FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362

MIGRATION – review of decisions of Refugee Review Tribunal – Tribunal member who conducted oral hearings retired from Tribunal before making decisions – cases re-allocated to another Tribunal member – Tribunal member comprising newly constituted Tribunal completed reviews without inviting applicants to a second hearing – whether the statutory requirement that an applicant be invited to appear before the Tribunal is met where an applicant is not invited to appear before the Tribunal member who decides the application.

Migration Act 1958 (Cth), ss 422, 425, 428

Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 49

Ahmed v Minister for Immigration and Multicultural Affairs [2001] FCA 506

Abujoudeh v Minister for Immigration and Multicultural Affairs [2001] FCA 1351

YIFAN LIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 195 of 2001

Tohin AHMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 859 of 2001

BLACK CJ, HILL AND WEINBERG JJ

SYDNEY

21 NOVEMBER 2001

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1                     These appeals, which are otherwise unrelated, were heard together because they raise a common question of law concerning the right of an applicant for review of a protection visa decision to be invited to appear before the Refugee Review Tribunal (“the Tribunal”).  The coincidence of Mr Liu and Mr Ahmed’s cases results from the circumstance that on 20 June 2000 a member of the Tribunal, Ms Akmeemana, resigned.  Prior to her resignation Ms Akmeemana had been assigned to decide Mr Liu and Mr Ahmed’s applications for review of the Minister’s decision to refuse each of them protection visas.  In both cases, Ms Akmeemana had conducted hearings at which the respective applicants had given evidence and made submissions on issues arising in the reviews.  She had not, however, made a decision on the applications at the time her resignation from the Tribunal took effect.  When Ms Akmeemana resigned, the Principal Member of the Tribunal directed that Mr Liu and Mr Ahmed’s applications for review be re-assigned to another Tribunal Member, Mr Keher.  Mr Keher reviewed the applicants’ files and subsequently handed down a decision in each case affirming the Minister’s decision to refuse the applicants protection visas.  In both cases Mr Keher concluded, on the basis of documents before him, that the applicants were not credible witnesses.  Neither of the applicants was invited to appear before Mr Keher to give evidence or make submissions.

2                     Mr Liu and Mr Ahmed each applied to this Court for judicial review of Mr Keher’s decision.  A ground of review relied on in each case was that, because Mr Keher did not invite the applicant to attend a hearing (and notwithstanding that the applicant had attended a hearing before Ms Akmeemana) the Tribunal had failed to comply with s 425 of the Migration Act 1958 (Cth) (“the Act”). That section provides that the Tribunal is to invite an applicant for review of a protection visa decision to appear before it to give evidence and be heard in relation to the review, unless certain circumstances exist.  Mr Liu and Mr Ahmed’s applications for judicial review came before Wilcox J and Hely J respectively.  Both applications were dismissed:  See Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 49 (“Liu”); Ahmed v Minister for Immigration and Multicultural Affairs [2001] FCA 506 (“Ahmed”). 

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

THE FACTS

MR LIU

4                     Mr Liu is a citizen of the Peoples’ Republic of China.  He arrived in Australia on 13 May 1999 and on 21 June 1999 applied to the Department of Immigration and Multicultural Affairs (“the Department”) for a protection visa.  He claimed that he feared persecution because he had supported the Tiananmen Square pro-democracy movement, and because he was a member of the Chinese Liberal Democratic Party in Australia.  His application for a protection visa having been refused by the respondent on 30 June 1999, Mr Liu lodged an application for review with the Tribunal.  On 9 December 1999, Mr Liu’s application for review was assigned to Ms Akmeemana.   Mr Liu attended a hearing before Ms Akmeemana on 19 January 2000.  The hearing was tape recorded and transcribed.

5                     As noted earlier on, Ms Akmeemana resigned from the Tribunal on 20 June 2000.  At that time, she had not made a decision on Mr Liu’s application for review which, as already indicated, was reassigned to Mr Keher.

6                     On 12 September 2000, Mr Keher’s decision affirming the respondent’s decision to refuse Mr Liu a protection visa was handed down.  Mr Keher accepted that Mr Liu was involved in the Tiananmen Square demonstration in 1989, but he found that Mr Liu had exaggerated several of his claims, that he was not a leading activist, and that he was of no continuing adverse interest to the authorities in China.

7                     Mr Liu was not contacted by the Tribunal after it was reconstituted, nor was he invited to attend before Mr Keher.  It is accepted that Mr Keher, before making his decision, listened to a tape recording of the hearing before Ms Akmeemana, and read the transcript of those proceedings.

MR AHMED

8                     Mr Ahmed is a citizen of Bangladesh.  He arrived in Australia on 5 July 1996 and applied to the Department for a protection visa on 2 August 1996.  Initially, Mr Ahmed claimed that he feared persecution in Bangladesh because he was a stateless person and his property had been confiscated by the authorities.  Six months later, Mr Ahmed submitted a further statement and supporting documents in which he claimed that he feared persecution in Bangladesh because he was a Bihari. 

9                     His application for a protection visa having been refused by the respondent, Mr Ahmed applied to the Tribunal for a review of that decision on 20 June 2000.  Mr Ahmed’s application was assigned to Ms Akmeemana, before whom he attended a hearing on 9 September 1998.  That hearing was tape-recorded and a transcript was subsequently prepared.  When Ms Akmeemana resigned on 20 June 2000, she had not made a decision on Mr Ahmed’s application and the Tribunal’s Principal Member directed that the review be reassigned to Mr Keher.

10                  Mr Keher made a decision to affirm the respondent’s decision and made findings that were adverse to Mr Ahmed’s credibility.  In particular, he found that Mr Ahmed had fabricated his claim to be Bihari, his history of being in Geneva Camp, and his claim to be a member of the Stranded Pakistanis General Repatriation Committee (“SPGRC”).  Mr Keher also found that there was a serious problem concerning Mr Ahmed’s identity because the Bangladesh authorities had refused to give Mr Ahmed a duplicate passport.  Each of these findings was based on inconsistencies in the documents before the Tribunal.

11                  There were differences in the way in which Mr Keher conducted Mr Liu and Mr Ahmed’s applications for review.  First, while Mr Liu was not contacted by the Tribunal after it was reconstituted, on 12 October 2000 the Deputy Registrar of the Tribunal sent a letter to Mr Ahmed, which read in part:

“The Tribunal wishes to inform you that the Member previously with the review of your application, Ms S Akmeemana, has left the Tribunal.  The Member who now has the review of your application is Mr C Keher. 

Because your application was heard by Ms Akmeemana some time ago, the Tribunal Member has requested that you be given an opportunity to provide any further information prior to a decision being made.  The Member proposes that you be given 12 weeks from the date of this letter to provide any further information.  Such further information is to be in writing and in English.

The Member does not propose to have another hearing unless you can provide reasons as to why a further hearing is necessary.  If you consider that a further hearing is necessary you may make submissions to the Member who will then decide whether to grant that request.

If you do not wish to make any further submissions please advise the Tribunal of your decision in writing.”

12                  An immigration consultant acting for Mr Ahmed responded to that letter on 4 December 2000.  The response read:

“We understand that the Tribunal requested our client on 12 October 2000 [sic], to provide any additional relevant documentation, [sic] our client believes may be helpful in relation to his claims for a Protection Visa. However, we discussed this matter with our client, who informed us that he believes that he has provided a sufficient amount of documentation before the Tribunal to consider his review application for a Protection Visa [sic].  Therefore, our client has requested the Tribunal to sympathetically consider his application on the basis of the documentation’s [sic] enclosed in his file.”

13                  A second difference between the two cases concerns Mr Keher’s approach to the tape recordings of the applicants’ hearings before the Tribunal when constituted by Ms Akmeemana.  In Mr Liu’s case it is accepted that Mr Keher listened to the tape recording and read the transcript of the hearing.  In Mr Ahmed’s case, while it was accepted that Mr Keher read the transcript of the hearing, counsel for Mr Ahmed submitted that it could be inferred from Mr Keher’s reasons that he did not listen to the tape recording of Mr Ahmed’s hearing.  Hely J accepted this submission (see Hely J’s reasons for judgment at paragraph [18]).  We explain later why this difference was said to be significant (at [52]).

THE APPLICATIONS FOR JUDICIAL REVIEW

14                  As has been stated, Mr Liu and Mr Ahmed applied for judicial review of the Tribunal’s decision on the grounds that the Tribunal (as constituted by Mr Keher) had erred in its interpretation of s 425 of the Act and had failed to follow the procedures prescribed by that section.

15                  Section 425 provides:

“425    Tribunal must invite applicant to appear

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

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

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

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

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

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

THE DECISIONS APPEALED FROM

16                  In Mr Liu’s case, Wilcox J held that the hearing provided for in s 425 need not be conducted by the Tribunal member who ultimately decides the review.  His Honour relied on the fact that the word “Tribunal” in s 425(1) refers to the statutory entity whose full title is the “Refugee Review Tribunal”.  Wilcox J held that there is compliance with the statutory command that “the Tribunal” carry out some act if the act is performed on behalf of the Tribunal by an authorised person, in Mr Liu’s case by Ms Akmeemana.

17                  Secondly, Wilcox J noted that although the Act deals with reconstitution of the Tribunal, it does not include an express requirement that the new Tribunal hold a fresh oral hearing.  The relevant section is s 422, which reads:

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

            (a) stops being a member; or

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

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

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

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

18                  Section 422A deals with reconstitution for a reason other than retirement or unavailability of a member.  It applies where the Principal Member “thinks … reconstitution is in the interests of achieving the efficient conduct of the review” (s 422A(1)).  Section 422A(3) is the equivalent of s 422(2), and reads:

“If a direction under this section is given, the member constituting the Tribunal in accordance with the direction is to continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the member who previously constituted the Tribunal”

19                  Finally, Wilcox J held that it cannot be assumed that the Parliament would not have contemplated that someone other than the decision-maker might conduct the s 425(1) hearing.  Such an assumption would, he considered, be difficult to reconcile with the provision in s 428 that the Tribunal may authorise another person to take evidence from the applicant, and that where this is done and the Tribunal receives a written record of the evidence, the Tribunal is taken to have provided the applicant with the opportunity to appear before it and give evidence.  Section 428 reads:

“428    Tribunal may authorise another person to take evidence

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

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

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

who is authorised by the Tribunal.

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

(a) inside or outside Australia; and

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

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

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

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

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

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

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

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

20                  It was also argued before Wilcox J that the reconstituted Tribunal is required to invite the applicant to appear before it in those cases, at least, where issues of credibility arise.  His Honour rejected this argument, because the Act does not distinguish between cases where the applicant’s credibility is critical to the Tribunal’s reasons and cases where it is not.

21                  In Mr Ahmed’s case, Hely J expressed agreement with the earlier decision of Wilcox J.  His Honour held that if the Parliament had intended to require the substituted member to hold a fresh oral hearing, the appropriate course would have been to insert a requirement to that effect in the sections providing for the reconstitution of the Tribunal (ss 422, and 422A, set out above). 

22                  It was also argued on Mr Ahmed’s behalf that the reconstituted Tribunal was required to invite the applicant to appear before it if it proposed not to have regard to the full record of the first hearing.  Hely J rejected this argument.  His Honour reasoned that the decision whether to have regard to a record of the proceedings of the review made by the previous Tribunal involves the exercise of a discretion and that whilst discretion may be appropriately or inappropriately exercised, its inappropriate exercise does not revive obligations under s 425(1) which have already been discharged.  His Honour considered that there is no interdependence between s 422 and s 425 such that s 425 springs up again if the exercise of the discretion in s 422 in some way miscarries.

23                  Liu  and Ahmed were followed by Ryan J in Abujoudeh v Minister for Immigration and Multicultural Affairs  [2001] FCA 1351.

SUBMISSIONS ON APPEAL

24                  Mr Young of counsel, who appeared for Mr Liu, and Mr Leeming of counsel, who appeared for Mr Ahmed, submitted that s 425 provides for a right that is central to the process of merits review.  It was a right, they said, to a real opportunity to appear before the Tribunal. Counsel for Mr Liu argued that, although in terms the section provides for a formal right to be invited to appear, the invitation to which an applicant is entitled is an invitation for a purpose, and that purpose is to “give evidence and present arguments relating to the issues arising in relation to the decision under review.”  Consistently with that purpose, the preferable view is that the invitation must be continuing, so that the applicant has an opportunity to take up the invitation: see Burchett J in Minister of Immigration and Multicultural Affairs v Mohammed [2000] FCA 1275.

25                  It was argued that s 425, 422 and 428 should be construed in such a way as to enhance rather than stultify the applicant’s opportunity to appear before the Tribunal.  This argument was supported in two ways.  First, it was argued that while the provisions of Divisions 3 and 4 of Part 7 are not a codification of the common law requirements of natural justice, it is to be assumed the provisions are intended to operate fairly: Re Minister of Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238.  Secondly, counsel for Mr Ahmed argued that the courts should be reluctant to construe the Act in such a way as to subvert a basic tradition of the common law:  Rosenberg v Percival (2001) 75 ALJR 734 at [41] per McHugh J.  The argument was supported by the observation that at common law, if a right to a hearing is part of the procedures of a Tribunal, it is a right to a hearing before the Tribunal constituted in the same way as it is when it makes its decision: see Gleeson v NSW Harness Racing Authority (1990) 21 ALD 515 at 520.

26                  Other submissions were based upon the construction of s 422.  First, counsel for the appellants argued that the Parliament would not have contemplated that the right conferred by s 425(1) could be ignored in circumstances where the Tribunal is reconstituted and that this would be the effect if the reconstituted Tribunal were not required to invite the applicant to appear before it.  Secondly, they argued that the awkward expression “continue to finish the review” must be given some meaning and that the meaning is that the reconstituted Tribunal may not finish the review without ensuring that the review commenced by the Tribunal, in terms of its quality and essential components, is continued.  Finally, it was argued that the provision in s 422(2) for the Tribunal to have regard to the record of proceedings shows that Parliament intended an invitation to an oral hearing to be made by the reconstituted Tribunal, but that it need not be a hearing de novo.

27                  Upon the foundation of these general submissions, counsel for Mr Liu and Mr Ahmed advanced a series of distinct arguments.  The first was that the Tribunal member who comprises a reconstituted Tribunal must him or herself invite the applicant to a hearing.  The second was that if the Tribunal does not properly exercise the power in s 422(2) to have regard to the record of the first proceeding, it must issue a second invitation to the applicant to appear before it.  The third argument was that the Tribunal must invite the applicant to appear if it would otherwise be relying on a defective record of the first proceedings (We explain the context for this argument later, at para [52]).

28                  Counsel for the respondent argued that s 425 as amended merely creates the formal requirement of inviting the applicant to appear before the Tribunal:  See Minister of Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275 per Branson J;  Xiao v Minister of Immigration and Multicultural Affairs [2000] FCA 1472.  In the respondent’s submission, it follows that the command of s 425(1) is spent once the Tribunal has invited the applicant to appear before the Tribunal to give evidence and present arguments.  There is no continuing obligation to provide an opportunity to appear before the Tribunal.  Secondly, the respondent submitted that the Act imposes obligations on the Tribunal and not on Tribunal members.  References to “the Tribunal” are references to the corporate Tribunal, not to particular members (s 410).  Accordingly, there is no basis for inferring that “the Tribunal” refers to a particular Tribunal member in s 425(1).  Indeed, the respondent submitted that s 428(5) is inconsistent with such an inference. 

29                  In relation to s 422, counsel for the Minister submitted that it would be inconsistent with the specific provisions in s 422 to require a reconstituted Tribunal to comply with s 425(1) where the applicant has already been invited to appear before the Tribunal.  He submitted that the reconstituted Tribunal’s obligation under s 422 is simply to “continue to finish” the review.  These words do not compel the repetition of any element, including the hearing.  It is for the Tribunal to decide whether any completed procedures are to be repeated.

CONSIDERATION OF THE ARGUMENTS

30                  In interpreting s 425 within its statutory context it is necessary to consider the system of merits review of protection visa decisions created by Part 7 of the Act, of which s 425 forms a part.  Part 7 of the Act establishes the Tribunal (s 457), consisting of a Principal Member, a Deputy Principal Member, and other Senior Members and other members appointed in accordance with the Act (s 458).   The Tribunal is established with a mandate to review onshore “protection visa decisions” (defined in s 411) (see s 414), and in doing so, to exercise all the powers of the primary decision-maker (s 415(1)). The Tribunal has broad powers to affirm, vary, set aside and substitute, or remit decisions (s 415(2)).  In carrying out its functions, the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420).

31                  Division 4 of Part 7 provides for the conduct of a review of a protection visa decision.  The statutory features of the process of review are:

(a)       An applicant for review may give the Registrar a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider and written arguments relating to the issues arising in relation to the decision under review.  The Secretary may also give the Registrar written arguments relating to the issues arising in relation to the decision under review (s 423).

(b)      The Tribunal may get any information it considers relevant, or invite a person (including but not limited to the applicant) to give additional information.  If the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review (s 424).

(c)       If there is any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review (other than information that is not specifically about the applicant or that was given by the applicant for the purpose of the review, or is non-disclosable) the Tribunal must give to the applicant, in a way that the Tribunal considers appropriate in the circumstances, particulars of the information; it must ensure that the applicant understands why it is relevant to the review; and it must invite the applicant to comment on it (s 424A).

(d)      The Tribunal must specify the way in which any additional information or comments on information is to be given, being the way that the Tribunal considers is appropriate in the circumstances.  The method may be by interview or by some other means.  The Tribunal must also specify that the information or comments are to be given within a prescribed period (which may be extended by the Tribunal) or, where that period is not prescribed, a reasonable period. 

(e)       If a person who is invited to give additional information (including but not limited to the applicant) fails to do so before the time for giving the information has passed, the Tribunal may make a decision on the review without taking any further action to obtain the additional information (s 424C(1)).  Similarly, if the applicant is invited to comment on information, but does not do so before the time for commenting on the information has passed, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information (s 424C(2)).

(i)                  The Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, save for certain circumstance: s 425 (see [15] above in which s 425 is set out in full).

(f)        The Tribunal may authorise another person to take evidence from the applicant inside or outside Australia, and may specify limitations on the other person’s power to take evidence: s 428 (see [19] above in which s 428 is set out in full). 

(g)       The applicant may, within 7 days of being invited to appear before the Tribunal, give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the applicant’s notice.  The Tribunal must have regard to the applicant’s wishes, but is not required to obtain the evidence (orally or otherwise) (s 426).  (Of course, the Tribunal may use its power to authorise another person to take evidence for the purpose of the review (s 428)).

(h)       The hearing of the application for review is to be in private (s 429). 

(i)         The Tribunal may allow the applicant to appear before the Tribunal by telephone, closed-circuit TV or any other means of communication.  Similarly, the Tribunal may allow the giving of evidence by the applicant or any other person by these means (s 429A). 

(j)        A person appearing before the Tribunal to give evidence is not entitled to be represented by any other person, or to examine or cross-examine any other person appearing before the Tribunal to give evidence (s 427).

32                  The Principal Member may give directions, not inconsistent with the Act or the regulations, about the conduct of reviews by the Tribunal, and in particular, about the application of what are called “efficient processing practices”.  If the Tribunal deals with a review of a decision in a way that complies with the directions, the Tribunal is not required to take any other action in dealing with the review.  Non-compliance by the Tribunal with any direction does not mean that the Tribunal’s decision on a review is an invalid decision (s 420A).

History of the framework for conduct of reviews

33                  What is now Part 7 of the Act was introduced by the Migration Reform Act 1992 (“the Migration Reform Act”). The Second Reading speech on the Bill for the Migration Reform Act described the Tribunal as follows:

“A specialist refugee review tribunal will be established to provide independent and determinative merits review of onshore refugee status decisions.  The tribunal will be non-adversarial, operating along similar lines to the IRT, with power to hold hearings and record its decisions in writing.”

- Australia, Parliamentary Debates (Hansard), House of Representatives, 4 November 1992, p 2621

34                  In relation to the opportunity to appear before the Tribunal to give evidence, the Explanatory Memorandum stated:

“[the section] provides that where a decision on the papers is not possible, the RRT must give the applicant an opportunity to appear before it … This section has the effect that an applicant has an opportunity to put his or her case to the Tribunal in person before any negative decision is reached while the prerogative of the Tribunal to determine the manner in which hearings on a particular review are to be conducted is retained.”

35                  The framework for the conduct of reviews described above is substantially the same as that established by the Migration Reform Act.  The framework was, however, amended in various ways by the Migration Legislation Amendment Act (No 1) 1998 (Cth) (“the Amendment Act”).  Prior to the changes introduced by the Amendment Act, the framework for the conduct of reviews differed from that described above in the following respects:

(a)       There was no provision for the Principal Member to give directions about the conduct of reviews (s 420A), or to direct that the Tribunal be reconstituted for the sake of the efficient conduct of the review (s 422A).

(b)      The Tribunal was required to “give the applicant an opportunity to appear before it to give evidence” unless, after considering the material provided to the Registrar, it was prepared to make the decision or recommendation on the review that is most favourable to the applicant.  There was no provision for the applicant to consent to the Tribunal deciding the review without the applicant appearing before it, nor for the applicant to forfeit the opportunity in the way now provided for by s 425(2)(c).

(c)       There was no provision for the applicant to be provided with a prescribed or reasonable period of notice of his or her hearing (the current s 425A).

(d)      Subject to the obligation to give the applicant an opportunity to appear before it to give evidence, the Tribunal was not required to allow any person to address it orally about the issues arising in relation to the decision under review.

(e)       It was provided that, unless the Tribunal was prepared to make the decision most favourable to the applicant on the papers, the Tribunal may obtain “such other evidence as it considers necessary” (rather than “additional information”).  There was no provision that the applicant’s right to appear before the Tribunal could be forfeited if he or she failed to respond to an invitation to give information.

(f)        There was no provision requiring the Tribunal to invite the applicant to comment on information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review.  Nor was there any provision that the applicant’s right to appear and give evidence would be forfeited if he or she failed to respond to an invitation to comment on information before the time for doing so had elapsed.

(g)       There was no facility for the Tribunal to take evidence by telephone, closed circuit TV or other methods of communication.

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

            Discussion

37                  There is no express provision of the Act that supports the appellants’ argument that Mr Keher was required by s 425 to issue a second invitation to the appellants to appear before him to present evidence and arguments.  Section 425 itself is not in those terms and there is no express language to support a reading of the expression “the Tribunal” appearing in s 425 as “the Tribunal as constituted by the member who makes the ultimate decision on the review”.  Nor does s 422 provide that the reconstituted Tribunal is required to invite the applicant to appear before it (even subject to the exceptions in s 425(2)). 

38                  On the contrary, what is provided in s 422 is suggestive against the right to a second invitation asserted by the appellants.  The Parliament has expressed the reconstituted Tribunal’s obligation as being “to continue to finish” the review.  The ordinary meaning of those words does not suggest that the Tribunal is required to repeat steps of the review process.  To “finish” means (Shorter Oxford English Dictionary):

“to bring to an end, to go through the last stage of … to bring to completion, to complete;… to deal with or dispose of the whole or the remainder of;… to perfect finally or in detail”.

39                  To “continue” means (Shorter Oxford English Dictionary):

“to carry on, keep up, persist in; … to keep on, retain; … to take up (a narrative, etc); to carry on in space, succession or development.”

40                  The phrase “continue to finish” simply requires the reconstituted Tribunal to undertake what remains to be done in the review without interrupting the process, while picking up and carrying on the steps that have already been taken. 

41                  The fact that s 422 provides a power for the Tribunal to have regard to the record of the proceedings before the first Tribunal also tells against the right contended for by the appellants.

42                  The circumstances that may cause the Principal Member to direct that a Tribunal be reconstituted also point against the asserted right.  They reveal the Parliament’s intention that the Principal Member be able to ensure the efficiency of the review process.  Section 422 provides that the Principal Member must direct that the Tribunal be reconstituted by a different member if the original member stops being a member of the Tribunal or is not available, for any reason, for the purpose of the review at the place where the review is being conducted.  Further, the Principal Member may direct that the Tribunal be reconstituted if the Principal Member thinks the reconstitution is in the interests of achieving the efficient conduct of the review in accordance with the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 422A).  It would seem unlikely that a section that is designed to promote efficiency would replicate steps already taken in the proceeding.

43                  The absence of any express provision in s 422 establishing the right asserted by the appellants means that they must seek it from the context of the merits review system provided for by the Parliament in relation to protection visa decisions.

44                  The right to a hearing is clearly an important and central right in the merits review system established by Part 7 of the Act.  This has been acknowledged in other contexts:  See for example Amankwah v Minister of Immigration and Multicultural Affairs (1999) 91 FCR 248 at [13]; Perera v Minister of Immigration and Multicultural Affairs (1999) 92 FCR 6 at [20].  The express qualifications in s 425 of the right to be invited to appear concern a limited set of circumstances.  The right to be invited exists unless the applicant’s appearance is unnecessary from the applicant’s point of view because the review will be decided on the papers in favour of the applicant or the applicant consents to the invitation not being extended, or the applicant forfeits the right.  The fact that the right can be lost in certain specified circumstances, and the nature of those circumstances, only serves to underline the Parliament’s intention that, at least generally, there should be a right to be invited to appear before the Tribunal.

45                  Moreover, while it is not necessary to determine the question for the purposes of this appeal, we do not agree with the Minister’s submission that the applicant’s right to appear before the Tribunal was diminished to a merely formal right to be invited by the changes made to s 425 by the Amendment Act.  As we have noted, the Amendment Act provided a new right to present argument before the Tribunal and to receive notice of the hearing, as well as a right to be invited to comment on adverse material. Certainly there is nothing in the Explanatory Memorandum to indicate that the right to be invited to appear was intended to be reduced to a merely formal right.  On the contrary, the Explanatory Memorandum reads:

“New section 425 entitles an applicant to have the opportunity to appear before the Refugee Review Tribunal, by requiring the Tribunal to invite the applicant to appear before it, unless new subsection 425(2) applies.  When subsection 425(2) applies, an applicant is not entitled to appear before the Tribunal.”

46                  The decisions of this Court relied on by the Minister go to a fact situation quite different from the present.  Here, the appellants were invited to appear before Ms Akmeemana and did appear before her, but they were neither invited to appear before Mr Keher nor, in the case of Mr Liu, provided with an opportunity to do so.  And whilst it is true that the Parliament has provided in ss 424 and 425 that the rights in question may be forfeited, this occurs if the applicant fails to act on them in a timely manner, and in each case the Tribunal has a discretionary power to extend the period within which the applicant is required to act (ss 424B(4), 426A(2)).

47                  A conclusion that the right to appear is an important substantive right does not, however, address the critical question in this case, which is whether or not it is an absolute right. When it is considered in the overall context of the statutory framework for the conduct of a review of a protection visa decision, it is clear that the right is qualified by the discretion given to the Tribunal under s 428 and, as a result, cannot be said to be absolute.

48                  Section 428(1) empowers the Tribunal to authorise a person other than the decision-maker to take evidence from the applicant.  In such a case s 428(5) goes so far as to provide that “the Tribunal, for the purpose of s 425, is taken to have given the applicant an opportunity to appear before it to give evidence." This is an express recognition by Parliament that the Tribunal's decision-making function may be exercised on the papers in the absence of a hearing before it.

49                  The power under s 428 is discretionary and it may be exercised in a range of circumstances, not all of which will necessarily require the Tribunal to provide, as a matter of fairness, an applicant with a right to appear before it.  It might, for example, be perfectly appropriate for the Tribunal to authorise another person to hear an applicant if the applicant was in a remote location and nothing turned on credibility.  In such a case, the applicant’s narrative, as set out in the record, may be all that is needed to satisfy the requirements of a fair procedure.  In a different case, where credibility was centrally in issue and where, in any event, the person could reasonably attend before the Tribunal, the sound exercise of discretion might well be agreed to produce a different result. Indeed, s 420 of the Act directs the Tribunal to act according to substantial justice and the merits of the case, and to pursue the objective of providing a mechanism of review that is, among other things, fair and just.  But the fact that the exercise of the discretion to authorise another person to take evidence from the applicant in a particular case may be open to criticism provides no reason to read down the express words of s 428(5). This conclusion, in our view, stands in the path of the appellants’ argument that the right to a hearing is compromised if a reconstituted Tribunal does not hear an applicant personally.

50                  It was argued that even if a reconstituted Tribunal is not always required to invite an applicant who has had a hearing to appear before the new Tribunal, it must do so if the Tribunal fails to have regard to the full record of the applicant’s hearing.  But in interpreting s 425, the same assumption that has to be made in relation to the discretionary power conferred by s 428 must be made in relation to the discretionary power to examine the record of the applicant’s hearing conferred by s 422.  In other words, the possibility that the discretion might not be properly exercised should not govern the interpretation of s 425.

51                  In these circumstances, the submission that the Tribunal was required to invite the appellants to appear before it again must be rejected.

52                  Counsel for Mr Ahmed argued, however, that Mr Keher was bound to invite Mr Ahmed to appear before him in the particular circumstances of that case.  Counsel relied on the fact that the transcript of the proceeding before Ms Akmeemana appeared to be defective.  One of the reasons that the Tribunal concluded that Mr Ahmed had fabricated his claims was that no mention was made in his original application of an incident he later relied on to illustrate persecution (his arrest for involvement in a political demonstration, and the laying of false charges of murder against him by police authorities) and it was suggested that the transcript of the hearing did not properly render Mr Ahmed’s explanation of this discrepancy.  The relevant part of the transcript reads:

"M:     The claims you made about the false charges made against you, you didn't raise this matter in your original application you only mentioned the general discrimination suffered by Bihari's in Bangladesh. Is there a reason why you didn't mention this original application.

I/A

I:         I had ?? in Bangoli.

M:       Who did...

I/A

I:         I was given in 8-9 column about... I said that... even the papers my solicitor.

M:       Yeh but that wasn't submitted until the 24th of January 1997. In the original application that you lodged in August 1996, there was no mention?

I/A

I:         Yes I... (A) I given ask for some time, I told my solicitor that I could get some papers regarding that and I had some... I don't know they missed it out but I had given everything...

53                  Hely J found that Mr Ahmed’s answer to the first question could have been explained either by the difficulty Mr Ahmed had in answering the question, or by difficulties experienced in transcribing the answers.  His Honour observed that the "???" and "..." found in the transcript suggested that the latter was at least a possibility. The tape recording of the hearing was not transcribed until 1 August 2000, some 23 months after the hearing. 

54                  This argument must fail for a similar reason as the broader arguments.  Section 427(3)(a) confers a discretionary power to summon a person, including an applicant, before the Tribunal to give evidence.  Even if it could be concluded that the Tribunal constituted by Mr Keher had not properly exercised its discretion in Mr Ahmed’s case, that would not serve to trigger a renewed obligation under s 425.  The possibility that the Tribunal’s discretion to call an applicant to give evidence might be exercised improperly does not serve to expand the content of s 425.  We would note, however, that in Mr Liu’s case, the adverse findings were based entirely on inconsistencies in the documentary evidence before the Tribunal and in this respect the case is comparable to Abujoudeh v MIMA [2001] FCA 1351.

55                  The appeals should be dismissed, with costs.

Associate:

Dated:              15 November 2001