FEDERAL COURT OF AUSTRALIA

Ikupu v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 74

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal dated 13 August 2019 be quashed.

2.    The respondent notify the Court and the applicant whether he wishes to make any submissions about the relief sought in the nature of mandamus within 14 days of the date of these orders.

3.    If the respondent wishes to make any submissions in accordance with order 2 the parties confer and file an agreed timetable for the making of written submissions within a further 7 days thereafter.

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

REASONS FOR JUDGMENT

JAGOT J:

1    The applicant, Francis Ikupu, has applied to have a decision of the Administrative Appeal Tribunal (the Tribunal) set aside for jurisdictional error by allegedly denying the applicant procedural fairness.

2    For the reasons which follow I consider that the Tribunal denied the applicant procedural fairness in the conduct of the hearing with the consequence that the Tribunal’s decision must be quashed.

Background

3    The applicant was born in Papua New Guinea in 1979. He came to Australia in 1995 at age 15 and has resided here since, other than during a brief overseas trip in 2014. In 2014 he was granted a Class BB (subclass 155) Five Year Resident Return visa. The applicant was first convicted of offences in 1997 and continued to offend thereafter accruing multiple convictions. One of those convictions, on 5 May 2006, was for possessing cannabis for sale for which the applicant was sentenced to imprisonment for 2 years and 4 months. Following this conviction the applicant was notified by the respondent that his visa may be liable to cancellation on character grounds under s 501 of the Migration Act 1958 (Cth) (the Migration Act). The applicant made submissions against the cancellation and a delegate of the respondent Minister notified the applicant in August 2006 that a decision had been made not to cancel the applicant’s visa.

4    On 21 September 2018, the applicant was convicted of further offences. On 30 October 2018, the applicant’s visa was cancelled under s 501(3A) of the Migration Act which provides for mandatory cancellation of a visa if a person does not pass the character test and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence. The applicant was notified of this decision in accordance with s 501CA(3) of the Migration Act and invited to make representations about revocation of the decision to cancel his visa. Under s 501CA(4) the Minister may revoke the cancellation decision if the person makes representations in accordance with the invitation to do so and the Minister is satisfied either that the person passes the character test or that “there is another reason why the original [i.e. the cancellation] decision should be revoked”. It is common ground in this matter that the applicant does not pass the character test.

5    On 31 October 2018, the applicant made representations to the Minister to revoke the cancellation decision. A delegate of the Minister refused to revoke the cancellation decision on 21 May 2019. On 30 May 2019, the applicant applied to the Tribunal for review of the decision of the Minister’s delegate. The applicant did not have legal representation and was in immigration detention.

The process and hearing before the Tribunal

6    On 31 May 2019, the Tribunal notified the Minister that the application for review had been made and that the matter would be listed for directions and a hearing. The notice to the Minister also noted that the matter was an “expedited matter”. This is a reference to s 500 (6L) of the Migration Act which provides that if the Tribunal has not made a decision in relation to a cancellation decision within the period of 84 days after the day on which the person was notified of the decision under review the Tribunal would be taken, at the end of that period, to have made a decision to affirm the decision under review. The matter was subsequently listed for hearing on 24 and 25 July 2019.

7    On 19 June 2019, the Tribunal notified the Minister that summonses had been issued at the Minister’s request to the Australian Federal Police, ACT Corrective Services and the ACT Magistrates Court. The return date for the summonses was 8 July 2019. The Tribunal’s notice said the standard access order was for the applicant to be given first access to the documents and the respondent to be given access 14 days later.

8    On 12 July 2019, the Tribunal sent five emails to the applicant attaching the documents produced in accordance with the summonses. The attachments totalled 659 pages. According to the applicant’s unchallenged evidence he did not know what to do with the documents. He tried viewing them on his mobile phone but this was difficult. He tried to use the computers in the detention facility but “they have a lot of problems and always break”. He did not think about printing the documents. Also on 12 July 2019, the Tribunal granted the applicant first access to the documents from 15 July 2019 with the Minister to have access from 22 July 2019, two days before the hearing scheduled to start on 24 July 2019.

9    On the day before the hearing, 23 July 2019, the Minister’s solicitor emailed the Tribunal and the applicant attaching “relevant excerpts” from the documents. The attachment totalled 120 pages. The applicant’s unchallenged evidence was to the same effect as his evidence about the attachments to the emails which the Tribunal had sent him; that is, that he did not know what to do with the documents, tried to view them on his mobile phone which was difficult and on the computers at the detention facility, and did not think about printing the attachments.

10    The Tribunal hearing started on 24 July 2019. The applicant remained in detention and attended the hearing via a video link. The Tribunal asked the applicant if he had had a chance to go through the material and the applicant said if that meant the email he had received “last night” (in fact, at 1.08pm the previous day) then he had done so “very briefly”. The Tribunal asked if the applicant wanted more time to go through that material to which the applicant responded if the documents were just extracts from what had previously been sent then it “should be fine”. Having heard from the Minister’s representative the Tribunal said that if more time was needed by the applicant to review the documents now, in the afternoon or overnight then the Tribunal would “make sure you have that opportunity”. The Tribunal also said that the material was “historical” and was “very similar to a driving history” and that a person’s driving history “is what it is” and “cannot be changed now”.

11    The applicant then gave evidence. He was cross-examined including about the documents served by the Minister which were admitted as exhibit SM1. The transcript discloses that the applicant was attempting to look at the documents on his mobile phone during his questioning and that the Tribunal was aware of this fact. At the end of the first day of the hearing the Tribunal said this in response to the evidence the applicant had been giving:

Now, if the answer - and the simple answer to these questions is, ‘I was so drunk, I can’t even remember what I was doing,’ that’s the answer to the question. If the answer is, ‘I was so drunk that I might have done those things, but I didn’t mean to hurt anybody,’ that’s the answer. And if you want to tell us that Ms Loverich is unreliable because of her BPD, you can say that as well. But what you can’t say, and what is not standing up to any sort of scrutiny, is that these police reports are not to be accepted, because Ms Loverich might be a little bit - or a lot - mentally unwell. If that were the case, the police wouldn’t have made the reports. Do you see?---All right, yes.

…

Now, overnight, I want you to have a really careful look through that summonsed material. So have a look at these police reports that Mr Ray has just referred you to. Go through them?---Certainly.

See if you can go back in time to the night where this incident happened, and see if you’ve got some kind of explanation, all right?---Yes.

You’re not the first person to have marital trouble with a spouse. You’re not the first person to have trouble with alcohol. There’s nothing unique in that. But you need to answer the questions that Mr Ray puts to you squarely. Because at the moment, it’s going towards you telling stories, and it’s not sounding very convincing, all right?---All right, yes, your Honour.

I thought it [sic] should warn you about that, in your best interests. So read the material overnight, think about your answers, and then just give him the straight answers, no matter what they are, all right?---Yes.

(Emphasis added.)

12    The applicant’s unchallenged evidence before this Court was that he understood from this that he was not allowed to say that things did not happen the way they were reported in the police reports tendered by the Minister. He thought he was being directed that he could not dispute the police reports and wondered how he could get his point across if he “can’t tell [the Tribunal] my side”. He understood that he could not stand up for himself and had to keep his answers as brief as possible and was to just say “yes” or “no” as much as he could. He believed the Tribunal was “telling me my role and what I had to do, directing me”.

13    After the end of the first day of the hearing the Tribunal sent three emails to the applicant again attaching all of the material on the summonses and then sent another three emails again attaching all of the same material. The applicant’s evidence is that he did not understand which documents he was meant to look at.

14    The applicant’s evidence to this Court is that on the second day of the hearing and as a result of what he had been told by the Tribunal he did not think he could support himself and should just say “yes”. He said he did not explain matters that he wanted to explain because he thought that if he did so it would be to “go against what [the Tribunal] had said to [him] the day before about not disputing the police reports” and because he thus thought that he could not dispute those reports. The police reports, it should be noted, related to uncharged matters, many involving complaints by third parties including the applicant’s former partner, rather than offences.

15    The Tribunal asked the applicant on the second day of the hearing if he had “read all those police reports” and he answered that he had “sort of browsed through them” and had looked at them. He was asked if there was anything he had read in those reports that he disputed and answered that “[t]here were a few. I can’t really recall them”. Later he said that “[i]t should be fine”. The Tribunal then said it would look at the facts the police had recorded in the police reports about each of the offences and would “basically accept them”. The Tribunal then said that if the applicant needed a bit more time it would give it to him and the applicant asked for 10 minutes “to go over it”, a request which the Tribunal granted.

16    When the Tribunal resumed its hearing it asked the applicant if there was anything he would like to speak further about and he answered “I have, but I think it [sic] just the nerves getting the better of me”. The Tribunal asked if the applicant wanted to talk about these things now and the applicant answered “No, it’s truly fine, thank you”. The Tribunal asked “so nothing further to say about them?” and the applicant answered “no”.

17    The applicant said in his evidence to this Court, however, that there were definitely things he did not agree with in the police reports but did not know how he could bring those parts up or how he could sort through it all on his email to find those parts. He said the talk the Tribunal had given him on the first day was in his mind and he thought it best not to argue but if he had been given the chance he would have told the Tribunal about parts of the police reports which were not true and other parts which he could have explained. In his unchallenged evidence to this Court the applicant gave examples of these matters. The examples included his explanation that one of his former partners, to whom a number of the police reports related, was diagnosed with borderline personality disorder and that as a result of this disorder she would escalate things and blow them out of proportion, routinely reporting the applicant to police and then making up with him the following week. Further, an alleged assault on his brother for which the applicant was not charged involved the applicant acting in self-defence, as did another (uncharged) alleged assault on an Irish tourist. Another incident involving the applicant allegedly kicking down a door, the applicant explained, was based on a misunderstanding of events by the police.

18    As the submissions for the applicant put it:

Overall, the applicant wanted to explain to the Tribunal that he is not a violent or aggressive person, although he accepts that he has had problems with alcohol, which brings out the worst in him, and has had some volatile relationships. Plainly, that is not the impression the Tribunal formed from reviewing the Summonsed Material, unaided by explanations from the applicant.

The Tribunal’s decision

19    On 13 August 2019 the Tribunal decided to affirm the decision under review: Ikupu and Minister for Home Affairs (Migration) [2019] AATA 2545. In its reasons for decision the Tribunal recorded at [14] that the “facts are largely uncontentious” and that “[s]ome of the findings are based on police reports”. At [79] the Tribunal recorded that the applicant “offered explanations and context for various aspects of his offending but did not, for the most part, seek to deny the key factual matters which emerged from the sentencing reports and AFP records”. The Tribunal referred in numerous parts of its reasoning to the police reports about incidents when the police were called but no charges were laid and no conviction for an offence was entered against the applicant: [18], [28], [30], [35], [39], [42], [46], [47]-[48], [55]-[56], [57]-[58] and [59].

20    On the basis of the material before it, including the police reports about incidents which had not led to any charge against the applicant, the Tribunal made findings which included that the applicant:

(1)    “has been repeatedly reported to police for intimidating conduct involving his domestic partners”: [92];

(2)    “consistently gets so angry that he damages property”: [93];

(3)    “has little or no respect for lawful authority”: [96];

(4)    “is certainly capable of violent offending”, having “assaulted other men, including his brother”, with his behaviour towards women being “undoubtedly aggressive, frightening and intimidating”: [98]; and

(5)    “has been aggressive towards police in the performance of their duties”: [98].

The applicant’s submissions

21    The applicant noted s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) which provides that:

Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

22    The applicant referred to the statement in Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482 at [32], citing Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J at 342, that s 39(1) is a “statutory recognition of an obligation the common law would in any event imply”. At [33] the Full Court in Jagroop confirmed that:

A reasonable opportunity is not synonymous with “every possible opportunity” or even “every opportunity”. Whether or not an applicant has been provided with the requisite opportunity is to be determined objectively, having regard to all the relevant circumstances.

23    The applicant referred to Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [37] to the effect that an invitation to a person to attend a hearing must give the person a “real and meaningful” opportunity to participate in the hearing.

24    The applicant referred to Dharma v Minister for Home Affairs [2019] FCA 431 in which it was said at [65] that “the fact that the applicant was a litigant in person before the AAT is another relevant circumstance which shapes the question of the fairness of the procedure which was adopted”. Further, that what must be done to assist a litigant in person “depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case”: Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at [27].

25    The applicant submitted further that questioning of a witness by a decision-maker can make it impossible for a party to present their case: R v T, WA [2014] SASCFC 3; (2014) 118 SASR 382 at [37]. In the case of a tribunal this may be so where the party is thereby prevented from telling the tribunal all that the person wanted to tell: Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584; (2006) 151 FCR 480 at [78].

26    The applicant submitted that having regard to these principles the Tribunal’s processes resulted in a denial of procedural fairness to the applicant in two respects.

27    First, it was submitted that the fact that the Tribunal’s directions concerning the summonsed documents resulted in the Minister notifying the applicant of the documents to be tendered the day before the hearing involved a breach of the requirements of procedural fairness to the applicant. The applicant was unrepresented and in immigration detention. The provision of the documents to the applicant the day before the hearing meant that the applicant could not satisfy the requirement in s 500(6J) of the Migration Act which provides that the Tribunal must not have regard to any document submitted in support of a person’s case unless a copy of the document is given to the Minister at least two business days before the Tribunal holds a hearing in relation to the decision under review. It was also apparent to the Tribunal that during the hearing the applicant was attempting to look at documents to which reference was being made from the 120 pages of attachments to the email which had been sent to him on his mobile phone. In these circumstances, for the Tribunal to proceed with the hearing involved a denial of procedural fairness to the applicant. The applicant had not been given an adequate opportunity to consider the documents. To provide the applicant with procedural fairness the Tribunal needed to adjourn the hearing and arrange for the applicant to be provided with a paper copy of the documents as it was apparent that the applicant had not had an adequate opportunity to review the documents.

28    Second, it was submitted that the Tribunal’s comments to the applicant ( hat the applicant could not say that the police reports were not to be accepted due to his former partner’s mental illness, as if that were the case the police would not have made the reports) breached the requirements of procedural fairness as they “crossed the line” from an appropriate indication of aa decision-maker’s preliminary views to enable a party to address those views to a direction to an unrepresented party that they would not be permitted to present their case. In particular:

(1)    the statement by the Tribunal that the applicant “can’t say” the police reports are not to be accepted as if that were the case the police would not have made the reports was incorrect and illogical. To the contrary of the statement, it was a coherent position for the applicant to contend that the police reports relating to occasions when his former partner had called the police were affected by her diagnosed borderline personality disorder and it did not follow from the fact that the police had written the reports that the contents of the reports were necessarily true. Indeed, the fact that the reports did not lead to charges is consistent with the applicant’s contention that these reports were not true;

(2)    the Tribunal ventured into the territory of telling the applicant what evidence he could not give (disputing the police reports) and should give (to the effect that he had been under the influence of alcohol during the alleged incidents) in contrast to merely informing the applicant of the difficulty it had in accepting aspects of his evidence;

(3)    in so doing the Tribunal made it clear to the applicant that it would not accept the evidence he had been giving as a result of its false premise that the police would not have written the reports if the contents were not true; and

(4)    reinforcing this was that the Tribunal was dismissive in its language of the applicant’s evidence (saying the applicant was “telling stories”) and failed to identify to the applicant any specific inconsistency or inadequacy in his evidence.

29    As a result of these circumstances, the applicant submitted, the conduct of the hearing the following day effectively miscarried as the applicant was compelled to accept the position that he was not able to dispute the contents of the police reports. The effect of the Tribunal’s conduct was to prevent the applicant from putting the case he wished to put before the Tribunal. The Tribunal’s conduct had a material effect on its decision as it proceeded on the basis that the facts in the police reports were largely uncontested when the applicant, if given the opportunity to do so, would have contested a number of those facts.

The Minister’s submissions

30    The Minister accepted that the Tribunal was required to provide procedural fairness to the applicant: s 39(1) of the AAT Act; Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [57].

31    The Minister observed that procedural fairness to the applicant required the Tribunal to “adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard”, sufficient to put the applicant on notice of “the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse” to the applicant: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [82] and [83].

32    The Minister accepted that the fact that the applicant was unrepresented is a relevant factor in considering the requirements of procedural fairness: SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88; (2015) 229 FCR 317 at [32], Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [309]-[316]. The Minister referred to the summary of the relevant principles in Bauskis v Liew [2013] NSWCA 297 at [67]-[70] as follows (citations omitted):

First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties….

Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just…

Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant…

Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant…

33    The Minister said that in the context of this case the principles had to be considered in light of the inquisitorial nature of the Tribunal’s role and its obligation under s 33(1)(b) of the AAT Act, to act with as little formality and technicality as the case may permit, albeit accepting that there is a close analogy between the obligations of the Tribunal and those of a court when dealing with an unrepresented litigant: Dharma v Minister for Home Affairs [2019] FCA 431 at [66].

34    While the Tribunal was required to provide the applicant with an opportunity to present evidence and make submissions it was not required to assist the applicant to make his case or consider how his case might be better put: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36]. The Minister cited Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 at [63] in these terms:

The question will always remain whether a particular applicant in the particular circumstances of her or his review by the Tribunal was afforded a meaningful opportunity to appear before the Tribunal, and to make arguments and present evidence. Not a token, or unfair opportunity, but a meaningful one. Nevertheless, it is an opportunity - the Tribunal does not have to go out of its way to ensure an applicant makes the most of the opportunity that is given.

(Emphasis added.)

35    The Minister submitted that close consideration of the facts of the case was required.

36    As to the first issue on which the applicant relied, the Minister submitted that the fact that the applicant was provided with the documents which the Minister wished to tender the day before the hearing must be considered in the context of the applicant having been provided by the Tribunal with all of the summonsed documents 12 days before the hearing. The Minister served extracts from those documents within one day of the Minister being granted access to the material. The Tribunal offered the applicant an adjournment to review the extracts but the applicant declined that opportunity on the basis that the documents were an extract of the material he had already been sent. Having declined the opportunity for an adjournment the applicant cannot now complain that he did not have sufficient time to review and understand the documents: Bauskis v Liew [2013] NSWCA 297 at [77]-[85].

37    Further, the Tribunal’s procedure must be considered in light of s 500(6L) of the Migration Act which effectively requires the Tribunal to complete its review within 84 days of notification of the Minister’s decision. The summonses were issued promptly and the Tribunal appropriately gave the applicant first access to the documents. In these circumstances it was not unreasonable for the Minister to be granted access to the material only two days before the hearing and to provide its tender bundle to the applicant the day before the hearing.

38    To the extent that the applicant relied on s 500(6J) of the Migration Act which precludes an applicant from relying on material not served two business days before the hearing, the applicant has not indicated what evidence he would otherwise have relied upon. The applicant also had the opportunity to rebut the material in answers he gave to questions in cross-examination and from the Tribunal. The applicant also had all of the summonsed documents 12 days before the hearing and thus also had this opportunity to rebut matters in the excerpts relied upon by the Minister.

39    Procedural fairness, said the Minister, did not require the applicant to be given the excerpts from the summonsed documents in any particular format. The applicant’s evidence also does not establish that the applicant did not have the opportunity to print the documents, the evidence being to the effect that the applicant did not think about printing the documents.

40    As to the second issue on which the applicant relied, the Minister submitted that the applicant’s submissions mischaracterise the Tribunal’s remarks as telling the applicant what he could and could not say. A better characterisation is that one of the members of the Tribunal (the Tribunal having been constituted by two members) was giving the applicant a preliminary indication that some of his evidence may not be accepted and that he should focus on giving direct answers to the questions being put to him. The Tribunal was not required to give a “running commentary” of its assessment of the evidence but was permitted to “expose its reservations as to the reliability of the evidence being given during the course of a hearing”: Chen v Secretary, Department of Social Services [2016] FCA 1474 citing Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [31].

41    The Minister submitted that the applicant’s submissions focused too keenly on the parsing of one part of the transcript when it is necessary to view the remarks in the context of the entire hearing: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13]. The questions asked of the applicant gave him ample opportunity to contradict the police reports and he did not limit his answers to “yes” or “no” but, rather, was able to advance his explanation for those matters. Importantly, at the end of the hearing the Tribunal asked the applicant if he wished to disagree with anything in the police reports and gave him an adjournment to consider his position, the Tribunal having said that it would take into account what the applicant had said and that it would make a judgment as to which versions it accepted where what the applicant had said conflicted with the police reports. In the context of the hearing as a whole, the Tribunal’s statement at the end of the first day of the hearing could not reasonably have conveyed to the applicant that it was not open to the applicant to challenge the versions of events in the summonsed material. To the contrary, he was invited by the Tribunal to challenge that information.

Discussion

42    I consider that the hearing before the Tribunal miscarried by reason of a denial of procedural fairness to the applicant.

43    It may be accepted that the course of the hearing as a whole must be considered and the issue is whether, considered on an objective, basis the applicant was given a reasonable opportunity to present his case. I do not accept, however, that in the circumstances of this case the fact the Tribunal was constituted by two members alters the proper characterisation of the Tribunal’s statements to the applicant towards the end of the first day of the hearing. The constitution of the Tribunal by two members may have been relevant if a member of the Tribunal had done no more than give the applicant an indication that his evidence to that point about the police reports involving his former partner were not “standing up to any form of scrutiny”. The Tribunal did more than this, however. As the applicant submitted the Tribunal told the applicant, who had no legal representation, that what he “can’t say” is that the police reports are not to be accepted as his former partner might be mentally unwell, as if that were the case the police would not have made the reports.

44    To a reasonable person in the applicant’s position the Tribunal was effectively directing the applicant that he could not contend the police reports were inaccurate. Further, the applicant’s unchallenged evidence was that he in fact understood the Tribunal to be so directing him and that this affected the evidence he gave to the Tribunal on the second day of the hearing.

45    In these circumstances, the fact that on the second day of the hearing the applicant was asked questions about the police reports and that the Tribunal gave him an adjournment to see if he wished to disagree with the police reports does not cure the procedural miscarriage which occurred. Viewed objectively, the applicant did not have a real and meaningful opportunity to dispute the police reports in the answers to questions either in cross-examination or in response to the Tribunal’s questions of him (including the direct question at the end of the hearing asking if there was “anything specific now you want to tell us that you disagree with in the police reports”) because the Tribunal had already told the applicant that he could not say that the Tribunal should not accept the contents of the police reports.

46    The fact that the Tribunal said to the applicant that, in effect, the police would not have written the reports if the contest were untrue, in circumstances where the reports summarised the complaints by third parties against the applicant, reinforced the effect of the Tribunal’s words as a form of direction to the applicant as to the evidence he could and could not give. He was being told he could not give evidence that the content of the police reports relating to his former partner were inaccurate or exaggerated due to her mental illness as, if that were so, the police would not have made the reports. The submissions for the applicant that these two propositions involve a non sequitur must be accepted, but for present purposes the problem with the statement is that it was not mere commentary on what the Tribunal apparently saw as the applicant’s lack of credibility. Reasonably understood in context, the applicant was being directed as to what evidence he could and could not give about the police reports.

47    The unchallenged evidence of the applicant being what it is (that he did understand the Tribunal to be giving him a direction), taken with my view that the applicant’s understanding was objectively reasonable in all of the circumstances, means that nothing that occurred on the second day of the hearing had the effect of curing the breach of procedural fairness. It cannot now be known what evidence the applicant would have given to the Tribunal had he been given a real opportunity to do so in answer to questions in cross-examination or from the Tribunal. The Tribunal’s direction to him at the end of the first day of the hearing operated to deny the applicant that opportunity.

48    The fact that the Tribunal subsequently (at the end of the hearing) gave him an adjournment to consider the police reports and to disagree with them cannot cure the contravention of the requirements of procedural fairness for three reasons. First, the invitation to disagree with the police reports was made after the applicant had given evidence on the basis of his (reasonable) understanding that he could not dispute the police reports. The harm to the applicant’s opportunity to present his case had already been done. Second, the surrounding statements by the Tribunal were themselves misleading. The Tribunal referred twice to the police reports as being about “offences” (which accords with the Tribunal having understood the police reports to be akin to a driving record) when, in fact, the reports related to matters involving no charge, let alone a conviction for an offence. Third, it cannot be known what the applicant would have said in answer to the Tribunal’s question at the end of the second day of the hearing about disputing the police reports but for the initial misdirection on the first day of the hearing.

49    This is not to say that a misdirection during a hearing before the Tribunal cannot be cured by some subsequent statement. A hearing is a process and the issue is whether in the circumstances of the hearing as a whole the applicant was denied a real and meaningful opportunity to present his case. In the present case, a number of facts have to be weighed together in deciding if the applicant was denied procedural fairness, in particular:

(1)    the applicant’s status as a litigant in person;

(2)    the content of what the Tribunal said (as to what the applicant “can’t say”);

(3)    the time at which the Tribunal said it (during the applicant’s evidence at the end of the first day of the hearing);

(4)    that the applicant then gave evidence based on an objectively reasonable and subjective understanding that the Tribunal had directed him as to the evidence he could not give; and

(5)    that the potentially ameliorative statements on which the Minister relied occurred after the applicant’s cross-examination and at the end of the second day of the hearing.

50    Neither the Tribunal’s inquisitorial role nor the fact that the Tribunal was entitled but not obliged to give the applicant the benefit of its preliminary views provide a sufficient basis to characterise the Tribunal’s intervention as appropriate in all of the circumstances. The effect of the intervention was to deprive the applicant of a real and meaningful opportunity to present his case.

51    Accordingly, I would uphold the applicant’s second basis of challenge to the validity of the Tribunal’s decision. This denial of procedural fairness to the applicant involved a jurisdictional error which was material and which thereby has the effect of vitiating the Tribunal’s decision.

52    I am not persuaded, however, as to the applicant’s first basis of challenge to the validity of the Tribunal’s decision. I should record that the Tribunal’s process in relation to the summonsed material has caused me concern. Ultimately, I have decided that there was no denial of procedural fairness by reason of the facts that the applicant, as an unrepresented litigant in immigration detention, was served with the documents on which the Minister wished to rely comprising 120 pages one day before the hearing and the applicant did not have a paper copy of those excerpts and was attempting to find them on his mobile phone during the hearing. This is because the applicant was asked by the Tribunal at the start of the hearing whether he needed more time to consider the documents and the applicant said he believed it would be fine as they were excerpts of what he had earlier received. Further, it was open to the applicant to inform the Tribunal of any difficulty he was having with trying to find the documents on his mobile phone but the applicant did not do so. But for these contextual matters I consider that the circumstances would have involved the Tribunal denying the applicant a fair hearing.

53    These contextual matters, however, cannot be ignored. To accept the applicant’s contrary arguments would be to disregard the course of the hearing as it in fact occurred. The Tribunal was entitled to rely on the applicant’s indication that he was able to proceed with the hearing as the documents on which the Minister relied were extracts from what had been sent to him previously (12 days before by the Tribunal). In these circumstances it was not to deprive the applicant of a fair hearing for the Tribunal to rely on the applicant’s indication that he was willing to proceed with the hearing. Further, the fact that the Tribunal subsequently became aware that the applicant was looking at the documents on his mobile phone, in circumstances where it was not apparent that the applicant was unable to locate and read the documents and the applicant raised no issue of concern to the Tribunal about viewing the documents in this manner, does not mean that the applicant was deprived of a real and meaningful opportunity to participate in the hearing.

54    This said, the circumstance of the applicant, who was not legally represented, being served with 120 pages of material electronically the day before the hearing while in immigration detention was far from ideal. The circumstances risked the hearing miscarrying by denying the applicant the opportunity for a fair hearing and the Minister should have taken steps to serve a hard copy of the documents on the applicant to avoid that risk and the potential appearance of unfairness to the applicant.

55    In any event, as I have said, I consider that the Tribunal did contravene its obligation of procedural fairness to the applicant in the conduct of the hearing with the consequence that the Tribunal’s decision ought to be quashed. Insofar as the writ of mandamus which the applicant sought is concerned, I propose to give the parties an opportunity to inform me whether they wish to be heard on the effect, if any, of s 500(6L) of the Migration Act. As noted, the section provides that if the Tribunal has not made a decision within a period of 84 days from notification of the decision under review the Tribunal is taken to have made a decision affirming the decision under review. Accordingly, the order to be made at this stage will be confined to an order quashing the Tribunal’s decision.

Associate:

Dated:    10 February 2020