Federal Court of Australia

Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge be set aside and the matter be remitted for the determination of grounds 2, 3, 4 and 6 of the amended originating application.

3.    The costs of the proceeding below be determined by the primary judge upon the disposition of the amended originating application.

4.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [25] Gleeson CJ said:

There are undoubtedly circumstances in which the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision.

2    The principal question in this appeal is whether the primary judge erred in finding that a failure of this kind resulted in procedural unfairness which would vitiate a decision of the Administrative Appeals Tribunal.

3    The first respondent is a Pakistani national, who arrived in Australia in June 2012 as an “unauthorised maritime arrival” within the meaning of that term in the Migration Act 1958 (Cth). With the exception of a period of about 17 months after being granted a bridging visa, he has been held ever since in immigration detention. He applied for a protection visa in November 2012 and was found to be entitled to protection, but the responsible Minister, acting personally, refused to grant the visa on character grounds following the respondent’s conviction by a jury in May 2016 on a charge of indecently dealing with a child under 16. The discretion to refuse a visa on this basis is vested in the Minister by s 501(1) of the Migration Act. In May 2017, the Minister’s decision was quashed by this Court by consent and the application for a protection visa was remitted to the Minister for determination according to law.

4    In November 2017 the respondent was involved in an incident at the Christmas Island detention centre as a result of which he was charged with one count of causing harm to a Commonwealth public official. He was convicted some 12 months later. He appealed against his conviction, but the appeal was dismissed.

5    In the meantime, on 7 December 2018, a delegate of the then responsible Minister again refused to grant the respondent a visa on character grounds. The respondent applied to the Tribunal for review of the delegate’s decision. In March 2019 the Tribunal affirmed the delegate’s decision. The respondent applied to the Court for judicial review and although he was unsuccessful at first instance, that decision was quashed by the Full Court and remitted to the Tribunal for redetermination.

6    In November 2022 a second Tribunal affirmed the delegate’s decision.

7    The instant appeal arises out of orders made by the primary judge for the issue of writs of certiorari and mandamus to quash the decision of the second Tribunal and remit the matter to the Tribunal once more for review of the delegate’s decision according to law. The primary judge held that the Tribunal denied the respondent procedural fairness because of the manner in which the hearing was conducted and that he had not waived his right to object to, or acquiesced in, the manner in which the Tribunal hearing was conducted. The basis for the decision was a failure by the Minister to follow certain directions said to have been made by the Tribunal a week before the hearing.

8    The Minister alleges that the primary judge erred in doing so.

9    For the reasons that follow, the Minister’s allegation should be accepted.

Factual background

10    Much of the factual background is irrelevant to the appeal. The salient matters are set out below.

11    On 9 January 2021 — between the time of the first Tribunal decision and the publication of the Full Court judgment — the respondent was reportedly assaulted in immigration detention and suffered a head injury.

12    On 4 March 2022 the Minister filed a tender bundle in the Tribunal upon which he intended to rely at the hearing.

13    The hearing was listed to begin on 2 May 2022. Both parties were represented. There was no dispute that the respondent did not pass the character test contained in s 501(6) of the Migration Act, so the only issue was whether the Tribunal, standing in the shoes of the Minister so to speak, should exercise the discretion under s 501(1) to refuse to grant the visa.

14    After a number of documents were tendered but before any witnesses were called, the Minister’s counsel, Mr Barrington, informed the Tribunal that he had discovered “a considerable hole or evidentiary gap in the material”. That hole or gap was the absence of any of the detention records from 2017 to 2022, which meant that he did not have evidence to hand about the respondent’s conduct in detention during that period. The question of whether the respondent posed a risk to the Australian community if his visa were to be restored and consequently released into the community was a consideration the Tribunal was bound to take into account (in accordance with the applicable Ministerial Direction and the terms of s 499(2A) of the Migration Act). Mr Barrington said that steps had been taken to obtain the missing records, but they were not yet available.

15    When asked by the Tribunal for his attitude, Eric Zhang, a solicitor appearing for the respondent, expressed his concern about the absence of an adequate explanation for the gap in the Minister’s evidence but accepted that, if the Minister chose to tender the missing documents, the Tribunal could have regard to them. Understandably, however, he also said that “the applicant” should have an opportunity to examine the documents and make any submissions arising from them. Given that the respondent had been in detention for eight years, Mr Zhang said “we would like to avoid any delay that may arise from requiring further time to consider the material”.

16    The Tribunal then indicated that the matter should proceed and that it would hear any application the Minister might make when the documents were “available”.

17    Two witnesses were called, followed by the respondent. At the end of the day the respondent was in cross-examination. The next day, when the cross-examination was due to resume, Mr Zhang expressed concerns about the respondent’s ability to respond to questions. He flagged those concerns in an email, which is not before the Court, but the transcript records the nature of the concerns as related to the Tribunal:

I guess in summary, the submission is that there’s a risk that evidence is potentially being taken by an untreated man. The extent of the symptoms were not appreciated by his legal representatives until yesterday. There’s a need to determine whether the traumatic head injury is impacting on his cognitive ability, as I’ve said earlier, because we were surprised by some of the responses given. To be clear, the surprise is purely directed towards his inability to respond to some of the basic questions put to him yesterday. In effect, I think for context as well, and if I could just walk you through some of the material, our office has been made aware in the past that the applicant has been suffering after being hit on the head with a plastic shield on 9 January 2021. The tribunal will be able to see this at exhibit 3, which is the applicant’s tender bundle ---

18    There followed a debate about the course that should be followed. It is sufficient for present purposes to note that Mr Zhang asked the Minister through the Tribunal to arrange for a neurological examination of the respondent to be carried out and the hearing was adjourned.

19    On 7 July 2022 the Minister served on the respondent’s lawyers some 482 additional pages of documents (the Supplementary G documents).

20    During the adjournment, Mr Zhang arranged for the respondent to be assessed by Dr Karen Scally, a clinical neuropsychologist and forensic psychologist. Dr Scally was provided with a bundle of documents, including the Supplementary G documents, and assessed the respondent during five appointments over Zoom in September, October and November 2022, communicating on each occasion with the assistance of the same Pashto interpreter. She undertook both a neuropsychological and a psychological assessment. To those ends she performed a number of tests. On 10 November 2022 she produced a detailed report which was tendered in evidence by consent when the hearing resumed some two weeks later. She was not required for cross-examination or for questioning by the Tribunal. The report addressed a range of matters relevant to the respondent’s risk of reoffending. It also addressed the concerns raised by Mr Zhang about the respondent’s “ability to comprehend and remember instructions throughout the time he [had] been representing him”.

21    Based on the records with which she was provided and her assessment of the respondent’s mental state and cognition, Dr Scally considered that on 9 January 2021 the respondent had sustained a head injury caused by two separate assaults to the left side of his head and that he had “persistent post-concussive syndrome, a form of traumatic brain injury,” of mild to moderate severity. She summarised her findings from the neuropsychological assessment in the following way:

On neuropsychological assessment [the respondent] was found to demonstrate fluctuating but overall intact attention, significantly impaired verbal learning and memory and selective deficits in visuospatial functioning including difficulty with rapidly naming colours, noticing visual anomalies in pictures, and visualising spatial integration of parts to recreate a whole picture. His verbal and visual abstract reasoning abilities requiring flexibility of thought and verbal expression were also mildly below the expected level. [The respondent] otherwise performed at the expected average range or higher level across measures of working memory (a relative strength), practical reasoning and judgment, logical numerical reasoning, visual memory, processing speed, and executive functioning. In functional terms, [the respondent’s] impairments on assessment, particularly his significant verbal memory impairment, comport well with his self-reported cognitive difficulties, and the problems with comprehension/recall of instructions reported by his Solicitor as well as observations of difficulties in his native language at interview in which he often required supplementary explanation and prompting to correctly comprehend questions. From his performance on assessment, this likely reflects a significant difficulty with processing and remembering lengthy verbal information both in the short and long term. [The respondent] can register and immediately repeat very short amounts of information, but once the amount of information exceeds the capacity of his immediate attention span, he struggles to encode this into short term or long-term memory.

22    Dr Scally expressed the view that the respondent’s fluctuating attention, verbal memory impairment and selective deficits in visuospatial functions were consistent with an injury to the temporal and occipital regions of the brain, which are the central locations for memory and visual processing respectively.

23    Dr Scally opined that the respondent was presenting with “significant cognitive impairment”, consistent with a diagnosis of persistent post-concussion syndrome caused by mild traumatic brain injury. She went on to describe the nature of the impairment and its functional effect on the respondent’s capacity to give evidence of past events in the Tribunal:

[The respondent’s] cognitive complaints and impairments on assessment, specifically his fluctuating attention/distractibility, “fuzzy thinking”, fatigue, impaired verbal learning and recall, and reduced capacity to listen/converse for prolonged periods may reduce his capacity to participate effectively in complicated proceedings. Specifically, his significant verbal learning and memory impairment (see paragraph 50), means he is likely to struggle to process and recall lengthy verbal information when being questioned as a witness. To put this into functional terms, he has an immediate attention span of five to eight pieces of information meaning that when he concentrates, he can correctly repeat back a phone number. However, when presented with verbal information that exceeds his immediate attention span, for instance 12 words, he is only able to recall five of those twelve words.

Episodic or autobiographical memory is the recall of events from one’s own past is not amenable to formal assessment but his ability to recall past events appeared to be intact as he was able to provide autobiographical details from his recent and remote past at interview. [The respondent] also denied any difficulty with recalling past events.

(Emphasis added.)

24    Dr Scally also offered the following observations and concerns regarding the respondent’s ability to participate in the Tribunal proceeding:

Based on the balance of information from [the respondent’s] self-reported difficulties with oral and written communication, his solicitor’s observations of poor comprehension and/or retention of information and observations at interview as well as the formal findings with respect to significant verbal memory impairment, I would like to raise some concern for [the respondent’s] ability to adequately receive instruction and comprehend questions put to him during complicated proceedings. It is highly likely he will be unable to retain instruction by legal counsel and may miss significant portions of verbal information put to him within the Tribunal setting, thereby impacting his ability to provide accurate responses to the Tribunal.

25    In light of Dr Scally’s findings and concerns, on 18 November 2022 the Tribunal conducted a directions hearing in order to discuss the way forward. At that hearing, Alison Battisson appeared for the respondent. Ms Battisson is an experienced solicitor and the principal of the firm in which Mr Zhang worked — a firm which specialises in migration cases. Ms Battisson informed the Tribunal that:

[W]hat the report highlights and what is the primary concern of the applicant is the ability for the applicant to retain the context of long questions and also the flow of the questions. So that, you know, where he’s being cross-examined on the particular topic, being able to remember the previous questions and where the questions may be going.

…

This is problematic for a number of reasons. So the report is clear, his long-term memory has not been affected but his short-term memory and certain cognitive factors and functions have. The issue with the cross-examination thus far is that his answers may have appeared evasive or lacking credibility because he was unable to remember the full question or the flow of questions. And in a case such as this, credibility is vitally important for the tribunal to be able to come to the preferable decision.

So I have some concerns about how his evidence may have come across or how he may have understood it. And I also have concerns about the way that we have provided legal advice to him, and then he has instructed us in return. So this is not going to be an easy fix, I think, and we are trying to find a way forward because our client is in detention.

26    In view of these matters, Ms Battisson said that, if the cross-examination did not begin again but moved on to new areas, she would submit to the Tribunal that no, or “extremely limited”, weight should be given to the evidence. She suggested, in effect, that the evidence elicited from the respondent on 2 May 2022 should be disregarded and his evidence given afresh. She submitted that, “in the interests of assisting the Tribunal to come to the correct decision, and… in fairness to [counsel for the Minister]”, at the very least cross-examination should start again because the Tribunal could not have comfort in any of the answers her client had given “thus far”. The Tribunal understood her concerns. As the Tribunal put it:

And so the reason why you think that it’s best for the tribunal to, in a sense, hear the evidence again with respect to sort of the past events, pre-detention, is because this time round the questions will be able to be put in a way that will hopefully avoid confusion and will be informed, I suppose, by some of the suggestions made by Dr Scally. And your concern is that the evidence that we’ve got is perhaps tainted with those issues.

27    Ms Battisson also informed the Tribunal that, because the respondent was under cross-examination the firm was unable to take instructions and asked for permission to speak to him to obtain “proper instructions in a way that is compliant with Dr Scally’s report”.

28    The Tribunal granted leave to the respondent to give further evidence in chief and for cross-examination to resume thereafter. It also permitted him to confer with his lawyers. It urged Mr Orchard to identify for the respondent the pages of the additional material or the topics upon which he would be cross-examined. While no formal direction to that effect was given, it is evident that the Tribunal required that the Minister at least notify the respondent’s lawyers of the topics or pages. At the hearing of the appeal, senior counsel for the Minister conceded as much. Towards the very end of the hearing, the Tribunal noted that “the respondent … will notify the applicant of the topics of cross-examination or the pages of the further material that will be relied upon”.

29    The hearing resumed some six days later, on 24 November 2022. It was not until 8.57am that day that the respondent’s lawyers received a list of pages to which the respondent would be taken in cross-examination. The hearing started more than two and a half hours later at 11.41am.

30    At the outset of the hearing, the Tribunal asked Ms Battisson whether she had “had the opportunity of speaking to the interpreter about some of the recommendations made by Dr Scally”. Ms Battisson replied that she had not. At this point the Tribunal said this:

Well, I might just inform the interpreter that the tribunal has received a report from a neuropsychologist which indicates that the applicant has some difficulties in comprehending questions due to a head injury that he suffered some time ago. That means that any questions that are to be put to the applicant should be framed using as few words as possible, and keeping the question as - to effectively one concept in every question. And I think it’s important that you know that for the purposes of the interpretation that you’ll be carrying out. So I’ll just let you know that.

31    Ms Battisson then informed the Tribunal that Dr Scally was available for questioning, but that the Minister did not require her for cross-examination and, unless the Tribunal wished to question her, she would not be called. After tendering Dr Scally’s report, Ms Battisson said this:

The other issue – not an issue – is I think we haven’t had time to really discuss structure of questioning. We received at 8.57 this morning the list of pages that my friend will take the applicant to. We have not had time to brief our client on which pages he will be taken to, because we only just received that list. I see that the entire supplementary G docs have been printed for him, and I think we’ll just need to see how we go with him running through those.

(Emphasis added.)

32    Shortly thereafter, the Tribunal referred to the Supplementary G documents, commenting that “at some point we’ll obviously need to consider the tender of that bundle”. The Tribunal indicated that it was “happy to do that now unless there’s any issue with respect to that”, whereupon Ms Battisson indicated there was “no issue” and the documents were then admitted into evidence.

33    Dr Scally was not called and no evidence from her was adduced in the judicial review application before the primary judge.

34    During the hearing the respondent was taken to incident reports relating to his conduct in detention on nine occasions over eight days in 2016, 2017, 2018, 2021 and 2022. It was common ground in the appeal that the two incident reports relating to his conduct in 2016 were included in the Minister’s original tender bundle served on 4 March 2022.

35    As we mentioned earlier, the hearing started at 11.41am. Cross-examination started at 12.10am. In response to a request from Ms Battisson for scheduled breaks at regular intervals, the Tribunal took a break at 12.43pm. Cross-examination resumed at 1.00pm. Ms Battisson proceeded to re-examine, without a further break, and submissions followed.

The legal framework

36    The Administrative Appeals Tribunal Act 1975 (Cth) gives the Tribunal considerable latitude over the procedures it adopts. Section 33(1) provides:

In a proceeding before the Tribunal:

(a)    the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)    the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)    the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

37    Still, s 39(1) provides that, subject to ss 35, 36 and 36B (none of which are relevant):

[T]he Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

38    This obligation reflects the position at common law and is no higher than that obligation: Kamal v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 106 at [17] (Rares, Bromwich and Raper JJ). As Deane J put it in Sullivan v Department of Transport (1978) 20 ALR 323 at 342, it is a “statutory recognition” of the duty which the common law would imply. Importantly, the obligation is to provide a reasonable opportunity, “not necessarily an optimal one”: Kamal at [31].

39    What constitutes a reasonable opportunity in a particular case will always depend on the facts. In Kamal at [18] the Full Court approved the following statement made by the primary judge (Mortimer J):

What is, and is not, a “reasonable opportunity” will of course be highly fact-dependent. It can be accepted that the Tribunal’s discharge of its obligation may well require it in certain circumstances to be proactive, to be flexible and to actively consider the circumstances of a review applicant. All such matters inhere in the concept of what is a “reasonable” opportunity in a specific situation. None require a gloss on the s 39(1) obligation itself.

40    Further, unless the aggrieved party is able to show that the breach by the Tribunal of that obligation gave rise to “practical injustice”, there is no procedural unfairness: Lam at [37] (Gleeson CJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [38]; [45]–[46] (Bell, Gageler and Keane JJ). The breach must result in a denial of the reasonable opportunity and that denial must be material to the Tribunal’s decision: SZMTA at [38]. In Lam, there was no practical injustice because it was not shown that the affected party lost an opportunity to put any information or argument to the decision-maker or otherwise suffered any detriment: Lam at [36].

The application for judicial review

41    By an amended originating application, the respondent challenged the decision of the Tribunal on six grounds, one of which — ground 5 — was abandoned at the hearing. Although written and oral submissions were made on the five remaining grounds, the primary judge dealt only with ground 1 on the basis that, if it were made out, it would be dispositive of the application. In ground 1, the respondent alleged that the Tribunal had denied him procedural fairness “by failing to properly consider and adhere to” Dr Scally’s recommendations and its own directions about the matter, and to control the proceedings accordingly.

The primary judge’s reasons

42    The primary judge found that the Tribunal denied the respondent procedural fairness for reasons neatly encapsulated at [45]–[47] of his judgment:

45    In all the circumstances the Minister’s failure to act as a model litigant by failing to provide the relevant page numbers in a timely manner and by asking questions that exceeded the length recommended by Dr Scally, together with the fact that the Tribunal recognised these failures but set them to one side, resulted in a hearing that was procedurally unfair. As the applicant submits, an arid and technical approach to determining procedural fairness not based on the practical nature of fairness is to be avoided. The ultimate question is whether there has been unfairness: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 9 [25] and 12–13 [34] (Gleeson CJ).

46    The Minister’s submissions that the failure to provide page numbers at the earliest possible date only made a difference of three days’ preparation time, that the relevant issues should have been obvious to the applicant, that Dr Scally’s report was not explicit enough in relation to the impact on the applicant’s memory, that topics generally do not need to be provided to the applicant in advance of cross-examination, and that the breaks in translation meant that the questions were not longer than the length recommended by Dr Scally, do not provide a sufficient answer to the practical injustice that the conduct of the hearing in this way caused the applicant.

47    Dr Scally made two specific recommendations, which the Tribunal directed the parties to follow. When the Minister failed to act in accordance with these recommendation and directions, the Tribunal pressed ahead. In determining his application adversely to him, the Tribunal deprived the applicant of an opportunity to provide instructions to his legal representatives and present his case in a way that may have enabled him to overcome the barriers caused by his cognitive difficulties.

43    The primary judge acknowledged (at J[37]) that “not every breach of an obligation to disclose documents will involve practical injustice”, but accepted the respondent’s submission that it did so in the present case on the ground that his representative could not easily communicate with him and obtain instructions about the relevant incidents in the way Dr Scally had recommended and which was apparently endorsed by the Tribunal at the directions hearing. His Honour also accepted that the respondent may have presented his case differently if given a suitable opportunity to refresh his memory about the relevant events and provide instructions.

44    Based on Dr Scally’s report, the primary judge considered that “[p]utting long questions to the applicant, even if broken up for the purposes of translation, compounded the procedural unfairness in the conduct of the resumed hearing” (at J[44]).

45    His Honour rejected the Minister’s contention that by the conduct of his legal representative and his failure to indicate, although invited to do so, that he had difficulty understanding particular questions, the respondent had waived his right to object to, or acquiesced in, the late provision of the page references or the way the cross-examination was conducted. His reasons for doing so appear at J[58]–[61]. In summary, his Honour considered that, while “with the benefit of hindsight”, it might have been better for Ms Battisson to have applied for an adjournment at the resumed hearing or asked the Tribunal to exclude the respondent’s evidence, when all the relevant circumstances are taken into account there was no waiver or acquiescence (at J[58]). His Honour said that Ms Battisson did object to the late provision of the Minister’s list and to the length of some of the questions put to her client (at J[59]) and, while falling short of a formal application, “they are properly to be regarded as a complaint that the process was unfair”. He said that “it would be a distortion of language and inconsistent with existing authorities on the subject of waiver to regard the applicant as having intentionally and voluntarily, by positive conduct or conscious silence, abandoned a right or privilege by acting inconstantly with that right or privilege” (at J[60]). His Honour accepted the respondent’s submission that “the litigation context” had to be considered (at J[61]). As his Honour proceeded to explain:

The applicant’s tortured path through the refugee assessment process had been ongoing for twelve years. In this particular iteration of it in the Tribunal there had already been one adjournment and two directions hearings. The applicant was being represented on a pro bono basis not by counsel but by a solicitor at a human rights community legal service. In the context of the complaints which the applicant’s representative did make at the resumed hearing, with a developing situation on her hands, these are further matters which inform my conclusion that there was no waiver or acquiescence of a kind which could justify the applicant being denied relief in circumstances where the procedure in the Tribunal is properly to be regarded as having been unfair.

The appeal

46    Two grounds are pleaded.

47    By ground 1, the Minister alleges that the primary judge was in error in holding that the hearing was procedurally unfair, citing three particular errors:

i.    insofar as the primary judge’s conclusion that [the respondent] was denied procedural fairness was based on the proposition that the Minister had breached model litigant obligations, that involved error;

ii.    insofar as the primary judge’s conclusion that [the respondent] was denied procedural fairness was based on the proposition that the Tribunal had departed from its own “direction” to the Minister, that involved error;

iii.    the primary judge did not find, and the evidence did not support the proposition, that the applicant was unable to understand or answer any of the questions that were put to him.

48    By ground 2, which is put in the alternative, the Minister alleges that the primary judge erred in failing to find that, in all the circumstances, the respondent had waived his right to object to, or acquiesced in, the manner in which the hearing was conducted on 24 November 2022.

Did the primary judge err in finding there had been a denial of procedural fairness (ground 1)?

49    The Minister submitted that ground 1 should succeed for the following reasons.

50    First, compliance by the Minister with the model litigant obligations is not a constraint on the exercise by the Tribunal of its powers.

51    Second, the Tribunal did not set to one side its previous “direction” to the Minister as to the provision in advance of the hearing of page numbers or as to the length of questions because there was no such direction.

52    Third, while a change to a foreshadowed hearing procedure can give rise to procedural unfairness where the affected person does not have the chance to object to the change (citing Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326), that was not the case here. The respondent had the opportunity to object to the resumption of cross-examination if he wanted more time, but neither he nor his legal representative objected or sought more time.

53    Fourth, the primary judge did not find, and the evidence did not support the proposition, that the respondent was unable to understand any question that was put to him, and the evidence was that his ability to recall events appeared to be intact. It was incumbent on the respondent to prove that he could not understand and respond to the cross-examination, but he failed to do that. Two incidents (said to have occurred on 4 and 14 February 2016) were included in the Minister’s original tender bundle filed on 4 March 2022 and were addressed in the respondent’s statement of facts, issues and contentions dated 11 April 2022. As for the more recent incidents, those records were provided to the respondent in July 2022, four and a half months before the resumption of the hearing on 24 November 2022, the respondent knew that the Minister would tender the material as early as 2 May 2022 and knew the way in which the Minister would deploy the material as a result of his cross-examination at the first Tribunal hearing, the transcript of which was included in the 4 March 2022 tender bundle.

54    Fifth, the Minister submitted that the respondent’s answers in cross-examination on the incidents were not used adversely to him.

55    As to the Minister’s first point, we accept that compliance with the model litigant obligations is not a constraint on the exercise by the Tribunal of its powers.

56    The model litigant obligations are contained in para 2 of Appendix B to the Legal Services Directions 2017 (Cth), an instrument made by the Attorney-General under s 55ZF of the Judiciary Act 1903 (Cth). In the Legal Services Directions they are expressed as a single obligation of the Commonwealth and Commonwealth agencies “to behave as model litigants in the conduct of litigation” (para 1). Note 1 to para 2 stipulates that it applies to all litigation including, relevantly, litigation before tribunals and that it extends to Ministers and Commonwealth officers. Note 2 relevantly provides that “[i]n essence, being a model litigant requires that the Commonwealth and Commonwealth agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards”.

57    The submissions on this subject made on the respondent’s behalf and adopted by the primary judge, however, were a distraction. Moreover, they should not have been made. Section 55ZG of the Judiciary Act relevantly provides that compliance with a Legal Services Direction is not enforceable except by, or on the application of, the Attorney-General (sub-s (2)) and that “the issue of non-compliance may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth” (sub-s (3)).

58    Nevertheless, we do not accept that the primary judge treated compliance with the model litigant obligations as a constraint on the exercise of the Tribunal’s powers. Rather, his Honour’s concern was with what he described as “the practical effect” of the Minister’s non-compliance (see the heading before J[31]). He treated this matter as part of “the factual background” against which the question of whether the Tribunal afforded the respondent procedural fairness was to be considered (J[31]).

59    That said, we agree with the Minister that at this point the primary judge misdirected himself. The question his Honour identified for determination was this:

Was it appropriate to continue with the hearing in circumstances where Dr Scally’s recommendations had been effectively ignored and the Minister’s model litigant obligations breached?

60    As the Minister submitted, that was the wrong question. This was not a case about legal unreasonableness in the exercise of a discretion. The question was whether the Tribunal had denied the respondent a reasonable opportunity to be heard.

61    The Minister’s second point is also correct.

62    The primary judge observed (at J[27]-[28]) that, while the Tribunal had informed the parties at the resumed hearing on 24 November 2022 that it had expected more from the Minister and the late provision of the supplementary material was contrary to the Tribunal’s direction, in deciding to affirm the decision to refuse to grant the respondent a visa, “the Tribunal did not return to the difficulties that the failure to provide the relevant material in a timely fashion caused the applicant in the hearing”. But that observation does not accord with the Tribunal’s reasons. After referring to nine incidents in which the respondent was said to have been violent or abusive to officers while in detention, the Tribunal stated at [49]:

The applicant submitted that little weight should be given to these incident reports because the authors of them and detention officers involved were not made available for cross examination. I accept that less weight should be given to them. Further, the applicant submitted that insufficient advance notice was given with respect to the particular incidents which were to be the subject of cross examination. The applicant said that this was contrary to the recommendations made by Dr Scally. I accept that the respondent failed to comply with the recommendations in that regard and failed with respect to the duty to act as a model litigant, but the applicant told the Tribunal that he had been informed about these incidents before and, whilst he was unable to remember some of them, he was able to give positive evidence about others of them. …

(Emphasis added.)

63    The Tribunal went on to say at [50]:

I accept the applicant’s submission insofar as care needs to be taken when making findings of fact based upon incident reports from detention. However, the Tribunal has the benefit of the findings made by the Magistrate with respect to the proved offence on 13 November 2017. That incident involved violence and abuse directed towards detention officers and false accusations that the applicant was the victim and was acting in self-defence. The incident reports record that the applicant acted violently on other occasions and claimed self-defence. I consider that there is sufficient evidence to find that the applicant has engaged in violent and abusive behaviour and made false accusations of self-defence on numerous occasions whilst in detention. The evidence from the applicant that he was “bashed up” or physically or sexually assaulted by detention officers is not corroborated by other evidence. It is likely that those allegations are untrue and were made up by the applicant to excuse his own behaviour.

64    We also agree in substance with the Minister’s third point. The respondent had no satisfactory answer to it.

65    As WZARH illustrates, a change to a foreshadowed procedure can cause procedural unfairness where the affected person does not have an opportunity to object to the change. In contrast to the position in WZARH, however, that was not the position in the present case. The respondent had that opportunity. Objection could have been taken to the late provision of the Minister’s list at the commencement of the resumed hearing on 24 November. Objection could have been taken to the tender of the documents, a course which the transcript shows the Tribunal contemplated might be taken. And objection could have been taken to the resumption of cross-examination if it was necessary to take instructions or for some other reason more time was required to consider the information.

66    While Ms Battisson complained about the late provision of the Minister’s list, she did so for the first time in closing submissions. She did not object to the tender of the documents. She did not raise any objection to the resumption of cross-examination. Neither did she ask for time to examine the list or to obtain instructions from her client, presumably because she had no need to.

67    During oral argument, confronted by these facts, counsel for the respondent, Mr Fuller, asked rhetorically: what were the ramifications of asking for time? But he immediately acknowledged that the Tribunal would probably have acceded to such an application. He went on to assert, however, that that would not “cure the defect of not being able to marshal appropriate evidence to corroborate his [client’s] version of events”, arguing that an adjournment was not the answer because an adjournment was unlikely to be granted. That was pure speculation. Mr Fuller then submitted:

And this was a gentleman that is in immigration detention and wanted to pursue his opportunity to successfully make out his case. This is the context that I’m talking about where matters rapidly evolve over the course of a day. I don’t make the submission – and I certainly can’t support it on the available evidence – that a mistake was made. But what I am saying is to expect perfection – which might include an adjournment application which is put against us, which might include a number of formal objections – is to put too high a bar on the conduct of the representative on the day. In the context of a moving feast, an applicant in immigration detention that had, on his version of events, been subject to a number of violent incidents against him, that dynamic environment is something which the court must take account of, in my submission.

68    This submission was misguided. The significance of the failure to object is twofold. First, it indicated a failure by the respondent, through his legal representative, to avail himself of the opportunity to be heard about the very matters of which he complains in this proceeding. Second, it indicates that there was no practical injustice.

69    Ultimately, Mr Fuller accepted that the capacity to object or make submissions about a change of process was relevant but submitted that it was not determinative.

70    We will deal with the fourth and fifth points together.

71    We reject the Minister’s submission that the Tribunal did not use the respondent’s answers against him. One example will suffice. The Tribunal said (at [50]) that the evidence he gave that he was assaulted by detention officers was likely untrue and that he “made [it] up to excuse his own behaviour”.

72    As Mr Fuller argued, the Minister’s submission that no unfairness arose because the documents were provided to the respondent’s lawyers four months before the resumed hearing ignores the fact that the respondent was under cross-examination at the time and not released from it until the directions hearing only days before the hearing resumed. On the other hand, there was nothing to preclude the lawyers from seeking permission to speak to the respondent at any time before then. The lengthy delay in doing so was not explained.

73    At all events, there is an air of unreality about the respondent’s submissions. As the Minister submitted, he would have been aware of the use to which the Minister would put the Supplementary G documents.

74    At the Tribunal hearing in May, the respondent was cross-examined on two of the incident reports and in the previous Tribunal hearing, held in February 2019, he was extensively cross-examined on seven reports of incidents in which he was said to have been aggressive and abusive towards detention officers: see NDBR and Minister for Home Affairs [2019] AATA 612 at [72]. Those incidents were said to have occurred on 22 June 2014; 27 July 2014; 22 October 2014; 30 December 2014; 7 January 2015; 4 February 2016; and 14 February 2016. The respondent denied the substance of all of them: NDBR at [73]. At the hearing on 2 May 2022 the respondent was again cross-examined about the incidents said to have occurred on 22 June 2014 and 27 July 2014, 30 December 2014 and 7 January 2015, and on 24 November 2022 the respondent was also cross-examined about the incidents on 4 February 2016 and 14 February 2016 as well as incident reports included in the Supplementary G documents which concerned the respondent’s alleged conduct on seven further occasions between 18 March 2017 and 22 February 2022 inclusive.

75    The respondent was also aware that the Tribunal could use evidence of that nature against him. The previous Tribunal said in its decision that it did not accept the respondent’s claim that the descriptions of his behaviour in the reports to which he was taken were wrong and “that he was, in effect, a victim of fabrication by the detention staff” (at [74]). It considered the reports of that conduct to be “indicative of an unwillingness to accept responsibility for his actions and to blame others” (at [75]). More particularly, it took the incident reports of aggressive and abusive behaviour into account in considering the risk of the respondent engaging in further criminal or other serious conduct (at [81]-[83]).

76    The primary judge dismissed the Minister’s contention that the appearance of long questions in the transcript does not necessarily mean that those questions were put to the respondent in that way because the transcript does not account for the breaks that inevitably occur in translation (at [42]). His Honour said of this contention:

It was apparent that the Minister’s response on this point in this Court was based on the experience of counsel for the Minister at the hearing in the Tribunal, rather than on any admissible evidence that the transcript gave a misleading impression of the manner in which the questions were asked.

His Honour continued (at [43]):

Having regard to the transcript it would seem to be the case that a significant volume of text from the documents was put to the applicant in a way which did not always align with Dr Scally’s recommendations about how this should be done to accommodate the applicant’s cognitive difficulties. Dr Scally had emphasised the importance of information being conveyed to the applicant in short and simple sentences with appropriate breaks to allow him to process the questions.

77    We have difficulty with this reasoning. The respondent had the burden of proving that he had been denied procedural fairness. While early in Mr Barrington’s cross-examination of the respondent, Ms Battisson intervened to say “the statements have to be short”, the fact that Ms Battisson did not object to, or interject about, any of the other and, particularly the later, questions gives rise to a strong inference that what appears in the transcript as a lengthy question or, more accurately, a lengthy proposition followed by a question without a break, was in fact broken up in the way Ms Battisson called for. In our experience, unless someone in the courtroom asks the questioner to pause during a long question, transcripts do not record pauses taken during the questioning of a witness to allow the interpreter to interpret.

78    In the absence of evidence that the failure to object was unintentional, the respondent did not prove that the conduct of the proceeding was unfair because of the length of some of the questions put to the respondent during the resumption of cross-examination on 24 November 2022.

79    As for the question of the respondent’s understanding, Mr Fuller pointed to the reference in Dr Scally’s report to Mr Zhang’s concerns about the respondent’s ability to comprehend and remember instructions and Mr Zhang’s instructions to Dr Scally that the respondent “will always respond that he understands what he has said but his responses show that he has either not comprehended or has not recalled his legal advice and explanations”. The difficulty here, however, is that when invited by the Court to do so, Mr Fuller was unable to point to anything in the transcript to show that the respondent did not understand any of the questions that were put to him in cross-examination on 24 November. As the Minister submitted, it was open to the respondent to adduce evidence before the primary judge to show that he struggled to understand the questions. Mr Fuller argued that it would have been “self-serving of him to adduce evidence to the effect that he did not understand”. But that is no answer to the submission. The weight to be given to such evidence would have been a matter for the primary judge. And even if it were an answer, there was nothing to prevent the respondent calling expert evidence on the subject. When asked directly at the hearing of the appeal how he was able to establish a denial of procedural fairness without proving a lack of understanding, Mr Fuller replied: “through inferential reasoning” from Dr Scally’s report. But Dr Scally’s opinion related to what could happen, not what (on the balance of probabilities) did happen.

80    As the Full Court said in BJB16 v Minister for Immigration and Border Protection (2018) 260 FCR 116 at [43] (Kenny, McKerracher and White JJ), “[g]enerally it is insufficient for applicants to show no more than a medical condition may have deprived them of the ability to put their cast to best advantage”. Dr Scally’s evidence did not go so far as to show that the respondent was incapable of having a fair hearing (cf. Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [39]-[41]), and no evidence was adduced in the hearing below to support the proposition that there was anything in the transcript to support the notion that the respondent did not in fact understand what was put to him. While BJB16 was concerned with a Tribunal hearing to which s 425 of the Migration Act applied and whether the applicant had had a “meaningful” opportunity to be heard, it has been applied to a hearing to which s 39 of the AAT Act applies (see, for example, Karan v Minister for Home Affairs [2019] FCAFC 139 per Rares, Griffiths and Burley JJ and Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 214 per Jagot J) and no basis was advanced by the respondent to support the view that the reasoning would not be equally applicable to such a hearing.

81    In all the circumstances, the primary judge erred in concluding that the respondent was denied a reasonable opportunity to be heard. The respondent failed to show that the conduct of proceeding caused practical injustice. It follows that he failed to prove that he was denied procedural fairness.

Did the respondent waive his rights or acquiesce in the Tribunal’s conduct (ground 2)?

82    In view of our conclusion on the first ground of appeal, it is strictly unnecessary to consider the second. That said, we also respectfully disagree with the primary judge’s conclusion that the respondent did not waive his rights or acquiesce in the Tribunal’s conduct.

83    The weight of authority, as the primary judge accepted, is that, at least generally speaking, the natural justice hearing rule (the right to procedural fairness), like the bias rule, can be waived. The respondent did not argue otherwise. It is always open to counsel to “waive, in the sense of not wishing to exercise, some procedural or other forensic right”: Escobar v Spindaleri (1986) 7 NSWLR 51 at 62 (Samuels JA). Regardless of whether parties are represented, “they possess a level of autonomy that enables them to refuse the procedural opportunities that fairness requires be provided”: Matthew Groves, “Waiver of Natural Justice” (2019) 40(3) Adelaide Law Review 641 at 646. It was uncontroversial that “waiver involves an informed and voluntary decision to forgo the right to object to an otherwise unfair procedure”: Ibid. Absent fraud (see, for example, SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189), an applicant before the Tribunal is bound by the conduct of their lawyers: MH6 v Mental Health Review Board [2009] VSCA 184; 25 VR 382 at [48]–[49].

84    In MH6 at [39], relying on the principles developed in the bias cases, Redlich JA and Hargrave AJA observed (footnotes omitted):

Silence can amount to a waiver of the requirements of procedural fairness, although whether it will do so may depend on the forensic circumstances. So it has been said that “By standing by… a party has waived the right subsequently to object”. This principle may also apply in certain circumstances where objections to the way a hearing has proceeded were not raised until after an adverse decision was given against that party.

85    In MH6 their Honours denied the applicant leave to appeal from a judgment in which the Board was found not to have denied him procedural fairness and, in any event, that the conduct of his counsel amounted to a waiver of his rights. On the waiver question, their Honours said at [37]:

It is submitted by the respondent, in the alternative, that the conduct of counsel for the applicant before the tribunal constituted a waiver of the applicant’s right to insist upon compliance with the requirements of procedural fairness in issue, as the applicant’s legal representatives raised no objection to the applicant filing and serving his witness statement and his counsel raised no objection to the applicant first giving evidence. The judge below accepted this submission. He was right to do so. The applicant, through his legal representatives, waived any right to require that his evidence should follow the evidence of the witnesses called by Austin Health.

86    Later, their Honours observed that “both the tribunal and this court are entitled to assume that a party’s legal representatives are aware of their client’s basic rights and will seek to enforce them when they see fit” (at [48]). The same assumption applies in the present case.

87    In MH6 (at [47]) their Honours said that there was “no material which permits the conclusion that counsel made a mistake or was generally ignorant of his client’s fundamental right to have a fair and adequate opportunity to meet the case against him”. And so it is in this case.

88    Ms Battisson’s remark at the beginning of the resumed hearing that “we’ll need to see how we go with him running through …” (see above at [31]) indicates that, subject to any problem that might emerge in the questioning to follow, the respondent was content in the circumstances for cross-examination to continue despite the late provision of the list of pages to which the respondent would be taken.

89    There are also other contextual matters of importance upon which the Minister justifiably relied. They were that Ms Battisson was an experienced solicitor in migration matters; that she had previously expressed concern to avoid any delay that may arise from requiring further time to consider the material; that on receiving the Supplementary G documents on 7 July 2022 she did not seek directions to enable the respondent to give further evidence in chief although she was aware of the Minister’s intention to use the documents and the purpose for which they would be used; and that she did not object to the tender of the documents, although she was aware that the respondent had the right to object to individual documents.

90    What is more, while Ms Battison did inform the Tribunal that the Minister’s list had only been provided a couple of hours before the hearing on 24 November, contrary to what his Honour said at J[59] she did not object to the late provision of the list or to the length of some of the questions put to her client. And, while Ms Battisson did speak out during the cross-examination, she did not once object to the length of any of the questions. The closest she came appears in the following passage of the transcript:

MR BARRINGTON: NDBR, it’s alleged here that you were seen on the camera pushing another detainee called [REDACTED] against the wall and then raising your hand as if to strike him in the face. And then ---

WITNESS: Sorry?

DEPUTY PRESIDENT: Mr Barrington, move a bit quicker.

MR BARRINGTON: I was waiting for that to be interpreted. I think the applicant said something.

INTERPRETER: Can you kindly just complete the sentence so that I can just - - -

MS BATTISSON: But I think that’s the point, is that the statements have to be short. So we can’t complete the sentence, because he can’t grasp it.

INTERPRETER: That will be so hard for me to then connect it. Because it’s an incomplete sentence that I’m telling him. It doesn’t give anything.

DEPUTY PRESIDENT: Try your best, Mr Barrington.

(Emphasis added.)

91    Frankly, if anything was likely to give rise to a misunderstanding, it was insisting over the interpreter’s request that the interpreter interpret fragments of sentences before being given the complete sentence: see, for example, Ludmila Stern, “Non-English speaking witnesses in the Australian legal context: the War Crimes Prosecution as a case study” (1995) 2 Law Text Culture 6 at 8, 20, But that was not the respondent’s complaint either below or on appeal.

92    The only other time Ms Battisson interrupted the cross-examination was to tell her client that there was no need to turn the pages because they would be read to him.

93    Furthermore, Ms Battisson did not ask to confer with her client before she commenced re-examination. And, when it came to addresses, she argued that the Tribunal should not give weight to the evidence elicited in cross-examination on 2 May, as she had foreshadowed at the directions hearing on 18 November, but she made no such submission about the evidence elicited in cross-examination on 24 November. The submission was put in these terms:

So the respondent was put on notice that the applicant would make a submission to the tribunal, which we do, that the tribunal cannot safely rely on the evidence of the applicant previously given in this tribunal. The respondent made a forensic decision not to examine the applicant again, on the indecent assault charge, and it’s clear, from Dr Scally’s report, that the way the questioning was conducted previously put the applicant at a disadvantage and that relying on his evidence would be unsafe. He needed the questions to be broken up into small parts and frequent breaks, and this did not occur.

(Emphasis added.)

94    Notwithstanding the belated provision of the Minister’s list, it is apparent that Ms Battisson made a number of forensic choices, including not to seek an adjournment or object to the tender of the Supplementary G documents. The obvious inference to be drawn from the transcript, and which we draw, is not the inference his Honour drew. It is that the questions put to the respondent in cross-examination were “broken up into small parts” at the resumed hearing and that Ms Battisson did not perceive that the respondent had any difficulty understanding the questions put to him that day. Even if that inference is not drawn, Ms Battisson’s failure to object to further questions indicates that she had no concern about the respondent’s capacity to understand and answer the questions.

95    Thus, if we are wrong to conclude that the primary judge erred in holding that the respondent was denied procedural fairness, the course adopted by the respondent’s legal representative amounted to a waiver of any right he might have had to require adherence to the Tribunal’s “directions” and/or Dr Scally’s recommendations.

Conclusion

96    The appeal should be allowed with costs, the orders of the primary judge set aside, and the matter remitted to the primary judge to determine the remaining grounds of review. Any application by either party to be heard further in relation to those grounds should be made to the primary judge.

Associate:

Dated:    3 September 2024