FEDERAL COURT OF AUSTRALIA

Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396

ORDERS

THE COURT ORDERS THAT:

1.    There be an order in the nature of certiorari quashing the decision of the second respondent dated 31 March 2017.

2.    There be an order in the nature of mandamus directed to the second respondent requiring it to determine the application for review of the decision of a delegate of the first respondent dated 26 February 2016 according to law.

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

4.    There be liberty to apply in relation to confidentiality.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, who is a citizen of New Zealand, arrived in Australia in 2001. He was then nine years old.

2    In February 2012, the applicant was convicted of the offence of intentionally causing injury and the offence of affray. In April 2012, the applicant was convicted of the offence of recklessly causing injury. In July 2014, he was convicted of recklessly causing serious injury, recklessly causing injury and acting as a security guard without a licence. For the offence of recklessly causing serious injury, he was sentenced to 15 months’ imprisonment. For the offence of recklessly causing injury, he was sentenced to 10 months’ imprisonment.

3    On 3 August 2015, a delegate of the first respondent (the Minister) decided to cancel the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). That subsection provides that the Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because (relevantly) the person has a substantial criminal record; and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. There is no dispute that the applicant’s circumstances fell within the criteria for mandatory cancellation set out in s 501(3A).

4    The applicant applied, pursuant to s 501CA of the Migration Act, for revocation of the cancellation decision. On 26 February 2016, a delegate of the Minister decided not to revoke the cancellation decision.

5    The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision.

6    A hearing took place before the Tribunal at which the applicant was represented by counsel and the Minister was represented by a solicitor. In the course of his evidence-in-chief, the applicant gave evidence about an incident that had taken place in July 2016 while he was in immigration detention at Christmas Island (the July 2016 Incident). The applicant was cross-examined by the Minister’s solicitor, including about the July 2016 Incident. During the course of the cross-examination, the Minister’s solicitor sought to tender a DVD of CCTV footage of the July 2016 Incident. The Minister had not lodged a copy of the DVD with the Tribunal or provided a copy of the DVD to the applicant before the hearing. It is common ground on the appeal that the failure to do so constituted non-compliance with the Minister’s obligations under s 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Section 38AA, in broad terms, imposes a continuing obligation on a decision-maker to lodge relevant documents with the Tribunal, and to provide such documents to each other party to the proceeding, as soon as practicable after obtaining possession of the document. After an adjournment of some weeks to enable the applicant and his counsel to view the DVD, and further submissions, the Tribunal decided to accept the tender of the DVD. In submissions in support of the tender, and in closing submissions, the Minister’s solicitor relied on inconsistencies between the applicant’s original account of the July 2016 Incident and the CCTV footage to impugn the applicant’s credit.

7    On 31 March 2017, the Tribunal decided to affirm the decision of the delegate not to revoke the cancellation decision.

8    The applicant applies to this Court pursuant to s 476A of the Migration Act for judicial review of the Tribunal’s decision. The applicant relies on two grounds, namely that:

(a)    the decision of the Tribunal is affected by jurisdictional error, in that the Tribunal allowed the Minister to introduce evidence in the form of CCTV footage, in circumstances which led to the conduct of the review being procedurally unfair to the applicant; and

(b)    the decision of the Tribunal is affected by jurisdictional error, in that the Tribunal failed to consider clearly articulated arguments (relating to the similarity of the applicant’s circumstances as compared with his brother).

9    For the reasons set out below, I have concluded that the Tribunal’s decision to admit the DVD of the CCTV footage into evidence in the circumstances of this case resulted in a denial of procedural fairness to the applicant. Accordingly, the Tribunal’s decision is affected by jurisdictional error.

10    In relation to the other ground relied on by the applicant, I do not consider this to be established.

11    It follows from the above that there will be: an order in the nature of certiorari quashing the Tribunal’s decision; and an order in the nature of mandamus directed to the Tribunal requiring it to determine the application for review according to law.

Procedural background

12    The applicant’s application for review of the delegate’s decision dated 26 February 2016 was initially considered by the Tribunal in May 2016. On 17 May 2016, the Tribunal decided to affirm the decision under review. However, that decision of the Tribunal was set aside by consent by this Court in an earlier proceeding. On 24 August 2016, the Court ordered by consent that: a writ of certiorari issue quashing the decision of the Tribunal; a writ of mandamus issue directed to the Tribunal requiring it to determine the application for review according to law; and the Minister pay the applicant’s costs. The orders of the Court dated 24 August 2016 included the following note (by consent): “The [Minister] concedes that the [Tribunal’s] decision is affected by jurisdictional error in that the [Tribunal] failed to consider a mandatory consideration, being the best interests of minor children affected by the decision, being the applicant’s nieces, in compliance with Ministerial Direction No. 65 made under s 499 of the Migration Act 1958 (Cth).”

13    Subsequently, the Tribunal (differently constituted) heard the applicant’s application for review. It is this hearing that is relevant for present purposes. The hearing took place over two days, namely 19 January 2017 and 2 March 2017. The Tribunal provided its decision and reasons on 31 March 2017 (the Reasons). (Although the date on the first page of this document is 31 March 2016, this was corrected to read 31 March 2017 by a corrigendum.)

14    The present proceeding in this Court was commenced on 28 April 2017. On 16 August 2017, an order was made by consent giving the applicant leave to file an amended originating application by 21 August 2017. On that date, the applicant filed an amended originating application for review of a migration decision, setting out four grounds of review.

15    In his outline of submissions filed in advance of the hearing of the proceeding, the applicant indicated that he did not press grounds 2 and 4 in the amended originating application. It is therefore only necessary to consider grounds 1 and 3 in the amended originating application. These are in the following terms:

1.    The decision of the Administrative [Appeals] Tribunal (the Tribunal) is affected by jurisdictional error, in that the Tribunal allowed the Minister to introduce evidence in the form of CCTV footage, in circumstances which led to the conduct of the review being procedurally unfair to the applicant.

…

3.    The decision of the Tribunal is affected by jurisdictional error, in that the Tribunal failed to consider clearly articulated arguments.

Particulars

a)    The Tribunal failed to consider a clearly articulated argument relating to the similarity of the applicant’s circumstances as compared with his brother.

b)    Further particulars may be provided once the applicant has reviewed the transcript.

16    At the hearing of the proceeding, the Minister’s senior counsel submitted that the applicant’s oral submissions in relation to procedural fairness had gone beyond the scope of ground 1 in the amended originating process. The applicant’s senior counsel responded that his oral submissions had not gone beyond the scope of his written outline of submissions, and no objection to that document had been raised in the Minister’s written submissions. In these circumstances, I indicated that I proposed to deal with ground 1 as formulated in the amended originating application and as dealt with in the applicant’s written outline of submissions and oral submissions.

17    The proceeding was conducted on the basis of a Court Book (labelled Appeal Book) that included: documents lodged with the Tribunal; procedural documents filed in the Tribunal; some of the evidence that was before the Tribunal; and the Reasons. In addition, the following evidence was admitted in this proceeding:

(a)    A copy of an “Incident Detail Report” dated 10 January 2017 that dealt with the July 2016 Incident (the Serco Report). This document was in evidence before the Tribunal.

(b)    A statement made by the applicant dated 22 December 2016 that was in evidence before the Tribunal.

(c)    A statement made by the applicant dated 1 March 2017 that was in evidence before the Tribunal.

(d)    An affidavit of a solicitor acting for the Minister annexing a copy of the transcript of the Tribunal hearing, which took place on 19 January 2017 and 2 March 2017. (I note that the transcript for the second day refers to this as Day 3, but there were only two hearing days.)

Key legislative provisions

18    It is convenient to set out at this stage the key legislative provisions (as in force at the time of the Tribunal decision).

19    Section 37 of the AAT Act relevantly provided:

37    Lodging of material documents with Tribunal

…

Decision-maker must lodge material documents

(1)    Subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of:

(a)    a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

(b)    subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.

…

Statement of reasons and relevant documents to be given to other parties

(1AE)    A person who is required under subsection (1), (1AAB) or (1AB) to lodge a copy of a statement or document with the Tribunal within a particular period must, unless the Tribunal directs otherwise, also give a copy of the statement or document to each other party to the proceeding, within the same period.

20    Section 38AA provided as follows:

38AA    Ongoing requirement for lodging material documents with Tribunal

(1)    If:

(a)    subsection 37(1) or (1AAB) applies to a person in relation to an application for review of a decision; and

(b)    at any time after the end of the applicable period under the subsection and before the Tribunal determines the review:

(i)    the person obtains possession of a document; and

(ii)    the document is relevant to the review; and

(iii)    a copy of the document has not been lodged with the Tribunal in accordance with the subsection;

the person must, subject to any directions given under section 18B, lodge a copy of the document with the Tribunal as soon as practicable after obtaining possession.

(2)    Subsections 37(1AA), (1AE), (1AF) and (1AG) apply in relation to the requirement in subsection (1) of this section as if:

(a)    that requirement were the requirement referred to in those subsections; and

(b)    the references in subsections 37(1AE) and (1AF) to lodging or giving within a period were references to lodging or giving as soon as practicable.

Facts

21    The following statement of the facts is based on the Reasons, the documents in the Court Book, and the other documents that were in evidence in this proceeding (referred to above).

22    In 2001, the applicant arrived in Australia at the age of nine years.

23    In February 2012, the applicant was convicted of the offence of intentionally causing injury and the offence of affray.

24    In April 2012, the applicant was convicted of recklessly causing injury.

25    In July 2014, the applicant was convicted of recklessly causing serious injury, recklessly causing injury and acting as a security guard without a licence. For the offence of recklessly causing serious injury, he was sentenced to 15 months’ imprisonment. For the offence of recklessly causing injury, he was sentenced to 10 months’ imprisonment, with five months to be served concurrently with the first sentence.

26    On 3 August 2015, the cancellation decision was made.

27    The applicant applied under s 501CA of the Migration Act for revocation of the cancellation decision.

28    On 26 February 2016, a delegate of the Minister decided not to revoke the cancellation decision.

29    The applicant applied to the Tribunal for review of that decision.

30    On 10 May 2016, the first hearing before the Tribunal took place.

31    On 17 May 2016, the Tribunal affirmed the decision under review. This decision was later set aside by consent by this Court.

32    On 20 July 2016, while the applicant was in immigration detention at Christmas Island, an incident took place (referred to in these reasons as the “July 2016 Incident”). During the incident a detainee (who it is convenient to refer to as “Mr L”) was assaulted by several other detainees. In the course of the incident, the applicant punched Mr L. The evidence in relation to the incident is discussed later in these reasons.

33    On 24 August 2016, this Court made orders by consent quashing the first decision of the Tribunal. The orders have been set out above. As a result, there was a need for a new hearing to take place before the Tribunal.

34    On 19 January 2017, a second hearing before the Tribunal (differently constituted) commenced. The Tribunal was constituted by a Deputy President, a Senior Member and a Member of the Tribunal. The hearing was conducted afresh in the sense that no regard was had to the material before, or the findings of, the Tribunal on the earlier occasion. It is necessary to describe the hearing in some detail in order to provide proper context for the procedural fairness issue.

35    The applicant was represented by counsel at the hearing. The Minister was represented by a solicitor. Although the process was inquisitorial rather than adversarial in character, the hearing was conducted with each party presenting evidence and submissions. A number of witnesses were called on behalf of the applicant (including the applicant himself) and these were cross-examined by the solicitor acting for the Minister.

36    The applicant’s counsel presented an opening submission (Tribunal transcript, pp 2-4). Reference was made to the applicant’s offences. Counsel said: “We do not eschew the fact that those were serious, very serious, involved serious injury”. He submitted that the offences had occurred in a particular context and that “the tribunal will be comfortably satisfied that that context is most unlikely to repeat”.

37    Counsel for the applicant referred to the applicant’s brother and sister and submitted that there was a “parallel” between the applicant and his brother in that they were both “troubled youths [who had] spent some time in the criminal justice system” and “the purposes of sentencing [had been] effective” in turning around their lives (Tribunal transcript, p 3, lines 15-27).

38    In the course of the opening, the applicant’s counsel referred to the July 2016 Incident. He said (Tribunal transcript, p 4):

The tribunal will also hear evidence about [the applicant’s] behaviour in detention and it’s fair to say, one particular incident will take a considerable amount of attention where [the applicant] was involved in, what can only be described as an act of violence. The tribunal will see that that was in essence, self-defence but I’ll let the evidence speak for itself on that.

39    Although witness statements had been prepared, counsel for the applicant indicated that he wanted to lead evidence-in-chief orally from each of the witnesses, including the applicant (Tribunal transcript, p 5, lines 4-7; p 6, lines 6-10). The Tribunal was content with this course and the hearing proceeded in this way.

40    The solicitor for the Minister did not present an opening submission (Tribunal transcript, p 6).

41    The first witness was the applicant. Counsel for the applicant took him through a number of different matters, including his relationships with his family and church community, his criminal offences and what he had learned from his period of imprisonment. Counsel then led evidence from the applicant about how he had handled some potentially difficult or provocative situations that had occurred while the applicant was in prison or immigration detention (Tribunal transcript, pp 19-28). Counsel then addressed the July 2016 Incident. The applicant’s evidence was as follows (Tribunal transcript, pp 28-29):

Now, there’s another incident on Christmas Island where you punched a man. Do you remember that incident?---Yes.

Could you tell the tribunal the background to that incident?---Well, I didn’t find out till later what really happened, like on that day I was walking to the canteen to go get my food and I hear this yelling at C Block - I’m from B Block - and then I was walking past C Block and on the second floor there was some yelling going on and all I saw was this Iranian fellow with a home-made shiv.

What’s a shiv?---A knife. And - - -

Did you see what he made it from? Could you see that it - - -?---He had it from the - what’s it called - the dustpan - the dust?

Yes, the broom handle? Would that be it?---Yes.

So you could see this clearly?---Yes. It was light, yes.

And you could see this clearly?---Yes.

And you could see - - -?---It was light yes.

Could you see whether it was sharp?---Yes, it had a point, yes.

Yes?---Yes, he sharpened it every night, you know, and then I saw them charging at my - at my friends and then a scuffle happened on the top stairs.

And where are you at this stage?---I was on the bottom.

Yes?---And then where I was standing was right in front of where the stairwell is and as he was running down he was running towards me and it happened - it happened fast but all I saw him was angry with a shiv and running towards me so I didn’t take any risk, so I threw one punch and that was it and as he dropped it just went crazy from there. Everyone just jumped in and then I realised (indistinct) so I stood back.

What did you do?---I just stood back and then - then I saw the manager run in, that’s when I started like pulling back the boys and this guy was just bleeding on the ground.

So you remember this incident clearly?---Yes.

And is that where you used violence?---Yes.

Why did you use violence?---You know, I just thought “he’s got a shiv”.

So you saw that he had a weapon?---Yes. And he charged - and he was charging at me.

Did you think he might use that weapon against you?---Yes.

When you say he was charging at you what does that mean?---I made like - he was just like running towards me.

He was running toward you?---Yes.

Did he seem calm - angry?---No, he was angry. And then from there I just didn’t take no chances (indistinct).

“Didn’t take no chances,” what kind of chances? What were you worried about?---I wasn’t going to wait for him just, you know, to stab me, so I can - I don’t know, (indistinct).

Now, you’ve punched him so he must have come close enough for you to punch him?---Yes.

Was he - when he came that close to you could you still see the shiv - the knife?---Yes, it was in his left hand.

And were you worried that you might get attacked by that shiv?---Yes.

How do you feel about having used violence?---I like - when I started to hit him in that instant like I knew I stuffed up, like - like it hurt me like I had to - I had to use it again. I didn’t really want to, I don’t know it was just in my head like “You stuffed up again”.

Do you think you had any other choice?---No, because it happened fast, you know, like I don’t know - it just all happened fast for me. Before I knew it he was on the ground and then everyone jumped up and then, like, I actually started regretting it straight away because I didn’t - I didn’t want to use violence again and because everything like from my family, like struggling with pay, you know, making ends meet, like all of that kicked in and I - in my head I was just planning that and that’s all for nothing now, “You’ve done this - you stuffed up and like all that money has gone to waste now” you know, like.

42    During his evidence-in-chief, the applicant also said that he saw his brother as a role model in his life (Tribunal transcript, p 32, lines 30-37).

43    In the course of the applicant’s evidence-in-chief, his counsel tendered the applicant’s statement dated 22 December 2016 (Tribunal transcript, p 36). This statement included the following in relation to the July 2016 Incident (at [29]):

I have been involved in one incident in detention. Another detainee from Iran threatened my friends with a knife. He charged at them. It was in the balcony of a stairwell – I saw and heard what was happening from downstairs through the railings. They punched him and he ran away, running down the stairs towards me holding the knife, and I punched him when he got to me in defence, because he was running at me with a knife in his hand and I thought he was going to attack me. I didn’t know why he had attacked my friends or anything, all I knew is that he had a knife and had been aggressive. I was pretty shocked in the situation. The others then caught up and attacked him, which I was not involved in.

44    The Minister’s solicitor then cross-examined the applicant. After addressing a number of other topics, the solicitor turned to the July 2016 Incident (Tribunal transcript, pp 46-49). The solicitor indicated to the Tribunal that she had filed an incident report (being the document referred to in these reasons as the “Serco Report”). The solicitor then asked the applicant questions about where he was when he heard the fight. This included the following exchange (Tribunal transcript, pp 47-48):

And so when the victim ran down the stairwell where did you position yourself? Were you still at the entranceway - were you still watching? It’s not the case that you ran to the - you put yourself at the bottom of the stairwell to see what was going on?---No. I was already there.

You were where - sorry - in the - - -?---Because where the entrance is that’s where also the entrance is to the stairwell so I was already there.

Okay, so you were at the bottom of the stairwell?---Yes.

And the victim is running away from the people who are beating him up. He ran down the stairs and is it the case that he ran out the entrance to the stairwell and you punched him?---All I recall is that the guy just was just running towards me with a knife - with a shiv.

Right. Well, I put it to you that you were in a different area of the detention block and you specifically positioned yourself at the entrance to the stairwell in order to hit the victim, is that right?---I don’t recall that.

45    After further cross-examination in relation to the applicant’s time in detention, and just before the luncheon adjournment, the following exchange occurred (Tribunal transcript, p 55):

[MINISTER’S SOLICITOR]: … I did want to raise something with the tribunal. I didn’t intend to tender this and I haven’t advised my friend of this at all but I have a copy of the CCTV footage from the incident that occurred in the detention centre and so my friend may object to me tendering that but I think it should be before the tribunal.

DEPUTY PRESIDENT: Well, I think - - -

[MINISTER’S SOLICITOR]: I wouldn’t object to my friend asking questions about it, if he wants to view it.

DEPUTY PRESIDENT: Maybe he needs to have a look at it though.

[APPLICANT’S COUNSEL]: It is worse than that, Deputy President. I had finished my questions and I finished my questions based on the best evidence that was available to me and the instructions from my client. It is unfair for this evidence to be introduced because I don’t have a chance [for] you unhear my questions and then ask them afresh with the benefit of the CCTV footage.

DEPUTY PRESIDENT: Yes.

[APPLICANT’S COUNSEL]: I am confident it says nothing more than what is recorded in the Serco report because the Serco report was produced off the back of that but it would be unfair, as a general proposition, to introduce it at this stage. Even if I saw it and I had no objection, there is a general policy about fairness.

[MINISTER’S SOLICITOR]: I am in the tribunal’s hands. I will retract it. I won’t press it.

46    The Tribunal then adjourned for lunch. When the hearing resumed after the luncheon adjournment, the Minister’s solicitor sought an adjournment in order to enable the Minister to rely on the CCTV footage. The passage from the transcript is as follows (p 57):

[MINISTER’S SOLICITOR]: If I might make an application before we start, the Minister seeks to make an application to adjourn the proceeding. It’s in relation to the CCTV footage, which I foreshadowed with the tribunal prior to the break. In the Minister’s view - and the Minister initially did not intend to rely on the CCTV footage, because of the way that the matter is outlined in the Serco report. However, the evidence which has come out this morning suggests that, for the tribunal to be fully aware of the incident and to be fully appraised of the facts, that this footage should be before the tribunal. The Minister, therefore in order to make it procedurally fair, seeks an adjournment to enable the applicant to consider the footage and consider how that would impact on their case, and that is the basis for our adjournment. I understand my friend has something different to say about that.

[APPLICANT’S COUNSEL]: I do, Member. Obviously, rules of evidence don’t apply, the rules [of] fairness do. [The Minister’s solicitor], prior to lunch, purported to tender it and then withdrew and now is purporting to tender it again. It’s probably not bound by the withdrawal, but it’s there, first. Second, the justification appears to be that evidence this morning is somehow inconsistent with the Serco reports. Members, I think you have the Serco reports before you. It might be worthwhile going to them, just to see how that is so. …

47    Further discussion then ensued. Counsel for the applicant made the following submissions (Tribunal transcript, pp 60-61):

[APPLICANT’S COUNSEL]: … it would seem to be a clear example of unreasonable forensic behaviour by [the] Minister, in that they had this document a long time ago, and they have just given it to us. It also seems forensic decisions were made not to use the document - the document in the CCTV footage. I haven’t seen the document, I haven’t reviewed the footage, but I can observe as a practitioner with some experience, that when one prepares their case, when one gives advice, when one develops a case theory, when one develops their questions in examination-in-chief, one does so based on an understanding of the case for them and a case against them. It’s essentially, then, put by the Minister now that there is an additional piece of evidence, effectively, against us. That will precipitate a need for us to make an application to reconstitute the tribunal, because the case theory that we’ve developed - if it is true, if the Minister’s identification of something in that is actually against us, there will have to be a reconstitution of the tribunal.

…

[APPLICANT’S COUNSEL]: … If evidence is to be put before a tribunal or before a court to be relied upon, against a party, they must have the opportunity to see it before developing their case. If that was not realistically possible, discretion may be exercised in favour of letting it in, subject to whatever is required to remedy that prejudice. If it is before a jury, it is almost inconceivable that the trial could continue before that jury. And if it’s before a decision maker who has, it seems what the Minister is doing, putting an issue, questions of credibility, the well is poisoned. The well is poisoned. And there will always be, in my submission, at least two explanations as to why. Recollection from bare memory and the CCTV footage may not entirely [coincide]. We don’t know that they don’t, they may well [coincide]. But, assuming they don’t, there are always two explanations. One, someone is not telling the truth, or two, their recollection is not perfect. The former is devastating, the latter can be explained. But if the applicant has the opportunity to see that CCTV footage, it might have jogged his memory and he might have remembered the incident better.

48    The Tribunal then adjourned for a short time. Upon resuming, and following some further discussion, the Deputy President indicated that: the Tribunal would grant an adjournment to enable the applicant and his counsel to view the CCTV footage; and, so as not to waste the rest of the day, the applicant should proceed to call his other witnesses (who were character witnesses) (Tribunal transcript, p 66, lines 15-28). The hearing then proceeded with the evidence of these other witnesses.

49    One of the witnesses called on behalf of the applicant was his brother. He gave evidence of the closeness of his relationship with the applicant and said that it was “fair to say” that the applicant looked up to him as a role model (Tribunal transcript, pp 99-101).

50    At the conclusion of the first hearing day, the Minister sought to tender the DVD. The Tribunal made clear that it was not accepting the tender at this stage, and so it would not be viewing the DVD (Tribunal transcript, pp 125-126).

51    The hearing resumed on 2 March 2017. The first matter that was addressed was the Minister’s application to tender the DVD of the CCTV footage. The applicant’s counsel indicated that the applicant had reviewed the footage and that a supplementary statement of the applicant had been prepared and provided to the Tribunal. The parties’ representatives then made submissions as to whether the DVD of the CCTV footage should be admitted. In the course of these submissions, the Minister’s solicitor submitted (Tribunal transcript, p 131):

Therefore, the Minister seeks to tender this evidence because it is now relevant to the proceedings and it is important that the tribunal use this footage to have a full understanding and appreciation of the incident, as it occurred, and not as the applicant says it occurs in the two statements that he’s now given. He admits, and I’ll just quote, that his recall of the incident was not entirely accurate and has now provided a statement. Having looked at the CCTV footage, he gives a different version of what occurred and, in my submission, that goes to his credit as a witness and it is important for the tribunal to view that footage because that is the best evidence available.

52    The applicant’s counsel made submissions in response. The Tribunal asked how the applicant was disadvantaged by the Minister’s conduct (Tribunal transcript, p 135). The applicant’s counsel responded that the applicant and his representatives understood that they had the totality of the evidence (Tribunal transcript, p 135, lines 4-12). He handed up a copy of a request under the Freedom of Information Act 1982 (Cth) which included a request for recordings. He stated: “What is also clear is that, from our perspective, we were entitled to assume, and conclude, that it didn’t exist at the time of the tribunal hearing” (Tribunal transcript, p 135). The applicant’s counsel also submitted that admission of the DVD “opens up a submission for the Minister about credit, a submission which we have said in our submissions shouldn’t be accepted, but putting that aside, it opens up a submission and gives the Minister a tactical advantage” (Tribunal transcript, p 137, lines 25-28). The applicant’s counsel did not make an application for the Tribunal to reconstitute.

53    After a short adjournment, the Tribunal stated that it had decided that “we should see the video” and that it would provide its reasons later (Tribunal transcript, p 140, lines 1-4). This was, effectively, a decision to admit the DVD into evidence. The Tribunal adjourned for a short time to view the DVD. The Tribunal then marked the DVD as an exhibit (Tribunal transcript, p 142). The Tribunal also accepted into evidence the applicant’s 1 March 2017 statement (Tribunal transcript, p 143). In this statement, the applicant sought to explain some inconsistencies between his previous account of the July 2016 Incident and the CCTV footage of that incident. In particular, he accepted, at [6] of his statement, that he “had not been at the stairwell from the start like [he had] thought”.

54    The hearing then continued with further cross-examination of the applicant by the Minister’s solicitor, followed by re-examination and some questions from the Tribunal (including about the CCTV footage).

55    One further witness was called on behalf of the applicant. The parties’ representatives then presented closing submissions.

56    In the course of the applicant’s closing submissions, his counsel made the following submission in relation to the applicant’s brother (Tribunal transcript, p 176):

Before I leave the topic, I made a note to myself about risk. There is one additional feature of this case which is important in risk. That is the applicant’s brother. He is a role model - or a model to his brother. We have heard about that. The evidence was that they were as tight as two humans can be and one brother subbed in for the other when a parenting role was required.

[The brother] had also had a chequered past which included drugs and violence. Since his release from detention - prison - he has been a model citizen and the tribunal should take substantial confidence from that example - a living example for David to follow and also treat it as an indicia of David’s likely path should he be released.

57    In the course of closing submissions, the Minister challenged the applicant’s credit on the basis of the CCTV footage (Tribunal transcript, pp 182-183):

The version given by [the applicant] regarding that incident and his evidence, was that he was acting in self-defence. The victim came at him with a shiv and initially he stated that he didn’t position himself at the bottom of the stairs but now he has accepted that the version of events which happened in the CCTV footage. In the Minister’s submission the applicant gave a more favourable version in a statement to the tribunal and that inconsistent version given by the applicant should, in the Minister’s submission, cause the tribunal to hold some concerns with the applicant’s credibility.

58    The Tribunal reserved its decision at the conclusion of closing submissions.

The Reasons

59    On 31 March 2017, the Tribunal decided to affirm the decision under review.

60    As foreshadowed at the time it decided to admit the DVD of the CCTV footage into evidence, the Tribunal included its reasons for doing so in its reasons dealing with the application for review (referred to in these reasons as “the Reasons”). The part of the Reasons dealing with this aspect is at [10]-[69].

61    At [10] of the Reasons, the Tribunal noted that it was common ground that, before the first day of the hearing, the Minister had not produced either to the applicant or to the Tribunal a DVD of the CCTV recording taken of the July 2016 Incident.

62    The Tribunal stated, at [10], that the applicant’s counsel objected to the DVD being admitted into evidence when the Minister’s solicitor sought to tender it. The next sentence of the Reasons reads: “We decided to admit it and to adjourn the matter so that [the applicant] could view the DVD and give instructions.” This sentence is inaccurate, but it is not suggested that anything turns on this. In fact, as described above, the Tribunal adjourned the hearing without deciding whether or not to admit the DVD, and then decided at the resumed hearing to admit the DVD.

63    At [13]-[18] of the Reasons, the Tribunal summarised the applicant’s counsel’s submissions against admission of the DVD. At [19]-[23], the Tribunal dealt with the Commonwealth’s obligation to act as a model litigant. At [24]-[29], the Tribunal dealt with an application that had been made by the applicant under the Freedom of Information Act.

64    At [30]-[65] of the Reasons, the Tribunal considered ss 37 and 38AA of the AAT Act and the application of these provisions to the DVD of the CCTV footage. The Tribunal considered a number of authorities concerning reliance on video surveillance material during cross-examination, including Australian Postal Commission v Hayes (1989) 23 FCR 320 (Hayes); Boyes v Colins (2000) 23 WAR 123; Australian Postal Corporation v Bessey (2001) 32 AAR 508 (Bessey); Kingham v Cole (2002) 118 FCR 289; Ramsay v Australian Postal Commission (2005) 147 FCR 39; and Morton v Colonial Mutual Life Assurance Society Limited [2013] FCA 681 (Morton). The Tribunal referred to the differences between the task of the Tribunal and that of a Court (at [49]). The Tribunal stated at [50]-[51]:

50.    It is clear from the nature of our task that we are not limited in our consideration to the cases pleaded by the parties as a court would be in adversarial proceedings. We are not limited to the case theory of either party. The rules of the criminal court where the prosecutor carries a burden of proof and presents a case against an accused who generally carries no such burden, have no analogy in a merits review tribunal. Our task is to arrive at the correct or preferable decision on the evidence and material before us and not to choose this party’s case or that party’s view of the decision we should make. Provisions such as ss 37 and 38AA support the process that enables us to do that by ensuring that the decision-maker is generally obliged to put all evidentiary material on the table. The Tribunal uses its directions power under s 33 of the AAT Act to ensure that the applicant or other parties are generally under a similar obligation.

51.    Similar powers and practices have been introduced into the courts with an expectation that, like the Tribunal, the evidentiary material will generally be available to the parties before the hearing. That similarity, however, does not alter the different nature of the tasks carried out by the Tribunal and by the courts. Given that essential difference, it seems to us that we are bound by the judgment of Gyles J in Bessey but that we should pay careful regard to the principles enunciated in subsequent authorities in relation to proceedings in the courts as well as subsequent amendments to the AAT Act. We refer [in] particular to the objectives stated in s 2A of the AAT Act. When we do that, it seems to us that we must bear in mind our fundamental duty to ensure that we accord procedural fairness to each of the parties and that, in so far as it is consistent with that duty, we ensure that parties have access to all evidentiary material when it comes to hand.

65    At [52] of the Reasons, the Tribunal noted that the authorities it had referred to were all decided before s 38AA was introduced into the AAT Act by the Tribunals Amalgamation Act 2015 (Cth). After setting out s 38AA(1), the Tribunal found that “[t]he DVD in this case would have been a document, to which s 38AA(1) applied so that it had to be lodged with the Tribunal” (at [59]). The Tribunal then referred to the additional obligation in s 38AA(2) and discussed applications that may be made if a decision-maker does not want to disclose a document to another party. (No such application was made in the present case.) The Tribunal’s core reasoning for admitting the DVD into evidence was at [66]-[69] of the Reasons:

66.    There is no doubt in our minds that the Minister should have lodged the DVD of the CCTV in the Tribunal under s 38AA. Had he wanted to keep it from [the applicant] and his legal advisers, he should have made the appropriate applications under s 37(1AF) and s 35 of the AAT Act. He should have done so as part of the process of lodging all material relevant to the review of the decision. It cannot be said that the DVD of CCTV footage of an incident in which [the applicant] was alleged to have been involved is not relevant to the review of the decision. Certainly, Serco has prepared an Incident Report and [the applicant] has prepared a statement before he viewed the DVD and another statement after. The Incident Report records how Serco officers viewed the CCTV footage. [The applicant’s] statements set out his memory of events. The only material that depicts events as they occurred within the range of the CCTV camera is the CCTV footage. That seems to us to be material relevant to the review of the Minister’s decision and so too is that of the Serco Incident Report and [the applicant’s] evidence regarding his recollection of events.

67.    We adjourned the matter so that [the applicant] could view the CCTV footage and we could hear submissions as to whether we should also view it. In a statement prepared after he had viewed it, [the applicant] addressed some differences between what he saw and what he wrote in his earlier statement. We do not accept [the applicant’s counsel’s] submission that we should simply accept [the applicant’s] view of events just as we do not accept that we should simply accept the version in the Serco Incident Report. As we have said, the only objective evidence of events is on the CCTV footage but then only regarding the events within range of the CCTV camera. It is the best evidence of events that it captured. It does not, however, capture all relevant events or what was going through [the applicant’s] mind or the wider events on Christmas Island that can give context to incidents that are captured.

68.    We do not accept that viewing the DVD of the CCTV footage puts us in a difficult position or that we are influenced in some way by the concessions that [the applicant] has made. He has made those concessions quite apart from whether we view the DVD or not. If there is a risk that [the applicant’s] explanation as to why there has been a disparity between his statements is undermined by our viewing the DVD, the risk is no greater than his having changed his statement at all.

69.    As we consider the DVD of the CCTV footage to be the best evidence of the events it depicts and as we adjourned the matter to give [the applicant] an opportunity to view it and to consider it before answering questions about its contents, we decided to view it. In making that decision, we are not of the view that [the applicant] is prejudiced. He has always had the Serco Incident Report, which [the applicant’s counsel] acknowledged was made on the basis of CCTV footage. The existence of the CCTV footage has always been known even if it was not produced prior to the hearing.

(Footnote omitted.)

66    The Tribunal then considered the substantive issues in connection with the application for review, at [70]-[155] of the Reasons. The Tribunal dealt with the July 2016 Incident at [112]-[116] and [133]. The Tribunal placed substantial reliance on the CCTV footage in making findings about the incident.

67    In the Reasons, the Tribunal did not specifically consider a submission based on a similarity between the applicant’s brother and the applicant.

Ground 1

68    As noted above, the applicant contends that the decision of the Tribunal is affected by jurisdictional error, in that the Tribunal allowed the Minister to introduce evidence in the form of CCTV footage, in circumstances that led to the conduct of the review being procedurally unfair to the applicant.

Applicable principles

69    There does not appear to be any significant difference between the parties as to the applicable principles. Both parties cite the judgment of the High Court in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 (WZARH) in their written submissions.

70    In WZARH, Kiefel, Bell and Keane JJ referred, at [30], to the rejection of “legitimate expectation” as a touchstone of the requirement that a decision-maker accord procedural fairness to a person affected by an administrative decision. Their Honours continued:

It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.

71    Their Honours referred, at [35], to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam). Kiefel, Bell and Keane JJ observed that the “manner in which any given administrative process is conducted may generate expectations on the part of the person affected as to how he or she should present his or her case; in some cases, fairness may require that such expectations be honoured”. Their Honours then quoted the following passage from the judgment of Gleeson CJ in Lam at [33]:

[W]hen a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise. ... Expectations created by a decision-maker may affect the practical content of the requirements of fairness in a particular case.

(Footnote omitted. Emphasis in original.)

72    Kiefel, Bell and Keane JJ said at [36] that the case before them was readily distinguishable from Lam and noted that, in Lam, as Gleeson CJ had said, “[t]he applicant lost no opportunity to advance his case” and for this reason no practical injustice had been held to have occurred.

73    In WZARH, Gageler and Gordon JJ stated, at [55], that the concern of procedural fairness, which operated in that case as a condition of the exercise of statutory power, “is with procedures rather than with outcomes”. Having outlined their approach, their Honours stated (at [57]):

That approach to the determination of the existence and consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam that the concern of procedural fairness is to “avoid practical injustice”, and with his Honour’s conclusion in that case that there was no denial of procedural fairness where “[n]o practical injustice ha[d] been shown”. The absence of practical injustice in Lam lay in the fact that “[t]he applicant lost no opportunity to advance his case”; it was not “shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”.

(Footnotes omitted.)

Consideration

74    The Minister notes in his written submissions that the Tribunal found that the Minister did not comply with s 38AA of the AAT Act by not providing the DVD to the Tribunal prior to seeking to tender it. The Minister states that that finding is not contested by the Minister, and that the Court should determine this application on the agreed footing that there was non-compliance with s 38AA.

75    The Minister submits that there has been no denial of procedural fairness in what occurred before the Tribunal. His submissions can be summarised as follows:

(a)    First, the applicant attributes more significance to ss 37 and 38AA than those statutory provisions can properly bear. It goes too far to construe s 38AA as some “procedural right” to receive documents before going into evidence, non-compliance with which requires a new Tribunal to be constituted or else jurisdictional error be committed. Such a procedural right sits uneasily with the very terms of s 38AA, pursuant to which the obligation of disclosure continues until the review is finalised. That is, relevant information may be disclosed, in compliance with s 38AA, even after an applicant has given evidence.

(b)    While the purpose of s 37(1)(a) and the requirement for reasons is plainly to facilitate the obtaining of a review by the applicant (see Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196), ss 37(1)(b) and 38AA stand in a different category. The requirement to provide the Tribunal with documents is not, strictly, for the benefit of the applicant, but rather for the assistance of the Tribunal. In terms, the obligation is owed to the Tribunal, not the applicant.

(c)    Section 38AA was inserted into the AAT Act by the Tribunals Amalgamation Act. The explanatory memorandum to the Bill explained that “[t]he proper conduct of reviews is assisted by the Tribunal having all relevant information before it. The President’s ability to make practice directions to define the scope of the continuous disclosure obligation would ensure that it is not unduly burdensome on decision-makers.” This is consistent with the statutory provision existing for the purpose of assisting the Tribunal to reach the correct and preferable decision.

(d)    Similar provisions in the Migration Act (for example, s 418(3)) have been described as existing for the “evident purpose” of “enabl[ing] the effective and efficient exercise by the tribunal of its review functions” (see Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [46]), as opposed to inuring specifically to the benefit of the applicant. It is well established that the Secretary’s failure to transmit documents to the Tribunal in the context of Part 5 and Part 7 reviews is not, without more, a jurisdictional error: see, eg, Muin v Refugee Review Tribunal; BBS15 v Minister for Immigration and Border Protection (2017) 248 FCR 159; SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123; WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413. The applicant’s submissions are in tension with this proposition.

(e)    Second, the logical conclusion of the applicant’s argument is that production of a document at some point after it was reasonably practical to do so, as in this case, will lead inexorably to jurisdictional error or reconstitution of the Tribunal if that material is produced after the applicant has given evidence. It is improbable that the Parliament intended that result. The AAT Act does not say so. The obligation in s 38AA is imposed not on the Tribunal but on the primary decision-maker. The obligation is owed not to the applicant for review but to the Tribunal. Section 38AA does not impose an immediate obligation of disclosure; disclosure need only occur as soon as practicable. A problem with the applicant’s argument is that he treats compliance with s 38AA almost as if it were an end in itself, but it is not: cf Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at [34].

(f)    Third, the applicant’s position is inconsistent with the case law establishing that material may be put to a witness in cross-examination even if it was not previously disclosed: see Bessey; Morton. Given that a respondent to an application can legitimately withhold material and save it for cross-examination, it is difficult to see how the applicant has been denied procedural fairness in this case, particularly as the Tribunal allowed him an adjournment.

(g)    Fourth, the position contended for by the applicant leads to odd results in application. It would appear to be the case that an utter failure to comply with s 38AA at all during the course of the Tribunal proceedings may not result in jurisdictional error, applying the case law developed around s 418(3) and analogous provisions, whereas belated production of a document would, according to the applicant, always result in jurisdictional error or reconstitution.

(h)    The applicant’s argument is also unstable. Does his argument depend upon the supposed importance of presenting evidence in person before the Tribunal? Does that mean there is no necessary jurisdictional error where s 38AA is complied with after written evidence is filed but before oral evidence? If the statutory regime is designed to protect a procedural right to give evidence after considering the universe of relevant evidence, what happens where a decision-maker produces a relevant document which comes into the decision-maker’s possession after the applicant gives written or oral evidence, and thus complies with s 38AA? Surely there is no denial of procedural fairness then. If that is so, the “procedural right” for which the applicant contends appears a fragile and ephemeral one indeed.

(i)    Fifth, what is ultimately critical in every procedural fairness case is whether or not there is any practical injustice to the applicant: see WZARH. There was none here. The DVD was objective evidence about what occurred on Christmas Island. The Tribunal’s reasons are careful and they are detailed. There is no indication that the Tribunal reached any material adverse findings against the applicant as a result of the course of events concerning the entry of the DVD into evidence.

76    In my view, for the reasons that follow, the Tribunal’s decision to admit the DVD of the CCTV footage into evidence in the circumstances of this case resulted in a denial of procedural fairness to the applicant. Accordingly, the Tribunal’s decision is affected by jurisdictional error.

77    The relevant procedural framework is set out in ss 37 and 38AA of the AAT Act. Sections 37(1AE) and 38AA(2) reflect a policy of requiring decision-makers to disclose relevant documents to the other party or parties and avoiding ‘ambush’. There is a procedure available whereby a decision-maker can apply to vary that procedure. But absent such an application, this is the procedure required to be adopted in proceedings before the Tribunal.

78    The Tribunal relied on the line of authorities, commencing with Hayes and including Bessey, concerning the use of video surveillance evidence during cross-examination. But in my view, that line of authorities was inapplicable. In Hayes, the Australian Postal Commission sought to confront the applicant during cross-examination with film of her activities that had been taken in the period during which she alleged she was suffering from injuries. The Tribunal directed that the film be shown to the applicant at the beginning of her evidence-in-chief. It was held by Wilcox J that the direction given by the Tribunal denied the Commission procedural fairness because it so fettered the proposed cross-examination of the applicant that her evidence could not be tested. At 326-327, Wilcox J referred to a category of case involving a dispute as to the existence of a physical disability, being a disability whose existence or otherwise could not be established by independent objective evidence and in relation to which the acceptance or rejection of the claimant’s account of the symptoms was likely to be critical. Both Hayes and Bessey were such cases. The present case is not. Further, in Morton, Flick J (at [28]) approved the proposition that the situations in which evidence could be withheld from another party would be “rare indeed” and that it “would certainly not be sufficient for a party merely to show that the material was capable of contradicting another party’s version, even accepting that the credibility of that other party was critical to the case”.

79    The applicant and his lawyers had prepared his case on the basis that they had received all relevant documents from the Minister. They had taken steps (albeit under the Freedom of Information Act) to obtain copies of all relevant documents. They had specifically requested “recordings”, but had not been provided with any CCTV footage.

80    The case presented on behalf of the applicant at the Tribunal was both sophisticated and substantial. The applicant’s counsel, no doubt appreciating the challenges presented by the applicant’s offending and the July 2016 Incident, took the applicant through his evidence-in-chief in a careful, methodical and nuanced manner. It was in this context that the applicant’s counsel invited the applicant to give evidence about the July 2016 Incident. Further, the applicant’s case was not dependent on the applicant’s evidence alone. The applicant called a number of character witnesses to give evidence.

81    In the circumstances, the introduction of the CCTV footage into evidence after the applicant had completed his evidence-in-chief and after he had been cross-examined on the topic caused practical injustice to the applicant. The applicant and his counsel were taken by surprise. They were not aware that the CCTV footage was available. (The fact that it is mentioned in the Serco Report is not inconsistent with this.) And they were not aware that the Minister would be relying on it. Had the DVD been provided before the hearing (as it should have been), the applicant would have been able to refresh his memory of the relevant events before giving evidence. It is very likely that he would have presented his case differently in these circumstances.

82    It is important to note the way in which the Minister’s solicitor sought to rely on the DVD. As noted above, the DVD was sought to be used to impugn the applicant’s credit. This potentially affected the applicant’s case generally. Thus, not only did the Minister fail to comply with the obligation to provide a copy of the DVD to the applicant before the hearing, he sought to take advantage of his own non-compliance. The proceeding before the Tribunal required an assessment, potentially finely balanced, of the risk that the applicant posed to the Australian community. In these circumstances, and given the case presented by the applicant (which included calling a number of character witnesses), matters going to the applicant’s credit potentially affected the outcome of the review.

83    It is true that the task of the Tribunal is to arrive at the correct or preferable decision, and that its process is inquisitorial rather than adversarial. This may be thought to support admission of the DVD notwithstanding the Minister’s failure to comply with s 38AA of the AAT Act. However, the Tribunal is also obliged to ensure that its decision is made fairly in the circumstances, having regard to the legal framework within which the decision is to be made (see WZARH at [30]). Importantly, here, the legal framework included the requirements of s 38AA of the AAT Act.

84    This is not to suggest that in every case where there is a failure to comply with s 37 or 38AA of the AAT Act there will be a denial of procedural fairness. It is necessary to consider all the circumstances of the case to determine whether a failure to comply with these provisions has caused practical injustice. In the present case, the difficulty arises because the Minister failed to provide a copy of the DVD, sought to rely upon it after the applicant had completed his evidence-in-chief and after the Minister’s solicitor had cross-examined the applicant on the relevant events, and then sought to use the CCTV footage to impugn the applicant’s credit (thus seeking to gain an advantage from the Minister’s own failure to comply with the procedural framework established by the AAT Act).

85    I note for completeness that the applicant had prepared a further statement (dated 1 March 2017) after viewing the CCTV footage and provided this to the Tribunal before commencement of the resumed hearing. It may thus be said that admission of the CCTV caused no prejudice. However, I do not accept this. The further statement was an understandable qualification in circumstances where further information had now been presented to the applicant and his counsel. But there is a substantial difference between the further statement and the CCTV footage, which has visual impact and a greater level of detail, and thus the potential for it to give rise to inconsistencies and damage the applicant’s credit.

86    In fairness to the Tribunal, it should be acknowledged that it was placed in a very difficult situation by the Minister’s failure to comply with s 38AA and the subsequent application to tender the DVD.

Ground 3

87    The other ground relied on by the applicant is that the decision of the Tribunal is affected by jurisdictional error in that the Tribunal failed to consider clearly articulated arguments. The particulars under this ground refer to a clearly articulated argument relating to the similarity of the applicant’s circumstances as compared with his brother.

88    It is established that where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE (No 2)) at [55] per Black CJ, French and Selway JJ.

89    In NABE (No 2), the Full Court said at [58]:

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

90    The Full Court in NABE (No 2) also said at [63]:

It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.

91    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, French J (as his Honour then was) and Sackville and Hely JJ said at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

92    The applicant’s submissions can be summarised as follows:

(a)    The applicant’s brother gave evidence (Tribunal transcript, pp 99-106) about: his own troubles with the law, including spending time in prison; the intense closeness of the relationship between the applicant and his brother, including the applicant stepping in and acting as a father figure to the brother’s children while the brother was in prison; the clear parallels between the applicant’s life circumstances prior to being imprisoned and the brother’s life circumstances before he was imprisoned; and the significant rehabilitative and reformative effect on the brother of being imprisoned, and the complete absence of criminality and otherwise substantial contribution to society made by the brother since his release from prison.

(b)    This evidence formed the basis of an important argument in closing address for the applicant, namely that the brother’s lived experience of rehabilitation after facing a similar predicament to the applicant together with the similarity of the applicant’s character and his brother’s character, meant that the brother was a living example of the reliability of the applicant’s rehabilitation. If accepted, this argument would have undermined the Tribunal’s finding at [129] of the Reasons.

(c)    The Tribunal did not mention this argument in the Reasons. Indeed, the only mention of the brother is at [135]-[137], with respect to the consequences of the decision upon the brother’s children. It should be inferred from the Tribunal’s failure to mention this argument or to address this claim that the Tribunal failed to consider the argument or claim: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5], [35] and [69].

93    In my view, this ground of review is not made out. I do not consider the part of the closing submissions relied upon by the applicant in support of this ground (see [56] above), or the evidence upon which it was based, to constitute a distinct argument that needed to be dealt with separately by the Tribunal. The facts and matters relating to the applicant’s relationship with his brother formed part of the general circumstances relevant to the risk that the applicant posed to the Australian community. Although this particular submission and the evidence upon which it was based were not specifically referred to in the Reasons, I would not infer, in the circumstances of this case, and having regard to the Reasons as a whole, that the Tribunal overlooked this submission or the evidence upon which it was based.

Conclusion

94    For these reasons, orders should be made as set out in [11] above. In relation to costs, both parties accepted at the hearing that costs should follow the event. Accordingly, I will also order that the Minister pay the applicant’s costs of the application.

Associate:

Dated:    26 March 2018