FEDERAL COURT OF AUSTRALIA

AEK15 v Minister for Immigration and Border Protection [2016] FCAFC 131

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

1    The primary issue in the appeal is whether the primary judge erred in rejecting the appellant’s claim that what is now called the Administrative Appeals Tribunal (the Tribunal) fell into jurisdictional error in circumstances where the Tribunal did not invite the appellant to participate in a further hearing under s 425 of the Migration Act 1958 (Cth) (the Migration Act) after the Tribunal had been reconstituted under s 422 of the Migration Act.

2    Four additional grounds of appeal are raised, two of which also relate to the fact that the appellant was not invited to participate in a new hearing before the reconstituted Tribunal. Ground 2 (for which the appellant requires leave because this ground was not raised below) claims that the primary judge erred by not finding that the Tribunal fell into jurisdictional error by failing to consider whether or not to exercise its “discretion”. Ground 2A (which is another new ground not raised below and for which leave is also required) claims that the appellant was denied procedural fairness in not being heard in the exercise of the Tribunal’s “discretion” to invite the appellant to a new hearing before the Tribunal as reconstituted. Ground 3 claims that the primary judge erred by failing to find that the Tribunal’s exercise of “discretion” involved unreasonableness in the legal sense. Ground 4 challenges the primary judge’s order that the appellant pay the Minister’s costs. This ground was not pressed during the course of the hearing of the appeal and the appellant’s counsel stated that the only issue relating to costs was the costs of the appeal. If his client was unsuccessful in the appeal, it was submitted that he should not have to pay the Minister’s costs because the appeal is in the nature of public interest litigation.

3    For the following reasons, the appeal will be dismissed.

Summary of background facts

4    The parties were essentially agreed on the relevant background facts. They may be summarised as follows (drawing heavily on the primary judge’s summary in AEK15 v Minister for Immigration and Border Protection [2016] FCCA 1060 (AEK15)).

5    The appellant is a citizen of Bangladesh. He arrived in Australia on 17 June 2012 and, on 30 July 2012, he applied for a protection visa. He claimed that he was an active member of the local Hindu community and had been targeted by Muslim fundamentalists.

6    On 28 March 2013, the Minister’s delegate refused to grant the appellant a protection visa. The appellant sought a review in the then Refugee Review Tribunal (now the Tribunal). The appellant was represented by a registered migration agent in the Tribunal review proceedings.

7    On 7 March 2014, the appellant was invited by the Tribunal to attend a hearing to give evidence and to present argument in relation to the issues arising on the review. The appellant attended that hearing.

8    On 1 October 2014 (i.e. seven months after the initial Tribunal hearing), a Tribunal officer wrote two letters, one addressed to the appellant and one addressed to his migration agent, and informed them that, because the original Tribunal member was no longer available to review the appellant’s case, a different Tribunal member “will finish the review”. The appellant was told that all documents and other material previously considered by the initial member had been given to the new member, including recordings of any Tribunal hearings. He was informed that the Tribunal would write to him if the new member required any further information. The appellant and his migration agent were both invited to contact the Tribunal officer or the Tribunal’s national enquiry line if they had any questions.

9    The appellant did not reply to the Tribunal’s letter, nor was the appellant invited by the new member to attend a further hearing.

10    On 25 February 2015, the new Tribunal member handed down his decision and gave reasons for affirming the delegate’s decision.

11    Although the Tribunal’s statement of decision and reasons made no reference to the Tribunal having been reconstituted, it is evident from the reasons that the new member had at least listened to a recording of the earlier Tribunal hearing.

12    The Tribunal’s reasons for affirming the delegate’s decision included findings based on the appellant’s evidence at the earlier hearing. For example, when explaining the reasons for the Tribunal’s serious concerns regarding the credibility of aspects of the appellant’s claims, it noted that when the appellant was asked to explain an inconsistency in his evidence at the hearing, he “provided a muddled and evasive response as to when he learned” of particular matters (see [43] of the Tribunal’s reasons).

The Federal Circuit Court proceeding

13    On 13 March 2015, the appellant commenced judicial review proceedings in the Federal Circuit Court of Australia (FCCA). He was represented by counsel. In his amended application for review, he raised the following two grounds:

1.    The Tribunal fell into jurisdictional error by failing to invite the Applicant to a further hearing under s 425 of the Migration Act 1958 (Cth) after the Tribunal had been reconstituted under s 422 of the Act.

2.    In the alternative Tribunal ([sic]) fell into jurisdictional error by exercising its discretion to not invite the Applicant to a new hearing before the reconstituted Tribunal in a manner that was so unreasonable that no reasonable Tribunal could have made it.

14    The primary judge dismissed the amended application. As to ground 1, the appellant submitted that there was an inconsistency between authorities which were binding on the FCCA (namely, on the one hand, the Full Court’s decision in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362; 113 FCR 541 (Liu) (per Black CJ, Hill and Weinberg JJ) as applied by Mansfield J in SXXB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 537 (SXXB) and, on the other hand, the separate observations of Gray and Gyles JJ in another Full Court decision, SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; 172 FCR 1 (SZHKA)). The primary judge noted the appellant’s submission regarding the alleged inconsistency, but also recorded the appellant’s acceptance that the facts in his case were indistinguishable from those in Liu. Notwithstanding the observations of Gray and Gyles JJ in SZHKA, the primary judge held (correctly) that he was bound to apply Liu. Thus ground 1 was rejected.

15    As to ground 2 (i.e. the unreasonableness ground), the primary judge accepted that the Tribunal had a power under s 425 of the Migration Act to invite the appellant to a further hearing and that the Tribunal also had power under s 424 of the Migration Act to get any information that it considered relevant. His Honour concluded at [19] that: “So long as the duty [under s 425] subsists there is the power to hold a hearing”. In rejecting this ground, the primary judge placed particular emphasis on the fact that the appellant was notified of the Tribunal’s reconstitution and informed that he would be contacted if the new member required any further information, yet the appellant made no response. His Honour stated (at [21]) that the difficulty confronting the appellant was that “there is nothing to suggest that the Tribunal considered that the obligation under s 425 had not been fulfilled or that it wished to obtain further information”. The primary judge concluded that, in light of these matters, the Tribunal had not acted unreasonably in the legal sense as discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) (and see also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton)).

Summary of relevant statutory provisions

16    The Refugee Review Tribunal was established under s 457 of the Migration Act as it then was. The term “Tribunal” was defined in s 410 to mean the Refugee Review Tribunal. For the purposes of Pt 7, the Tribunal was obliged by s 414 to review a decision which was the subject of a valid application made under s 412 (subject to an irrelevant exception). The powers of the Tribunal were defined in s 415, which included the power to affirm the decision under review.

17    Section 420 directed the Tribunal to carry out its statutory functions in a particular manner. It provided:

420    Refugee Review Tribunal’s way of operating

(1)     The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)    The Tribunal, in reviewing a decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)    must act according to substantial justice and the merits of the case.

18    Section 421 relevantly provided that, for the purpose of a particular review, the Tribunal was to be constituted by a single member.

19    Section 422 is an important provision in the context of the appeal. It dealt with the reconstitution of the Tribunal and provided:

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.

(1A)    To avoid doubt, this section does not apply after a decision on the review is taken to have been made as provided by subsection 430(2) (written decisions) or subsection 430D(1) (oral decisions).

(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).

20    Provision was made in s 422A for the reconstitution of the Tribunal in other circumstances, namely where the Principal Member directed that the member constituting the Tribunal for a particular review be removed and replaced in circumstances where the Principal Member considered that such reconstitution was in the interests of achieving the efficient conduct of the review, in accordance with the objectives in s 420(1).

21    Section 422B, which was in Div 4 of Pt 7, provided that Div 4 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with” (s 422B(1)). It was provided in s 422B(3), that in applying Div 4, the Tribunal must “act in a way that is fair and just”.

22    Section 425 (which was also in Div 4 of Pt 7) is another provision of central significance in the appeal. It provided:

425    Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

23    As will shortly emerge, s 428 is also relevant. This provision was also in Div 4 of Pt 7 and, therefore, was included in the set of provisions which constituted an exhaustive statement of the natural justice hearing rule in accordance with s 422B(1). Section 428 provided:

428    Tribunal member may authorise another person to take evidence

(1)    The power of the Tribunal under paragraph 427(1)(a) to take evidence on oath or affirmation for the purpose of a review may be exercised by the Tribunal or on behalf of the Tribunal by:

(a)    a person appointed or engaged under the Public Service Act 1999; or

(b)    another person approved in writing by the Minister for the purposes of this section;

who is authorised in writing by the Tribunal.

(2)    The power of the Tribunal may be exercised under subsection (1):

(a)    inside or outside Australia; and

(b)    subject to such limitations (if any) as are specified by the Tribunal.

(3)    If a person other than the Tribunal is authorised under subsection (1) to take evidence for the purpose of a review:

(a)    the person has, for the purpose of taking that evidence:

(i)    all the powers of the Tribunal under subsection 427(1); and

(ii)    the power to administer an oath or affirmation to a person appearing before the first‑mentioned person to give evidence; and

(b)    for the purpose of the exercise of those powers by that person, this Part has effect (except where the context otherwise requires) as if a reference to the Tribunal included a reference to that person.

(4)    If a person (other than the Tribunal as constituted for the purpose of the review) exercises the power of the Tribunal to take evidence on oath or affirmation for the purpose of a review, the person must cause a written record of the evidence taken to be made and sent to the Tribunal.

(5)    If the Tribunal receives, under subsection (4), a record of evidence given by the applicant, the Tribunal, for the purposes of section 425, is taken to have given the applicant an opportunity to appear before it to give evidence.

24    Finally, it is relevant to note s 430, which provided that where the Tribunal made a decision on a review it must prepare a written statement as specified in that provision (other provisions operated to oblige the Tribunal to notify the review applicant and other persons of its decision and to provide a copy of its written statement under s 430).

Consideration of the parties’ contentions and determination of the appeal

Ground 1 – Is Liu plainly incorrect?

25    The appellant submitted that Liu should be overruled for the reasons given in SZHKA at [20]-[21] per Gray J and at [29]-[34] per Gyles J. In oral address the appellant’s counsel went so far as to submit that these two decisions of the Full Court represented “a double standard” in the Court’s prior jurisprudence, there was an “apparent duplicitousness of the authorities” and there was “no coherent justification” for treating the circumstances in Liu and SZHKA differently. He submitted that the Court had no option but to “pick one” of those authorities and to overrule the other, which “has to be plainly wrong”.

26    For the reasons which follow, we do not consider that the two decisions are irreconcilable or that Liu is plainly wrong.

27    It is well settled that the Full Court will follow an earlier indistinguishable Full Court decision unless it is satisfied that the earlier decision is “plainly wrong” or “clearly erroneous” and that it is insufficient to so conclude merely because the matter is one on which minds might differ (see for example, Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [13] per North, Jessup and Reeves JJ and the cases cited therein and Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553 at [29] per Black CJ, Hill, Sundberg, Marshall and Kenny JJ). The parties accepted that this was the proper test. It was also common ground that the relevant statutory provisions in the Migration Act as set out above were in the same form when Liu and SZHKA were decided.

28    A close analysis of the reasoning in Liu and the obiter observations made on that decision by Gray and Gyles JJ in SZHKA is required.

The Full Court’s decision in Liu

29    Liu involved two appeals which were heard together, one involving Mr Liu and the other involving Mr Ahmed. The appeals were from the first instance decisions of Wilcox J in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 49 and Hely J in Ahmed v Minister for Immigration and Multicultural Affairs [2001] FCA 506; 184 ALR 343. The same Tribunal member had conducted separate hearings in respect of these two matters but the member resigned before making any decision. The Tribunal was then reconstituted under s 422 by a different Tribunal member to finalise both reviews.

30    Neither appellant was invited to appear before the reconstituted Tribunal, however, in Mr Ahmed’s case, the new member informed him that no further hearing was to be conducted unless Mr Ahmed could provide reasons as to why that was necessary. He was also given 12 weeks to provide any further information. Mr Ahmed, acting through an immigration consultant, responded and asked the Tribunal to consider his application on the basis of the documents on the file. In contrast, Mr Liu was not contacted by the Tribunal after it was reconstituted and was not given any opportunity to provide any further information.

31    Another difference between the two cases, as identified by the Full Court in [13], is that, it was common ground in Mr Liu’s case, that the new member had listened to the tape recording and read the transcript of the previous Tribunal hearing, but Hely J found in Mr Ahmed’s case that, while the new member had read the transcript of the Tribunal’s hearing in Mr Ahmed’s matter, the new member had not listened to the tape recording of that hearing. The Tribunal affirmed the primary decisions in both cases and concluded on the basis of the documents before it that the appellants were not credible witnesses.

32    The judicial review applications in both cases were dismissed. Both decisions were appealed.

33    The Full Court described the common issue in the two appeals in the following terms (at [3]):

If the Tribunal member who constitutes the Tribunal for the purposes of a particular review stops being a member after there has been an oral hearing, and the Tribunal is reconstituted by another member to finish the review, is the second member required to invite the applicant to appear and give evidence and present arguments in accordance with s 425 of the Act?

34    In resolving the central issue, which involved the proper construction of s 425, the Court emphasised the need to consider that provision within its statutory context, which included the system of merits review of protection visa decisions created by Pt 7 of the Migration Act as it then stood. The Court noted many of the statutory provisions which are outlined above (it should be noted, however, that s 422B was not in force when Liu was decided). The Court traced the history of Pt 7 since its introduction by the Migration Reform Act 1992 (Cth) and also some further amendments to the framework for the conduct of such a review by the Migration Legislation Amendment Act (No 1) 1998 (Cth) (the Amendment Act). The Full Court summarised the relevant significance of the Amendment Act in [36]:

Thus, on the one hand, the Amendment Act introduced amendments to enhance the Principal Member's control over the efficient conduct of the merits review process, and to introduce time limits (capable of being extended by the Tribunal) for the applicant to exercise certain rights in relation to the review process. But on the other hand, the Amendment Act introduced two new rights, namely to be invited to comment on adverse information, and to be invited to appear before the Tribunal to present arguments about issues arising in relation to the decision under review.

35    The Court noted (at [37]) that there was no express statutory provision which required the new Tribunal member to issue a second invitation to Mr Liu and Mr Ahmed to appear before him to present evidence and arguments. The Court emphasised that s 425 was not expressed in those terms, nor was there any basis for reading the expression “the Tribunal” as it appeared in s 425 so as to read “the Tribunal as constituted by the member who makes the ultimate decision on the review”. Moreover, far from requiring the reconstituted Tribunal to invite a review applicant to appear before it, the Court observed in [38] that s 422 was “suggestive against the right to a second invitation asserted by the appellants”. That is because, given the ordinary meaning of the phrase “to continue to finish” the review, the Tribunal was not required to repeat steps in the review process. Moreover, the Court observed at [41] that the appellants’ contention that there was a right to be given a second invitation in every instance where the Tribunal is reconstituted after an oral hearing was inconsistent with the fact that, under s 422, the Tribunal as reconstituted could have regard to the proceedings before the first Tribunal.

36    The Court also rejected a narrower construction which was advanced on behalf of Mr Ahmed to the effect that, in his particular circumstances, a second invitation should have been issued because of alleged deficiencies in the transcript of his first hearing. This contention was rejected on the basis that the improper exercise of the Tribunal’s discretion in s 427(3)(a) to summon a person, including the review applicant, to give evidence could not expand the obligation under s 425.

37    A further matter relied upon by the Court in rejecting the appellants’ contention related to the circumstances in which the principal member could direct that the Tribunal be reconstituted. The principal member was obliged to direct that the Tribunal be reconstituted if the original member stopped being a member of the Tribunal or was not otherwise readily available, whereas the principal member had a discretion under s 422A to direct that the Tribunal be reconstituted in the interests of achieving the efficient conduct of the review in accordance with the objective in s 420. The Court stated at [42] that it seemed unlikely that a section which was designed to promote efficiency would replicate steps already taken in the proceeding.

38    While acknowledging at [44] that the right to a hearing was “clearly an important and central right in the merits review system established by Pt 7”, and was not merely a “formal right” (as the Minister had submitted), that did not determine what was described in [47] of Liu as “the critical question”, namely whether it was an absolute right. The Court held at [47] that, when considered in the overall context of the statutory framework of the conduct of a review of an adverse protection visa decision, “it is clear that the right is qualified by the discretion given to the Tribunal under s 428 and, as a result, cannot be said to be absolute”. The terms of s 428 are set out in [23] above.

39    The Court noted that the discretionary power under s 428 may be exercised in a range of circumstances, not all of which necessarily required the Tribunal to provide a review applicant with the right to appear before it. The Court concluded at [49] that the express terms of s 428(5) were inconsistent with the contention which underpinned the appellants’ argument in the appeals, which was to the effect that the right to a hearing under s 425 would be compromised if a reconstituted Tribunal did not hear from a review applicant personally.

40    The Court rejected the submission that, even if there was no absolute obligation on the reconstituted Tribunal to invite a review applicant who has had a hearing to appear before the reconstituted Tribunal, it must do so if the Tribunal fails to have regard to the full record of the previous hearing. The Court stated that the possibility that the discretionary power under s 422 to examine the record of a hearing might not be properly exercised should not govern the interpretation of s 425, and the same was said in respect of s 427(3)(a) (the discretionary power to summon a person, including the applicant, to give evidence) and s 428 (the discretionary power to authorise another person to take evidence). Significantly, the Court stated at [54] that even if it were the case that the reconstituted Tribunal in Mr Ahmed’s review had not properly exercised its discretion under s 427(3)(a), “that would not serve to trigger a renewed obligation under s 425” (emphasis added). This passage is important because it highlights that s 425 imposes an obligation on the Tribunal and not a discretion.

Subsequent application of Liu

41    Liu was subsequently applied by Mansfield J in SXXB on the basis that it was indistinguishable and therefore binding. In SXXB the applicant had sought to argue that Liu was distinguishable because, in that case, the Tribunal had given the visa applicant notice under s 424A of particular information that it considered would be a reason or part of a reason for affirming the decision under review. The Tribunal was obliged under s 424A(1)(c) to invite the applicant to comment in writing upon that information. Justice Mansfield drew attention to s 424B(2), which specified “the way in which the additional information or comments may be given, being the way the Tribunal considers is appropriate in the circumstances”. His Honour stated that this provision indicated that the Tribunal had a discretion as to how the response may be given and there was no obligation to conduct a further oral hearing. In those circumstances, Mansfield J concluded at [18] that Liu applied and the fact that the discretion under s 424B(2) might be improperly exercised as to how a response to a s 424A notification must be given, this could not expand the content of s 425. His Honour noted at [19] that s 420 did not itself create an entitlement to a hearing, having regard to the exhortatory character of that provision (citing Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [108]-[109]).

42    Liu has been referred to approvingly in several subsequent Full Court decisions (including one in which Gray J was a member): Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 at [34] per Gray, Cooper and Selway JJ; Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY [2013] FCAFC 104; 214 FCR 374 at [69] per Griffiths and Mortimer JJ and WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137; 230 FCR 130 at [22] per Flick and Gleeson JJ – affirmed on appeal in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326.

The observations on Liu in SZHKA

43    The operation of s 425 arose in SZHKA in different factual settings from that in Liu. In SZHKA, an earlier decision of the Tribunal had been set aside by the then Federal Magistrates Court and the matter had been remitted to the Tribunal for reconsideration according to law. The appellants (there were two appeals heard together in SZHKA) advanced two alternative arguments. First, they contended that the Tribunal was required to give a second invitation to appear under s 425(1) in every case of a remitter following a successful judicial review challenge. Alternatively, they argued that, in their particular circumstances, s 425(1) was re-engaged such that a second invitation had to be given. That was because, they submitted, the issues arising in relation to the decisions under review had changed since the first reviews were conducted.

44    Both these alternative arguments were accepted by Gray and Gyles JJ. Justice Besanko dissented on the question of whether there was an absolute obligation to issue a second invitation in every case, but he accepted the alternative submission which focused on the appellants’ particular circumstances.

45    It is useful to summarise the observations of Gray J at [20]-[23] and Gyles J at [29]-[34] concerning Liu.

46    Justice Gray did not state explicitly that Liu was wrongly decided, however, it is evident that his Honour was troubled by some aspects of the reasoning in Liu. In particular, Gray J considered that:

(a)    Although s 428(5) expressly recognised that the Tribunal’s decision-making function may be exercised without a Tribunal hearing (i.e. because evidence could be taken by another person), that exception was “a very specific one” (at [21]).

(b)    Even more importantly, the exception in s 428(5) was not expressed in terms which absolved the Tribunal entirely from compliance with s 425(1) if evidence was taken by an authorised person. That is because the exception only relates to an invitation to a hearing to give evidence and there is no reference to presenting arguments about the issues arising in a review. Thus, if an applicant’s evidence is given to an authorised person and not to the Tribunal directly, the Tribunal could not make a decision without inviting the applicant to a Tribunal hearing to present arguments, as required by s 425(1) (at [21]).

(c)    Nor do ss 422 or 422A absolve the Tribunal from complying with s 425(1). These provisions confer a discretion on the Tribunal member as to whether or not to have regard to any record of the proceedings of the review made by the Tribunal as previously constituted and neither of the provisions said anything about excluding “the Tribunal’s obligation under s 425(1)” (at [22] - emphasis added). Justice Gray said that to have regard to the record of what a previous Tribunal member has done is a sensible step, and may assist in eliminating repetition of a number of steps, but it is not a substitute for the opportunity given to a review applicant under s 425(1) to give evidence and present arguments about the issues.

(d)    Justice Gray included at [23] that:

… it is difficult to imagine a case in which a Tribunal member could be satisfied that the facts remained as they had been when another member made a purported decision, and that the issues were such that no further oral evidence or argument on the part of the applicant could possibly have any effect in relation to them.

47    These matters led his Honour to find that, when a Tribunal member is called upon to exercise the Tribunal’s decision-making function, “that member can only do so following an invitation to the relevant applicant to a hearing that complies with s 425(1) before that member, unless the case falls within one of the exceptions in s 425 itself” (at [23]).

48    There are two important points to note about Gray J’s reasons for judgment in SZHKA. First, it is significant that the only aspect of the Full Court’s reasoning in Liu which was commented upon by Gray J related to the significance which the Full Court attached to s 428(5). That particular matter formed only a part of the Full Court’s reasons in Liu for rejecting the appellants’ contention in the two appeals as to why there was an unqualified obligation on the Tribunal as reconstituted to issue fresh invitations to the respective appellants to attend another hearing before the Tribunal as reconstituted. Justice Gray was silent on the other reasons given by the Full Court for rejecting that contention. In those circumstances, his Honour’s observations in SZHKA fall far short of supporting the appellant’s claim here that Liu was “wrong”, let alone “plainly wrong”. Even if s 428(5) is put entirely to one side, the balance of the Full Court’s reasoning in Liu provides a sufficient basis for the Court’s decision to dismiss the appeals in those particular circumstances.

49    The second matter, which is independent of the first, relates to a fundamental difference in the circumstances in Liu and SZHKA. In Liu the Tribunal was reconstituted before any decision had been made by the Tribunal in respect of the review applications before it. The obligation of the Tribunal as reconstituted was “to continue to finish the review” (see s 422(2) and s 414). In continuing to finish the reviews in Liu, the Tribunal also had a clear discretion under s 422(2) to have regard to any record of the proceedings made by the Tribunal as previously constituted.

50    Section 422 did not arise in SZHKA. There was no question there of the Tribunal as reconstituted continuing to finish the reviews. Rather, because the first decisions of the Tribunal in that matter had been set aside on judicial review, the obligation of the Tribunal as reconstituted was to conduct the reviews according to law in accordance with s 414. That is the context within which Gray J made his observations in SZHKA concerning Liu. Section 422 simply did not arise and it was unnecessary for the Court in SZHKA to consider how that provision interacted with s 425.

51    That is not to say that, in a case such as SZHKA, the Tribunal as reconstituted had to start the entire review process from scratch following the remitter. Its duty under s 414 (and the remitter) was to conduct a “review of an RRT – reviewable decision” according to law. In so doing, it need not have proceeded on the basis that every step or procedure which had been taken by the previously constituted Tribunal was also invalid. As Emmett, Siopis and Rares JJ stated in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107; 159 FCR 291 at [39]:

Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.

52    Justice Gyles’ observations in SZHKA concerning Liu may be summarised as follows:

(a)    Liu was not directly on point because it related to s 422 so there was no need to consider the correctness of that decision, but if the Court’s reasoning was inconsistent with Gyles J’s construction of the legislation, his Honour said that he would not apply that reasoning to the circumstances in SZHKA (at [29]).

(b)    Some of the reasoning in Liu needed reconsideration in the light of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL); Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 (Wang) and Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1 (NAFF) at [27]. His Honour did not elaborate upon his view why the reasoning in Liu needed reconsideration in the light of these High Court decisions.

(c)    Section 428 did not assist because it had no operation in the circumstances of SZHKA, nor could the issue of construction in that case be resolved on the basis that Div 4 of Pt 7 (including s 425) referred to the Tribunal in its “corporate” capacity as opposed to the member constituting the Tribunal (at [30]).

53    With respect, it is difficult to see how the reasoning in any of the three High Court authorities referred to by Gyles J is inconsistent with any of the reasoning in Liu. Wang dealt with a different issue, namely the Full Court’s error in ordering that a matter be remitted to the same Tribunal member in order to preserve previous findings of fact in the review applicant’s favour and notwithstanding that that Tribunal member’s decision was quashed for jurisdictional error. In essence, the High Court said that this was wrong because, in conducting the remitter, the Tribunal (however constituted) was not obliged to reach the same findings of fact as previously made because circumstances may have changed or, even if they had not, a different view might be taken of the evidence.

54    SZBEL is important in illuminating the Tribunal’s obligation under s 425, but it is difficult to see how the reasoning there is inconsistent with that in Liu. At [27] in SZBEL, the plurality (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) emphasised that s 425 imposed an obligation on the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (subject to the qualifications set out in s 425(2)).

55    As to NAFF, it is convenient to set out [27] of the judgment of the plurality (McHugh, Gummow, Callinan and Heydon JJ), to which Gyles J made express reference (emphasis added):

One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.

56    That passage is not inconsistent with the reasoning in Liu. On the contrary, it underlines the fact that the duty imposed by s 425(1) is one which may not be discharged by a single hearing of the Tribunal and may require a further hearing or hearings depending upon the particular circumstances, including the example given by the plurality.

57    We are not persuaded that Liu is plainly wrong and should be overruled. Indeed, we consider that, having regard to the particular circumstances in that case, the decision and related reasoning were correct. The obiter observations by Gray and Gyles JJ in SZHKA do not lead us to take a different view of Liu. Ground 1 is rejected.

Grounds 2 and 2A

58    In circumstances where the Minister claimed no prejudice, the appellant should have leave to raise grounds 2 and 2A. For the following reasons, however, both grounds should be dismissed.

59    Both these grounds are predicated on the proposition that the Tribunal had a discretion to invite the appellant to participate in a fresh hearing before the reconstituted Tribunal. In our respectful view, that fundamentally misconceives the position. As we have emphasised, s 425 imposes an obligation or duty on the Tribunal, not a discretion. That is unsurprising in circumstances where the plain object underlying s 425 is to express in statutory language that which otherwise would apply by reference to common law principles of natural justice. Where those common law principles of natural justice apply, there is no question of there being a discretion to provide a fair hearing under the relevant limb of that doctrine. It involves a duty. The same is the case with s 425. All the more so in circumstances where s 425 must be construed and applied in the light of s 422B and, therefore, formed part of the set of provisions which are an exhaustive statement of the requirements of the natural justice hearing rule.

60    Contrary to the appellant’s submission, there was no discretion conferred upon the Tribunal to invite the appellant to participate in a further hearing before the Tribunal as reconstituted. The appellant could not point to any provision in the Migration Act which provided the source of that alleged discretion. It was submitted that the discretion “arises out of general law principles”. The fundamental difficulty with that contention is that it inconsistent with the plain terms of s 422B.

61    To sum up, s 425 imposes a statutory duty on the Tribunal. In circumstances where a hearing has been conducted by the Tribunal as originally constituted following an invitation extended under s 425 and the Tribunal is then reconstituted under s 422, the Tribunal as reconstituted will need to consider whether there is some reason why a fresh invitation should be extended in accordance with the obligation imposed by s 425. In considering that matter, the Tribunal may take into account the discretionary power it has under s 422(2) to have regard to any existing record of the proceeding of the review made by the Tribunal as previously constituted. It will also need to consider whether there is some reason why, in the particular circumstances of the case, it needs to issue a second invitation to the review applicant to appear before it to give evidence and present arguments relating to the issues arising in respect of the decision under review (see the example set out in NAFF in the passage at [55] above). This is simply another way of stating that the Tribunal has to be mindful of the fact that the duty imposed by s 425 must be performed from time to time as occasion requires (see s 33(1) of the Acts Interpretation Act 1901 (Cth) and noting also that there is no contrary intention manifested in the Migration Act which displaces that general principle of construction).

62    We respectfully agree with the following observations of the primary judge at [19] of his reasons for judgment (emphasis added):

… the obligation under s 425 of the Act does not cease simply because an applicant has attended the hearing to which he or she has been invited. The right provided by that obligation is to have a real and meaningful opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. There are many reasons why a single hearing might not suffice to fulfil that right. So long as the duty subsists there is the power to hold a hearing.

63    Significantly, the appellant pointed to no reason in his particular circumstances why the earlier oral hearing was insufficient to discharge the obligation under s 425. The appeal was conducted on the basis that a second invitation must be extended to a review applicant under s 425 in every case where the Tribunal is reconstituted under s 422 and following an earlier hearing by a former Tribunal member.

Ground 3

64    Ground 3, which relates to unreasonableness in the legal sense, must also be dismissed for similar reasons to those relating to grounds 2 and 2A. It too is predicated on the erroneous claim that the Tribunal had a discretion whether or not to invite the appellant to attend a further hearing before the Tribunal as reconstituted. Cases such as Li and Stretton, as relied upon by the appellant, deal with unreasonableness in the legal sense in the exercise of statutory discretionary powers. That is a different issue from that which arises here, which concerns the discharge of the statutory duty imposed on the Tribunal by s 425, a duty which is ongoing but which may, depending on the particular circumstances, be discharged where a hearing has been conducted by the Tribunal as originally constituted. The Tribunal as reconstituted may validly decide in the exercise of its discretion under s 422(2) to have regard to the record of that earlier proceeding. The Tribunal must be mindful, however, of any reasons why, in the particular case, the previous hearing is not sufficient in law to fulfil the review applicant’s right (and the Tribunal’s correlative obligation) under s 425.

65    Finally, and for completeness, we should say something about [41] of the Tribunal’s statement of reasons. There is no reference to that paragraph in the primary judge’s reasons for judgment. The Tribunal said there:

The applicant was advised of the reconstitution of the matter and given an opportunity to provide further evidence and submissions but none were received.

That is not an accurate summary of the Tribunal’s letters dated 1 October 2014 which were sent to both the appellant and his migration agent. Neither letter contained an invitation to provide further evidence or submissions to the Tribunal as reconstituted. Rather, as noted in [8] above, the appellant and his agent were told that existing material had been provided to the new member and that the Tribunal would write again if the new member required any further information. It is true that both the appellant and his agent were invited in the letters to contact the Tribunal officer if they had any questions, but this was said as a matter of form and courtesy and could not on any view be regarded as an invitation to provide further evidence or submissions. It has not been demonstrated that this misdescription of the letters gave rise to a jurisdictional error on the part of the Tribunal.

Ground 4

66    As noted above, this ground, as varied, relates only to the issue of whether the appellant should be ordered to pay the Minister’s costs of the appeal. We are not satisfied that there is any sufficient basis for not applying the general rule that costs should follow the event. In particular, the appellant has not persuaded us that he initiated and conducted this litigation in the public interest, as opposed to his own personal interests (see generally Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 and Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229).

Conclusion

67    For these reasons, the appeal should be dismissed and the appellant ordered to pay the Minister’s costs, as agreed or assessed. The Court gratefully acknowledges Mr Benjamin O’Donnell’s appearance as pro bono counsel for the appellant. His assistance helped promote the due and efficient administration of justice, as did that of Mr Bora Kaplan who appeared for the Minister.

Associate:

Dated:    21 September 2016