FEDERAL COURT OF AUSTRALIA

AVN15 v Minister for Immigration and Border Protection [2019] FCA 1825

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to amend his notice of appeal so as to add a third ground of appeal as set out in the draft amended notice of appeal (draft notice) annexed to his interlocutory application filed 20 February 2019.

2.    The draft notice be deemed to be an amended notice of appeal filed herein.

3.    Service of that amended notice of appeal be dispensed with.

4.    The appeal be allowed.

5.    The orders made by the Federal Circuit Court of Australia on 6 August 2018 be set aside.

6.    In lieu thereof:

(a)    a writ of certiorari issue directed to the second respondent quashing its decision dated 30 April 2015.

(b)    a writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review made on 12 December 2013 according to law.

7.    The first respondent pay the appellant’s costs, of and incidental to the appeal, including those in relation to the application for leave to amend the notice of appeal, and in the Federal Circuit Court of Australia, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    The appellant is a citizen of the Islamic Republic of Iran. He was born into a Muslim family who adhered to the Shia branch of the Islamic faith. In August 2012, he and his only brother were passengers on a boat which arrived in Australia from Indonesia. Neither of them had a visa issued under the Migration Act 1958 (Cth) (the Act) which entitled them to enter Australia.

2    In December 2012, the appellant and his bother each applied under the Act for a Protection visa. On 17 October 2013, in connection with their respective visa applications, the appellant and his brother were interviewed together by an officer of the first respondent Minister’s department, then known as the Department of Immigration and Border Protection. The Minister is the only active party respondent to the present proceeding.

3    Accompanying the appellant’s visa application was a statutory declaration in which he set out the factual basis of his claim for a Protection visa. He stated that he and his brother had attended the protests which followed the 2009 Presidential elections in Iran. He stated that, in attending these protests, they had witnessed atrocities committed by the Iranian authorities in the name of Islam. This had caused them to question their faith. He stated that he and his brother had developed an interest in Christianity, attended a home church in Tehran at their uncle’s home and witnessed the arrest of their uncle. This, in turn, so the appellant claimed, had caused him and his brother to fear for their freedom and lives and moved them to flee Iran, initially to Indonesia and then by boat to Australia. His claim was made, and dealt with administratively, on the basis of his Christian beliefs, his imputed political opinion as a person against the Iranian government as a result of these belief, and also, were he returned to Iran, on his membership of a particular social group, namely, either failed asylum seeker or a returnee from a Western country.

4    The appellant and his brother were represented by the same migration agent, BMA Lawyers Pty Ltd (Agent) in their dealings with the Minister’s department in relation to their visa applications.

5    On 9 December 2013, a delegate of the Minister made separate decisions refusing the respective visa applications of the appellant and his brother.

6    Thereafter, the appellant and his brother respectively applied to the then Refugee Review Tribunal (Tribunal) for the review by that tribunal of the respective visa refusal decisions. I shall refer to the appellant’s review application as the “appellant’s review” and to that of his brother as “brother’s review”. In respect of the appellant’s review, the Tribunal, constituted by Ms Alison Murphy, Member, decided on 30 April 2015 at 3:58 pm to affirm the Minister’s delegate’s visa refusal decision. The formal decision and the related reasons were sent to the appellant via an email from the Tribunal to the Agent on 1 May 2015.

7    The Tribunal’s statutory successor, the Administrative Appeals Tribunal (AAT) is also a respondent to the present proceeding. Quite properly, the AAT has filed a submitting appearance and taken no active part in the proceeding.

8    Both the appellant and his brother continued to be represented before the Tribunal by the Agent in relation to their respective review applications. As it transpired, Ms Murphy had earlier come to constitute the Tribunal for the purposes of conducting the brother’s review.

9    On 26 February 2015, the Tribunal, constituted by Ms Murphy, conducted a hearing in relation to the brother's review, which was attended by the appellant’s brother and the Agent. At that hearing, the appellant’s brother gave evidence regarding the events which he and the appellant claimed to have occurred in Iran. Ms Coffey, a lawyer from the Agent appeared at the hearing on behalf of the appellant’s brother. She noted to Ms Murphy at that hearing that the appellant had also applied to the Tribunal for review and had given evidence that was "very consistent to the evidence that the [brother] has given which strengthens the claims of what happened". Ms Murphy said that, at that point in time, the appellant’s review has not been constituted to her and therefore she did not have access to the appellant’s evidence.

10    On 20 April 2015, the Tribunal conducted a hearing in respect of the appellant’s review. It was, by that time, constituted by Ms Murphy. The appellant attended that hearing. He gave evidence with the assistance of an interpreter fluent in the Persian and English languages. Ms Coffey attended that hearing by telephone, this time appearing on behalf of the appellant.

11    In the course of that hearing, the following exchange occurred between, as recorded in the transcript, the “Tribunal Member” (Ms Murphy), “Miss Coffey” (the Agent) and the appellant, via the “Interpreter”:

Tribunal Member:     Did you ask people from that church to come along and give evidence today?

Interpreter:     Yes

Tribunal Member:    And what did they say?

Interpreter:     Well they said that the rules of the Church of God doesn't allow interference in political affairs and what they provided that letter which my brother I think provided to you about the history of how long we have been attending the church an think my lawyer has these document s as well.

Tribunal Member:     Miss Coffey I am just checking the Tribunal file, I don’t think those documents have been submitted in this particular case, is that correct?

Interpreter:     Well I’ve got a letter here and the other two are with my lawyer and this lady is the second person in charge after the Church Pastor in terms of giving reference letters

Tribunal Member:     I will give you that one back. Ms Coffey do you want to submit those documents in respect of ... so that they end up on the Tribunal file in respect of this particular case?

Miss Coffey:    Yeah not a problem

Interpreter:     Have they sent you the letter yet?

Tribunal Member:     Ah Miss Coffey will, I have seen them in respect of your brother’s case, Miss Coffey will provide them to the Tribunal for your file as well.

[Emphasis added]

12    It was not until 1 May 2015, after the Tribunal had decided the appellant’s review, that the Agent provided to the Tribunal by facsimile copies of these letters, together with post­ hearing written submissions. Nonetheless, Ms Murphy did refer in her reasons (at [24]), both to these letters and to the exchange at the hearing, quoted above, concerning them:

24.    The Tribunal notes that three short letters have been produced to the Tribunal purporting to be from members of the World Mission Church of God who describe themselves as church friends of the applicant and his brother were submitted to the Tribunal in the review relating to the applicant's brother and make reference to the applicant in this matter. At hearing the applicant's representative told the Tribunal that it was intended that those documents also be lodged in the current matter, although as at the time of the Tribunal's decision that has not occurred. A letter from Hilda Dursun dated 22 February 2015 states in summary that she has known the applicant and his brother for 2.5 years as they regularly attend the church, that they are both kind and humble and that they have done volunteer work together many times. A letter from Villiam Topalli, Church Deacon, dated 8 March 2015 states in summary that he has become friends with the applicant over the .last 2.5 years, that they regularly enjoy studying the bible together in the church and that he would be very happy if they stayed in Melbourne and continued to study the bible together. A letter from Jeffrey Albutt dated 8 March 2015 similarly states in summary that he has known the brothers about 2.5 years, that they have a loving mind to practise God’s teaching, that they have bible studies and do volunteer activities together.

13    Ms Murphy’s reasons for affirming the visa refusal decision in respect of the appellant disclose that she considered that the appellant’s evidence “as to his experiences in Iran as a result of religious activities to be both vague and contradictory”. She also considered that the appellant’s claims “to hold and genuine and committed interest in the Christian faith to be inconsistent with his religious activities in Australia”.

14    The Tribunal concluded that the appellant had had some contact with the Church of God but that his conduct in Australia did not reflect a continuation of any interest in Christianity, that his attendance had been for the sole purpose of strengthening his refugee claims and that that conduct therefore needed to be disregarded pursuant to s 91R(3) of the Act.

15    The appellant subsequently applied to the Federal Circuit Court for the judicial review of the Tribunal’s decision. He came to rely upon two grounds of review, namely that:

(a)    the Tribunal had failed to have regard to corroborative evidence in the form of the brother’s evidence (judicial review Ground 1); or, in the alternative,

(b)    if the Tribunal was not obliged to have regard to the brother's evidence, the Tribunal had denied the appellant a reasonable opportunity to present his case in breach of s 425 of the Act (judicial review Ground 2).

16    Neither ground found favour with the Federal Circuit Court.

17    As to judicial review Ground 1, the learned primary judge stated, at [13]:

13.    It is well understood that the Tribunal does not need to seek to elicit from an applicant an argument which that applicant does not choose to make. Further, the fact that a party is represented before the Tribunal is relevant when considering whether an argument, which might have been articulated but was not, was one which should nevertheless have been considered by the Tribunal: SZULW v Minister for Immigration & Border Protection [2018] FCA 1335 at [80] - [81]. By analogy, it would have been reasonable of the Tribunal in this case to operate on the presumption that if the applicant had wished to rely upon [the appellant’s brother’s] statutory declaration then the applicant’s adviser would have said so clearly, and to infer from her silence on the point, or from what was at most her vague allusion to the document, that she did not rely on it. Absent evidence from appellant’s brother] having been placed before the Tribunal, the passage from the written submissions to the Tribunal now referred to by the applicant was no more than a submission without evidentiary foundation.

18    As to judicial review Ground 2, the learned primary judge referred to the exchange, described above, which had occurred at the hearing of the brother’s review on 26 February 2015. Having so done, his Honour stated, at [15]:

15.    My understanding of what the Tribunal said in that passage is that if [the appellant’s brother] wanted to rely on the [appellant’s] evidence, he had to give it to the Tribunal. It is a big stretch to say that the [appellant’s] adviser could reasonably have inferred that the Tribunal was also saying that if the member in question had had access to the file for the [appellant’s] review, the information in it could have been sourced from there instead of it being provided by [the brother] in support of his own review.

His Honour then referred to the exchange, quoted above, which had occurred at the Tribunal hearing in respect of the appellant’s review and observed of it, at [17]:

17.    It appears that the [appellant’s] adviser was indeed disabused of any such illusion because she subsequently did go on, albeit after the Tribunal made its decision, to provide to the Tribunal a written submission enclosing the letters in question. She learned from the exchange just quoted that if she wanted to rely on particular evidence, she had to ensure it was before the Tribunal.

[Emphasis added]

19    In the result, the Federal Circuit Court dismissed with costs the appellant’s judicial review application: AVN15 v Minister for Immigration and Anor [2018] FCCA 2553.

20    The appellant has appealed to this Court against that order of dismissal.

21    As pleaded in the notice of appeal, the grounds of appeal were:

1.    His Honour erred in not finding, and ought to have found, that the [Tribunal] committed jurisdictional error by failing to have regard to the corroborative evidence of the appellant's brother.

2.    In the alternative, his Honour erred in not finding, and ought to have found, that the Tribunal denied the appellant a reasonable opportunity to give evidence and present arguments under section 425 of the Migration Act 1958.

22    As submissions on the hearing of the appeal progressed, it became apparent that there was another jurisdictional error on the part of the Tribunal being promoted by the appellant. As formulated into a further ground of appeal, this was that “the Tribunal erred in not undertaking an inquiry so as to put before it the brother’s evidence, including the brother's statutory declaration”. The appellant consequentially filed an application seeking leave to amend the notice of appeal so as to raise this ground. It therefore became necessary to make directions providing for additional submissions by the parties as to whether the appellant should have leave to raise this additional ground and, if so, its merits.

23    It is convenient first to deal with whether the appellant ought to have leave to amend his notice of appeal.

24    It is axiomatic that, in relation to matters of the present kind, the Court exercises appellate, not original, jurisdiction. It was on the Federal Circuit Court that Parliament conferred original jurisdiction in respect of the issuing of writs and related relief to correct jurisdictional errors made by the Tribunal. That jurisdiction replicated, and supplemented in relation to decisions of the Tribunal, the constitutionally entrenched jurisdiction of the High Court conferred by s 75(v) of the Constitution, to issue writs of prohibition and mandamus against officers of the Commonwealth. Thus, in the ordinary course of events, it was in the Federal Circuit Court that an alleged jurisdictional error should have been raised. Where a point sought to be raised for the first time on appeal might have been met by some evidence adduced at trial, it would be a rare case indeed in which leave to raise that point on appeal would be granted: Coulton v Holcombe (1986) 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ. However, as was acknowledged in that same case, there can be circumstances where the point concerned is a question of law which arises upon facts either admitted or proved beyond controversy such that it is expedient and in the interests of justice to allow the point to be raised for the first time on appeal. That, in my view, is this, case.

25    Proposed ground 3 is a pure point of law, raised on the evidence which was before the Federal Circuit Court. Indeed, the learned primary judge understood judicial review ground 1 as entailing the very proposition now sought to be raised by amendment of the notice of appeal, remarking at [12], of the way in which that ground had been developed: “Essentially, the applicant was arguing that the Tribunal should have appreciated the significance of the point and, of its own motion, sought out the information for the purposes of the review, utilising its power to do so provided by s.424.” The Minister acknowledged that permitting the amendment would entail no prejudice to him. In keeping with that acknowledgement, he did not assert that it could have been met by evidence which could have been led before the Federal Circuit Court. In these circumstances, the interests of justice are best served by permitting the appellant to amend the notice of appeal so as to raise the proposed third ground.

26    Before considering the merits of the grounds of appeal, it is desirable to record some additional features of the course of public administration in respect of the appellant’s visa application up to and including the time of the Tribunal’s decision, apparent from the evidence before the Federal Circuit Court.

27    With the assistance of an interpreter, the appellant was interviewed by an officer of the Minister’s department on 12 August 2012, shortly after his arrival in Australia. The record of that interview is contained in answers transcribed onto a “Bio data” form and in the transcript of a further exchange that day between the officer and, via the interpreter, the appellant. On the form, the presence of the appellant’s brother on the boat as a fellow traveller is noted. For completeness, I should mention that there is also reference to another relative, a cousin, but there has never been any suggestion that any evidence from the cousin might assist either the case of the appellant or his brother. The further exchange commences:

I have already asked you if you verbally consent to sharing information with your brother, however, for the record, is there anything you do not want me to discuss with your brother? No

The exchange which then follows is replete with repeated references by the appellant, using the plural, “we”, to activities by him and his brother in Iran, including their attendance at their uncle’s home church, their embrace of the Christian faith and their journeying to Australia via Indonesia.

28    In an “Irregular Maritime Arrival Entry Interview” of the appellant conducted by an officer of the Minister’s department a little over a month later (14 September 2012), as recorded on a departmental form, the appellant is again recorded as specifying in the “Reason to Leave” section that “we” (necessarily him and his brother) went to a “house church”. He is also recorded in the “Political Involvement” section of the interview form as stating that he and his brother “protest during the GREEN movement” in 2009. Answers 11 and 12(a) in the “Arrangements for Travel to Australia” section also make reference to the appellant’s brother.

29    In the “decision record” of 9 December 2013, prepared by the Minister’s delegate in relation to the refusal decision in respect of the appellant’s visa application, it is stated:

It should be noted that the applicant has provided consent to share information between his PV application with [his brother’s] application. The two brothers arrived together in Australia on 12 August 2012, as illegal maritime arrivals on a boat …

The decision record also contains this statement: “The applicant reported he and his brother were baptised at their parish approximately eight months ago.”

30    In the Agent’s response of 17 March 2015 to the Tribunal’s hearing invitation, the Agent ticked “No” in response to the question, “I/We request that the Tribunal take oral evidence from another person.” That same response was made to the Tribunal by the Agent in a letter dated 24 March 2015 in relation to a rescheduling of the hearing.

31    In an enclosure to an email sent to the Tribunal by the Agent on 25 March 2015, the Agent made a detailed submission to the Tribunal in relation to the merits of the appellant’s claim for a protection visa. In that submission also, reference is made to the appellant’s attendance at a home church in Iran with his brother. At one point the Agent states, “Further, we note that the applicant and his brother both provided consistent evidence about this aspect of his case.” Towards the end of that submission, the Agent states, “The Applicant’s claims are contained in his respective Statutory declaration in support of his Application and letters and submissions submitted on his behalf to the Department.”

32    The transcript of the hearing which Ms Murphy conducted on 20 April 2015 for the purposes of the appellant’s review also records the following occurred in the presence of Ms Coffey of the Agent:

At Appeal Book, page 282 -

Tribunal Member:     I understand that you travelled to Australia with your brother?

Interpreter:     Yes

Tribunal Member:     And you may be aware that I heard your brother’s review application a few weeks ago.

At Appeal Book, page 307 –

Tribunal Member:     I have your written submissions of course, is there anything you would like to add?

Miss Coffey [the Agent]:     No

33    At the hearing in respect of the brother’s review, conducted on 26 February 2015 by Ms Murphy constituting the Tribunal for that purpose, the following exchange occurred, in addition to that summarised by me above. In the transcription, the “Member” is Ms Murphy and “Ms Coffey” is the lawyer from the Agent. The “Applicant” is the appellant’s brother:

MEMBER:     Is your cousin also in Melbourne?

APPLICANT:     Yes.

MEMBER:     Are his claims relevant to your claims?

APPLICANT:     No.

MEMBER:     There is no argument that that matter is related?

APPLICANT:     No, no nothing. And this is the issue that I asked last week I think or the last two weeks from my lawyer about that because our interview from the beginning from entry and from the last interview it was together.

MEMBER:     Your cousin?

APPLICANT:     No.

MEMBER:     No, brother.

APPLICANT:     Yeah, I asked them why this time there separate, different member because I asked I called here I think and someone else - -

MEMBER:     I noticed that you called and they had spoken to your brother. There simply isn’t the facility if the Department doesn’t link them - -

MS COFFEY:     Yeah, yeah.

MEMBER:     ... for it to be picked up in the Tribunal screening processes until it is too far down. Umm, is it your submission that the matter should be reconstituted?

MS COFFEY:     No, not necessarily, the reason I asked the question was because I think I can provide information from the brother that may help this case but I didn’t know if you already had access to that·-

MEMBER:     No

MS COFFEY:     - - it was more to clarify that I think.

MEMBER:     I mean it might be possible for me to get it and request the matter be reconstituted. I don’t know what the outcome of that would be if that is appropriate I can make that request.

INTERPRETER [TRANSLATING QUESTION FROM THE APPLICANT]:

Is there another hearing for me and my brother or that’s the last one?

MEMBER:     No other hearing for you. Your brother will at some point have his own hearing but it sounds like that is before another Member. I’ll make some inquiries but anything you think is relevant that you would like me to consider it: would be good if you can provide. I may be able to get the file to the matter but I may not.

34    At [6] of her reasons, Ms Murphy stated:

The applicant travelled to Australia with his brother … who also applied for a protection visa on 6 December 2012 and was interviewed together with the applicant on 17 October 2013. [The brother’s] application was also refused by the delegate on 9 December 2013 and [the bother’s] review application is also before this Tribunal … .

35    This paragraph of her reasons makes it clear that Ms Murphy was aware that the appellant and his brother had:

(a)    travelled to Australia together;

(b)    each applied for a Protection visa;

(c)    been interviewed together in relation to their visa applications by an officer of the Minister’s department; and

(d)    each had their applications refused by the same delegate on the same day.

36    It is a necessary inference: from Ms Murphy’s reference in her reasons (at [24]) to “the three short letters” attesting to the attendance at the World Mission Church of God by the appellant and his brother, from her reference to these having been submitted to the Tribunal in relation to the brother’s review, from the date of her decision in respect of the appellant’s review, and from the fact that the Agent did not send copies of these same letters to the Tribunal in respect of the that review until the following day, that Ms Murphy must, of her own motion, have sought and obtained access to the Tribunal’s file in respect of the brother’s review for the purpose of referring to these letters in her reasons. She had power to “get” these letters in that way: s 424 of the Act.

37    Ms Murphy made no reference whatsoever in her reasons to the oral evidence which the brother had given before her on 26 February 2015, much less to the position (confirmed by reference to the transcript of the brother’s evidence, as exhibited to affidavit evidence in the Federal Circuit Court) that the brother’s evidence, if accepted, corroborated the appellant’s claimed activities in Iran, especially his interest in Christianity and attendance at the uncle’s home church, the uncle’s arrest, their joint decision to leave Iran, their transit to Australia via Indonesia and their activities in Australia, especially their taking up of the Christian faith and, related to that, attendance at the World Mission Church of God.

38    Inferentially from her exchange with Ms Coffey at the hearing in respect of the brother’s review, Ms Murphy must have initiated some administrative inquiry in the Tribunal in relation to the appellant’s review the sequel to which was her also constituting the Tribunal for the purposes of that review.

39    It is as well to commence consideration of the merits of the grounds of appeal by recalling some features of the function which Ms Murphy was called upon to discharge when constituting the Tribunal for the purpose of the appellant’s review.

40    During the period of its existence, the “core function” of the Tribunal, found in s 414(1) of the Act, was to “review” an “RRT-reviewable decision” which is the subject of a valid application under s 412 of that Act: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, at 1127, [18] (SZIAI). The Minister’s delegate’s decision in respect of the appellant’s visa application was an “RRT-reviewable decision”. It is uncontroversial that the appellant made a valid application under s 412 for the review of that decision.

41    In establishing the Tribunal and consigning to it as its core function the task of reviewing a specified class of administrative decisions, the Parliament did not establish a court exercising the judicial power of the Commonwealth under Ch III of the Constitution. Rather, it adopted a model the constitutional propriety of which had been affirmed by the Judicial Committee in Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530. Paraphrasing for present relevance an observation made by the Judicial Committee, at 544 – 545, of the Board of Review in that case, the Tribunal appears to be in the nature of administrative machinery to which an applicant can resort to have his contentions reconsidered. It does not exercise judicial powers but is merely in the same position as the delegate of the Minister himself. It is another administrative tribunal which is reviewing the determination of the Minister’s delegate. It is this understanding of the features of an administrative review jurisdiction which not only underpins the reference in SZIAI to the Tribunal’s “core function” but is also authoritatively affirmed for the modern era in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi), at [40], [100], [134], and in Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629 (Frugtniet), at [51], in relation to the materially identical review function exercised by the AAT.

42    It was the above features of the AAT’s review function which moved Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329, at 333 - 334 to describe that tribunal as existing within an administrative decision-making continuum. That description later commended itself to Kirby J in Shi, at [45], and to Bell, Gageler, Gordon and Edelman JJ in Frugtniet, at [53]. In relation to RRT-reviewable decisions, the Tribunal also existed as part of such a continuum.

43    I turn now to the grounds of appeal. It is convenient first to consider what is now ground 3 of the grounds of appeal.

44    That, for the purposes of the review, the Tribunal could exercise all of the powers and discretions of the Minister’s delegate (s 415 of the Act), could “get” information (s 424 of the Act) and could require the Secretary to the department to arrange for the making of an investigation or a medical examination it considered necessary (s 427 of the Act) did not mean that it was under any general duty to conduct any inquiry. The learned primary judge correctly understood this. In SZIAI, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated, at [25]:

The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

[footnote references omitted]

45    The absence of any such general duty was accepted by the appellant in his submissions in relation to what is now ground 3. His submission was that the circumstances of the appellant’s review were peculiar and did give rise to a failure to make an obvious inquiry. He further submitted that what was said in SZIAI in relation to the absence of any general duty to inquire had now to be read in light of the discussion in the joint judgement of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) on the subject of unreasonableness. A failure to make an obvious inquiry in relation to evidence which, if accepted, could corroborate the appellant’s claim had the consequence that the Tribunal’s decision was unreasonable, he submitted.

46    The Minister also pointed to the absence of any general duty to inquire, as highlighted in SZIAI. He submitted that there were many decisions of this Court which stated that the circumstances in which a duty to inquire will have arisen will be “rare and exceptional”. It is true that there are a number of single judge decisions in which such a statement is made, Aggarwal v Minister for Immigration and Border Protection [2015] FCA 1312, at [57] – [58], being the most recent of those examples cited by the Minister. Ultimately, though, a submission as to frequency of encounter is nothing to the point, as everything turns on the circumstances of a given case.

47    The Minister also submitted that it was difficult to see how a duty to inquire could arise in circumstances where the appellant had been represented by a legally qualified migration agent. That representation is relevant but hardly determinative. Once again, everything depends on the overall circumstances of the case, of which the representation of the appellant is but one.

48    The Minister further submitted that, in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR), at [78], Gummow J had noted that whether a failure to make an obvious inquiry as to a critical fact gave rise to a jurisdictional error was “a point left open in SZIAI”. But in that same case, SZGUR, at [23], French CJ and Kiefel J expressly cited with approval the above-quoted observation made in SZIAI and then added, “It was not necessary in that case to further explore those questions of principle. Nor in our opinion is it necessary in this case.” The other judges in SZGUR, Heydon and Crennan JJ, agreed both with French CJ and Kiefel J and with the separate judgement delivered by Gummow J. I consider that I am bound by the observation made in SZIAI by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ to hold that the Tribunal can be subject to a duty to inquire in singular circumstances but is not under any general duty. Further, I respectfully consider that the following discussion by Gageler J in Li, at [100] – [101], of SZIAI and SZGUR and materially similar provisions of the Act which governed the also now former Migration Review Tribunal represents the correct position:

100.    However, the requirement for the MRT to act reasonably is not exhausted in every case where an applicant before the MRT is given a reasonable opportunity to give evidence, provide information and present arguments in relation to the decision under review. Reasonableness can require more. Thus, while it has been held that the MRT has no general duty to make inquiries, it has been accepted that “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”. The touchstone is reasonableness in the performance of the duty to review.

101.    The Minister for Immigration and Citizenship (the Minister) is correct to submit that the MRT has no general duty to adjourn a review because a review applicant believes that the passage of time will allow a visa criterion to be met. But a failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review.

[Footnote references omitted; emphasis added]

49    For this reason, the appellant was correct to submit that if, as he contended, the circumstances did give rise to a duty on the part of the Tribunal to get the brother’s evidence, and did not, that supported a conclusion that the Tribunal had committed the jurisdictional error of unreasonableness and thereby not discharged its core review function lawfully.

50    The Minister also submitted that the reference to the brothers having given consistent evidence in the Agent’s submission letter of 25 March 2015 necessarily meant that what the Tribunal was being said to have been under a duty to get was the statutory declaration which the brother had made in support of his visa application. But, looking at the “continuum” of administrative decision-making up to and including the time when Ms Murphy made her decision on 30 April 2015, I do not accept that the duty was so limited.

51    The appellant and his brother did not just travel together to Australia. Their respective visa applications also “travelled together” in the course of public administration up to and including the time when their respective review applications were lodged with the Tribunal. That was not happenstance but rather the result of overt recognition by the Minister’s department of a common, inter-related asserted factual substratum, both at the time of the initial interview on 12 August 2012 and by the Minister’s delegate when making the decision on 9 December 2013.

52    Upon reaching the Tribunal, the appellant’s review and the brother’s review did not, initially, “travel together”. Judging by the comments Ms Murphy made on 26 February 2015, there was not, at the time, any mechanism within the administration of the Tribunal to capture cases which had hitherto been dealt with together within the Minister’s department so as to ensure that the Tribunal adopted a consistent approach to them in its exercise of the review function. Inferentially, the Minister did not take any steps to alert the Tribunal to the fact that the appellant and his brother had been dealt with in this way. The Minister was well-placed to do this. It is to be hoped that he does so in future such cases.

53    However this may be, having regard to the exchange between Ms Murphy and Ms Coffey at the hearing on 20 April 2015, in the context of the exchange between them at the brother’s hearing on 26 February 2015, including the statement which Ms Murphy made in Ms Coffey’s presence to the appellant, “And you may be aware that I heard your brother’s review application a few weeks ago”, it is little wonder that neither the appellant nor Ms Coffey had anything to add. Against the background of that statement and the realised constitution of the Tribunal by the same Member, Ms Coffey and the appellant were entitled to assume that the hitherto position in public administration of considering the evidence each brother gave in determining the merits of their respective visa applications would continue, because the Tribunal had deliberately constituted itself so as to ensure that occurred. It is also little wonder, in light of this background and that duality of constitution that the Agent indicated to the Tribunal in correspondence before the hearing in respect of the appellant’s review that it was not proposed to call oral evidence from others.

54    I do not, with respect, share the view of the learned primary judge that the reference to the submission of the three letters at the hearing of 20 April 2015 should have disabused either Ms Coffey or the appellant of any notion that it was unnecessary separately to tender any evidence from the brother. In the circumstances, the very way in which the Tribunal had come to constitute itself was to ensure consistency, including that the evidence each gave and had given would be considered in each other’s case, as it had been departmentally, earlier in the “continuum”. The error which his Honour made was in not accepting that, in the peculiar circumstances of this case, the Tribunal was under a duty to get and consider the appellant’s brother’s evidence.

55    In the exercise of judicial power, evidence led in one case may not, in the absence of the consent of all parties concerned, be used in another, even if the same judge hears both cases. Public administration is very different. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend), at 45, Mason J stated:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision maker.

[Emphasis added]

56    Once it is understood that the Tribunal exercised administrative, not judicial, power, the prescription in s 420(2)(a) of the Act that the Tribunal “is not bound by technicalities, legal forms or rules of evidence” can be seen as declaratory of the position which generally prevails in the exercise of the executive power of the Commonwealth under Ch II of the Constitution. The absence of being bound by technicalities did not just mean that the Tribunal was perfectly entitled to constitute itself in a way that ensured a continuum of a public administration approach both desired by two visa applicants and adopted departmentally. It also meant that, this particular constitution having occurred in the administration of the Tribunal, the Member concerned, Ms Murphy, was not, to paraphrase Mason J in Peko-Wallsend, entitled to ignore material of which she had actual or constructive knowledge and which may have a direct bearing on the justice of the appellant’s review. It would not just be a “strange result” if this were lawful; it might also, were it to prove upon the appellant’s return to Iran as a sequel to the affirmation of the visa refusal decision that his claims were well-founded, be a singularly unpleasant, grotesque result.

57    In the circumstances of this case, the very way in which the Tribunal had constituted itself for the purposes of hearing the review applications of each of the brothers meant that, in relation to the appellant’s review, Ms Murphy was under a duty to “get”, and to consider, the evidence which the appellant’s brother had given in relation to their joint activities both in Iran and in Australia. In the particular circumstances of the appellant’s review, which formed part of a particular continuum of administrative decision-making, so doing was an obvious inquiry.

58    The irony, with respect, is that the obviousness, in the circumstances, of looking to the Tribunal’s file in respect of the brother’s review for the three letters occurred to Ms Murphy. Indeed, inferentially, it must readily have been possible. The recollection of having earlier heard the brother’s evidence was, as the above-quoted transcript excerpt confirms, obviously fresh in Ms Murphy’s mind on 20 April 2015. Insofar as recollection alone may have been insufficient, the evidence before the Federal Circuit Court disclosed that the Tribunal recorded not just the hearing of the appellant’s review but also of the brother’s review. There is nothing which would suggest that there was any great impediment to Ms Murphy’s accessing at least that recording to refresh her recollection of what the brother had said. Indeed, she expressly said she would do that in the brother’s hearing. Neither is there anything which would suggest that there was any impediment to her having access to statements earlier made by the brother on these subjects, insofar as she did not already have them on the file in respect of the appellant’s review as a result of he and the appellant having been interviewed jointly at one stage by a departmental officer.

59    The appellant was correct to characterise the consequence of the Tribunal’s failure to get and consider the appellant’s brother’s evidence as an exercise of the review function in a way that was unreasonable.

60    Regard to the joint judgement in Li discloses that there may be an alternative pathway to a conclusion that the Tribunal did not lawfully exercise its review function in this case. Section 422B(3) of the Act, which provides that, “In applying this Division, the Tribunal must act in a way that is fair and just” and the other provisions within “Division 4 – Conduct of review” are not materially distinguishable from s 357A(3) and “Division 5 – Conduct of review”, discussed by Hayne, Kiefel and Bell JJ, at [54] - [62]. In the course of that discussion, their Honours stated, at [59]:

A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.

61    Here, Ms Murphy’s failure to get and consider the appellant’s brother’s evidence could be regarded as an unfair act. That evidence was capable, if accepted on consideration, of corroborating the claims of the appellant and so yielding satisfaction that he had a well-founded fear of persecution. The power to “get” information was conferred on the Tribunal for the purpose of discharging its review function. The unfairness in the circumstances of not exercising that power had the consequence that the Tribunal’s obligation to review the Minister’s delegate’s decision was not lawfully discharged. However, as it was not in Li, at [62], so too in this case it is not necessary to “determine what [s 422B(3)] requires and what may be the consequence of a breach of that provision”.

62    Ground 1 does not, in itself, specify a jurisdictional error, although it may have the consequence that there was a failure to discharge the function of review. How that might occur was explained in Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 by Bell, Gageler and Keane JJ, at [13], who stated:

13.    Amongst the obligations to be observed by the Tribunal in the conduct of the review which are implicit in the scheme of Pt 7 is the obligation to reconsider the merits of the decision under review “in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself”. That obligation is fundamental to the nature of the review for which Pt 7 provides. Whilst it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence, the Federal Court has properly recognised that the Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to the applicant’s case, including any such evidence contained in a document or report provided to it by the Secretary, in the same way that the Tribunal would fail to perform that duty if it failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case.

[Emphasis added; footnotes omitted]

63    Here, the brother’s evidence was corroborative and, if accepted, might have made a difference to the fate of the appellant’s review. The Tribunal failed to take account of it in circumstances where it was obliged so to do. So the failure to get and consider it was material: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. That means that the Tribunal failed to discharge its review function.

64    As to ground 2, it is settled that, by s 425 of the Act, the Tribunal was obliged to offer the appellant a meaningful hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553. A failure to comply with the requirements of s 425 involves a jurisdictional error. In this case, the Tribunal did offer the appellant a meaningful hearing. It is just that, having so done, it did not, as it was obliged in the circumstances to do, get and consider the appellant’s brother’s evidence.

65    It follows that the appeal must be allowed, the orders made by the Federal Circuit Court set aside. In lieu thereof, it should be ordered that the Tribunal’s decision be brought up and quashed by a writ of certiorari. A writ of mandamus should issue directed to the AAT requiring that it undertake the review of the Minister’s delegate’s decision according to law.

66    The Minister submitted that the costs order made in the Federal Circuit Court ought not to be disturbed in the event that amendment of add ground 3 was permitted and that ground succeeded. But, as the appellant submitted, success on that ground depended on the evidence already filed in the court below. Further, the point raised by ground 3 had, as I have highlighted, been appreciated by the learned primary judge as raising a question as to whether there was a duty to inquire in the circumstances of this case. In any event, the appellant was also successful in relation to ground 1, which is another reason to disturb the costs order below. In these circumstances, my view is that the appellant ought to have his costs both in this Court and in the court below.

Associate:    

Dated:    8 November 2019