Federal Court of Australia

FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 71

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT

1    The appellant is a citizen of the Philippines. His wife (Mrs AA) is an Australian citizen.

2    In 2013 the appellant was granted a Partner visa under the Migration Act 1958 (Cth). In 2017 (whilst married to Mrs AA), he was convicted of criminal offences including for an offence of attempted rape. By virtue of that offending and the sentences imposed, the appellant’s visa was cancelled on character grounds by a delegate of the then-named Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. A different delegate refused to revoke the cancellation decision (non-revocation decision). The non-revocation decision was affirmed on review by the then-named Administrative Appeals Tribunal.

3    The primary judge dismissed the appellant’s application for judicial review of the Tribunal’s decision: FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 397 (J). This is an appeal from that judgment.

4    At first instance the onus was on the appellant to show that the Tribunal’s decision was affected by jurisdictional error: Migration Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. His grounds of review broadly alleged three jurisdictional errors on the part of the Tribunal, all of which turned upon disadvantages alleged to have arisen by virtue of him being represented at the review hearing by Mrs AA (a non-lawyer) and by virtue of him having no proficiency in English.

LEGAL CONTEXT

5    Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (as then in force) (AAT Act) required the Tribunal to pursue the objective of providing a mechanism for review that was (among other things) accessible, fair, just, informal and quick and that promoted public trust and confidence in its decision-making. The procedure to be adopted by the Tribunal was otherwise largely within its discretion: AAT Act, s 33. Section 33(1)(b) required that the proceeding be conducted with as little formality and technicality, and with as much expedition as the requirements of the AAT Act and other enactments permitted. The Tribunal was not bound by the rules of evidence but could inform itself on any matter as it thought appropriate:  AAT Act, s 33(1)(c). As such, the Tribunal had “considerable latitude” over the procedures it adopted: Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114, Katzmann, Snaden and Raper JJ (at [36]).

6    Under s 39(1) of the AAT Act, the Tribunal had an obligation to ensure that every party to a proceeding before it was given “a reasonable opportunity to present his or her case”. As Rares, Bromwich and Raper JJ explained in Kamal v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 106 (at [31]), the opportunity to present a case is required to be a reasonable one, “not necessarily an optimal one”. Their Honours adopted this statement of principle from Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, Dowsett, Murphy and White JJ:

32    … The obligation imposed by s 39(1) that the Tribunal give every party ‘a reasonable opportunity to present his or her case’ has been described as a ‘statutory recognition of an obligation the common law would in any event imply’: Sullivan v Department of Transport (1978) 20 ALR 323 at 342 per Deane J; De Simone v Federal Commissioner of Taxation [2009] FCAFC 181;(2009) 77 ATR 936 at [15] per Sundberg, Stone and Edmonds JJ. In Sullivan at 343, Deane J said that:

… the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.

(Emphasis in original.)

33    Accordingly, the AAT was obliged by both s 39(1) and the common law to ensure that the appellant was given ‘a reasonable opportunity’ to present his case. A reasonable opportunity is not synonymous with ‘every possible opportunity’ or even ‘every opportunity’. Whether or not an applicant has been provided with the requisite opportunity is to be determined objectively, having regard to all the relevant circumstances.

7    The Full Court in Kamal went on (at [18]) to cite with approval this observation of Mortimer J (as her Honour then was), at first instance, in Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200 (at [107]):

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.

8    Among the critical facts in the present case was the operation of s 500(6L) of the Migration Act. It required the Tribunal to make its decision on the appellant’s application for review of the non-revocation decision within 84 days of the appellant having been notified of the decision. The 84 day period was set to expire two working days after the hearing concluded. Any failure by the Tribunal to make its decision within that period would have resulted in the automatic affirmation of the non-revocation decision.

9    Argument on the appeal proceeded from the premise that in circumstances where a review applicant is represented by a non-lawyer, the Tribunal was under an obligation to provide guidance and assistance to the review applicant and his representative akin to the obligation of a court in its engagement with litigants in person. The appellant cited examples of cases regarding what the rules of procedural fairness required to be done to assist a litigant in person in particular cases, including those mentioned by the Full Court in Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479, Markovic, Derrington and Anastassiou JJ (at [55]). There, the Full Court said:

In practical terms, the Court may find it appropriate to provide the following kinds of assistance of a litigant-in-person:

(a)    Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: Hamod [311]. For example, failing to explain the difference between formal sworn testimony and statements made from the bar table, and the significance of failing to file an affidavit, to enable a litigant-in-person to choose whether or not to give oral evidence, may amount to a denial of procedural fairness: SZRUR [39]. Additionally, failing to explain the risks in not leading evidence where adverse inferences might be drawn may also constitute a denial of procedural fairness: Downes v Maxwell Richard Rhys & Company Pty Ltd (in liq) (2014) 46 VR 283.

(b)    Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: MacPherson, 534. For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness: AMF15 at [47].

(c)    Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: Rajski.

10    We note in this context that the requirements for procedural fairness in the context of adversarial court proceedings are not necessarily the same as the rules that apply in statutory tribunals. Examples drawn from decided cases are not to be applied literally so as to elevate the Tribunal’s obligations into a fixed set of rules. As the Full Court in Flightdeck put it, again speaking in the context of adversarial court proceedings:

56    The duty of the Court does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf: Hamod at [312]; Bhagwanani v Martin [1999] SASC 406; (1999) 204 LSJS 449 at [23]; Clark v New South Wales (No 2) [2006] NSWSC 914 at [13]. Nor does the duty of the Court require it to view a litigant-in-person’s case with a favourable eye. As stated by the High Court in Northern Territory v Sangare (2019) 265 CLR 164, at [27], albeit in the context of a determination on costs, ‘unmeritorious litigation is no less unmeritorious because it is pursued by a person who is … a litigant-in-person’.

57    It seems to be well accepted that the extent of the Court’s obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon ‘the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case’: Abram v Bank of New Zealand [1996] ATPR 41-507 at 42,347.

11    See also Hamod v New South Wales [2011] NSWCA 375, Beazley, Giles and Whealy JJA (at [309] – [316]).

12    The appellant’s submissions in this appeal focussed principally on a complaint that he and his representative had insufficient information about the practice and procedure of the Tribunal to make effective choices in the conduct of the review. However, as we explain, what was required to be done in the particular facts and circumstances of the case is a matter of some contention.

13    A critical difference between the context of a hearing before a court and the Tribunal is that the Tribunal’s procedures are informal and its functions are inquisitorial in nature. Unlike a court, the Tribunal was empowered to conduct its proceedings as it saw fit and thereby seek to ameliorate any disadvantage that may arise by reason of the appellant and Mrs AA having no legal training.

14    As will be seen, the disadvantages alleged to have been suffered by the appellant either did not arise at all, or were disadvantages arising from facts and circumstances other than Mrs AA’s lack of legal training. For the reasons we now turn to explain, the appeal must be dismissed.

GROUND 1

15    This ground alleges that the primary judge erred in failing to find that the Tribunal denied the appellant natural justice in six discrete respects which could have affected the outcome of the proceeding, either individually or in combination with each other.

16    Each of the particularised complaints may be shortly disposed of on the facts.

17    The first alleged error concerns the effect of s 500(6H) of the Migration Act, which prohibited the Tribunal from having regard to information presented orally by or on behalf of a review applicant unless the information was set out in a written document given to the Minister at least two business days before the Tribunal hearing. The appellant submitted that the Tribunal failed to provide Mrs AA with an adequate explanation of the requirements of that provision. That is factually incorrect.

18    As the primary judge identified (at J [10]), the Tribunal expressly drew Mrs AA’s attention to the requirements of s 500(6H) at a case management hearing. After doing so, the Tribunal asked Mrs AA if she understood what had been said and offered to elaborate further. Mrs AA twice confirmed that she understood the requirements of the provision. In addition, the appellant and Mrs AA were provided with a written fact sheet containing advice and guidance about the effect of the provision, including guidance about how to calculate two business days. The primary judge did not err in rejecting the appellant’s submissions on that topic.

19    The second alleged error is to the effect that the Tribunal failed to provide the appellant and Mrs AA with guidance about the issues arising at the hearing, specifically issues relating to the nature and extent of the appellant’s criminal offending. That alleged error was said to have exacerbated Mrs AA’s difficulties in presenting the appellant’s case before the Tribunal, given the nature of his past offending, her lack of ability to personally cope with questions arising at the hearing about his past offending and a lost opportunity to prepare the appellant for cross-examination on the topic.

20    However, the likelihood that the nature and extent of the appellant’s past offending may be the subject of consideration by the Tribunal was notified to the appellant, through Mrs AA, prior to the hearing. The Tribunal expressly informed Mrs AA that in the performance of its review function it would be required to comply with a direction issued by the Minister under the Migration Act. The appellant and Mrs AA were provided with a copy of the direction then in force, which was the same direction that bound the delegate when the non-revocation decision was made. It expressly refers to a number of considerations the Tribunal was required to take into account, including the risk to the Australian community that the appellant posed (and hence his prospects of rehabilitation) and the expectations of the Australian community as to whether he should hold a visa. That was sufficient to put Mrs AA on notice of the nature and range of issues that might arise.

21    In addition, at the commencement of the hearing the Tribunal expressly addressed each of the considerations referred to in the direction in turn, referring to the protection of the Australian community from criminal or other serious conduct. The Tribunal added that it would consider the nature and seriousness of the appellant’s crimes or other misconduct, and the risk to the Australian community if he committed further offences.

22    The Tribunal was not obliged to alert the appellant to the full range of factual matters that might arise in cross-examination or submissions. Its obligation to provide procedural fairness was discharged by alerting the appellant, through Mrs AA, of the Minister’s direction in advance of the hearing. The additional guidance given by the Tribunal member at the commencement of the hearing reinforced the same information.

23    In any event, the issues on the review necessarily included the issues raised by the delegate in making the non-revocation decision, which expressly included the nature and extent of past offending and the risk or likelihood that the appellant would commit further criminal offences in the future. The appellant, through Mrs AA, must have known from the delegate’s decision that the nature and seriousness of the appellant’s crimes or other misconduct, and the risk to the Australian community if he committed further offences would be important considerations in the determination of his review application. The relevant considerations were not matters that required specific guidance as they plainly arose out of the very decision from which the appellant had sought the review. There is no basis for this complaint. The primary judge was correct to reject it.

24    The third alleged error is to the effect that the Tribunal did not adequately inform Mrs AA about her right to object to questions during cross-examination of the appellant “including where the question is unfair”. That contention must also be rejected on the facts.

25    In the course of the review hearing, the Tribunal informed Mrs AA that she could object to questions if she considered a question being put was “not accurate or reflective of what’s here”. The Tribunal emphasised that Mrs AA could object as the questioning proceeded, “but only if you believe there’s a proper basis to it”.

26    The transcript of the hearing discloses several instances in which Mrs AA did indeed object. They included an instance where Mrs AA clarified which of two police interviews were being referred to in a line of questioning, an instance in which she interrupted because she was “not clear on a line of questioning”, an objection on the basis that a question was “redundant”, and an instance in which she interrupted questioning to seek an adjournment when the appellant appeared to be distressed. In addition, there were a number of instances in which the Tribunal itself interrupted or disallowed questioning in circumstances that may otherwise have given rise to unfairness if the question were to be allowed. That practice illustrates the flexibility in the procedures the Tribunal might adopt to assist a litigant without legal assistance. It is not the case that the Tribunal was required to advise the appellant or Mrs AA in respect of unfair questions. The obligation to conduct a hearing that was fair could be discharged in other ways.

27    The Tribunal’s explanation of the appellant’s right to object to unfair questions was not inadequate in any event. More fundamentally, the appellant has not identified an instance in which an unfair question or series of questions was allowed by the Tribunal to be pursued by the Minister’s Counsel or pursued by the Tribunal itself so as to give rise to unfairness materially affecting the outcome of the review.

28    The appellant’s focus on this appeal was on a line of questioning concerning photographs alleged by police to have been found on the appellant’s mobile phone. It was submitted that was procedurally unfair because it had not been explained to Mrs AA that she could object to questions that were unfair, specifically because (in this instance) the photographs themselves had not been admitted into evidence before the Tribunal. That submission misconceives the purpose of the questioning on that discrete topic. As the primary judge found (at J [66] – [67]), the Tribunal was not concerned with the fact of the photographs or their content, but rather with inconsistencies in the responses the appellant had given to police when questioned about them. The Tribunal’s reasons expressly stated that it confined itself to the appellant’s oral evidence about the matters. The questioning has not been shown to be unfair and the asserted failure to advise Mrs AA that she could object to an unfair question (even if established) has not been shown to have had any practical consequence.

29    The fourth alleged error on the part of the Tribunal was that it denied the appellant (through Mrs AA) a “sufficient opportunity to be heard and/or guidance on” the issue of a summons for production of documents to the Australian Federal Police (AFP).

30    The factual circumstances relating to that summons are as follows:

(a)    Prior to the review hearing the Tribunal made procedural orders fixing a deadline by which requests for the issue of any summons were to be made. The appellant sought and was granted an extension of time to make a request.

(b)    On the appellant’s behalf, Mrs AA lodged a request for the issue of a number of summonses, including a summons directed to the AFP. The documents related to investigations into individuals other than the appellant. The summons request was made by Mrs AA lodging a form which made provision for the requesting party to explain the relevance of the documents.

(c)    The Tribunal refused to issue the summons to the AFP in the terms sought. It assisted Mrs AA to make a renewed request in a more confined form, which she did.

(d)    A summons was then issued to the AFP in the revised terms and documents falling within its scope were produced.

(e)    Mrs AA then made a further request for a summons re-agitating the broader class of documents. She did so by lodging a request form containing submissions as to why the documents were relevant to the issues to be determined on the review. The submissions were well articulated and represented the appellant’s position as to why documents in a more broadly defined category might assist his case.

31    The Tribunal rejected the request for a further summons to produce and gave reasons for that decision in the following terms:

As advised in the Tribunal’s scheduling orders dated 29 May 2023, if either party intended requesting material by summons, those requests had to be submitted by no later than 4:00pm on 5 June 2023. At your request, an extension of time was granted to lodge summons requests on or before 12 June 2023. While some of your subsequent summons requests were authorised, additional information was requested about the specific information you sought from the AFP.

Your amended summons request to the AFP was declined on 15 June 2023. This was because the documents requested did not even refer to the Applicant. The Tribunal was not satisfied the records requested about investigations into three other named individuals were relevant to the Tribunal’s review. Moreover, the Tribunal considered your summons application to be speculative and oppressive in terms of its scope.

The Tribunal subsequently assisted you in revising the summons request so that it related to documents held about the Applicant and his involvement with the three persons you mentioned. It would appear from the AFP email earlier today that what records there are within the scope of the summons have now been provided.

The Tribunal does not authorise a summons for the additional records you request, for the same reasons the earlier summons request was refused. The Tribunal is not satisfied the records you seek are sufficiently relevant to the proceeding such that there is a real possibility they may assist in resolving the issues in this proceeding.

The Tribunal has now advised on more than one occasion that a summons for this material will not be approved and no further requests will be entertained in this regard.

32    At the commencement of the review hearing the Tribunal gave further detailed reasons explaining why the request for the issue of any further summons to the AFP had been refused.

33    The grounds of review at first instance alleged a breach of procedural fairness by the Tribunal constituted of a failure to afford Mrs AA an adequate opportunity to be heard in relation to the decision to refuse to issue a summons seeking a broader class of documents. The primary judge held that the Tribunal had issued a summons in terms that it considered balanced a number of competing interests, including the width of the request and its impact on the privacy of others. The primary judge continued (at J [69]):

…  Given that neither the Applicant nor Mrs AA had actual knowledge of the nature of the material sought to be summoned, any representations they might have made in relation to the nature and relevance of the documents sought to be summoned could only be based on speculation. The Tribunal’s decision to affirm the delegate’s decision was not attended by a failure to accord natural justice by reason of the Tribunal failing to hear from Mrs AA before declining to issue the summons in the form she had sought.

34    The reasoning of the primary judge was that any error affecting the procedural decision not to issue the requested summons could not have materially affected the substantive outcome of the review because the content of the documents sought to be obtained was speculative. Submissions on this appeal do not disclose appealable error in that conclusion.

35    To the observations of the primary judge, we would add that, in any event, the allegation that the Tribunal denied the appellant (through Mrs AA) the opportunity to be heard in respect of the issue of a wider summons fails on the facts. The opportunity to make submissions about the relevance of the documents was presented to Mrs AA by way of the summons request form, which made express provision for the requesting party to include submissions as to why the documents were sought. Mrs AA took that opportunity, including by making submissions on the request form as to why she considered the documents sought were relevant. The exchanges, considered as a whole, show that Mrs AA was given sufficient opportunity to seek the issue of a wider summons, and the Tribunal was nonetheless unpersuaded that any further summons should issue.

36    Relatedly, after the first request was refused and then confined, Mrs AA made a further request, evidencing that she was able to continue to assert to the Tribunal that the documents she wished the AFP to produce were relevant. The Tribunal was under no obligation to invite submissions in addition to those that had already been made. The reasons given at the hearing demonstrated that the Tribunal had considered Mrs AA’s submissions. There was no failure to afford Mrs AA an opportunity to be heard on the question. In our view this ground of judicial review amounted to a complaint on the merits that the Tribunal had not accepted Mrs AA’s submissions.

37    The fifth and sixth alleged errors are to the effect that the Tribunal failed to give a proper explanation of “the role of the representative and limitations on the representative’s ability to support the [appellant] and confer with the [appellant] during the hearing” and “a proper explanation as to the difficulties that would attend Mrs AA occupying the role of representative, support person and witness simultaneously”.

38    Written submissions in support of those allegations do little more than repeat those asserted errors.

39    In an affidavit relied upon at first instance, Mrs AA described the difficulties she experienced acting as the appellant’s representative, given the nature of his criminal offending and her personal stake in having the appellant’s visa restored.

40    We have no difficulty in accepting that it was emotionally taxing for Mrs AA to represent her husband in a Tribunal hearing which necessarily involved consideration of the nature and seriousness of his past criminal offending, which included an attempted rape, and consideration of the risk that he would commit further criminal offences in the future. In our view that was always going to be to be difficult for her.

41    However, the obligation of the Tribunal was to provide the appellant with a reasonable opportunity to present his case. That obligation included an obligation to ensure that the appellant was aware of his entitlement under s 32 of the AAT Act to be represented by another person. Given its significance for the next ground of appeal, s 32 is here set out in full:

Parties

(1)    At the hearing of a proceeding before the Tribunal, the following parties may appear in person or be represented by another person:

(a)    a party to a proceeding in a Division other than the Social Services and Child Support Division;

(b)    the agency party to a proceeding in the Social Services and Child Support Division.

(2)    At the hearing of a proceeding before the Tribunal in the Social Services and Child Support Division, a party to the proceeding (other than the agency party) may appear in person or, with the Tribunal’s permission, may be represented by another person.

(3)    In deciding whether to grant permission for the purposes of subsection (2), the Tribunal must have regard to:

(a)    the Tribunal’s objective in section 2A; and

(b)    the wishes of the parties and the need to protect their privacy.

Persons required to appear

(4)    A person who is required to appear in a proceeding before the Tribunal may, with the permission of the Tribunal, be represented by another person.

42    At a case management hearing, the Tribunal responded to Mrs AA’s questions about her intentions to attend the hearing both as an advocate and as a witness. In doing so it emphasised that it would be preferable that the appellant be legally represented. The appellant was plainly aware of the right to representation, including by a lawyer, and there was no obligation on the part of the Tribunal to counsel him about how best to exercise it. More specifically, beyond stating, as the Tribunal did, that it would be preferable that the appellant be legally represented, the Tribunal was under no obligation to give the appellant advice about the advantages and disadvantages of his particular choice of representative. The obvious disadvantages of the appellant’s choice to appoint his wife as his representative included the personal relationship between him and Mrs AA and the extent to which the task of representing him might be emotionally taxing on her, and her lack of legal training. Proof that Mrs AA in fact found the task of representing the appellant emotionally taxing does not constitute proof that the appellant was not afforded a reasonable opportunity to present his case.

43    The appellant otherwise relied upon a specific event which occurred at the Tribunal hearing which was said to illustrate the difficulties experienced by Mrs AA that (it was argued) could have been avoided had Mrs AA been counselled further by the Tribunal about the difficulties of acting as a representative in a case in which she would also be a witness.

44    In its reasons for affirming the non-revocation decision, the Tribunal held that the appellant had initially been untruthful in his responses to questions about his drug use. Its written reasons (at [69(i)]) include the following passage, culminating in an adverse credit finding:

The Applicant’s current evidence is that he was affected by ice on the day of his offending and took a sleeping tablet stolen from Mrs AA’s medications. This conflicts with claims to police at the second interview, during which he claimed to have told the complete truth, that he ‘wasn’t affected but had a…headache…[and felt] very irritable’. There is no mention of sleeping tablets in this interview, just a reference to a vitamin and caffeine tablet. There is no reference in the sentencing remarks that the talking of a sleeping tablet was contextually relevant to his offending. A 2017 report from a clinical and forensic psychologist contains a reference to the Applicant taking ‘10 mg of diazepam’ but claimed that although the Applicant admitted taking the tablets from Mrs AA’s prescription pack, he ‘didn’t know what they were’. Prison authorities recorded the Applicant’s claim that he ‘took ice and sleeping tablets and alcohol on weekends prior to custody’. The Applicant’s initial evidence at this hearing was that he could not remember ever taking his wife’s sleeping medication, but contradicted this a day later when he conceded that he did. This aspect of the Applicant’s evidence to the Tribunal was untruthful.

(emphasis in original, footnotes omitted)

45    As can be seen, the subject matter of the relevant evidence concerned the appellant’s use of Mrs AA’s prescription medications. When the appellant was under cross-examination on that topic, Mrs AA interrupted to ask the Tribunal if she may ask a question of the appellant. There was then this exchange:

Senior Member:    Of course. Yes.

Mrs AA:        Could you please reiterate to [the appellant] the importance of telling the truth?

Senior Member:    Yes. Look, I’m in a difficult position, [Mrs AA], because I could see him giving answers and you shaking your head to the, as I understand it, the effect that he wasn’t being truthful. I’m in a difficult position because the applicant has sworn an oath and if he doesn’t tell the truth, then that’s a real issue for him. I would also say to you that as his advocate--

Mrs AA:        May I address him directly as his advocate?

Senior Member:    No, no. I think I know what you’re trying to do and put to him that he needs to be truthful. That there will come a time when you give your evidence where it’s open to the tribunal to recall him if I believe that there’s an inconsistency in the evidence, okay? For now, I think the best thing to do is just to hear his responses as they are and then when we do your evidence, if there’s something there that I believe he needs to be recalled to respond to, then I can do it to him. All right?

46    The guidance given by the Tribunal in that exchange was neither erroneous nor unorthodox. Mrs AA had sought to improperly interrupt the questioning in order to persuade the appellant to give a different response, no doubt concerned that inconsistencies might be found between his testimony and his own prior statements, or inconsistencies she might have perceived with the evidence she would be giving on the same topic. The Tribunal correctly identified that if fairness required that the appellant be recalled to explain inconsistencies, that could be done. In the result, the appellant changed his evidence such that there was no conflict between the revised version of events he told the Tribunal and the version of events told by Mrs AA.

47    None of that gave rise to an obligation on the Tribunal to give the appellant advice about the wisdom of his choice to exercise his entitlement to be represented at the hearing by the person of his choosing, being a person who he also wished to call as a witness and who was not legally trained. To the extent that it was submitted that the Tribunal ought to have predicted that the appellant would give evidence contradicting that of his wife, it was not shown that there was material before the Tribunal capable of alerting it to that possibility in advance of the hearing.

48    The array of errors alleged in this ground do not demonstrate jurisdictional error on the part of the Tribunal or appealable error on the part of the primary judge, whether considered alone or in combination with each other.

GROUND 2

49    Ground 2 is as follows:

2.    The Primary Judge erred by not finding that the Tribunal made a jurisdictional error by unreasonably exercising its power under s 32(1) of the Administrative Appeals Tribunal Act 1975 (Cth) insofar as it granted permission for Mrs AA to represent the [appellant] and maintained or failed to consider revoking that permission, notwithstanding Mrs AA[sic] mental health conditions and fragile mental health meant she was impaired and/or became impaired over the course of the hearing and having regard to the surrounding circumstances. Namely:

a.    the [appellant’s] illiteracy and lack of facility [sic] in English;

b.    the fact that he was not permitted to attend or participate in all hearings before the Tribunal;

c.    the long hearing days;

d.    the confronting and emotional subject-matter of the hearing and Mrs AA’s closeness to it;

e.    Mrs AA’s state of unwellness and obvious deterioration over the course of hearing [sic]; and

f.    the fact that Mrs AA disagreed with the [appellant’s] answers during cross-examination and was unable to contain her disapproval of his evidence.

50    The appellant’s arguments in support of this ground proceed from the incorrect premise that the Tribunal had exercised a discretionary power under s 32(4) of the AAT Act to grant the appellant permission to be represented by Mrs AA, and so had a discretionary power to revoke that permission (which presumably ought to have been exercised). The ground amounts to an allegation that the decision to permit the appellant to be represented by Mrs AA was affected by legal unreasonableness given all of the circumstances alleged in the particulars     (a) to (f).

51    Under s 32(1), the appellant (as a party) had a legal entitlement to be represented by another person. The discretion in s 32(4) does not relate to parties but to persons who are required to appear before the Tribunal. The case is not one to which s 32(2) or (3) applied. The primary judge identified as much (at J [27]). That was sufficient to dispose of the ground for judicial review at first instance.

52    We will nonetheless address the matters raised in particulars (a) to (e), proceeding from an assumption that it was within the discretionary powers of the Tribunal to make an order precluding the appellant from exercising his right to be represented by the person of his choice.

53    The primary judge correctly observed that there was no basis to question the appellant’s mental capacity to choose his representative, that Mrs AA was not subject to professional conduct rules that might apply in the case of a legal practitioner, and that she had not been engaged as an independent advocate. The primary judge also correctly observed that the circumstance that Mrs AA was also a witness at the hearing was not a basis for denying the appellant his right to choose to be represented by her. The primary judge went on to note that Mrs AA had made the following remark at the commencement of the hearing which demonstrated her insight into the potential difficulties that might arise by virtue of her being the appellant’s advocate as well as his spouse:

Mrs AA:    …  I’m obviously in this room in the capacity of the applicant as his advocate but also his spouse. It is a challenging situation that I’m in. I’ll be doing my best throughout the day to remain composed and professional in conduct that would be expected of me in that capacity, but I do just want to air the personal challenges that it is from an emotional perspective and that I will do my very best to uphold the behaviour that you expect. There may be times that if I become upset, I will seek to remedy that as soon as I can.

54    The Tribunal responded by assuring Mrs AA that she could take a break as needed. The Tribunal added that Mrs AA was acting not only as an advocate but would also be a witness. Mrs AA was told that the procedures of the Tribunal were flexible and that she would be given an opportunity both as an advocate and as a witness to say what she wanted to say. Mrs AA was told that if an adjournment was needed at any point, that could be granted. At the commencement of the hearing the appellant was asked to confirm that he had asked Mrs AA to act as his advocate and he confirmed that was so. On appeal, it has not been suggested that the Tribunal at that stage could lawfully have precluded the appellant from being represented by the advocate of his choice by unilaterally terminating the arrangement. Nor did the appellant submit that the Tribunal was precluded from proceeding with the hearing in the circumstances described.

55    To the extent that it was submitted that the appellant’s language barrier impeded his practical ability to participate in the review hearing, that will be considered in the context of Ground 3.

56    Assuming for present purposes that the remaining particulars have a factual foundation, the submissions on appeal did not address the legal consequences that ought to have followed from them in the performance of the Tribunal’s review function including the exercise of its procedural powers. Counsel for the appellant did not submit that in all of the circumstances the Tribunal was under a legal duty to require the appellant to terminate the appointment of Mrs AA as his representative and to proceed without representation. And had the Tribunal been able to order that Mrs AA cease to act as his representative that would have necessitated the adjournment of the hearing. If that had occurred it is likely that s 500(6L) of the Migration Act would have resulted in the automatic affirmation of the non-revocation decision.

57    Rather, the appellant’s submission was that the Tribunal was obliged to forewarn Mrs AA and the appellant of the difficulties that in fact arose so as to enable them to consider an alternative arrangement for his representation prior to the hearing commencing. That complaint has been addressed in the context of Ground 1.

58    It was then submitted that the emotional state of Mrs AA was such that the Tribunal ought to have adjourned the hearing.

59    The difficulty with that submission is that the Tribunal did in fact allow short adjournments on several occasions to accommodate Mrs AA (including during closing submissions when she was in a visible state of distress). When it offered Mrs AA a further adjournment, Mrs AA declined. The Tribunal was constrained in the length of the adjournment that could be offered given the effect of s 500(6L) of the Migration Act. Mrs AA was informed of her entitlement to seek an adjournment and it has not been shown that any application for an adjournment was unreasonably refused.

60    In all of the circumstances it cannot be said that the appellant was deprived of a reasonable opportunity to present his case by reason of the emotional state of Mrs AA. The factors that made the task of representing the appellant difficult were not of the Tribunal’s making and were not all related to Mrs AA’s status as a non-lawyer in any event. They were a consequence of the decision the appellant made in exercising his right under s 32(1) of the AAT Act to appoint Mrs AA to represent him, notwithstanding that the Tribunal informed him that it would be preferable that he be legally represented.

61    Finally on this topic, as the primary judge noted, Mrs AA’s emotional state did not result in her not being able to present the appellant’s case. Whilst that finding was not the subject of a discrete challenge, the thrust of the appellant’s submissions was that the mental state of Mrs AA at the hearing was debilitating and that circumstance gave rise to a legal obligation on the part of the Tribunal to conduct the hearing in some other unspecified way.

62    Respectfully, we do not consider the grounds for judicial review necessitated any finding into the subjective mental state of Mrs AA or an assessment of the quality of her representation of the appellant. That is principally because the Tribunal’s obligation to conduct a fair hearing did not include an obligation to ensure that the appellant had optimal representation and, accordingly, proof of suboptimal representation would not demonstrate jurisdictional error. The appellant had the representative of his choice, and his representative willingly assumed what was no doubt an emotionally taxing and difficult task. The submission that the Tribunal acted outside the bounds of legal reasonableness could only succeed if it could be shown that no reasonable or rational Tribunal would have allowed the hearing to continue in the circumstances described. That is not established.

63    As we explained at the commencement of these reasons, the context was such that the Migration Act and the AAT Act permitted two alternatives. First, the Tribunal could have ceased the hearing with the likely consequence that the 84 day period under s 500(6L) of the Migration Act would expire, and the non-revocation decision would be automatically affirmed. Alternatively, the Tribunal could have unilaterally terminated the arrangement by which Mrs AA appeared as the appellant’s representative under s 32(1) of the AAT Act, leaving the appellant to represent himself. Neither alternative was embraced by the appellant.

GROUND 3

64    This ground alleges that the primary judge erred by not finding that the Tribunal made a jurisdictional error by “misconstruing s 32(1) of the [AAT Act] by treating a decision to permit representation under s 32(1) of the [AAT Act] as relieving it of its obligation to include the [appellant] in the hearing”. Three particulars are given:

a.    the Tribunal directed the interpreter to not interpret all aspects of the hearing to the [appellant], even when the [appellant] was seeking assistance following the hearing;

b.    the Tribunal did not address the [appellant] directly, save to have his explanation of the considerations relevant to his decision interpreted to the [appellant]; and

c.    the Tribunal did not give the [appellant] any meaningful opportunity to adopt / disagree or add to the submissions of Mrs AA, even when Mrs AA was submitting the [appellant] was wrong in his responses to cross-examination (and thereby risked adverse credit findings being made).

65    Submissions on this ground were to the effect that a represented party has all of the entitlements to fully participate in a review hearing as though he or she were not represented. That overarching contention must be rejected. Section 32(1) of the AAT Act presented the appellant with the choice to “appear” in person or to be represented by another person. Considered in its proper context, the word “appear” may be understood as invoking concepts of agency, such that the party may be taken to adopt and to be bound by the choices of the representative in the presentation of his or her case. The party may of course attend at a hearing for the purposes of instructing his or her representative, indeed considerations of fairness in most instances would require that he or she must be permitted to do so: Naisauvou v Minister for Immigration and Multicultural Affairs (1999) 87 FCR 352.

66    The requirement to conduct a fair hearing included the requirement to ensure that the appellant was sufficiently equipped to receive advice from his representative and to give instructions to the representative as to the presentation of his case. However, it is not the case that the party has an entitlement to personally make submissions in addition to or even contrary to those made by his or her representative. Of course, short adjournments may be sought to facilitate the provision of instructions and advice between a party and his or her representative, and there is no suggestion that the appellant was denied any adjournment that was sought on his behalf for that or any other purpose.

67    In light of the appellant having no English comprehension, the Tribunal’s obligation to conduct a fair hearing included a requirement that he be put in a position to sufficiently understand the proceedings to enable him to give instructions and to receive advice. That could be done in a number of ways. Whether a failure to have all parts of a hearing interpreted gives rise to unfairness must turn upon the facts and circumstances of the particular case. A critical fact in the present case is the presence of a representative who could explain procedural matters to the party and who could seek adjournments for that purpose.

68    At first instance, the appellant relied on this exchange as evidencing the Tribunal’s failure to ensure that the hearing was adequately interpreted:

Interpreter:        [Filipino language]

Senior Member:    I’m sorry, Madam Interpreter.

Interpreter:        He’s asking, sorry, what she’s saying.

Senior Member:    Could I please just have you translate when I ask you to translate for the moment? The applicant is represented by an advocate here. I’m just dealing with the procedural things. We don’t need to translate everything that happens. We’re not hearing the [crosstalk]

Interpreter:        My apologies. He asked me what she was saying.

Senior Member:    That’s okay. That’s all right. I just want you to be responsive to me rather than the applicant. All right?

Interpreter:        Yes. Thank you. Thank you.

69    In light of that exchange, the reasons of the primary judge proceeded from an assumption that the interpreter did not interpret every exchange between Mrs AA and the Tribunal. The primary judge rejected arguments concerning the legal consequences of the exchange in brief terms, as follows:

62    The Applicant was not excluded from the hearing merely because not every exchange between the Tribunal and the parties’ representatives was translated for the benefit of the Applicant. The requirement to include an applicant who is represented in a hearing is not a requirement to include the applicant in every exchange nor a requirement to direct every remark or statement to both the applicant and his representative. It depends on the matters being discussed.

63    During the hearing itself, the Tribunal was concerned to ensure that relevant matters were translated for the benefit of the Applicant. Each of the Applicant and Mrs AA were informed at the commencement of the hearing that the first primary consideration that the Tribunal was to consider would involve the Tribunal looking at the nature and seriousness of any crimes or other misconduct. Neither the Applicant nor Mrs AA had any questions.

70    Submissions on this appeal were not so much focused on a failure to ensure that everything that took place in the hearing was interpreted, but rather on a specific failure to ensure that Mrs AA’s testimony at the Tribunal hearing was interpreted for the benefit of the appellant, thus giving rise to a real and practical injustice.

71    That argument was not specifically raised before the primary judge, and her Honour was not specifically taken to evidence that bore upon it. To the extent that leave is required to raise the argument on the appeal, we grant that leave and deal with the issue on its substantive merits.

72    The submission that the evidence of Mrs AA ought to have been interpreted for the benefit of the appellant may be accepted as a matter of general principle. Interpretation of the evidence may be necessary because Mrs AA could not, whilst giving her evidence, effectively advocate for the appellant and the content of her testimony was a substantive matter in respect of which advice and instructions could be exchanged. We should not be understood to fix an absolute rule, however in the circumstances of the present case we accept that a failure to interpret substantive portions of Mrs AA’s evidence may have had the consequence that the appellant was deprived of a reasonable opportunity to present his case.

73    However, the difficulty for the appellant is that he did not establish that substantive portions of Mrs AA’s evidence were not interpreted to him as the hearing proceeded.

74    At first instance, the onus was on the appellant to show that Mrs AA’s evidence was not interpreted for his benefit, so giving rise to an unfair process. However, in his only affidavit relied upon at first instance, the appellant was altogether silent on the topic of interpretation, let alone the topic of the interpretation of Mrs AA’s testimony. Similarly, the affidavit of Mrs AA did not depose to facts that could support a finding that her testimony was not interpreted for the benefit of the appellant.

75    The transcript of the hearing does not assist as Mrs AA’s evidence was given in English, and does not record whether her words were interpreted to the appellant.

76    The evidence before the primary judge was not sufficient to discharge the appellant’s onus of proof, even if the matter had been argued before her Honour in the manner now argued before us.

77    At the hearing of the appeal, Counsel for the Minister indicated that the Minister would consider a request that the lawyer who appeared for the Minister before the Tribunal provide a note of events that occurred at the Tribunal hearing specifically limited to the interpretation of Mrs AA’s evidence. A note provided after the conclusion of the hearing relevantly stated:

2.    The Minister instructs as follows:

Interpretation while Mrs AA gave evidence

2.1.    After the appellant’s re-examination, Mrs AA went into the witness box. The appellant and the interpreter went to the back of the hearing room, being a row of seats immediately behind the seats at the bar table. They sat on the left-hand side of the room facing the Tribunal member, behind the seat where Mrs AA had previously been sitting as the representative of the appellant. There were also two guards seated there.

2.2.    While Mrs AA gave her evidence, Ms Weir was at a lectern in the middle of the bar table facing the Member. Thus, while Mrs AA gave her evidence, the appellant and the interpreter were located behind and to the left of Ms Weir.

2.3.    Ms Weir does not recall hearing the interpreter translating statements to the appellant during this period.

2.4.    Subject to what is said in [2.5] below, Ms Weir thinks that, if the interpreter was interpreting, Ms Weir would have heard it, given the proximity of the interpreter and the appellant (about 2 metres away).

2.5.    However, Ms Weir was focused on her job as the Minister’s legal representative throughout the period that Mrs AA gave evidence, and she is not sure that there were no communications between the appellant and interpreter, or that the interpreter did not interpret anything to the appellant during this period.

Interpretation during closing submissions

2.6.    The appellant was sitting in the same location as described at [2.1] above (with the two guards) while both Mrs AA and Ms Weir gave closing submissions.

2.7.    While Mrs AA gave closing submissions, Ms Weir was at the bar table on the right-hand side (rather than in the centre as she was while Mrs AA gave evidence).

2.8.    What is said at [2.3] to [2.5] applies equally to this part of the hearing.

78    Without more, that note is insufficient to support a finding that Mrs AA’s evidence was not interpreted to the appellant. That is especially so given that both the appellant and Mrs AA were silent in their affidavits on a factual question that may reasonably be expected to be within their knowledge.

79    Ground 3 must therefore be rejected.

80    The appeal will be dismissed with costs.

Associate:

Dated:    21 May 2025