FEDERAL COURT OF AUSTRALIA

MZZMG v Minister for Immigration and Border Protection [2015] FCAFC 134

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 dismissed.

4.    The appellant pay the first respondent’s costs of and incidental to the application for extension of time and appeal.

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

REASONS FOR JUDGMENT

the court

1    This matter was heard jointly with the application and appeal of the applicant’s brother MZZZW in VID 202 of 2015 (see MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133), and like that proceeding, concerns an application for an extension of time in which to appeal from a decision of the Federal Circuit Court made on 19 March 2015.

2    The Minister did not oppose the extension of time, and we propose to grant an extension of time. In these reasons we shall refer to MZZMG as the appellant (since we have granted an extension of time), or “G”. At the hearing of the appeal, counsel for the appellant and his brother referred to their clients as “G” and “W”. So as to avoid any confusion in these reasons, and given we cannot use their names, we propose to do the same.

3    For the reasons set out below, the appeal must be dismissed.

Background and procedural history

4    The appellant is a young man who, it is accepted, is a Sri Lankan national of Tamil ethnicity. He and his younger brother W arrived in Australia together by boat on or about 21 May 2012 and applied for protection visas on 20 September 2012. The same delegate of the first respondent refused to grant each of them protection visas in separate decisions on 14 December 2012. Both brothers sought review of those decisions by the Refugee Review Tribunal (now a division of the Administrative Appeals Tribunal).

5    As we have noted in MZZZW [2015] FCAFC 133, the Tribunal for the review was constituted by Member Corrigan. Member Corrigan conducted a review hearing for both G and W under s 425 of the Migration Act 1958 (Cth) on two occasions, namely 25 February 2013 and on 8 May 2013. It is the conduct of a joint hearing with both brothers which forms the factual substratum of the appellant’s contentions on judicial review.

The Tribunal decision

6    Like his brother W, G’s claims stemmed from his account of the 2002 kidnapping of his father by Sri Lankan authorities, and his father’s disappearance. G then described harassment and threats by the Sri Lankan authorities, centred on attempts to prevent his father’s disappearance becoming the subject of any complaints or investigations. He also claimed his family’s home was attacked by those people called “grease devils” by Sri Lankans. After he and W fled Sri Lanka, he claimed his mother had been harassed at their home by Sri Lankan authorities who were looking for him and his brother. He claimed to fear persecution in Sri Lanka by reason of his Tamil ethnicity and what had happened to his father, including the harassment and threats which followed. In this context he also relied on the fact that his uncle’s family was suspected of having LTTE connections and had been granted asylum in the United Kingdom. Finally, he claimed to fear persecution on return as a failed asylum seeker who had left Sri Lanka unlawfully.

7    Shortly after the second review hearing, the Tribunal gave a decision on each of the brothers’ applications, in which it affirmed each of the delegate’s decisions. As it did in his brother’s application, the Tribunal accepted G’s father had been kidnapped because he was suspected of involvement with the LTTE and that G’s uncle and his family fled Sri Lanka nine to ten years ago also after being suspected of links to the LTTE. While generally accepting there were reported incidents of violence towards Tamils, and ongoing discrimination, and kidnappings, the Tribunal did not accept that G remained of any particular interest to Sri Lankan authorities, whether on the basis of connections with the LTTE or otherwise. It found he would be treated no differently to other returning asylum seekers, and may face a short term of imprisonment that did not amount to serious or significant harm, that the situation for Tamils in Sri Lanka was generally improving and that there was no basis to believe G or his family would be of “adverse interest” to the Sri Lankan authorities. The Tribunal did not believe G’s claims that his family’s home was attacked by a “grease devil”.

8    There was no real debate between the parties about the sequence of events during the Tribunal’s review. The main review hearing occurred on 25 February 2013 and is the one to which the appellant’s legal submissions are primarily directed. The second review hearing on 8 May 2013 concerned the issue of what might happen to the brothers if they were involuntarily returned to Sri Lanka, in terms of how the Sri Lankan authorities were likely to treat them.

9    Both G and W consented to the Tribunal conducting a joint review hearing, in which each brother’s evidence was received for the purposes of both his own review and the other’s. The Tribunal explained the course it proposed to take in a letter written to the brothers through their then migration agent prior to the first review hearing, and indeed prior to the Tribunal issuing its invitation under s 425 of the Migration Act. The relevant terms of that letter (which was dated 10 January 2013) were (with appropriate redactions to protect the identity of the appellant and his brother):

Your claim for protection relates to the same body of facts said to support the claim to protection also lodged by your brother, [redacted]. Your brother’s claim was also refused by the Department and he has also lodged an application for review with this Tribunal. It therefore appears likely that you and your brother will wish to appear as witnesses in the hearing of one another’s respective applications. It is also likely that the Tribunal will rely on the evidence arising in each of your respective claims in considering each application.

In order to deal with your and your brother’s two respective claims, the Tribunal is of the preliminary view that the most appropriate course is to hear your two claims together, with the evidence in one claim to be treated as evidence in the other. In doing so, the Tribunal proposes to take evidence from each of you separately without the other one present, to avoid your evidence being affected by the evidence of the other.

Alternatively, the Tribunal could arrange to hear your two claims consecutively, with you each having the option to give evidence as a witness in one another’s hearings. This would involve holding a hearing for one of you first, with the other appearing as a witness, followed immediately afterwards by a second hearing where the two roles would be reversed.

The Tribunal is also open to receiving any submissions from you or your agent as to any alternate approach for hearing your and your brother’s claims.

Please advise the Tribunal by no later than Friday 25 January 2013 of your preferred course. If you are unable to advise your preferred course within this period, you may request in writing that you be allowed additional time in which to respond. Such a request would need to include the reasons for the extension and would need to be received by the Tribunal before the end of the above period. The Tribunal will consider any request for an extension carefully and will advise you, in writing, whether an extension of time has been granted.

If you do not respond by Friday 25 January 2013, the Tribunal will assume that you agree with the Tribunal’s preliminary view that the most appropriate course is the first option set out above and the Tribunal will proceed with making the necessary arrangements to schedule a combined hearing for you and your brother.

A copy of this letter has also been sent to your brother for his consideration and response.

(Emphasis in original.)

10    On 24 January 2013, G’s then migration agent responded to the Tribunal’s letter on behalf of G and his brother W. He stated:

We refer to the above matter and your correspondence of 10 January 2012 [sic] for both the above named clients.

We confirm that both our clients are agreeable to have their hearings joined and to provide evidence in each of their respective hearings on the same date.

11    The Tribunal then issued, on 1 February 2013, hearing invitations pursuant to s 425 of the Migration Act to both G and W, through their migration agent.

12    The Court had before it a transcript of the review hearing on 25 February 2013. The brothers attended with their migration agent and a support person. An interpreter was present and interpreted for each of the brothers. After the Tribunal member introduced himself, and made some preliminary remarks, he then made the following statements:

This hearing is closed to the public, so you should feel fully free to tell me why you think you’re refugees or entitled to complementary protection. I should say that I have received written submissions from your agents today and I’ll be taking those into account in my decision making. In order to interview you both and to be able to give full weight to your evidence, I’m going to take evidence from both of you separately, so I wish to take evidence first from the other brother. I would ask you to leave the room and we’ll get you back later, and I’ll ask you some questions then.

13    The Tribunal member then began to ask G questions, while his brother W had left the hearing room. The Tribunal then reversed the situation, inviting W to give evidence and excluding G during this process. In other words – and this fact assumed some significance in the appellant’s arguments on his grounds of review – the Tribunal excluded G from his own review after, not before, he had given evidence himself.

14    Then, the Tribunal invited G back into the hearing room and gave both brothers the chance to comment on some country information the Tribunal considered relevant to their claims. When both brothers began answering these matters, the Tribunal member intervened and asked G as the older brother to speak, and then told W he could have a chance to say what he wanted afterwards. This is what occurred. The Tribunal then adjourned briefly to give the brothers’ migration agent a chance to speak to his clients before any final submissions were made. When the hearing resumed, the migration agent made some submissions, and the Tribunal member then concluded the hearing with a series of remarks about the process by which the brothers would be notified of the decisions on their reviews, and thanked them.

15    The second review hearing on 8 May 2013 was considerably shorter, and consisted mostly of the brothers’ migration agent making some submissions, although there was, it appears, some short evidence given by the brothers. Neither appeared to have been excluded from the hearing room at any stage during this second hearing.

The Federal Circuit Court decision

16    The appellant filed an application in the Federal Circuit Court for judicial review of the Tribunal decision on 14 June 2013, the same date as W’s judicial review application was filed. W’s application was shortly thereafter the subject of consent orders for remitter on the basis that W was a minor at the time of the Tribunal’s decision and the Tribunal had not taken this matter into account.

17    Unlike W, Member Corrigan’s decision in respect of G was not set aside by the Federal Circuit Court. It appears that while W’s Tribunal decision was set aside, remitted back to the Tribunal and determined again by Member Boddison, G’s application for judicial review remained undetermined in the Federal Circuit Court.

18    By the time of the hearing of his judicial review application some nineteen months later on 30 January 2015, the appellant was represented by the same solicitor who later acted in February 2015 for his brother W in his judicial review proceedings, also on a pro bono basis. Leave was sought and granted to rely on seven amended grounds of review, which we need not set out given the course of events on the appeal. Suffice to say the points now raised were not raised in the Federal Circuit Court.

19    On 19 March 2015, the Federal Circuit Court dismissed the application for judicial review.

The appeal to this Court

20    The appellant sought to appeal the Federal Circuit Court’s decision, but failed to do so within the 21 days prescribed by r 36.03(a) of the Federal Court Rules 2011 (Cth).

21    Following a referral pursuant to r 4.12 of the Federal Court Rules, affidavit evidence was filed explaining the delay in seeking to appeal, and an amended proposed notice of appeal dated 20 July 2015 was filed. In that notice of appeal, three proposed grounds were raised:

1.    The Tribunal erred by excluding the Appellant from part of the hearing.

Particulars

The Tribunal conducted a hearing on 25 February 2013. Part way through the

hearing, the Tribunal directed the Appellant to absent himself from the hearing. While the Appellant was absent in accordance with the Tribunal’s direction, the Tribunal received evidence from the Appellant’s brother, MZZZW (the Brother).

By directing the Appellant to absent himself from the hearing, the Tribunal contravened s 425 of the Migration Act 1958 (the Act) and thereby failed to afford procedural fairness to the Appellant. Alternatively, insofar as a visa applicant’s appearance at a hearing is not a ‘matter’ dealt with by Part 7 Division 4 of the Act, then directing the Appellant to absent himself from the hearing involved a breach of common law procedural fairness.

Further or alternatively, the Tribunal had no power to direct the Appellant to

absent himself from the hearing.

2.    The Tribunal erred by giving no weight to the Brother’s corroborative evidence.

Particulars

The Tribunal conducted a joint hearing of the Appellant’s application for review, together with the Brother’s application for review. The Brother gave evidence that was corroborative of the Appellant’s claims and evidence.

The Tribunal chose to give the Brother’s evidence weight in relation to the Brother’s own application for review. However, on the basis that the Tribunal had ‘problems’ with the Appellant’s credibility, the Tribunal chose to give the Brother’s evidence no weight in relation to the Appellant’s application for review.

The Tribunal’s approach was legally unreasonable or, alternatively, irrational or illogical.

3.    There was a constructive failure by the Tribunal to perform its functions on review.

Particulars

On 17 May 2013, the Tribunal purported to make a decision under s 415(2) of 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 also prepared a written statement under s 430 in relation to the purported decision.

On the same day, the Tribunal purported to make a decision under s 415(2) of the Act to affirm a previous decision of a delegate of the Minister to grant the Appellant’s brother, MZZZW (the Brother), a Protection (Class XA) visa. The Tribunal also prepared a written statement under s 430 in relation to this purported decision.

On 19 June 2013, the Brother applied to the Federal Circuit Court for judicial review of the decision of the Tribunal in his review. 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 Brother’s application of review.

Many passages in the written statement prepared by the Tribunal in respect of the Appellant’s review correspond to, and were copied from, passages in the written statement prepared by the Tribunal in respect of the Brother’s review. The extent and the nature of the corresponding passages are probative of a failure on the part of the Tribunal to bring an independent mind to the disposition of the Applicant’s review and/or a failure to give separate consideration to the Applicant’s review on its own merits.

Accordingly, the Court should conclude that there has been a constructive failure of the Tribunal to perform its function on review.

22    The appellant’s counsel frankly conceded the arguments which were sought to be advanced in the proposed amended notice of appeal were new, and not raised before the Federal Circuit Court.

23    The Minister did not oppose an extension of time, and we are satisfied it is in the interests of the administration of justice for an extension of time to be granted. The Minister did not oppose two of the three proposed new grounds of review, but did oppose the first ground. The objections were first, that the ground had no merit, and second, that even if it had merit, no relief should be granted for discretionary reasons based on the appellant’s conduct in acquiescing in the way the Tribunal conducted its review hearing.

24    The basis for the Minister’s opposition can, we consider, be more conveniently dealt with as part of the Court’s consideration of the merits of the grounds of appeal themselves, and that is the course we propose to take.

CONSIDERATION

25    It is fair to say the emphasis in oral submissions on behalf of the appellant was on the first ground, with the remaining two grounds being presented as somewhat supplementary to it.

Ground One

26    The appellant described the issues arising in relation to the first ground in the following terms:

Having excluded the applicant from his own review, two questions arise:

(1)    Did the Act authorise the Tribunal to exclude the applicant from the hearing of his own review application?

(2)    If so, did the Tribunal exercise that power reasonably?

27    The parties agreed that the Tribunal’s obligation in s 429 of the Migration Act to hold a review hearing in private does not preclude the Tribunal conducting a joint hearing, if it does so in order to pursue the objectives set out in s 420 and does so in a way which affords procedural fairness to the applicants concerned: SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49; 230 CLR 486 at [27]. The appellant’s complaint is not the Tribunal’s decision to hold a joint hearing, but its decision to exclude G from his own review hearing while it took evidence from his brother W, as a witness in G’s review.

28    As is clear from the way the appellant framed the issues, the appellant challenged the exclusion as both a matter of power, and of discretion.

29    As to the power argument, there was no debate between the parties there was no express power of exclusion, unlike s 35 of the Administrative Appeals Tribunal Act 1975 (Cth). The Minister contended this difference was explicable because generally Administrative Appeals Tribunal hearings are required to be conducted in public (s 35(1) of the Administrative Appeals Tribunal Act) and thus an express power of that nature is required. The appellant contended that the absence of such an express power tells against any implication.

30    The appellant correctly contends that s 425 of the Migration Act, read with s 414, confers on an applicant for review a substantive right to a hearing before the Tribunal as an important and central right in the merits review system established by Pt 7 of the Act: Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362; 113 FCR 541 at [44], [47] (Black CJ, Hill and Weinberg JJ).

31    Although the review hearing is required to be held “in private” pursuant to s 429, the appellant is also correct to contend that the benefit of the privacy required by s 429 is for the benefit of an applicant, and this requirement is not one which the scheme intends can be used as a basis for excluding him, or justifying his exclusion because principles of open justice do not apply. The privacy requirement has a protective function. Like other provisions in the Migration Act (such as s 431), it is designed to ensure that an applicant’s identity and the details of his or her claims (and those she or he may identify as part of articulating her or his claims) are not publicly available in order that the protections which the 1951 Refugees Convention enshrines for those seeking asylum and for those found to be refugees are not frustrated by the domestic assessment process undertaken pursuant to the Act.

32    The Explanatory Memorandum to the Migration Reform Bill 1992 (Cth) described the need for such a provision (at [377]) in the following terms:

This section provides that the review must be in private. This protects applicants and their families as there is a risk that if refugee claims are dealt with in public they may give rise to difficulties for dependents remaining in the country of origin. At the outset of processing, persons seeking protection on refugee status grounds are assured that all details of their applications will be kept strictly confidential. In particular they are assured that information will under no circumstances be passed to authorities in their own country. This is essential to ensure that applicants are willing to canvass their reasons for seeking protection in an open and frank manner. This section is intended to allow the same guarantee of confidentiality at the review stage.

33    As we set out below, the authorities which have examined s 429 construe it in this light.

34    The appellant submits no power to exclude an applicant from a hearing should be implied, referring in this context to circumstances where courts have refused to imply such a power (see for example Selfe v Isaacson (1859) 1 F & F 194; 175 ER 688; London Chartered Bank v Lavers (1855) 2 Legge 884). Both these cases do concern circumstances in which the Court recognised a right in a party to remain in court during a proceeding to which he was a party. In Lavers, the report notes the “recent amendment of the law permitting parties to a suit to give evidence for themselves”. The Court held that, despite a party now also being capable of being a witness (and therefore, it implied, subject to the ordinary processes of exclusion while other witnesses were giving evidence), that party retained a right “to remain in Court for the conduct of his case”.

35    The Minister submits there are no parallels with such authorities, one reason being there are no “parties” before the Tribunal and the proceeding is not adversarial. Whether these attributes of a court proceeding where judicial power is exercised wholly explain the approach taken by the Courts may be debatable. It may also be that the continued recognition of a party’s right always to remain in court during the conduct of her or his proceeding, even if she or he will be a witness (and often a key witness) also reflects fundamental notions of procedural fairness, a rationale not confined to exercises of judicial power. Where a person is subject to any exercise of public power that involves a hearing process, it is a large implication that the jurisdiction can be exercised in the absence of such a person. In the United Kingdom the Supreme Court has held that where there are no statutory modifications there is no inherent power in a court, whether in a civil or criminal trial, to allow one party and the court to rely on material which is kept from another party and its legal representatives: see Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531; R (British Sky Broadcasting Ltd) v Central Criminal Court [2014] UKSC 17; [2014] AC 885; R (B) v Westminster Magistrates’ Court [2014] UKSC 59; [2015] AC 1195. In Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [170], the plurality declined to determine the validity of such a proposition in the Australian context. Pompano itself is an example of valid state legislation involving non-disclosure of material to a party and that party’s legal representatives in the context of a proceeding. There are other examples of exercises of similarly exclusionary legislative power being found valid: see K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501 at [143]-[149] and Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (WA) [2008] HCA 4; 234 CLR 532 at [7], [30]-[36], [44], [175]-[189].

36    Whether the implication of any such power is necessary or appropriate to the exercise of the Tribunal’s review jurisdiction may be susceptible to different answers. The Act itself contains express measures designed to limit the access of applicants to information held by the Tribunal and on which it might act (see for example s 424A(3)(c) and the definition of “non-disclosable information” under s 5 of the Act). Outside the application of express provisions of that nature, the Tribunal must disclose at least the substance of information received by it which may be credible, relevant and significant to the review: see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [15]-[17].

37    Against those considerations is the well recognised flexibility of merits review processes such as those in which the Tribunal is engaged under Pt 7 of the Act. That flexibility was evident in the process adopted by the Tribunal in SZAYW [2006] HCA 49; 230 CLR 486 where the Tribunal held four review hearings together. At [9]-[15] the joint reasons of the Court described the circumstances before the Tribunal in those reviews:

The appellant, and three of his friends who were described as applicants 226, 228 and 229, were stateless Palestinians who had been living in Lebanon. They all left Lebanon and travelled to Australia. They all claimed to fear that, if they returned to Lebanon, they would be persecuted by Hezbollah or Islamic Jihad. The basis of that fear was said to be that together they had become involved with Hezbollah, and had received military training for the purpose of attacking Israel or Israeli interests in South Lebanon. They had lost their enthusiasm for the conflict, and left Lebanon. They feared that, if they returned, they would suffer reprisals for desertion. The Tribunal rejected their claims that they had a well-founded fear of persecution. The Tribunal’s reasons for that conclusion are not presently material. A substantial part of their evidence was disbelieved.

After the four original applications for protection visas were refused by a delegate of the first respondent, Refugee Advice and Casework Service (Australia) Inc (“RACS”) wrote to the Tribunal on behalf of each man. The letter concerning the appellant said: 


“We confirm that we act for [the appellant] in his application for review of the decision refusing to grant a Protection Visa.

Please find attached an application for review signed by him. 


We note that the four young men ... were together for the events which form their claim. We ask therefore that consideration be given to the same member being allocated to the four persons.”

(Emphasis added.) 




The reference, in the singular, to the claim of the four men was consistent with the manner in which the matter was presented to the Tribunal. At no stage was there any suggestion that their interests, or their cases, conflicted. Evidently, RACS felt no embarrassment in representing them all. As the Tribunal member recorded in her reasons relating to the appellant’s application for review, “the group’s claims were based on experiences all four claimed to have shared in common”. In argument to the Tribunal, RACS relied upon the consistency of the claims made by the four men and submitted that “their claims are furthermore strengthened by each other’s testimony”. The four applicants for review were making common cause, and argued that their individual claims should be regarded as more credible because of the consistency of their accounts of their shared experiences in Lebanon.

The Tribunal agreed to the request that the one member be assigned to deal with all four applications for review. The same date (7 April 1999) was fixed as the date for all four hearings. One applicant was a little late in arriving. All four were represented by RACS. The girlfriend of one of the applicants (not the appellant) was present. All applicants had previously received written notices, in standard form, from the Tribunal, inviting them to state whether they wanted to bring someone to the hearing, and indicating that such a person could be an adviser, friend or relative. 



The appellant and the other two applicants who were present at the beginning were sworn in each other’s presence. The latecomer was sworn when he arrived. The Tribunal member said that she would explain the Refugees Convention to all applicants collectively, and that she would then talk to them all individually. She said that the girlfriend of one of the applicants could be present for moral support while he gave evidence, but not while the appellant and the other applicants were being questioned. At that stage the Tribunal member intended to question the applicants separately. She offered the migration advisers the opportunity of being present during all four hearings, and the offer was accepted. 



The Tribunal member took evidence from one of the applicants (not the appellant) in the absence of the others. This lasted about three hours. The member then decided to question the appellant and the other two applicants together. In her reasons she later explained that, by the end of the questioning of the first applicant, it had become apparent that the claims were all based on shared experiences. At the time, she said to the applicants: 


“[A]lthough your stories are very similar ... and I can think of you as a group in a certain way in listening to what you have to say at the same time I have to consider you as individuals and I don’t want to lose sight of that fact.”



The Tribunal member then questioned the three remaining applicants (including the appellant) together, in the presence of their migration advisers. This took about two hours. Two interpreters were used. No complaints or objections were raised about the procedure, either then or at any time before the Tribunal’s decisions were made. After 7 April 1999, RACS made lengthy written submissions to the Tribunal concerning the claims of the appellant and the other applicants.

38    The argument in SZAYW was in some respects the converse of the argument in the present appeal: it was that the appellant was entitled, by reason of s 429, to a hearing “in private” without other review applicants present. The High Court did not agree, emphasising the protective function of s 429 was not necessarily infringed by the presence of other people with whom the appellant shared a common cause or interest. As to the Tribunal’s procedural choices at a more general level the Court said (at [27]):

Section 429 does not necessarily prevent hearings which are wholly or partly concurrent, if that course is dictated by the objectives stated in s 420 and is consistent with procedural fairness. It is not difficult to think of cases, such as those involving separate applications by members of the one family, where that could be appropriate. In some circumstances s 429 may present an obstacle to that course; but not in the circumstances of this case.

(Emphasis added.)

39    The Minister’s submission on this appeal about SZAYW was, in effect, that if there was no power in the Tribunal to conduct a proceeding by way of joint hearings and the exclusion of applicants at various times or stages of the review hearing, then that issue was so likely to have been raised in SZAYW that this Court could comfortably be satisfied that the High Court saw no difficulties in terms of the Tribunal’s power to conduct the review as it did. In our opinion, the qualifications given by the Court, which we have emphasised, are contrary to the Minister’s somewhat speculative submission.

40    The other case on which the Minister relied in this context was SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294. In our opinion, there is more force in the Minister’s reliance on dicta in that case, but no greater force in the submissions that the High Court “would have” made observations about power if no such power should be implied. Rather, the relevant point which we draw from SAAP concerns the nature of the review conducted by the Tribunal.

41    Gleeson CJ at [10] set out the way in which the challenge to the conduct of the review by the Tribunal in SAAP arose:

The essential facts may be stated briefly. The first appellant, who at different times was represented by a solicitor and a migration adviser, applied to the Tribunal for review of an unfavourable decision by a delegate. She was in immigration detention. A hearing of her application took place on 5 September 2001. The proceedings were conducted by video-link between Sydney and Woomera Hospital. The Tribunal Member was in Sydney, together with the first appellant’s migration adviser, an interpreter, one of the first appellant’s daughters, and other witnesses. The first appellant was at Woomera. Since the issue in the case is procedural, it is unnecessary to go into the substance of the first appellant’s claims for refugee status. At one point in the proceedings, the Tribunal Member took evidence in Sydney from the first appellant’s daughter. After the daughter’s evidence was given, the Tribunal Member raised with the first appellant, for her comment, three particular matters about which the daughter had given evidence. For reasons that need not be examined, those matters were potentially adverse to the first appellant’s case. The first appellant made her response to each matter. The first appellant’s migration adviser heard the daughter’s evidence, the Tribunal Member’s questions to the first appellant, and the first appellant’s responses. The Tribunal Member then brought the hearing to a close, leaving it open to the first appellant or her migration adviser to make further oral or written submissions. No further submissions were made, but the migration adviser wrote to the Tribunal asking for a prompt decision because of the state of the first appellant’s health. A decision was then given. It was unfavourable to the first appellant.

42    The legal issue in SAAP (being one to which the enactment of s 424AA was a legislative reaction) concerned the scope of s 424A, and whether compliance by the Tribunal with its terms could be achieved by the Tribunal member informing an applicant orally at the hearing of the issues with which the provision dealt. At [8], Gleeson CJ explained the wider context of the procedural fairness obligation contained in s 424A in terms which are apposite to the issue raised by ground one on this appeal:

What is described in s 429 as the hearing is to be understood in the wider statutory context. The prescribed procedure is not that of adversarial litigation, with evidence taken and issues debated at a climactic trial. Indeed, in many cases there will not be a hearing. The procedure is administrative and inquisitorial. Even so, the statutory references to appearance and hearing, adjournment, summoning witnesses, taking evidence, and proceeding to decision in default of appearance, show that this is a form of administrative decision-making which, having the capacity to affect human rights, borrows from judicial procedure. While it is true that fairness in administrative decision-making is not measured by reference to a judicial paradigm, judicial procedure ought to be an example of fairness in action, and it is not surprising to find some aspects of that procedure taken up for some administrative purposes.

43    The point made in the first few sentences is, in our respectful opinion, the critical one for the resolution of the present appeal. Unlike an adversarial trial, where the decision-making entirely depends on evidence adduced during the trial itself, and the testing of that evidence also during the trial, an administrative merits review of the kind established by Pt 7 of the Act occurs on a continuum from the lodging of an application through to a decision. A hearing pursuant to s 425 may be a necessary part of that process but it is neither the beginning nor the end of the making of the correct or preferable decision. Subject always to its express or implied obligations of procedural fairness (which, as McHugh J observed in SAAP at [60] is a continuing obligation throughout the review process), a Tribunal member as merits decision-maker may examine and consider material outside any review hearing, and may be proactive in obtaining extra material for herself or himself, including after a s 425 review hearing (see SAAP at [125] per Gummow J).

44    We note for example the powers in s 424 (to seek information, whether orally or in writing), s 427(1)(d) (to require the Secretary to make arrangements for any “investigation” or medical examination the Tribunal thinks necessary with respect to the review) and s 428 (the Tribunal may authorise another person to take evidence for the purpose of a review, whether inside or outside Australia), all of which contemplate that evidence and other material relevant to a review will be obtained in the absence of an applicant. Again, we note all these powers may be subject to the Tribunal’s express and implied obligations of procedural fairness. Notwithstanding provisions such as s 422B, there remains scope for the operation of common law procedural fairness principles in the Tribunal’s review pursuant to Pt 7: see Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [35]-[42].

45    The observation by Gleeson CJ in SAAP at [21] that the object of a review hearing pursuant to s 425 is to “hear evidence and receive arguments in the most useful and efficient manner” which will often “involve flexibility in the order of proceedings” is also apposite.

46    The decision-making process for which Pt 7 of the Act provides demonstrates, in our opinion, that evidence and information may be obtained by the Tribunal in the absence of an applicant at various points, and more than once. The process expressly contemplates this will occur and it is the express and implied requirements of procedural fairness which operate to ensure that an applicant is given a reasonable opportunity to deal with, and address, any information and evidence so obtained, subject to any express requirements in the Act that this not occur (such as s 424A(3)(c), to which we have referred above).

47    Accordingly, and although it is significant to construe s 425 itself (or ss 414 and 415) as authorising the taking of evidence at a review hearing in circumstances where a review applicant has been excluded from part of the hearing, we consider that construction to be the preferable one, subject, as we have emphasised, to the Tribunal’s express and implied obligations of procedural fairness.

48    In those circumstances, the Tribunal has a discretionary power to require a review applicant to leave a s 425 hearing so that the Tribunal may take evidence in the absence of the review applicant. That discretion must not be exercised in a way which is legally unreasonable (see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [27]-[28], [72] and [105]). Where no reasons are given by the decision-maker for the manner in which a discretion was exercised, then the task of a reviewing court is to examine the outcome of the exercise of discretion and to consider, for itself, whether the discretion was exercised in a way which is justifiable and intelligible, bearing in mind it is for the repository of the discretionary power to exercise it, not the court: see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 308 ALR 280 at [45].

49    The Tribunal’s reasons for decision do not explain why it took the course it did on 25 February 2013. There were some remarks to which the Court was taken in the transcript of the review hearing, and which we have extracted at [12] above. Further, in its letter to the brothers through their migration agent on 10 January 2013, the Tribunal stated (as we have extracted at [9] above) that it proposed to take this course “to avoid your evidence being affected by the evidence of the other”. As the appellant submitted, in fact the Tribunal excluded G after he had given his evidence and while it took his brother’s evidence. We do not consider that fact nullifies the Tribunal’s justification, such as it is, or renders it unintelligible. The Tribunal was not to know whether it might need to ask G further questions after having heard W’s evidence. It was not to know what effect having G, as the older brother, in the hearing room while W, as the younger brother, gave evidence might have on what W had to say. These matters were within the concept of the “effects” the Tribunal might have apprehended could flow from the brothers being present during each other’s evidence. In a review where the reliability and credibility of the factual accounts given by each brother was critical, and on the basis that s 425, alternatively ss 414 and 415 (or all of them) authorised the Tribunal to exclude each of the brothers, we do not consider its exercise of discretion lacked justification, or was unintelligible so as to render its exercise legally unreasonable.

50    For those reasons, ground one is not made out, but the qualifications we have emphasised about procedural fairness arise in respect of the next two grounds.

Ground Two

51    The second ground of review concerned the way the Tribunal dealt with each of the brothers’ evidence. Essentially the appellant contended that the Tribunal purported to give no weight to W’s evidence in G’s review but, in disposing of W’s review, the Tribunal chose to give that self-same evidence some weight.

52    The relevant passage in the Tribunal’s reasons on G’s review is the following:

The applicant’s brother [ie W] (who was also an applicant before the Tribunal) gave evidence in support of the applicant’s claims and his own. Given the very high degree of problems I have with the applicant’s credibility, I have not given this evidence any weight in assessing the applicant’s claims.

(Emphasis added.)

53    As the Minister submitted, the last part of this passage demonstrates that the Tribunal decided not to give W’s evidence any weight in assessing G’s claims because it did not, in the first instance, believe G. In other words, having decided it disbelieved the appellant, the Tribunal was not prepared to give potentially corroborating evidence any weight in assessing his claims. The Minister is correct to submit that this manner of reasoning was not impugned by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 per McHugh and Gummow JJ at [47], [49], Callinan J agreeing at [173].

54    The appellant submits, however, there was an inconsistency in the Tribunal’s respective treatment of W’s evidence, as between the appellant’s review decision and W’s own review decision. In submissions, some passages in Member Corrigan’s decision on W’s review were identified which, it was submitted, demonstrated that Member Corrigan gave some weight to W’s evidence in his own review. So much may be accepted. We do not accept that the passages in W’s review decision record on which this submission is based demonstrate that what Member Corrigan did was to reject a piece of W’s evidence in G’s review yet accept the very same piece of evidence in G’s own review. That might indeed be a problematic approach – whether legally problematic we need not determine because in our opinion this is not what occurred. Rather, what occurred is, as we have said, that in G’s review Member Corrigan disbelieved G on some critical aspects of his account and so did not take into account any evidence (of W) that might have been potentially corroborating.

Ground Three

55    The third ground seems, in our opinion, to be a variation on the second ground. By that ground the appellant contends the Tribunal did not consider G’s claim on its own merits, but rather dealt with it in the same terms and language as it disposed of W’s claims, which the appellant contended demonstrates it did not consider G’s claims individually and separately from W’s. Supporting this ground, the appellant pointed to a number of times where the Tribunal member confused G with his brother W.

56    In his written submissions the appellant identified four places in Member Corrigan’s reasons for decision on G’s review where he used identical language to that he used in his reasons for decision on W’s review. They were as follows:

It is simply implausible and not credible that the authorities would be so concerned about the applicant and his brother that they would regularly visit the applicant’s home to threaten them and to search for them. …

I do not find it plausible that the authorities would be so concerned about the applicant and his brother that they would frequently come to their house to look for them but not come to the school or place of work to look for them or could not over a very long period apprehend either of them on their way to and from school and work. …

Given my above findings and the highly significant concerns about his credibility, I do not accept that since the applicant has departed Sri Lanka his mother has gone into hiding or that the authorities have come to his house and damaged the door. …

Given the very high degree of problems I have with the applicant’s credibility, I have not given this evidence any weight in assessing the applicant’s claims.

57    It is the case, and the Minister did not dispute, that these passages were relevantly identical in each of the reasons for decision on the review.

58    We do not accept there is any jurisdictional error arising from those passages in Member Corrigan’s decision on G’s review which can be seen as relevantly identical to those which appear in his decision record on W’s review.

59    The Minister is correct to submit that the impugned passages in the Tribunal’s reasons are passages where the Tribunal was responding to relevantly identical claims made by the appellant and W. That leaves the proposition, inherent in the appellant’s submissions, that the Tribunal was required to express itself in different language in each decision record so as to demonstrate it had considered each of the brothers’ claims independently and on their merits and avoid jurisdictional error. Given the conduct of a joint hearing by the same member, with the express consent of the brothers through their migration agent, and taking into account the similarity of the claims as between them, we do not consider it is demonstrative of an excess or want of jurisdiction for the Tribunal, in two parts of its active reasons, to use the same language in expressing its findings on each review, even in passages which go to the question whether the Tribunal accepted what each brother had said.

60    We consider these circumstances to be significantly different from those we have found to exist in W’s appeal: see MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [32]. Here, the fact that Member Corrigan was constituted to conduct both reviews and dealt with them together, combined with the almost identical nature and content of the claims made by each of the brothers, provides a rational explanation for the fact Member Corrigan used the same language in each decision record. No doubt it can be inferred there was some “cutting and pasting”, but we do not consider that activity to demonstrate a failure by Member Corrigan to bring an independent mind to each of the brothers’ claims, nor to his decision on their reviews.

61    Further, it is unclear what the appellant means by a failure to decide the review on “its own merits”, and whether what is being suggested is that Member Corrigan decided only W’s decision on its own merits and applied his decision to the appellant’s review. Read as whole, the Tribunal’s reasons on G’s review do not suggest that is what it did.

The s 424A point

62    As we have noted, the authorities are clear that, if the Tribunal excludes an applicant from a review hearing, its obligations to afford procedural fairness, including its obligations under s 424A, remain operative. Indeed, that is precisely what the Court in SAAP [2005] HCA 24; 228 CLR 294 made plain.

63    The appellant sought to develop an argument in oral submissions on the appeal based on a breach of s 424A, although as the Minister correctly submitted, ground one as formulated in the amended notice of appeal of 20 July 2015 on which the appellant sought leave to rely did not expressly refer to s 424A.

64    Rather, ground one was expressed in the following terms:

1.    The Tribunal erred by excluding the Appellant from part of the hearing.

Particulars

The Tribunal conducted a hearing on 25 February 2013. Part way through the

hearing, the Tribunal directed the Appellant to absent himself from the hearing. While the Appellant was absent in accordance with the Tribunal’s direction, the Tribunal received evidence from the Appellant’s brother, MZZZW (the Brother).

By directing the Appellant to absent himself from the hearing, the Tribunal contravened s 425 of the Migration Act 1958 (the Act) and thereby failed to afford procedural fairness to the Appellant. Alternatively, insofar as a visa applicant’s appearance at a hearing is not a ‘matter’ dealt with by Part 7 Division 4 of the Act, then directing the Appellant to absent himself from the hearing involved a breach of common law procedural fairness.

Further or alternatively, the Tribunal had no power to direct the Appellant to

absent himself from the hearing.

65    At the hearing of the appeal his counsel handed up a proposed further amended notice of appeal inserting an express reference to s 424A. The appellant was then given leave to file submissions in reply after the conclusion of the appeal, and addressed this issue in those submissions. He submitted:

The Minister has urged the Court not to decide the s 424A point on the basis that it is not raised by the amended draft notice of appeal filed on 20 July 2015. Whether or not the point was identified in the draft notice, it was clearly developed in the applicant’s written submissions which were filed on 28 July 2015 – a week before the Minister’s written submissions were due. The applicant has sought a limited amendment of the draft notice to avoid any doubt that the point is part of his case. The Minister has conceded there is no prejudice. In those circumstances, the Minister’s opposition to the amendment has no force, and there is no principled basis upon which the Court should decline to decide the s 424A point.

66    We accept the appellant’s submissions about the way in which ground one is expressed, without the need for s 424A to be expressly mentioned. In our opinion in its original form it covered an allegation of denial of procedural fairness under Pt 7, coupled with a separate allegation of a denial of procedural fairness at common law. The only way sensibly to read this ground was that the first reference was intended to be to procedural fairness as codified in the Migration Act, including s 424A. The Minister was on notice of the submissions in the appellant’s written submissions and we see no prejudice to the Minister in it being dealt with by this Court. We consider the appellant is able to make the argument he seeks to make, without the need for leave further to amend his notice of appeal.

67    Adopting that approach however, we do not accept the ground is made out. It depends on the appellant persuading us that Member Corrigan took into account aspects of W’s evidence, which he heard in the absence of G, in determining G’s review and which formed the reason, or part of the reason, for Member Corrigan to affirm the delegate’s decision in respect of G. The appellant in his reply submissions at [6] pointed to two examples where it was submitted W’s evidence undermined (using the language of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [17]) G’s claims. Although references are given to evidence recorded in the transcript by each of the brothers which might seem inconsistent, the Tribunal does not refer to this evidence in its reasons. None of the paragraphs of the Tribunal’s reasons to which the appellant refers in [6] of his reply submissions relies on any particular aspect of W’s evidence as given in the absence of G as a reason, or part of a reason, to reject G’s claims as put in the review. Rather, the Tribunal rejected G’s claims because it did not believe him.

The discretion to refuse relief

68    We have concluded that no ground of appeal should succeed. Had we been persuaded of jurisdictional error, the question whether we should, in the exercise of the Court’s discretion, grant relief, would have then arisen. The Minister submitted that the appellant’s acquiescence in the procedure by which the Tribunal held a joint review hearing and foreshadowed that it would exclude each of the brothers at some stage during the joint hearing was sufficient basis for the Court to decline to grant relief, even if persuaded the Tribunal had exceeded its jurisdiction.

69    In our opinion, at the level of general principle, it will be a rare case where a decision of an administrative tribunal found to be without, or in excess, of that tribunal’s jurisdiction is allowed to stand, and to affect the rights of a person, for reasons based on discretionary considerations such as delay or “acquiescence” in a process before the tribunal which the Court has found to be unlawful. In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [55]-[62], Gaudron and Gummow JJ explained why relief would seldom be refused where jurisdictional error is established. Given we have not upheld any ground of appeal, it is unnecessary to express a concluded view on the Minister’s submissions.

CONCLUSION

70    The appeal must be dismissed. 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. There is no basis in the material for anything other than the usual order as to costs, although the costs which may be awarded must be proportionate to the amount of time taken in the preparation and conduct of the appeal as related to G’s claims only.

71    The fact that parties in both G’s appeal and W’s appeal were represented by the same legal representatives, and the likelihood of some common costs in both appeals, may be relevant factors in the assessment of the costs fairly and reasonably incurred in each appeal. In default of agreement, these will be matters for the taxing officer to consider. We would expect the parties to be able to reach agreement on this, taking into account the referral under r 4.12 so as to ensure that counsel and solicitors who appeared for the appellants receive what r 4.19(3) contemplates should be available to them in respect of the costs orders made in W’s appeal if the preconditions in that rule are met.

Associate:

Dated:    16 September 2015