FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908

MIGRATION – information within s359A of the Migration Act refers to knowledge of facts or circumstances communicated to or received by the Tribunal – information submitted by the applicant and received by the Tribunal that he was going on ‘continuing trips’ to Jordan - Tribunal’s inference that relationship with first wife was continuing on basis of the ‘continuing trips’ was part of its reasoning process and was not itself information – failure to summons a witness – whether a breach of s357A -  applicant’s entitlement to relief depends on proper construction of ss 361 and 363 not on the natural justice hearing rule – Tribunal must have genuine regard to the applicant’s notice requesting that a witness be called – ss 361 and 363 do not oblige the Tribunal to call a witness

Migration Regulations 1994 (Cth), Regulation 1.15A

Migration Act 1958 (Cth) ss 51A(1), 357A, 359A, 360, 361, 363, 366D, 375A, 422B

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72

Kioa v West (1985) 159 CLR 550

Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118

Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170

NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456

Narang v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1515

Re Minister for Immigration and Multicultural Affairs v Ex parte Miah (2001) 206 CLR 57

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALR 1009

SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493

SZEGT v Minister for Immigration & multicultural & Indigenous Affairs [2005] FCA 1514 Tin v Minister for Immigration and Multicultural Affairs [2001] FCA 1109

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 471

VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 84

VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178

WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220

WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v RAED KATISAT

NSD 827 OF 2005

BENNETT J

23 DECEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The orders of the Federal Magistrate made on 10 May 2005 are set aside and, in their place, order that the application be dismissed with costs.

3.                  The first respondent pay the costs of the appeal and of the proceedings before the Federal Magistrate.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Background

1                     The first respondent (‘Mr Katisat’) is a citizen of Jordan who met Ms Dimas, an Australian citizen, while he was visiting Australia.  On 15 October 2001 Mr Katisat lodged an application for a spouse visa.  He maintained that he had divorced his Jordanian wife on 19 August 2001 and married Ms Dimas on 7 October 2001.  In June 2002 the couple separated and in August 2002 Ms Dimas withdrew her nomination of Mr Katisat. On 3 September 2003 a delegate of the Minister refused to grant Mr Katisat a Partner (Temporary) (Class UK) or a Partner (Residence) (Class B5) visa on the basis that Mr Katisat and his nominator were not spouses within the meaning of regulation 1.15A of the Migration Regulations 1994 (Cth)(‘the Regulations’).  That regulation specified that persons are in a married relationship if relevantly:

‘(1)      For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:

(a)        in a married relationship, as described in subregulation (1A);

…….

(1A)     Persons are in a married relationship if:

(a)        they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and

            (b)        the Minister is satisfied that:

(i)                 they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii)               the relationship between them is genuine and continuing; and

(iii)             they:

                                    (A)       live together; or

(B)        do not live separately and apart on a permanent basis.

2                     On 4 September 2003 Mr Katisat applied to the Migration Review Tribunal (‘the Tribunal’) for review of that decision.  The Tribunal affirmed the delegate’s decision.  On appeal to the Federal Magistrates Court, Scarlett FM made orders in the nature of a writ of certiorari and mandamus in respect of the Tribunal decision.  The Minister appeals that decision.

The Tribunal Decision

3                     The procedural history before the Tribunal is recorded in its decision.

4                     On 6 April 2004 the Tribunal invited Mr Katisat to attend a hearing to be held on 3 May 2004 to give evidence and present arguments relating to the issues arising from his application for review.  On 13 April 2004 Mr Katisat confirmed that he would attend the hearing and requested that the Tribunal take oral evidence from three witnesses.  None of these was Ms Dimas.  At the hearing Mr Katisat and two other witnesses gave evidence and his solicitor made submissions in support of the application.

5                     On 7 May 2004 the Tribunal invited Mr Katisat to comment in writing on the information it considered would be the reason or a part of the reason for affirming the decision under review.  In the words of the Tribunal at [15]:

‘The potentially adverse information was that there had been allegations made that the marriage had been contrived and the nominator had been offered payment to support the application, that the Notice of Intended Marriage (NOTM) had been backdated and that the nominator had never resided with the visa applicant at the Parramatta address.’

The letter also stated: 

‘This information is relevant to the review because it may indicate that you were not in a genuine and continuing spousal relationship at the time you applied for your visa.

The above information does not include information that you gave [to] the Tribunal for the purpose of the application, or information that, under the Act, is non-disclosable.

…

If you make comments, the Tribunal will consider your comments carefully.  If the Tribunal is still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the Tribunal.’

6                     By a letter of 10 May 2004, Mr Katisat’s solicitor and migration agent, Mr Issa, wrote to the Tribunal to seek the basis or source of the information, including ‘the basis or any other information on which it is alleged that the marriage was not genuine’.  He sought another hearing, inter alia to provide an opportunity to request the Tribunal to subpoena witnesses.  No witness was named.  In a further letter of 10 May, Mr Issa asked the Tribunal to put to Mr Katisat any adverse evidence and noted that the only matter put to Mr Katisat at the hearing that had taken place was a lack of substantial documentary evidence.  It was clear from the letter that Mr Issa was saying that Mr Katisat could only speculate on the adverse information and asked that he be informed of it.  The letter also contained the following:

‘We also draw the Tribunal’s attention to the fact that our client travelled to Jordan twice during the period of cohabitation.  His trips were due to the fact that he was committed to maintaining contact with his children and also liquidating some overseas funds to inject into the relationship.’

7                     On 1 June 2004, the Tribunal responded by stating that it was ‘unable to disclose further particulars of information because it relates to documents and information that have been certified under section 375A of the Act’.  It said that it had provided ‘the substance of the material that may be adverse to your case’.  Section 375A provides that the Tribunal must ensure that documents or information are not disclosed to any person other than a member of the Tribunal if the Minister has certified in writing that disclosure would be contrary to the public interest.

Mr Issa replied on 9 June 2004.  In that letter he said:

‘If our client is invited to a further hearing, we intend on requesting the Tribunal to subpoena his former nominator spouse.’

8                     A further invitation to attend a hearing on 22 July 2204 to give evidence and present arguments was extended on 30 June 2004.  In that letter, it was stated:

‘You may also request that the Tribunal:

·         obtain oral or written evidence from other persons;

·         obtain other written material.’

9                     In his response, in a request for hearing form, Mr Katisat confirmed that he would appear before the Tribunal and requested that the Tribunal take oral evidence from Ms Dimas, giving her address.  He ticked the box confirming that he wanted the Tribunal to issue a formal summons for her to attend.  The hearing was subsequently rescheduled for 16 August.  Mr Katisat completed the request for hearing form in the same manner as previously.

10                  The Tribunal did not issue a summons and took evidence at the second hearing only from Mr Katisat.  The Tribunal made its decision on 20 October 2004.

11                  The Tribunal in its decision, recorded that it had endeavoured to provide the substance of the allegations outlined in the letter of 7 May without breaching the disclosure which was limited by the s 375A certificates.  It also said that it had had regard to the request to summons the former nominator, Ms Dimas and had decided not to issue a summons.

12                  The Tribunal indicated that it did not intend to rely on the information contained in “the s 359A letter” (the letter of 7 May):

‘The Tribunal indicated that letter had been sent as the Federal Court decision in Veal (sic) had been law at the time the letter was sent, but that since that time the case law had changed.  The Tribunal indicated that some of the allegations contained in the 359A letter were not relevant or significant, and that all of the potentially adverse information was not considered credible.’

13                  Later in the decision, when describing the second hearing, the Tribunal repeated that it had had regard to the request to summons the nominator and had decided not to do so.  It also repeated that it did not intend to rely on any of the information put to Mr Katisat in “the s 359A letter” and considered those allegations ‘to be unreliable, untested and not credible’.

14                  The reference in the letter of 7 May to Veal was a reference to VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 471.  The change in the case law was a reference to the Full Court decision in VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 84 of 9 July 2004.  The appeal from the Full Court decision to the High Court was successful (Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72) but post-dated the Tribunal decision.

15                  The Tribunal recorded that, at the interview, Mr Katisat said that ‘[h]e had returned to Jordan to liquidate some of his assets and brought money into Australia on his trips in July 2001 and June 2002’.

16                  In the chronology set out in the decision, the Tribunal recorded: that Mr Katisat and Ms Dimas met on 24 March 2001 and that, on 1 April 2001 Mr Katisat travelled overseas ‘and claims to have initiated divorce proceedings with his then spouse; (divorce documents only have an August 2001)’.  He returned to Australia on 26 July.  He was outside of Australia between 6 December 2001 and 3 January 2002; he claimed to have visited his children.  He was recorded as outside of Australia between 5 June 2002 and 3 July 2002; he claimed his mother was ill.  Mr Katisat was recorded as outside of Australia between 3 March 2003 and 27 April 2003; he claimed it was for holiday and business.  He was recorded as outside of Australia between 4 September 2003 and 24 October 2003; he claimed to have visited his children and parents.  The reference in the chronology to Mr Katisat’s absence from Australia between 30 January 2004 and 30 March 2004 was not accompanied by a claimed reason.

17                  Mr Katisat told the Tribunal that Ms Dimas commenced another relationship of which he became aware by June 2002 while he was overseas.  He claimed that she did this ‘for revenge as she was upset with him making trips to Jordan and having contact with his children’. 

18                  The Tribunal was not prepared to accept Mr Katisat’s claims about the couple living together but said:

‘Even if the Tribunal was satisfied the couple did reside together for some period the Tribunal would not be satisfied the couple resided together in a mutually exclusive and genuine spousal relationship and that they had a commitment to each other as husband and wife.’

19                  Thus, the Tribunal concluded that Mr Katisat was not in a mutually exclusive and genuine spousal relationship with Ms Dimas at the time of the visa application and so affirmed the decision under review. The Tribunal found that Mr Katisat and the two other people who gave evidence were not credible and that there was insufficient documentary and other evidence to support the claim that Mr Katisat had been in a genuine domestic relationship with Ms Dimas.  The Tribunal gave detailed reasons for this conclusion.  The Tribunal said that it gave little weight to the statutory declarations filed in support of the application and noted that the declarants who gave oral evidence were unreliable.  It noted that the nominator (Ms Dimas) no longer stood by her declaration.  The Tribunal also said that the fact that Ms Dimas had begun another relationship indicated that, by at least June 2002, the relationship with Mr Katisat was not mutually exclusive. 

20                  At [69] the Tribunal said:

‘His divorce in Jordan and his continuing trips to Jordan raise concerns that the relationship with his first wife was ongoing. Although he may have been simply remaining in contact with his children the Tribunal is not satisfied that is the case due to the proximity in obtaining his divorce and remarrying in Australia.  There is also no evidence supporting his claim that he and his 1st wife had been separated for the first time that he claims.’

The Federal Magistrate’s Decision

21                  Mr Jones, the solicitor for Mr Katisat, submitted to Scarlett FM (as set out at [28] of his Honour’s decision) that the continuing trips to Jordan were never raised with Mr Katisat and that the information must have come from ‘somewhere else other than’ Mr Katisat.  He also submitted that the failure to call Ms Dimas was a denial of natural justice.

22                  Mr Smith, who appeared for the Minister, submitted that the information about the visits to Jordan had been canvassed with Mr Katisat at the hearings and, accordingly, was information within s 359A(4) which the Tribunal was not required to give to him by reason of s359A(1). He also submitted that the failure to call Ms Dimas could not constitute jurisdictional error in view of s 361 where the Act specifically provides that the Tribunal is not required to comply with a request made for the Tribunal to obtain oral evidence (Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).

23                  Scarlett FM found that the Tribunal had failed to comply with s 359A of the Act which obliges the Tribunal to give the applicant, particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision.  The Tribunal had concluded at [69], as quoted above in [20], that the relationship with the first wife was ongoing because of Mr Katisat’s ‘continuing trips’ to Jordan.  Scarlett FM considered that two trips to Jordan, details of which were in Mr Katisat’s passport, could not be characterised as continuing trips; ‘[s]o if it is evidence of this upon which the Tribunal relied, then the Tribunal must have got it from someone other than [Mr Katisat]’ (at [56]).  His Honour found that the Tribunal did not put to Mr Katisat at either hearing any concern that there were continuing trips to Jordan or that those continuing trips were for the purpose of continuing a relationship with his first wife (at [57]) and that this constituted a failure to comply with s 359A.

24                  His Honour then turned to deal with the question whether Mr Katisat was denied natural justice in not being permitted to call Ms Dimas.  Scarlett FM noted that Mr Katisat  had accepted warnings that Ms Dimas’ evidence might harm his case, that neither he nor his lawyer could cross-examine her and that only the Tribunal could ask questions. 

25                  His Honour said at [81] that the reason given in the Tribunal reasons for not calling Ms Dimas was that the Tribunal did not intend to rely on information set out in the s 359A letter.  I could not find in the Tribunal’s decision the reason for not having issued a summons to Ms Dimas.  His Honour noted a conversation, as set out in the transcript of the Tribunal hearing between Mr Katisat and the Tribunal, in which Mr Katisat reiterated his desire to have Ms Dimas give evidence to the Tribunal ‘to only tell the truth’.  The Tribunal then said ‘Okay, well, I’ve had regard to your request and I’m not required to obtain evidence as per the request and I’ve decided not to summons Nektaria’.   Mr Katisat, in his Honour’s view, had not been given the opportunity to ‘bring relevant evidence before the Tribunal’.

26                  After a consideration of  WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624  and Narang v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1515 his Honour held at [99] that:

‘In my view, there is a clear breach of s 353 of the Act.  [Mr Katisat] was denied natural justice in not being permitted to call a witness.  The reasons given, to my mind, are inadequate.  In my view, this Tribunal hearing breached section 353 and that the way it was carried out was neither fair nor just.’

His Honour concluded that there had been jurisdictional error on the part of the Tribunal.

Notice of Appeal

27                  The Minister’s notice of appeal provides the following grounds. First, his Honour erred in finding that the Tribunal failed to comply with s 359A; the information concerned the ‘continuing trips’ to Jordan.  Second, his Honour erred in finding that Mr Katisat was denied natural justice in not being permitted to call a witness.  Third, his Honour erred in finding that the Tribunal’s failure to summon a person to appear before it to give evidence constituted a jurisdictional error.

‘Continuing trips’ as information within s 359A.

28                  When regard is had to the transcript of the Tribunal hearing that was before the Federal Magistrate and the chronology in the Tribunal decision, it cannot be concluded that only two trips were discussed with Mr Katisat at the hearing.  The dates referred to in the transcript equate to more than two sets of dates in the chronology.  In any event, even if only two trips were discussed, the characterisation of two trips as “continuing” cannot constitute jurisdictional error.

29                  There is no basis for a conclusion, as submitted by Mr Jones, the solicitor for Mr Katisat, that ‘constructively’ the Tribunal must have had other information on which to base a finding of “continuing” trips.  It was not information mentioned in the letter to Mr Katisat of 7 May 2004 (referred to above in [5]).  I am not satisfied that the Tribunal’s conclusion that there were continuing trips was based upon information that was not given by Mr Katisat to the Tribunal. 

30                  The next question is whether the Tribunal’s conclusion that the trips were for the purpose of continuing a relationship with Mr Katisat’s first wife was itself information within s 359A(1)(a) that had to be given to Mr Katisat.  If so, that information clearly does not come within s 359A(4)(b); however, if is part of the reasoning process of the Tribunal rather than information, there is no requirement to comply with s 359A(1) and (2). 

31                  Mr Smith, who appears for the Minister, concedes that the finding that the continuing trips implied a continuing relationship with the first wife was not put to Mr Katisat at the hearing or otherwise.  He submitted, however, that this inference was part of the Tribunal’s reasoning process, a “natural conclusion” from an evaluation of the primary facts, and not “information” within the meaning of s 359A(1) that needed to be put to Mr Katisat (Tin v Minister for Immigration and Multicultural Affairs [2001] FCA 1109).

32                  VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471involved consideration of s424A(1), rather than s359A(1), however, the subsections are relevantly in identical terms.  The word “information” in s359A(1) ‘refers to knowledge of facts or circumstances communicated to or received by the Tribunal’ (VAF at [24] per Finn and Stone JJ; my emphasis.) It is also the ordinary meaning of the word as defined in the Shorter Oxford English Dictionary and the Macquarie Dictionary.  It does not include ‘the Tribunal’s subjective thought processes [which] explain both why it isolated and referred to the evidence concerning the appellant’s behaviour and why it attributed to that evidence the significance that it did’ (VAF at [28]). 

33                  The fact of the continuing trips to Jordan was information.  It was knowledge communicated by Mr Katisat and received by the Tribunal concerning a fact or circumstance.  The conclusion that there were continuing trips to Jordan and that the relationship with the first wife was ongoing was based only on the information given to the Tribunal by Mr Katisat.  It was not ‘communicated to or received by the Tribunal’ from any source other than Mr Katisat.

34                  The conclusion that the relationship with the first wife was ongoing was part of the reason for affirming the decision under review.  However, that conclusion was part of the reasoning process or subjective thought process of the Tribunal member.  The Tribunal accepted, at face value, that trips occurred but was not satisfied that the trips were for a reason other than visiting the first wife.  The Tribunal’s subjective conclusion about the significance of the trips to Jordan does not enliven any duty under s 359A(1). 

35                  That conclusion, together with the fact that by June 2002 Ms Dimas was in another relationship, led the Tribunal to conclude that the relationship with Ms Dimas was not exclusive.  That was a factual finding, which was not based on information other than that provided by Mr Katisat.  Accordingly, it was not information that should have been provided to him for comment by reason of s 359A.

36                  When read with s 357A of the Act, s 359A ‘is now to be treated as exhaustive of the requirements of procedural fairness relating to the applicant’s right to comment on adverse material which is know to and is to be relied upon by the Tribunal’ (WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220; Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221).

37                  No jurisdictional error on the part of the Tribunal on this ground has been established.

Failure to summons the witness

38                  Subsections 361(2), (2A) and (3) in Division 5 of the Act provide:

‘(2)      The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(2A)     The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:

(a)        written evidence from a person or persons named in the notice; or

(b)        other written material relating to the issues arising in relation to the decision under review.

(3)       If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant's notice but is not required to comply with it.’

39                  Section 363, titled “Powers of the Tribunal”, in Division 5 of the Act, provides in ss (3)(a):

‘subject to subsection (4), the presiding member in relation to a review may;

(a)   summon a person to appear before the Tribunal to give evidence;’

40                  Section 357A provides:

‘(1)      This Division [5] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.’

41                  Mr Smith emphasises that s 363(3)(a) of the Act gives a power to the Tribunal rather than imposes a duty upon it to summons a person to give evidence.  He also submits that there was no obligation imposed on the Tribunal by the natural justice hearing rule outside, relevantly, this provision.  In circumstances where the appellant had been granted two hearings, had had the opportunity to call witnesses and had given evidence himself, Mr Smith argues that the circumstances here meant that there was no obligation to issue a summons.

42                  Mr Jones did not seek to support the reasoning of the Federal Magistrate but he submitted that his Honour’s conclusion was correct.

43                  Mr Jones agrees with Mr Smith that the circumstances of this case bring it within the ‘matters’ dealt with by Division 5 and that therefore Division 5 is an exhaustive statement of the natural justice hearing rule by reason of s 357A of the Act.  However, Mr Jones submits that, in circumstances where the witness would not attend voluntarily and the Tribunal refused to summons her, Mr Katisat was not permitted to call the witness.  I do not accept that characterisation. 

44                  Mr Jones submits that ‘[t]he Tribunal’s duty to summons the witness does not arise out of the bare provisions of the Act, but out of the circumstances in which procedural fairness required that the witness be heard and the witness would not be available to be heard without compulsion’.  He claims that it is ‘disingenuous’ to claim that in those circumstances ‘the [Tribunal member] is not under a duty to avail himself or herself of that  means’.  I take it that this amounts to an assertion that there is a denial of natural justice in failure on the part of the Tribunal to take whatever steps were necessary and available to procure Ms Dimas to give evidence and that such a denial amounts to jurisdictional error despite s 357A of the Act.

45                  There is a division of opinion on the Court as to the ambit of ss 357A(1) of the Act.  The division of opinion may be illustrated by comparing the approach adopted by French J in WAJR at [47] ‑ [59] and Gray J in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 at [35] ‑ [37] on the one hand with the approach adopted by Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at [50] ‑ [87], Hely J in Wu at [21] – [23]; Branson J in SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 and Edmonds J in SZEGT v Minister for Immigration & multicultural & Indigenous Affairs [2005] FCA 1514 on the other.  Although some of the cases involve consideration of ss 357A(1) of the Act and othersconsidered ss 51A(1) or ss 422B(1), the cases provide relevant comparators because the three subsections are in identical terms.

46                  In WAJR, French J held in relation to s 422B:

‘Division 4 therefore may be taken to be exhaustive of those aspects of the requirements of procedural fairness ‘in relation to matters it deals with’. This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the Tribunal.  The ‘matters’ Division 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, i.e. the conduct of reviews by the Tribunal.’

In Moradian Gray J adopted a similar approach to that adopted by French J in WAJR, concluding that the ‘matters’ dealt with by Div 4 of Pt 7 are those identified in the specific terms of the sections which constitute the division.

47                  In NAQF at [59]‑[60] Lindgren J said:

‘…on any reckoning the expressions “the matters it deals with” in subs (1) and “the matters they deal with” in subs (2) must have been intended to refer to something wider than the exact text of the enacted procedural requirements, otherwise those subsections would be superfluous.  It is inconceivable that the legislature meant the displacement of the natural justice hearing rule to be co-extensive with, and not to go beyond, the precise text of the express protections of a procedural fairness kind, to be found within Div 5 (or ss 375, 375A and 376 and Div 8A).’

48                  Ultimately Lindgren J found it unnecessary in that case to determine the full reach of the expression “the matters it deals with” in ss 357A(1).  However, in Wu at [23], Hely J observed:

‘The legislature cannot have intended the displacement of the natural justice hearing rule to be confined to cases in which the Minister must provide information pursuant to s 57(2).  The legislature cannot have intended that the common law hearing rule would continue to apply in circumstances where s 57 did not require the provision of information to an applicant, such as country information (s 57(1)(b)), or information in relation to a visa which can only be granted while the applicant is offshore (s 57(3)): see NAQF.’

49                 In many circumstances the differences in approach will not lead to a different outcome.  I do not need to reach a conclusion on the ambit of the section.  Mr Smith says that, even on the ‘narrower view’ of the construction of s 357A in WAJR, any question relating to the issuing of a summons by the Tribunal is dealt with by s 363 which specifically imposes no obligation to do so. 

50                  Mr Katisat’s notification complied with s 361(2); that is, it was given within seven days after the notification of the invitation to the hearing.  Mr Jones seeks to distinguish WAJR on the basis that, as s 361(3) does not prevent an applicant from asking the Tribunal outside the seven day period to call a person as a witness, it does not prevent the Tribunal from acceding to such a request.    As I understand Mr Jones’ submission, it is that as s 361(2) refers to a notification within seven days, if the notification were after that time, it is not within the coverage of s 357A and the common law rules of natural justice apply.  His submission is that it would be perverse to give less favourable treatment to a timely notification, so the rules of natural justice must apply to a notification given in accordance with s 361(2), despite s 357A and the authorities he himself relies upon.  I reject that submission.

51                  One of the s 361 “matters”, which is in Division 5 of the Act, “deals with” the opportunity to request the Tribunal to call a witness.  This does not provide the circumstances for the applicant to call a witness himself.  The applicant is otherwise entitled to call witnesses, as Mr Katisat did in his case, pursuant to s 360 of the Act.

52                  Even if an applicant requests that the Tribunal summons a witness (or take evidence from a witness) the Tribunal is not required to do so; the Tribunal is under no duty to inquire (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ).

53                  I cannot agree with Mr Jones that, while the Tribunal was not obliged to call a witness, it is implied by sections 361 and 363 that in normal circumstances when a timely request is made, it will be acceded to by the Tribunal.  Rather, in considering whether the Tribunal’s refusal of Mr Katisat’s request that the nominator be called involved a denial of procedural fairness, it is important to keep in mind the exact nature of the request and the context in which it was made (SGLB).

54                  The Act provides for the procedure to be followed by the Tribunal in the conduct of the review.  By s 361(3) the Tribunal is empowered to obtain oral evidence but is not required to do so (VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [23]).  In Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118, Kenny and Lander JJ, with whom Spender J agreed, considered whether there was a denial of procedural fairness where a request to obtain oral evidence from witnesses was denied by the Tribunal.  In that case, the principal issue before the Tribunal was whether there was a person who was the applicant’s “spouse” within the meaning of regulation 1.15A of the Regulations.  At [31] their Honours reiterated the principle in Kioa v West (1985) 159 CLR 550 that, where there is an obligation to accord procedural fairness, what is practically required to discharge the obligation depends on the relevant statutory provisions, the nature of the enquiry and the subject-matter and circumstances of the case.

55                  As set out by their Honours at [34], Mr Maltsin had given the Tribunal written notice that he wanted the Tribunal to take oral evidence from himself and four other people, all of whom attended the hearing at the request of Mr Maltsin.  His representative also indicated that the “spouse”, who was in Russia, would be contactable by telephone in the event that the Tribunal wanted to speak to her.  The Tribunal did not hear evidence from all of the persons nominated.

56                  Kenny and Lander JJ emphasised at [36] the inquisitorial nature of a Tribunal hearing and the fact that s 361(2) and (2A) must be understood in this context and said at [37]:

‘It is in keeping with the Tribunal’s inquisitorial nature that the Tribunal does not err if it decides that, notwithstanding the applicant wants oral evidence to be obtained from persons named in a notice under s 361(2), it decides not to obtain such evidence, always providing that it acts in conformity with s 361(3) of the Act and has regard to the notice that the applicant has given.  In this circumstance, there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant.’

57                  Another way of putting this is to say that the requirement that ‘the Tribunal must have regard’ to the notice that an applicant wants to obtain oral evidence from a person is mandatory and requires more than a superficial acknowledgment of the notice.  Failure to comply with a mandatory provision of a section of the Act designed to ensure proper procedure is a jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALR 1009at [77]).  There is, however, in s361(3) no prescription of or limitation on the matters to which the Tribunal must have regard.

58                  It can be accepted that Ms Dimas’ evidence was relevant to the question whether there was an exclusive relationship.  It is the case that Mr Katisat requested the Tribunal to issue a summons to obtain oral evidence from her.  The Tribunal said that it had regard to the request but would not comply with it.  No reasons for that course were given in the decision.  Mr Jones submits that the wording of the section stipulates that the Tribunal should hear from the witness ‘unless the Tribunal itself has identified cogent and compelling reasons why it should not do so’.

59                  If the Presiding Member does not call a witness, as is the case here, the applicant’s entitlement to relief depends not on the natural justice hearing rule but on the question of the proper construction of sections 361 and 363, because they deal with the “matter” of an applicant’s right to request the Tribunal to call a witness and the Tribunal’s power to do so.  While the Act confers power on the Tribunal call a witness, the Act does not impose any duty or obligation to do so.  If the Tribunal did not ‘have regard to the applicant’s notice’ the Tribunal would have failed to comply with the obligation imposed on it by s 361(3).  These provisions have little to say about what is required, and constitute a background against which the Court is to determine the practical requirements of fairness (Re Minister for Immigration and Multicultural Affairs v Ex parte Miah (2001) 206 CLR 57 Gleeson CJ at [53]).

60                  It is the potential for a decision to affect rights, interests, or legitimate expectations, that attracts the requirement of procedural fairness (Miah).  The nature and impact of Ms Dimas’ evidence did not of itself create a legitimate expectation that the Tribunal would accede to a request to call her in circumstances where she was otherwise unwilling.  In SGLB the majority of the High Court held that there was no denial of procedural fairness when the Tribunal did not order a further expert psychological assessment of the applicant at his request even though independent expert medical advice would have been particularly compelling evidence. 

61                  The next question to be considered, as set out in Maltsin at [38], is whether the Tribunal genuinely applied its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individual in accordance with the applicant’s wishes.  Such genuine consideration must take account of matters such as the relevance and potential importance to the outcome of the review of the evidence that could be given by that witness. 

62                  In the context of s 361, I take “have regard to” to be used in the sense of “to take into account” or “consider”.  The transcript of the hearing on 16 August 2004 shows that there was discussion between the Tribunal and Mr Katisat about the request for the summons.  The Tribunal pointed out to Mr Katisat that he would not be able to cross-examine Ms Dimas and that it would be the Tribunal that would ask the questions.  The Tribunal also said that, even if she were to say things in his favour, the Tribunal would still want documentary evidence; if she were to say things that were adverse to him, then that would not be in his favour.  Mr Katisat reiterated his preference to summons Ms Dimas because he wanted ‘the truth’  to be before the Tribunal.  The Tribunal responded that it had decided not to summons her.  It gave as a reason ‘I suppose part of it is I don’t see that she – that having evidence from her would necessarily advance your case’.  Later in the hearing, the Tribunal asked Mr Katisat what he thought Ms Dimas would say if she were summonsed.  The Tribunal observed that it was ‘highly unusual for an ex spouse to be summonsed because generally what they’re going to say is not going to be in your favour’.  It was clear from the transcript that a somewhat acrimonious relationship was described between Mr Katisat and Ms Dimas, to the extent that he claimed that there was domestic violence against him.

63                  It has not been demonstrated, in my view, that the Tribunal failed to have genuine regard or consideration to Mr Katisat’s request to summons Ms Dimas.  The Tribunal was not required to comply with the request and did not do so.  The failure to exercise the power in the absence of a duty or obligation to do so does not go to jurisdiction.  The Tribunal’s decision was not arbitrary nor demonstrably unreasonable.  Ms Dimas’ evidence would not, in the view of the Tribunal, have overcome the absence of documentary evidence even if Ms Dimas reverted to her original statement about the genuineness of the relationship.

64                  The following factors were relevant to the calling of evidence of Ms Dimas: she had withdrawn her support for Mr Katisat’s visa application; Mr Katisat subsequently made serious allegations of violence against her; apart from this, there was no indication whatsoever of the evidence that Ms Dimas would give; Mr Katisat was not entitled to examine or cross-examine her (s 366D); there was no evidence of her willingness or availability to give evidence; Mr Katisat had already had the opportunity of obtaining from her a written statement (as he had done from a number of other witnesses); Mr Katisat himself gave evidence at two hearings, and two other witnesses had given oral evidence in support of his application; and he did not seek to have Ms Dimas called at the first hearing.

65                  Mr Katisat did not demonstrate a need for Ms Dimas’ evidence so that the Tribunal’s decision to not call her would be objectively unfair.  As discussed above at [35], the determinative reason for the Tribunal’s decision was that the couple was not in a mutually exclusive relationship.  The Tribunal was prepared to accept Mr Katisat's claims about the couple living together at their highest as described in oral evidence and written evidence.  Ms Dimas could have given evidence about the couple’s cohabitation and her view of their commitment to each other.  Nevertheless her evidence, even if favourable to Mr Katisat, could not have established a mutually exclusive relationship.  The Tribunal had before it considerable evidence from Mr Katisat on those matters.  The Tribunal made a factual finding about the lack of mutually exclusivity of the relationship.  That was based not upon Ms Dimas’ evidence but upon Mr Katisat’s evidence of his trips to Jordan.

66                  As was pointed out in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [16] principles of natural justice are not concerned with the merits of a particular case but with the procedure that must be observed in its exercise: ‘they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised.  They are to be applied to the processes by which a decision will be reached’ (original emphasis).  In the present case the transcript demonstrates that, in the context of the evidence before the Tribunal, it did properly have regard to the notification.  As part of the process before finally determining not to comply with it, the Tribunal canvassed the nature of the proposed evidence with Mr Katisat and expressed the view that even if the evidence was what he hoped it would be, it would not be sufficient in the absence of supporting documentation. 

67                  The Tribunal’s decision not to call Ms Dimas did not involve jurisdictional error.  The Tribunal was not obliged to call Ms Dimas under the Act.  Mr Katisat did not demonstrate that there had been legitimate expectation that she would be called so that the failure is procedurally unfair.  Scarlett FM erred in finding that there was a breach of s 357A(1) in the Tribunal’s failure to summons Ms Dimas to give evidence.

CONCLUSION

68                  The appeal should be allowed.  The orders made by Scarlett FM should be set aside and instead the orders should be that the application is dismissed with costs.  The first respondent should pay the costs of the appeal and of the proceedings before the Federal Magistrate.

Associate:

Dated:              23 December 2005