written submissions that s 416(d) “obviously does not apply to an earlier decision of the Tribunal that has been quashed”. However, he submits that a tribunal is not required by s 416 (nor by any other express or implied aspects of the legislative scheme) to shut its eyes to the fact an earlier tribunal decision had been made on the review, nor that reasons were issued for that earlier decision.

83    Given our views on the first ground, it is unnecessary for us to determine these issues on this appeal.

84    It may be accepted that s 416(d) does not empower the Tribunal to “take to be correct” a review decision of the Refugee Review Tribunal or Administrative Appeals Tribunal which has been quashed on judicial review. We agree with the Minister’s submissions that the Tribunal can have regard to the nature and contents of a previous decision on review in respect of the same applicant, and the same visa application. That view is consistent with the views of the Full Court in AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; 189 FCR 494 at [41], and Flick J in SZDFZ [2008] FCA 390; 168 FCR 1 at [20]-[21] and [28]. As those cases, and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 make clear, the manner in which a second tribunal has regard to the findings and reasoning of a previous tribunal in respect of the same applicant (or to a delegate’s decision) will no doubt raise issues of procedural fairness. That is the matter to which the third ground is directed, and we deal with this ground at [89] to [94] below.

85    Argument on this ground turned also towards the constitution and reconstitution powers in ss 421 to 422A of the Migration Act. Argument centred on whether the Tribunal as constituted by Member Boddison was so constituted pursuant to s 421 or s 422 of the Act. They provide:

421     Constitution of Refugee Review Tribunal for exercise of powers

(1)     For the purpose of a particular review, the Tribunal is to be constituted, in accordance with a direction under subsection (2), by a single member.

(2)     The Principal Member may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.

422     Reconstitution of Refugee Review Tribunal—unavailability of member

(1)     If the member who constitutes the Tribunal for the purposes of a particular review:

(a)     stops being a member; or

(b)     for any reason, is not available for the purpose of the review at the place where the review is being conducted;

the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.

(2)     If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

(3)     In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).

86    The Minister informed the Court that, although it was not before the Court, there was a written direction by the Principal Member for the reconstitution of the Tribunal, but without attribution in its statutory source to either s 421 or s 422. No other evidence was placed before the Court concerning the provision on which the Principal Member sought to rely. The Minister contended the Court should infer the Tribunal was reconstituted in accordance with the power in s 422 of the Act. He contended that the expression “not available” should be construed as including “not permitted to sit” which was, in effect, the position of Member Corrigan at the relevant time because the terms of the Federal Circuit Court order quashing the Tribunal’s decision required that the Tribunal be differently constituted. The Minister seeks to draw comfort from the terms of s 422(2) to support the approach taken by Member Boddison in copying Member Corrigan’s decision.

87    In our view the expression “not available for the purpose of the review at the place where the review is being conducted” in s 422(1)(b) should be construed as meaning “unavailable” in a practical and personal sense, by reason of such matters as long leave, ill-health, inability to travel and the like. We see no basis to construe it as extending to a member who is, by order of a superior court, precluded from being constituted as the Tribunal on a particular review. Whether the Principal Member could rely on s 422(1)(b) in this case is not material to the outcome of the appeal. There is, in any event, a wholly unsatisfactory evidentiary base in this appeal for the determination of these matters.

88    Instead, we resolve ground two against the appellant on the basis there was no prohibition on a second tribunal having regard to the contents of a previous tribunal decision in respect of the same applicant and the same visa application.

Ground Three

89    Section 424A of the Migration Act provides:

Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)     invite the applicant to comment on or respond to it.

(2)     The information and invitation must be given to the applicant:

(a)     except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)     if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)     The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)     This section does not apply to information:

(a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)     that the applicant gave for the purpose of the application for review; or

(ba)     that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)     that is non-disclosable information.

90    The appellant contended that the Tribunal as reconstituted by Member Boddison breached s 424A(1) of the Act because the findings and reasons of Member Corrigan, which she used, constituted “information” within the meaning of s 424A.

91    The Minister’s answering submissions depended on his contention made in respect of the first ground, namely that:

The Corrigan decision was not ‘information’ that attracted the operation of s 424A, because there is no basis to conclude that Member Boddison gave any weight to the opinions of Member Corrigan in conducting her review. Her reasons reveal nothing more than that Member Boddison used text written by Member Corrigan when it reflected her own views about the information on which her decision was based.

92    We consider that both the fact that Member Boddison proposed to adopt, in wholesale terms, substantial parts of the Corrigan decision itself, as well as those parts she in fact proposed to adopt as her own, were “information” that was required to be given to the appellant as part of the Tribunal’s review. Both her proposal to take that course, and the material from the Corrigan decision she proposed to use (it having no legal status, as Gleeson CJ observed in Wang [2003] HCA 11; 215 CLR 518) would have been a reason or part of a reason for her decision to affirm the delegate’s decision. The parts of the Corrigan decision which Member Boddison proposed to copy and use as her own contained, to use the words of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [17], “in their terms a rejection, denial or undermining” of the appellant’s claims.

93    In the circumstances, as we found them to exist in our consideration of the first ground, this would be more than mere disclosure of the Tribunal’s proposed and prospective reasoning process, and more than disclosure of “every matter the tribunal might think relevant” to the review: cf SZBYR at [15]. That is because those parts of the previous decision record by Member Corrigan are, in this context, better seen as “evidentiary material or documentation” (see Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 at [23], referring to SZBYR) which the second Tribunal proposes to adopt in identical terms. That is not a matter of which a review applicant could be expected to have notice. In that sense, it is analogous to the need to alert a review applicant to any departure from findings made in her or his favour by a delegate as the High Court held in SZBEL [2006] HCA 63; 228 CLR 152.

94    Of course in the current context no amount of compliance with s 424A could have cured the jurisdictional error we have found existed in Member Boddison’s decision. In a review where some use is sought to be made of findings of a previous tribunal in respect of the same review applicant, falling short of an abdication of the tribunal’s task (and assuming such a technique could be lawfully adopted) we consider that compliance with s 424A is required.

CONCLUSION

95    The appeal should be allowed. The decision of Member Boddison should be set aside and the matter remitted to the Tribunal, differently constituted, for determination according to law. It would be appropriate, in our opinion, for that reconstitution to be recorded in a way which enables any reviewing court to discern the power on which the reconstitution was understood to depend.

96    The Court expresses its gratitude to counsel and instructing solicitors who accepted the referral pursuant to r 4.12 of the Federal Court Rules to act on behalf of the appellant in the appeal.

Associate:

Dated:    16 September 2015