FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court of Australia on 5 September 2014 be set aside and that, in lieu thereof, the following orders be made:

(1)    The application be dismissed.

(2)    The applicant pay the first respondent’s costs.

3.    The first respondent pay the appellant’s costs.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) (SZTJF v Minister for Immigration [2014] FCCA 1638) which quashed a decision of the second respondent, the Refugee Review Tribunal (the Tribunal). The Tribunal’s decision was to affirm a decision of a delegate of the appellant, then the Minister for Immigration and Citizenship (the Minister), not to grant the first respondent a Protection (Class XA) visa.

2    The first respondent is a national of Fiji. She arrived in Australia on 25 May 2012 on a tourist visa. On 21 August 2012, she lodged an application for a protection visa. On 31 December 2012, the Minister’s delegate made a decision to refuse to grant the visa. On 24 January 2013, the first respondent applied to the Tribunal for a review of the delegate’s decision. On 10 September 2013, the first respondent appeared before the Tribunal to give evidence and present arguments. At the end of the hearing, certain matters were put to her on which she was invited to make submissions. I will return to those matters. The point of present significance is that the first respondent was informed that she could request additional time to respond to these matters. The first respondent sought additional time. The Tribunal allowed the first respondent until 5.00 pm the following day, the Tribunal hearing having concluded at 1.55 pm. The first respondent responded in writing the following day. In doing so, she provided what appears to have been a complete explanation of the matters she wished to put before the Tribunal by way of response.

3    The Federal Circuit Court found that the Tribunal’s discretion under s 424AA(b)(iv) of the Migration Act 1958 (Cth) (the Act) miscarried because the Tribunal “allowed a clearly inadequate time” for the first respondent to respond to the matters to which I have briefly alluded. The Federal Circuit Court found that s 424A(1) of the Act had thereby been breached, resulting in jurisdictional error. The Federal Circuit Court also concluded that the Tribunal had breached s 425 of the Act.

4    The Minister appeals from these findings and conclusions. In doing so, the Minister also seeks leave to raise a ground that was not advanced before the Federal Circuit Court.

5    The first respondent has filed a notice of contention which seeks to support the findings and conclusions made below and which advances other grounds of review which the Federal Circuit Court had rejected.

6    The first respondent also sought leave to adduce further evidence in the appeal. I refused leave for the reasons given at [84]-[94] below.

The first respondent’s claims

7    In his reasons for judgment, the primary judge summarised (at [3]-[4]) the first respondent’s claims as follows:

[3]    The applicant claimed to fear harm in Fiji from the country’s military and police because she was viewed as a trouble-maker and opponent of the regime. She claimed she came to the adverse attention of the Fijian regime, including the police, on several occasions in the past because she was married to the former mayor of Savusavu, conducted community work, was President of the Hidden Paradise Multiracial Women’s Group (HPMWG) and had adverse encounters with the police in October and November 2011.

[4]    The applicant claimed to hold a particular fear of three men who she claimed had “great control over the army and the police”. The men she identified were: the current Minister for Agriculture, Fisheries and Forests (Colonel Inia Seruiatu), Commissioner for Northern region (Mr Alipate Bola) and the Sub-Inspector for Police Kapiaa. The applicant claimed further that the Commissioner and Colonel were close relatives and that she would not be discreet in expressing her views on basic rights if she returned to Fiji.

(Footnotes omitted.)

8    The parties did not challenge the accuracy of this summary or its sufficiency for the purpose of determining this appeal.

The Tribunal’s decision

9    The primary judge summarised (at [5]-[9]) the Tribunal’s principal findings in respect of the first respondent’s claims, as follows:

[5]    The Tribunal found that aspects of the applicant’s claimed circumstances were consistent and supported by reliable sources. For example, it accepted that she was married, had seven children, separated in 2009 and that her husband was the former Mayor of Savusavu and maintained a public profile. However, the Tribunal also found that the evidence did not reveal that her husband had any adverse profile or that the applicant would be at any risk of harm because of her connection to him, particularly as they had separated.

[6]    After exploring the applicant’s claims at a lengthy hearing, the Tribunal found that significant aspects of her claims and evidence were “problematic and lacking in credibility”. The Tribunal found that significant aspects of her evidence were “vague, changing, rehearsed, unconvincing and untrue”. For example, the Tribunal maintained its concern about the applicant’s evidence regarding her living arrangements in Australia and her departure from Fiji, which the Tribunal identified was different to other evidence that was before it.

[7]    The Tribunal’s credibility concerns were compounded by the applicant having identified no difficulty in leaving Fiji, and having delayed departure for two months after her tourist visa was granted. The Tribunal did not accept that her explanations for the delay were plausible.

[8]    The Tribunal placed reliance on the very limited adverse approaches that the applicant claimed she experienced from any person or agent of the Fijian regime. In addition, the Tribunal found the applicant’s evidence that her daughter-in-law was approached and threatened was not credible and that her evidence about her role with the HPMWG was “uncertain and unconvincing” and in other respects “vague”. It also found that the applicant sought to interchangeably portray herself as vulnerable and elderly; but also claimed that she had spoken “critically and sarcastically to police” in October 2011.

[9]    Given its credibility concerns, the Tribunal did not accept the applicant’s claims about being President of the HPMWG or that she had had the claimed adverse encounter with the police in October 2011. Nor did it accept on the basis of its credibility concerns that she had any adverse profile with the police in November 2011 or confronted them in February 2012. Similarly, the Tribunal was not satisfied that the applicant had any intention or desire or would speak out about human rights. For these reasons, the Tribunal was not satisfied that she met the refugee or complementary protection criteria for a protection visa.

(Footnotes omitted.)

10    Once again, the parties did not challenge the accuracy of this summary for the purpose of determining this appeal. There are, however, other findings by the Tribunal which are at the centre of the appeal, to which I now turn.

11    One section of the Tribunal’s decision record was devoted to certain concerns which the Tribunal expressed concerning the first respondent’s overall credibility. The Tribunal recorded that it had had the benefit of exploring the first respondent’s claims during a hearing of approximately three hours. As noted in the findings above, the Tribunal found that significant aspects of the first respondent’s evidence given at that hearing were “vague, changing, rehearsed, unconvincing and untrue”.

12    Early in the hearing, the Tribunal explored the first respondent’s living arrangements in Australia. The first respondent told the Tribunal that she was living at Townsville in the house of a friend of her brother. She said that she lived there with the friend, his wife, their children and one grandchild. In response to a direct question from the Tribunal, the first respondent said that, during her time in Australia, no relative of hers lived at that house. She said that her brother lived on Palm Island with his family and a cousin.

13    The first respondent said that she worked at a nursing home on Palm Island. When on Palm Island, she stayed with her brother. The first respondent also said that she knew a lady on Palm Island who I will simply refer to as “Maria”, who worked at the same nursing home. In response to a direct question from the Tribunal, the first respondent said that she was not related to “Maria”.

14    The Tribunal also explored the circumstances in which the first respondent travelled to Australia from Fiji. The first respondent said that she travelled alone but met “Maria” by coincidence when she (the first respondent) was paying for her airfare to Australia. The first respondent said that, before that time, she had no idea that “Maria” was intending to come to Australia. When asked, the first respondent said that she had had no interaction with “Maria” in Fiji before coincidentally bumping into her while paying her airfare to Australia.

15    The first respondent’s evidence about her living arrangements in Australia, and her travel to Australia, was the catalyst for the Tribunal putting certain information to the first respondent, purportedly under s 424AA of the Act. In general terms, s 424AA provides that the Tribunal may orally give to a visa applicant, appearing before the Tribunal because of an invitation under s 425 of the Act, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review.

16    It is appropriate to quote the Tribunal’s findings (at [21]-[22]) in relation to this matter.

21.     Later in the hearing the Tribunal put to the applicant under section 424AA of the Act that it has information from a department Tourist Visa application which indicates that the applicant and another Fijian lady (person X) applied for their Australian Tourist visas at the same time in March 2012, with a person of the applicant’s name and passport number providing a letter to the department indicating that she and X are cousins. Also: department records indicate that they travelled to Australia on the same flight and cleared immigration within seconds of one another; and Tribunal records indicate that they currently reside at the same address in Townsville. The Tribunal noted that the above is relevant to the review as it appears very different from the evidence she gave earlier regarding her travels to Australia, having only coincidentally found out of “Maria’s” trip to Australia and having no relatives other than the ones she named living at the address she gave in Townsville. The Tribunal noted that if it relies on the information put to her it may conclude that she has not been forthcoming or truthful in the evidence she has given, not only in relation to matters specifically referred to above, but more generally. The Tribunal informed her of her right to request additional time to respond but noted that she may also respond immediately.

22.    The above information was put to the applicant at the end of her Tribunal hearing, after all her claims had been fully explored. She requested additional time to respond which was allowed. Her written response, provided the day after the hearing was to the effect that she and X are first cousins; she didn’t disclose that during the hearing as she considers her application to be separate and X’s details to be confidential; she has hypertension and high blood pressure, had a headache, felt dehydrated “uneasy and barely conscious” during her hearing but “I kept it to myself and pretended everything was alright” and “was blank” when asked about her relationship with X; she now realizes the “extent of the blunder that I have made” and in hindsight thinks she did not answer other questions properly due to anxiety, stress and pressure; her claims are based on her own experiences and she is not aware of X’s claims; and she apologizes to the Tribunal if her evidence raises doubts and she did not intend to mislead the Tribunal.

17    The Tribunal’s consideration of the first respondent’s response, and its findings in relation thereto, were as follows:

23.    The Tribunal has considered the above in the context of all the evidence before it. Given that the applicant’s claims regarding her state of health and wellbeing during the hearing: were not advanced at any point during the hearing; have only been advanced in response to significant credibility concerns being put to the applicant; are not supported by independent evidence; and arise in the context of extensive credibility concerns detailed in the balance of the Tribunal’s considerations, the Tribunal finds them unconvincing in addressing the concerns put to the applicant. The Tribunal notes that at no stage did it mention to the applicant that X has lodged a Protection visa [application] or ask the applicant to disclose personal identifiers regarding X. It had originally asked her only if she most recently travelled alone to Australia from Fiji, about her living arrangements in Australia and her relatives in Australia. The Tribunal considers the applicant’s original responses to the Tribunal, which omitted any reference to X, to have been deliberate and to demonstrate a willingness on her part to provide false and/or misleading evidence to the Tribunal. This casts doubt on the applicant’s general reliability and credibility as a witness.

18    The present appeal turns essentially on this part of the Tribunal’s review. Leaving aside the various matters raised by the first respondent’s notice of contention, there are essentially three questions that arise in the appeal.

19    The first is whether the information that the Tribunal put to the first respondent was information that was required by s 424A(1) of the Act to be put to her (the first question). This question, which is raised by the Minister’s first ground of appeal, was not raised in the Federal Circuit Court and the Minister requires leave to raise it now. The first respondent opposes leave being granted.

20    The second is whether the Tribunal’s decision to adjourn the review for a little over a day (from 1.55 pm on 10 September 2013 to 5.00 pm on 11 September 2013) to allow the first respondent an opportunity to respond to the information, was unreasonable as a matter of law or procedurally unfair, as the primary judge found it to be (the second question). This question is raised by the Minister’s second and third grounds of appeal.

21    The third is whether the Tribunal breached s 425 of the Act in the circumstances found by the primary judge, which I will describe below (the third question). This question is raised by the Minister’s fourth to sixth grounds of appeal.

Relevant statutory provisions

22    Section 425(1) of the Act provides:

(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.

23    Section 424A of the Act relevantly provides:

424A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

…

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)     that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

…

24    Section 424AA of the Act relevantly provides:

424AA    Information and invitation given orally by Tribunal while applicant appearing

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

…

25    Section 422B of the Act provides:

422B    Exhaustive statement of natural justice hearing rule

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

(2)    Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

The first question

26    The primary judge’s finding that the Tribunal’s discretion under s 424AA(b)(iv) of the Act miscarried and resulted in jurisdictional error was based on the premise that the information referred to in [21] of the Tribunal’s decision record was information that the Tribunal was required to give to the first respondent under s 424A(1) of the Act.

27    At the outset, it is necessary to say something about the relationship between s 424A(1) and s 424AA of the Act. A failure to comply with s 424AA(b)(iv) of the Act does not itself constitute jurisdictional error. In SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 (SZMCD) at [74]-[87], the Full Court explained that a decision to engage s 424AA of the Act is discretionary in the sense that the Tribunal is not obliged to take a course which engages its provisions but may do so if it considers that course to be appropriate. However, the Tribunal must comply with s 424A. A breach of s 424A, unlike a breach of s 424AA(b)(iv), constitutes jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [77]-[78], [173] and [204]- [208].

28    In SZMCD, Tracey and Foster JJ said (at [77]):

[77]    The immediate effect of a failure properly to comply with s 424AA is that the Tribunal will have purported to exercise a procedural discretion but will have in fact failed to do so in the manner required by the statute. The relevant sections when read together in their context suggest that the overriding obligation to provide the applicant with clear particulars of relevant information subsists and will be required to be discharged by other means (ie through s 424A(1)).

29    Therefore, in the present case, it is without relevant consequence to s 424A(1) of the Act that, in purporting to comply with s 424AA(b)(iv), the Tribunal failed to allow an adequate time for the first respondent to respond to the information referred to in [21] of the decision record if, as a matter of law, this information was not information of the kind which s 424A(1) required the Tribunal to give.

30    When s 424A(1)(a) of the Act refers to information that “would be the reason, or a part of the reason, for affirming the decision that is under review”, it is not referring to every matter that the Tribunal might think to be relevant to the decision. Rather, it is directing attention to, and only referring to, information that would be tantamount to a rejection, denial or undermining of the visa applicant’s claims to be a person to whom Australia owes protection obligations under the Act: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [17]. Further, “information” for the purposes of s 424A(1)(a) is information that is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”; s 424A(1)(a) is not engaged by any material that contains or tends to reveal inconsistencies in the visa applicant’s evidence: SZBYR at [18]-[19].

31    There are two matters to note concerning the information referred to in [21] of the decision record. First, it is not information which contains a rejection, denial or undermining of the first respondent’s claims to protection as summarised in [7] above. Put another way, the information was not of “dispositive relevance” to the Convention claims advanced by the first respondent: MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 at [27]-[29]; SZMDS v Minister for Immigration and Citizenship (2009) 107 ALD 361 at [14]. It was simply information about the first respondent’s travel arrangements and travel to Australia and her living arrangements in Australia. Secondly, as the Minister submits, the information itself is “mere inconsistency” or “evidence that [came to be] relied upon to find inconsistency”. I reject the first respondent’s submissions to the contrary.

32    I accept, therefore, the Minister’s submission that the information referred to in [21] of the decision record is not information to which s 424A(1)(a) refers. It follows that the Tribunal was not obliged to give this information to the first respondent under s 424A(1)(a). Its resort to s 424AA for that purpose was mistaken. Further, the first respondent’s application for judicial review before the Federal Circuit Court proceeded on the mistaken basis that s 424A(1)(a) required the Tribunal to give the information to her. The primary judge’s finding that the Tribunal’s discretion under s 424AA(b)(iv) miscarried and resulted in breach of s 424A(1) and, hence, in jurisdictional error, cannot be sustained.

33    I am satisfied that leave should be granted to raise this point now. It is expedient in the interests of justice to do so. Despite the first respondent’s submissions to the contrary, the point is plainly meritorious, for the reasons I have given. The point raises a legal question, namely the proper characterisation of the information referred to in [21] of the decision record having regard to the requirements of s 424A(1) of the Act. The first respondent is not prejudiced, in a practical way, by the matter being raised now, even though the point should have been taken below by the Minister. Further, the point should be determined now. The Federal Circuit Court quashed the Tribunal’s decision and remitted it for redetermination according to law. It is not in the interests of justice that the Tribunal proceed again to deal with the review on the basis that s 424A(1) applies in respect of that information.

34    Notwithstanding this conclusion, I propose to consider whether there was a breach of s 424AA(b)(iv), as found by the primary judge, assuming the requirement of s 424A(1) was attracted as the primary judge assumed it to be.

The second question

35    The primary judge’s finding that the Tribunal’s discretion “miscarried” may suggest that his Honour was confining attention to whether the Tribunal’s exercise of the power under s 424AA(b)(iv) was unreasonable as a matter of law. When seeking judicial review in the Federal Circuit Court, the first respondent alleged that the Tribunal’s decision to grant her “one day” in which to respond to the information was “harsh and thus it was a denial of procedural fairness as well as an exercise of discretion in a manner that was Wednesbury Unreasonable”. In his reasons for judgment, the primary judge did not deal individually with the separate allegations of procedural unfairness and unreasonableness as a matter of law. Nevertheless, it is sufficiently clear that the primary judge considered both grounds to be engaged by the Tribunal allowing “a clearly inadequate time”.

36    The primary judge identified the information in [21] of the decision record as “the adverse information in issue”. His Honour quoted paragraphs [18]-[23] of the decision record in full. The primary judge then found (at [19]):

[19]    The transcript confirms the tenor of the discussion between the Tribunal and the applicant about the adverse material and the applicant’s request for time to respond to it. The applicant was plainly taken aback by the information put to her and did not know at the time how to respond to it. She did not say that one day was inadequate and, indeed, she did respond the following day. The question is, however, whether the applicant was given a fair opportunity to respond.

37    After making these observations, the primary judge moved to a different matter—the fact that the Tribunal had given a decision in its review of “Maria’s” case for a protection visa. In that decision, the Tribunal made adverse credit findings against “Maria”. Those findings were based, in part, on inconsistencies in certain evidence initially given by “Maria” and information put to her in relation to her travel to Australia from Fiji and her accommodation arrangements in Australia. The following passage is taken from the Tribunal’s decision record in relation to “Maria’s” application for review. The reference to “X” is to the first respondent:

11.    While the applicant told the Tribunal early in the hearing that she: most recently came to Australia alone and with no other family member or relative; lives at a specified address in Townsville with her Australian cousin Rusi Varani, his wife and children and that no other relative or person has ever lived with her at that address; works on Palm Island; does not personally know anyone else who has applied for a Protection visa in Australia. However, as put to her under section 424AA, all of the above claimed circumstances are inconsistent with other information before the Tribunal. Specifically, as put to the applicant, documentation provided in respect of her most recent Australian Tourist visa application together with Department movement records and Tribunal records indicate that: she applied for that visa with her cousin X (whose name and passport details are specified in that documentation); they travelled to Australia on the same flight, entered Australia on the same date and time; and they currently reside at the same address in Townsville. In response the applicant offered that she did not mention this earlier as her cousin has applied separately for a Protection visa and she didn’t think she needed to mention that cousin. However, as put to the applicant, this does not overcome the Tribunal’s concerns that she appears to have not been forthcoming or truthful in answering the Tribunal’s questions regarding aspects of her claimed circumstances, which in turn raises concerns about the truthfulness of other aspects of her evidence. When the applicant ultimately changed her evidence and told the Tribunal that she did travel to Australia with X, did live with X in Townsville and added that they also work together on Palm Island, the Tribunal asked, in the context of the time they appear to have spent together, she has any understanding of why X fears returning to Fiji. Her response impressed the Tribunal as evasive, comprising: long pauses; she has not read her cousin’s application or claims; and she does not know any detail about why X is seeking Australia’s protection. The Tribunal considers the above to raise significant concerns regarding the applicant’s credibility as a witness, and considers it to demonstrate a willingness on her part to give incomplete, evasive, misleading and/or false responses to clear and direct questions put to her by the Tribunal.

38    The primary judge noted that the first respondent had not been put on notice that the Tribunal had determined “Maria’s” application for review or had made adverse credit findings against “Maria”. The primary judge said (at [22]):

[22]    If the Tribunal had explained to the applicant, at the hearing, that it had already found that the information in issue meant that her cousin should not be accepted as truthful and that the applicant needed to explain to the Tribunal why the same conclusion should not be reached in her case, the allowance of one day might have been sufficient. However, the Tribunal did not explain that to the applicant. In the circumstances, in my view, the provision of a single day was not sufficient to permit the applicant to respond effectively. It was inevitable that she would want to discuss the circumstances with her cousin. The applicant needed time to consider what conclusion the Tribunal had already reached in relation to the same information in her cousin’s case and to attempt to distinguish her case. In the circumstances, the applicant reasonably needed more than one day and the Tribunal almost certainly knew that. The Tribunal decision in the applicant’s cousin’s case could not have been despatched prior to 6 September 2013 and it is doubtful whether the applicant’s cousin had received it by the time of the applicant’s hearing, let alone had the opportunity to discuss it with the applicant. In my view, the exercise of the Tribunal’s discretion under s.424AA(b)(iv) miscarried because the Tribunal allowed a clearly inadequate time for the applicant to consider and respond to the earlier and related decision of the Tribunal (which the Tribunal itself probably could not disclose and which the applicant needed to find out about from her cousin) and which impacted fundamentally upon her case.

(Footnotes omitted.)

39    It can be seen from this passage that the primary judge’s finding that the Tribunal’s discretion under s 424AA(b)(iv) miscarried was based on his judgment that the time allowed by the Tribunal was inadequate in order for the first respondent to consider and respond to the adverse findings and decision in “Maria’s” application for review and how the first respondent could distinguish her own case from “Maria’s” case.

40    In my respectful view, this passage in the primary judge’s reasons reveals error. The primary judge addressed the wrong question. The question the primary judge should have addressed was the adequacy of the time allowed to the first respondent to respond to the information in [21] of the decision record that had been put to her (the relevant information). In [32] of his reasons, the primary judge accepted that there was nothing on the face of the Tribunal’s decision to indicate that it considered the answers given by “Maria” as relating directly to the first respondent’s claims for protection or the first respondent’s credibility when making its decision in relation to the first respondent’s application for review.

41    I will return to this part of the primary judge’s reasons when dealing with the Minister’s appeal against his Honour’s finding that s 425 of the Act was also breached. But, before departing from this topic, I should also record that on no view could the Tribunal’s findings concerning “Maria” and her application for a protection visa stand as the reason or part of the reason for the Tribunal affirming the decision that was under review in the first respondent’s case. In other words, this could not be information that the Tribunal was required by s 424A(1)(a) of the Act to give to the first respondent in respect of the decision under review.

42    Because the primary judge addressed the wrong question, there is nothing in his Honour’s reasons to indicate why the Tribunal’s exercise of power to allow the first respondent from approximately 1.55 pm on 10 September 2013 to 5.00 pm on 11 September 2013 to respond to the relevant information was either procedurally unfair or unreasonable as a matter of law. It is to be remembered that the relevant information was, contrary to the substance of the evidence already given by the first respondent in response to the Tribunal’s questions, that:

    the first respondent and “Maria” had applied for Australian tourist visas at the same time in March 2012;

    in relation to “Maria’s” tourist visa application, the first respondent had provided a letter to the Department of Immigration and Citizenship indicating that she and “Maria” were cousins;

    the Department’s records indicated that the first respondent and “Maria” travelled to Australia on the same flight and cleared Immigration within seconds of each other; and

    the Tribunal’s records indicated that the first respondent and “Maria” live at the same address in Townsville.

43    These are simple factual propositions concerning the relationship between the first respondent and “Maria”. One would have thought that the propositions were, to the first respondent’s then present knowledge, either true or false. After the Tribunal had explained the possible significance of the inconsistencies that were thrown up by the relevant information, and of the first respondent’s right to require additional time to respond, the first respondent sought additional time. When asked why an extension of time was needed, the first respondent replied that she needed time “to go and think about it because at the moment I have no explanation”.

44    Despite the first respondent’s submissions to the contrary (which included reference to non-relevant time periods prescribed in the Migration Regulations 1994 (Cth) and certain decisions of the Federal Magistrates Court of Australia dealing with requests for time under s 424AA(b)(iv) in different factual circumstances), I am not persuaded that the period allowed for the first respondent’s response was procedurally unfair. The first respondent did not suggest at the hearing on 10 September 2013 or when providing her response on 11 September 2013 that there was any complicating factor which would render the time allowed for her response to be insufficient to allow her to make a proper response or, indeed, to make the response she wished to make. The response given was, in fact, two pages in length. The first respondent was given a reasonable opportunity to respond, and did so. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Hayne, Kiefel and Bell JJ observed (at [82]) that the Tribunal is not “under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence.”

45    Similarly, I am not persuaded that the exercise of a power was unreasonable as a matter of law. The exercise of the power was not pursuant to a decision that was illogical, irrational or clearly unjust. Nor could it be said that the decision was arbitrary or capricious. The transcript of the hearing before the Tribunal shows that the Tribunal gave consideration to the nature of the relevant information and made an evaluative judgment as to the time required to respond. In my view, the time given was within the bounds of reasonableness in the circumstances. The time given was not unreasonable.

The third question

46    This question relates to the fact that, prior to the hearing, the Tribunal had conducted a review in respect of a decision not to grant “Maria” a protection visa. Before the Federal Circuit Court, the first respondent alleged that the Tribunal questioned “Maria” about the first respondent’s case and, further, drew adverse inferences from “Maria’s” inability to provide a clear response to the Tribunal’s questions. The particulars of the allegations did not descend to identifying the questioning on which the first respondent relied or the adverse inferences that were said to have been drawn. In the course of the appeal hearing, I was referred to the passage from the Tribunal’s decision record (in respect of “Maria’s” review) quoted in [37] above, and the following passages in the transcript of “Maria’s” hearing:

TRIBUNAL:    So why did you not mention her when I asked who was living in your household in Townsville?

WITNESS:    Sorry, ma'am, that was just my understanding. I thought we were considered separate - separate people. That was just my understanding for that because I’m now in Townsville. Even in Palm Island, we worked together same (indistinct) in Palm Island.

TRIBUNAL:    You mentioned that you have made separate applications. Has she also applied for a protection visa?

WITNESS:    That is right, ma'am.

TRIBUNAL:    Do you know what her claims are?

WITNESS:    No.

TRIBUNAL:    You do not know why she fears returning to Fiji?

WITNESS:    No.

TRIBUNAL:    Even though you lived together and came here together?

WITNESS:    That's right. I haven't read these submissions or written response.

TRIBUNAL:    No, but have you - I mean, you lived together, you're cousins, you came here together. Have you not mentioned why you are afraid or why she is afraid to return to Fiji?

WITNESS:    We talk about that, why we afraid. We talk about it and--

TRIBUNAL:    Why has she said she's afraid?

WITNESS:    I did not really get into - like, we were just having our, our conversation (indistinct) like, to what she applied for - when we applied - like, we applied on different visas, ma'am. Like, we were dealt with separately and to the contents of what she has in the submission, man, honestly - to be honest with you - I don’t really know. I don’t really know.

TRIBUNAL:    Yes, I am not asking about the detail or what she has written, or anything like that, but I mean, it seems clear now that you came to Australia together, you lived together in Townsville. You live and work together in Palm Island. It seems you have had a lot of opportunity to discuss why you are afraid to return to Fiji, each of you. I am just wondering even if you know the [basic] gist of why she might be afraid?

WITNESS:    I - honestly, I wouldn't really understand her details.

47    The first respondent’s case before the Federal Circuit Court, and on appeal, was that she was denied procedural fairness because the Tribunal did not disclose to her that it had questioned “Maria” about her (the first respondent’s) claims for protection. The first respondent also said that the Tribunal had drawn adverse inferences about “Maria’s” credibility because of “Maria’s” inability to provide clear responses to the Tribunal’s queries about the first respondent’s protection claims. The first respondent submitted that these matters gave rise to a reasonable inference that the Tribunal suspected that the first respondent and “Maria” had colluded in formulating their claims and that this was a matter that was required to be put to the first respondent under s 424A(1) of the Act. Alternatively, the first respondent alleged that, if the Tribunal did not suspect collusion, it had taken irrelevant considerations into account “by trying to link the bases of the [first respondent’s] claim with the cousin or the cousin’s case because of some undisclosed reason.”

48    As noted above, the primary judge dealt with these allegations in the following way. His Honour accepted that there was nothing on the face of the decision record to indicate that the Tribunal considered that “Maria’s” answers related directly to the first respondent’s claims for protection or the first respondent’s own credibility when making its decision. Further, his Honour accepted that the evidence given by “Maria” was not the reason or a part of the reason for affirming the decision under review in the first respondent’s case. Thus, the Tribunal was not obliged by s 424A to put “Maria’s” evidence to the first respondent. Nevertheless, his Honour reasoned that, because the Tribunal in “Maria’s” case had reached an adverse credibility finding in respect of “Maria”, based on the same information put to the first respondent, the Tribunal needed to do more than give the first respondent the opportunity to comment on the relevant information in order to ensure that she was given a fair hearing. That something “more” was “the opportunity to distinguish [the first respondent’s] case from that of her cousin”: see at [32].

49    The primary judge continued (at [33]):

[33]    In my opinion, the Tribunal did not do enough at the hearing to ensure that the applicant understood that the review would turn on her credibility in circumstances where the credibility of her cousin had already been rejected. How the Tribunal could meet that obligation while maintaining the confidentiality of the applicant’s cousin’s review would have been problematic but not impossible. In my opinion, there was a breach of s.425 of the Migration Act.

50    It can be seen, therefore, that the primary judge found that the Tribunal breached s 425 in two respects. First, it failed to give the respondent the opportunity to attempt to distinguish her case from “Maria’s” case. Secondly, the Tribunal did not do enough at the hearing to ensure that the first respondent understood that the review would turn on her credibility, when “Maria’s” credibility had been rejected.

51    In my respectful view, the primary judge’s reasoning reveals error. Division 4 of Pt 7 of the Act, in which s 425 and s 424A are found, is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 422B. Section 424A provides for the information which the Tribunal is obliged to give to an applicant for review. The primary judge accepted that “Maria’s” evidence was not required to be put to the first respondent under s 424A. That being so, from where does the obligation arise to give the first respondent an opportunity to attempt to distinguish her case from “Maria’s” case? Moreover, how could this be done, given that, by force of s 429 of the Act, the hearing of an application for review by the Tribunal must be in private? The primary judge considered s 425 to be the source of the obligation. But, with respect, this cannot be correct.

52    Section 425 of the Act is directed to inviting an applicant for review to attend a hearing. In Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541, the Full Court described (at [44]) the role of s 425 in the following way:

[44]    The right to a hearing is clearly an important and central right in the merits review system established by Pt 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 251 [13]; Perera v Minister of Immigration and Multicultural Affairs (1999) 92 FCR 6 at 16-17 [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.

53    Section 425 imposes an obligation on the Tribunal to provide a real and meaningful invitation, whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37]. But s 425 is directed to the invitation, rather than the hearing itself. By dint of s 422B, s 424A is to be treated as exhaustive of the requirements of procedural fairness relating to an applicant’s right to comment on adverse material which is known to the Tribunal and is to be relied upon by it: WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [57]; see, in relation to analogous provisions of the Act, Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173 at [40]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [41]-[42].

54    As the Minister correctly submitted, s 425 is not an overarching or “catch-all” procedural fairness provision. It cannot be used, as the primary judge apparently considered it could be used, to require the Tribunal to disclose to a review applicant the content or substance of its evaluation of, or conclusions on, the evidence of another person given in another review. Further, fairness did not require that the first respondent be given an opportunity to distinguish her case from “Maria’s” case, particularly when, in the first respondent’s written response to the Tribunal, she professed to have no knowledge of the grounds of “Maria’s” claim for protection.

55    The primary judge also erred in concluding that the Tribunal did not do enough at the hearing to ensure that the first respondent understood that the review would turn on her credibility in circumstances where “Maria’s” credibility had been rejected. There are two things to be said about his Honour’s conclusion. First, the fact that “Maria’s” credibility had been rejected in another review was irrelevant to the first respondent’s review and was not a matter that the Tribunal was required to put to the first respondent. I should add that there is nothing to suggest that the Tribunal even thought that “Maria’s” credibility was relevant to the first respondent’s review. Secondly, what was relevant to the first respondent’s review was the first respondent’s credibility. When putting the relevant information to the first respondent, the Tribunal made abundantly clear to the first respondent the significance of that information:

The conclusion that the Tribunal may draw in relying on that information is that you have not been entirely truthful or forthcoming in your evidence, and that may cause it to doubt the truth and credibility of your evidence not only in relation to Maria, but more generally.

56    It is difficult to think how the Tribunal could have been clearer in informing the first respondent of the relevance of the information and the consequences of the Tribunal relying on it.

Notice of contention

57    Apart from the contentions which she advanced to support the primary judge’s findings that s 424A(1) and s 425 had been breached, the first respondent raised two contentions as to why the Federal Circuit Court’s judgment quashing the Tribunal’s decision should be affirmed.

58    The first contention is that the primary judge should have found that the way in which the Tribunal dealt with two incidents—referred to as “the dance incident” and “the hospital incident”—was legally unreasonable in the sense referred to in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury).

59    The second contention is that the primary judge should have found that the Tribunal was biased or that there was an apprehension of bias.

The dance incident/hospital incident

60    The first respondent’s claim was that she faces harm in Fiji at the hands of the Fijian military and/or police because she is viewed as “a troublemaker and opponent of the regime”. She claimed that she had come to the attention of “the Fijian regime” for cumulative reasons, including the dance incident and the hospital incident.

The dance incident

61    The first respondent claimed that she had organised a fundraising dance for the Hidden Paradise Multiracial Women’s Group (HPMWG) in Savusavu in 2011 which brought her into conflict with the local police. According to the first respondent, a brawl occurred at the dance which led to her being taken to a police cell where she was held overnight and physically mistreated. The first respondent claimed that the incident had occurred on or around 15 October 2011.

62    The Tribunal was not satisfied that the first respondent organised a fundraising dance for the HPMWG in October 2011 or at any other time. The Tribunal was not satisfied that the first respondent was taken to a police station in 2011 or was mistreated by the police or military in any way in connection with the dance event. Further, the Tribunal was not satisfied that the first respondent had developed any adverse profile in connection with the claimed incident.

The hospital incident

63    The first respondent claimed she went to Savusavu Hospital in February 2012 for treatment. She was diagnosed with pneumonia. The first respondent claimed that a patient “went on a rampage”. The police were called. The first respondent claimed that when the police arrived she “started shouting at them why they [had] not come earlier when they were informed”. She claimed that after she was discharged from hospital the next morning, the police came to her house and took her in for questioning because she was insulting the government and the police. The first respondent claimed that she was then taken to an army camp where she was physically mistreated.

64    The Tribunal was not satisfied that, in relation to this incident, the first respondent spoke directly to the police as she had claimed or that she had made herself known to the police or military in any way that singled her out for future harm. The Tribunal was not satisfied that the police or military went to her home or took her away for questioning or mistreatment in February 2012, or at any other time.

Consideration

65    In respect of both incidents, the notice of contention particularises the first respondent’s contention as follows:

The Tribunal drew adverse inferences on credibility while none existed or based on pure speculation. It appeared that the Tribunal was intent on drawing negative inferences whatever response the first respondent gave bordering on demonstrating apprehended bias.

66    This ground of contention is reflected in one of the grounds of review in the Federal Circuit Court, which the primary judge rejected. In my respectful view, the primary judge was correct to do so.

67    In the course of submissions, I was referred to passages from the transcript of the hearing before the Tribunal where the first respondent was questioned on the claimed incidents. Having considered the relevant passages of the transcript, in conjunction with the Tribunal’s reasons dealing with these claimed incidents, I am satisfied that it was open to the Tribunal to make the findings it did. Nothing in those passages sustains the contention that the Tribunal was intent on drawing negative inferences from whatever response the first respondent gave. The Tribunal was entitled to probe and challenge the first respondent’s evidence. It did not do so unfairly or in a way to suggest that it had a closed mind on those matters.

68    The Tribunal’s findings in relation to these claimed incidents were based essentially on its assessment of the first respondent’s credibility after testing the evidence she gave and also after taking into account its general concerns about the first respondent’s credibility, which I have discussed above. The primary judge correctly remarked that the Tribunal’s conclusion that the first respondent was not credible is a finding of fact par excellence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 at [67]. In its decision record, the Tribunal expressed its reasons for rejecting the first respondent’s evidence in relation to the incidents. No useful purpose would be served by me setting out those reasons here or by seeking to summarise them. As I have said, I am satisfied that it was open to the Tribunal to make the findings it did. The Tribunal’s findings in this regard are not illogical or irrational and the first respondent’s strong disagreement with the findings does not make them so. Moreover, in coming to its findings, it could not be said that the Tribunal was acting arbitrarily or capriciously. I reject the first respondent’s contention that the Tribunal’s adverse findings were based on inferences that could not be drawn or were based on pure speculation.

69    I also accept the Minister’s submission that the first respondent’s reliance on Wednesbury unreasonableness is misconceived. Wednesbury unreasonableness is really concerned with the exercise of discretionary power, not fact-finding as such.

Bias/apprehension of bias

70    The notice of contention particularises the first respondent’s contention as follows:

The way that the Tribunal conducted its hearing and the way it made its decision, especially the following matters cause apprehension that it was biased or lends credence to the fact that it was truly biased.

(i)    Its questioning of the Cousin about the first respondent’s case and prejudice lingering from there;

(ii)    Refusal of time for addressing 424AA issues;

(iii)    Making adverse findings without factual basis;

(iv)    Closed mind apparent from its efforts to find smallest of reasons to find credibility finding against the first respondent;

(v)    Exaggerated expression of credibility concerns; and

(vi)    Recklessly rejecting claims without due considerations.

The first respondent’s submissions

71    In her written submissions, the first respondent developed this contention in the following way. With respect to actual bias, the first respondent submitted that, after having dealt with “Maria’s” case and receiving her “confession” (by which I understand the first respondent to mean the matters set out in the quotation in [37] above), the Tribunal “acquired a certain attitude or mental frame adverse to” her (the first respondent). The first respondent submitted that the Tribunal formed an opinion that her case was not genuine and conducted the review hearing with that “frame of mind”.

72    The first respondent submitted that the Tribunal’s bias was manifested in a number of ways. First, she submitted that the Tribunal dealt with her request for an adjournment in relation to the “s 424A issue” abruptly and in an authoritarian manner, and that the time allowed for her to respond was unreasonable. The first respondent submitted that there was no reason or justification for that decision whatsoever. She submitted that it appears that the Tribunal did not want her to respond to the relevant information; it just wanted to dispose of her case.

73    Secondly, the first respondent referred to aspects of the Tribunal’s questioning of her in relation to the dance incident and the hospital incident.

74    Thirdly, the first respondent criticised the Tribunal for only giving her a break of no more than five minutes during the hearing.

75    Fourthly, the first respondent made a generalised submission that the Tribunal’s decision record showed that the Tribunal had a closed mind, which was “apparent from its efforts to find [the] smallest of reasons” to make credibility findings against her. She argued that the Tribunal made exaggerated expressions of its credibility concerns and had recklessly rejected her claims without due consideration. She also submitted that the Tribunal’s questioning was insulting, extreme and damaging to her dignity.

76    The first respondent relied on the same submissions to support her claim of apprehended bias. She submitted that the Tribunal’s treatment of her would cause an apprehension in the mind of a fair-minded observer that the Tribunal might not bring an impartial mind to the resolution of her case.

Consideration

77    I do not accept the various factual propositions that the first respondent has advanced to support her contention that the Tribunal was biased or that a fair-minded observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of her case.

78    There is nothing in the Tribunal’s decision record or in its questioning of the first respondent that would show that the Tribunal had formed the opinion that the first respondent’s case was not genuine because of any conclusion or finding it had reached or made in relation to “Maria’s” case, or that the Tribunal conducted the hearing “in that frame of mind”. In the language of the cases, there is nothing in the Tribunal’s decision record, or in the transcript of the hearing, that would show that the Tribunal had a closed mind to the issues raised and was not open to persuasion by the first respondent’s case: see the discussion of the authorities in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 103-105.

79    I have already rejected the first respondent’s contention that the time allowed to her to respond to the relevant information was unreasonable. I should, however, make clear that, having read the relevant passages of the transcript in relation to the granting of the adjournment, I do not accept that the Tribunal treated the first respondent in any manner that could possibly be described as abrupt or authoritarian. The Tribunal needed to question the first respondent on why she required an adjournment to respond, in order to inform its consideration, on a principled basis, on whether the adjournment should be granted and, if so, for what period of time.

80    I have also considered the Tribunal’s questioning of the first respondent in relation to the dance incident and the hospital incident. I will not repeat what I have already said in [67]-[68] above. The Tribunal’s questioning does not show that it had a closed mind that was not open to persuasion or suggest that a fair-minded observer would have a reasonable apprehension in that regard. In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, the High Court said (at [30]):

[30]    Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

81    I reject the first respondent’s submission that the Tribunal’s questioning of her was insulting, extreme or, by any objective assessment, damaging to her dignity. Similarly, I reject the first respondent’s submissions that the Tribunal’s decision record shows that it made efforts to find the smallest of reasons with which to make adverse credibility findings against the first respondent; or that it made exaggerated expressions of its credibility concerns; or that it rejected the first respondent’s claims recklessly and without due consideration. There is simply no foundation whatsoever for the first respondent’s submissions in this regard.

82    With respect to the submission that the Tribunal only allowed the first respondent a break of no more than five minutes during the hearing, I note from the transcript that the break was longer than that. Perhaps more importantly, when discussing the break the Tribunal indicated that it would be amenable to considering a break longer than five minutes if more time was needed. The first respondent did not suggest that more time was needed or indeed ask for more time. While the transcript indicates a concern on the part of the Tribunal not to waste time, it does not indicate that the Tribunal would not have granted more time had more time been requested.

83    Once again, this ground of contention is reflected in one of the grounds of review in the Federal Circuit Court, which the primary judge rejected. Having considered the way in which the contention has been advanced in this appeal, I, too, am satisfied that it should be rejected.

Leave to adduce evidence

84    As I have noted, the first respondent sought leave to adduce evidence in the appeal. The first respondent submitted that the purpose of this evidence was to establish, first, that she could not provide an adequate response to the relevant information within the time given by the Tribunal and, secondly, that “she had apprehension about the conduct of the Tribunal.”

85    Section 27 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) relevantly provides:

27 Evidence on appeal

In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence …

86    In NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 (NASB), the Full Court stated (at [42]):

[42]    In order for this Court to receive further evidence, generally speaking (cf: Cottrell v Wilcox [2002] FCAFC 53; [2002] FCA 232 at [18]-[21], citing CDJ v VAJ (1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 (‘of such importance as very probably to influence the decision’ and ‘of such weight as, if believed, would probably have an important influence on the result’); Orr v Holmes at 636 (‘high degree of probability that the admission of the new evidence would result in a different verdict’); Florance v Andrew (1985) 58 ALR 377 at 381 (‘such a different complexion on the case that a reversal of the former result ought certainly to ensue’); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) ‘almost certain that, … , an opposite result would have been reached by the primary judge’).

87    In Sobey v Nicol and Davies as Joint and Several Receivers and Managers of the Property of Mercorella and the Scheme and as Joint and Several Liquidators of the Scheme (2007) 245 ALR 389 (Sobey), the Full Court stated (at [71]-[72]):

[71]     The discretion to receive further evidence must be exercised judicially, consistently with proper judicial process and in the interests of justice. It is highly unlikely that the legislature intended that s 27 should be construed in such a way as to obliterate the distinction between original and appellate jurisdiction.

[72]    The proper role of an appellate court under s 25 of the Federal Court Act has been considered on a number of occasions in recent years including in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 and Poulet Frais Pty Ltd v Silver Fox Co Pty Ltd (2005) 220 ALR 211; [2005] FCAFC 131 at [45]; it is ordinarily to correct error. Nothing in CDJ was, in our view, intended to minimise the force of the observation of Gibbs CJ and Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7; 65 ALR 656 at 660 that:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

88    In Shannon v Commonwealth Bank of Australia (2014) 318 ALR 420, Logan J noted (at [78]) that s 27 has not be construed so as to destroy the distinction between original and appellate jurisdiction and that, ordinarily, it is the trial of an action that affords the parties the opportunity to lead the evidence on which they rely. Thus, his Honour reasoned, good reason must be demonstrated before further evidence is received on appeal. In the same case, Flick and Perry JJ reasoned (at [127]) that to accede too readily to an application under s 27 to adduce further evidence would be tantamount to impermissibly shifting the arena of dispute from the primary judge to an appellate court.

89    The first respondent’s solicitor, Mr Silva, made an affidavit seeking to explain why the further evidence sought to be given by the first respondent in the appeal had not been given at the hearing before the Federal Circuit Court. In his affidavit, Mr Silva said:

The reason why this evidence was not adduced at the Federal Circuit Court hearing were as follows:

(i)    I presumed that prima facie the provision of just one day to respond to the Tribunal would have been found to be denial of procedural fairness and unreasonable under any circumstances, without adducing any evidence of the First Respondent’s personal circumstances; and

(ii)    I thought that since there was no reason, urgency, utility or justification for not giving more than one day and in that sense it was extreme, and thus unfairness was obvious, no further evidence was necessary.

(Errors in original.)

90    The further evidence sought to be given by the first respondent was set out in an affidavit which I marked as MFI 1. Without descending to the detail of the affidavit, it deals, firstly, with events immediately after the hearing on 10 September 2013 and, secondly, with aspects of the hearing before the Tribunal which, the first respondent would argue, indicate bias on the part of the Tribunal. With respect to the first mentioned subject, the first respondent says that, with professional help, she could have explained the “dependent nature” of her relationship with her cousin (“Maria”); that she and her cousin had not discussed each other’s protection visa cases; and why “this issue” should not affect the first respondent’s case.

91    I rejected the application for leave to adduce further evidence because Mr Silva’s affidavit shows that he considered the question of whether evidence should be adduced in the proceeding before the Federal Circuit Court and made a decision that such evidence was not necessary. This was a deliberate forensic decision. Further, the evidence now sought to be given was available and could readily have been given in the Federal Circuit Court proceeding. The evidence is not fresh evidence in the sense that it concerns events which happened, or documents brought into existence, since the date of the hearing before the primary judge: Sobey at [74]; Dreamtech International Pty Ltd v Federal Commissioner of Taxation (2010) 187 FCR 352 at [14].

92    Further, as the Full Court noted in NASB at [42], generally speaking it is not enough that the further evidence is simply relevant and otherwise admissible. In the normal course, it must be such as would affect the result. I do not consider that the further evidence that the first respondent seeks to give falls into that category. The affidavit describes her emotions and feelings following the hearing on 10 September 2013 and suggests that she might have better explained why she gave untruthful evidence. The further evidence does not materially advance the first respondent’s case as to why the period of time allowed to her to respond was inadequate in the circumstances. Indeed, save for one apparently new matter, it simply repeats the substance of some, but not all, of the matters that the first respondent had already put in the two page response she had given to the Tribunal. The new matter was what the first respondent described in her affidavit as the emotionally dependent nature of her relationship with her cousin. As advanced in the affidavit, this is a matter that the first respondent could have readily put to the Tribunal at the time. As so expressed, it was not a matter that required a longer period to respond than the first respondent had already been given.

93    Further, the aspects of the Tribunal’s questioning of the first respondent and the conduct of the hearing more generally on which the first respondent’s relies to establish bias, rise no higher than submissions that could be made independently of the further evidence. Indeed, the first respondent’s written submissions filed in advance of the hearing of the appeal relied on these matters and were further addressed by Mr Silva in oral submissions.

94    Put shortly, the first respondent failed to establish that the further evidence was of such a nature that it would be a proper exercise of the Court’s discretion to receive it at the hearing of the appeal.

Disposition

95    The Minister has established the grounds of appeal on which he relies. The first respondent has failed to establish the grounds of contention on which she relies. It follows that the appeal should be allowed and the orders of the Federal Circuit Court set aside. The first respondent should pay the appellant’s costs.

Associate:

Dated:    25 September 2015