Federal Court of Australia

NDBR v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 168

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued quashing the decision of the second respondent dated 28 November 2022.

2.    A writ of mandamus directed to the second respondent be issued requiring it to review the decision of the delegate of the first respondent according to law.

3.    The first respondent pay the applicant’s costs of and incidental to the application, 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

MCEVOY J

1    By application filed 31 December 2022, the applicant seeks judicial review pursuant to s 476A of the Migration Act 1958 (Cth) of a decision of the Second Respondent (the Administrative Appeals Tribunal) made on 28 November 2022. The Tribunal affirmed a decision of a delegate of the First Respondent (the Minister) dated 7 December 2018 to refuse to grant the applicant a Temporary Protection (Class XD) visa under s 501(1) of the Act (Protection Visa).

2    The applicant is 32 years old and was born in Pakistan. In 2012 he arrived in Australia as an illegal maritime arrival and was placed into immigration detention. Later that year he was granted a Bridging E (Class WE) visa under s 195A of the Act and was released into the Australian community.

3    On 27 September 2013 a delegate of the Minister refused to grant the applicant a Protection Visa, and his bridging visa was cancelled in April 2014. The applicant was placed in immigration detention on 11 April 2014.

4    On 19 September 2014 the Refugee Review Tribunal remitted the matter for reconsideration by the Minister, with a direction that the applicant satisfied s 36(2)(a) of the Act.

5    On 6 May 2015, however, the applicant was found guilty of the offence of unlawfully and indecently dealing with a child under the age of 16 under s 210(1)(a) of the Criminal Code 1899 (Qld). On 25 May 2015 the applicant was sentenced to a conditional release upon entering into a recognisance a sum of $200 and subject to compliance with the condition that he keep the peace and be of good behaviour for two years. The applicant appealed his conviction and sentence to the Court of Appeal of the Supreme Court of Queensland. On 1 October 2015 the Court of Appeal allowed the appeal and ordered a retrial. On 25 May 2016 the applicant was convicted of the same offence again and was re-sentenced to conditional release upon entering into a recognisance a sum of $200 and subject to compliance with the condition that he keep the peace and be of good behaviour for two years. It would seem that the applicant complied with these conditions.

6    On 8 December 2016 the Minister personally refused the applicant’s application for a Protection Visa under s 501(1) of the Act, however this decision was quashed in this Court by way of consent orders dated 16 May 2017 and remitted to the Minister to be determined according to law.

7    On 13 November 2017 the applicant was involved in an incident at the Christmas Island detention centre and was charged with one count of causing harm to a Commonwealth public official. He pleaded not guilty and stood trial in the Magistrates’ Court of Western Australia. On 7 November 2018 the applicant was found guilty of one count of causing harm to a Commonwealth public official.

8    On 7 December 2018 a delegate of the Minister again refused the applicant’s application for a Protection Visa under s 501(1) of the Act. The applicant sought review of that decision in the Tribunal, which affirmed the delegate’s decision on 8 March 2019. The applicant sought review of that decision in this Court, which on 4 October 2019 dismissed that application: NDBR v Minister for Home Affairs [2019] FCA 1631. On 20 September 2021, however, the Full Court allowed the applicant’s appeal and once again remitted the matter to the Tribunal to be decided accordingly to law: NDBR v Minister for Home Affairs and Another (2021) 286 FCR 336 (Bromberg, Markovic and Banks-Smith JJ).

9    As the applicant conceded that he did not pass the character test in s 501(1) of the Act by reason of s 501(6)(e)(i) of the Act, the only issue for the Tribunal to determine on the remitter was whether it should exercise the discretion to refuse to grant the visa.

10    The Tribunal commenced re-hearing the matter on 2 May 2022. Some cross-examination of the applicant occurred on that day, before the matter was adjourned on 3 May 2022 for several reasons, one being that the applicant’s advocate sought to obtain a medical report addressing his impaired cognitive function, that having become apparent.

11    On 10 November 2022 a Dr Karen Scally produced a joint forensic psychological and neuropsychological report. In this report Dr Scally noted her “concern for [the applicant]’s ability to adequately receive instruction and comprehend questions put to him during complicated proceedings.” She also explained that it was “highly likely” that he would be “unable to retain instruction by legal counsel and may miss significant portions of verbal information put to him within the Tribunal setting” which would impact “his ability to provide accurate responses”. Dr Scally explained that this would place the applicant at a “significant disadvantage when providing evidence during complicated Tribunal proceedings”.

12    For these reasons Dr Scally recommended that the applicant’s “verbal legal instruction is supplemented in short and simple dot-point written format” and that questions be put to him in “in very simple short sentences of no more than ten words and that an interpreter is instructed to keep translations also in this format”.

13    On 18 November 2022 the Tribunal conducted a directions hearing to canvass the way in which the applicant’s evidence should be received in light of Dr Scally’s recommendations. The Tribunal directed the parties’ representatives to take Dr Scally’s recommendations in the report into account and to keep the questions to be asked of the applicant “very short”. The Tribunal also directed the Minister to notify the applicant of the topics for cross-examination, and the relevant page numbers of any further evidence to be adduced. The Tribunal subsequently recorded the making of this direction in its reasons at [18]:

… I gave leave to the applicant’s representatives to put further questions in examination in chief to the applicant and I indicated that any further cross examination should comply with Dr Scally’s recommendations and that advance notice of topics of cross examination and any page references should be given.

14    The hearing resumed on 24 November 2022. Significantly, that morning the Minister provided a list of pages in a bundle of further documents which had been provided on 7 July 2022 and upon which the Minister proposed to cross-examine the applicant. The applicant now complains, amongst other things, that this late provision of the relevant page numbers in the bundle of documents which had been provided in July that year did not give him sufficient time to prepare for the hearing, and that the Minister’s representative asked questions that exceeded the length recommended by Dr Scally.

15    As has been mentioned, the Tribunal subsequently affirmed the delegate’s decision not to grant the applicant a Protection Visa. The applicant now seeks an order again quashing the Tribunal’s decision and remitting the matter to be determined according to law.

Grounds of review

16    In his amended originating application filed 29 May 2023 the applicant advanced the following grounds of review:

(1)    The Tribunal denied the applicant procedural fairness by failing to properly consider and adhere to recommendations made by Dr Scally regarding the applicant’s cognitive issues, its own directions about the issue, and to control the proceedings accordingly.

(2)    The Tribunal acted legally unreasonably, and/or irrationally and/or illogically.

(3)    The Tribunal erred by failing to consider clearly articulated representations made by the applicant in respect of his offending.

(4)    The Tribunal erred in reaching the finding at [50] of its Reasons that the applicant had “engaged in violent and abusive behaviour and made false accusations of self-defence on numerous occasions whilst in detention.”

(5)    The Tribunal erred by misconstruing cl 8.1.1(1)(b) of Direction 90.

(6)    The Tribunal erred by failing to deal with a clearly articulated representation made by the applicant with respect to a mandatory relevant consideration, being international non-refoulment obligations as stipulated by paragraph 9.1 of Direction 90 and specifically, that a consequence of affirming the decision under review could compel the applicant to return to his home country which would be contrary to the doctrine of constructive refoulment under Article 33 of the Convention relating to the Status of Refugees (done at Geneva on 28 July 1951) as modified by the Protocol relating to the Status of Refugees (done at New York on 31 January 1967) and therefore non-refoulment obligations as defined by s 5(1) of the Act.

17    The applicant abandoned ground five at the hearing.

18    For the reasons that follow I have determined that the applicant was denied procedural fairness by the manner in which the hearing was conducted having regard to Dr Scally’s report, and that the applicant did not waive relevant rights. Ground one must therefore succeed. The Tribunal’s decision is affected by jurisdictional error and should be quashed. The matter will be remitted, once again, to the Tribunal to be determined according to law.

19    In light of the fact that the Tribunal will hear the application again, it is unnecessary to consider the matters which are the subject of grounds two, three, four and six of the application for review: Boensch v Pascoe (2019) 268 CLR 593 at 600-601 [7]-[8] (Kiefel CJ, Gageler and Keane JJ), 629-630 [101] (Bell, Nettle, Gordon and Edelman JJ). Although Boensch arose in the context of appellate review, it has also been held that this Court should confine itself to determining only those matters dispositive of the justiciable controversy to promote judicial efficiency in the exercise of original jurisdiction: DBB16 v Commonwealth of Australia [2022] FCA 783 at [17] (Raper J); see also DXJL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1124 at [9] (McEvoy J).

The failure to afford procedural fairness

20    The Tribunal conducted its review under s 500 of the Act. It is well accepted that the obligation to afford procedural fairness is implied through the operation of a common law principle of interpretation, and that its precise content depends upon the statutory framework: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [34] (Bell, Gageler and Keane JJ); citing Kioa v West (1985) 159 CLR 550 at 584 (Mason J) and Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504 (Kitto J). It is the applicant’s position that in failing to have proper regard to and to adhere to Dr Scally’s recommendations, the Tribunal breached the common law procedural fairness obligation and the statutory obligation to ensure that he was given a reasonable opportunity to present his case: s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

The Minister’s provision of further documents

21    As has been mentioned, on 7 July 2022 after the adjournment of the review hearing in the Tribunal, the Minister provided the applicant with a bundle of supplementary documents. This bundle was approximately 482 pages in length.

22    These documents contained, amongst other things, reports of incidents occurring during the applicant’s time in immigration detention. The Minister intended to cross-examine the applicant on the basis of those documents. It was submitted on behalf of the applicant that his representatives felt constrained in their ability to speak to him about matters arising from those documents between 7 July 2022 and 18 November 2022, the date of the directions hearing, because he was under cross-examination during this period. As 19 and 20 November 2022 were days on the weekend, the applicant contends that there was only a three-day period which was available for him to speak to his representative about the information in the bundle of documents prior to the resumed hearing. This is because his representative was only released from the obligation not to speak to the applicant after the directions hearing on 18 November 2022.

23    At 8:57am on 24 November 2022, the day of the resumed hearing, the Minister’s representative provided the applicant’s representative with the list of pages that he intended to take the applicant through in cross-examination. At the hearing the applicant’s representative submitted that she had not had time to discuss the relevant pages with the applicant and to seek instructions. The applicant’s representative also explained that she had not had the opportunity to extract individual pages for printing, translate the material, or to discuss the relevant material with the applicant. The Minister did not provide any explanation for this delay. Nonetheless, the adjourned hearing proceeded on 24 November 2022 and concluded on 25 November 2022. During cross-examination the applicant was taken to ten incidents recorded in the material. The applicant adduced further evidence about these incidents in re-examination.

24    It is submitted on behalf of the applicant that if his representative had been afforded an adequate opportunity to take instructions from him about these ten particular incidents, the applicant would have been able to give detailed instructions about the incidents. Moreover, the applicant submits that if he had had adequate notice he may have been able to remember some of these incidents which he could not remember on the day. This, it is said, would have enabled him to give evidence about these incidents, and perhaps corroborative evidence could have been sought and obtained.

25    It is the Minister’s position that the earliest the list of pages to be referenced could have been provided was on 21 November 2022, three days before the resumed hearing on 24 November 2022. Presumably this is because the need to identify the relevant pages did not arise until the Tribunal indicated that this should be done at the directions hearing on 18 November 2022. The Minister submits that as this was not substantially earlier than the resumed hearing date, the late provision of material could not be said to have denied the applicant procedural fairness.

26    The applicant’s position, however, is that this three-day period was particularly important in the context of his specific personal circumstances. These circumstances included the numerous alleged incidents contained in the bundle of documents, the logistical impediments of the applicant being in immigration detention, and the fact that he had only a primary school level of English reading comprehension. The applicant submits that it was not reasonable to expect his representatives to have 482 pages translated into the Pashto language in this time, particularly because his solicitors were acting pro bono and were operating on the basis that specific pages would be identified.

Breach of the model litigant obligations

27    It is relevant to note that the Tribunal informed the parties at the resumed hearing on 24 November 2022 that it had expected more from the Minister given the discussion at the directions hearing on 18 November 2022 about the specific issues raised in Dr Scally’s report. The Tribunal noted that the late provision of the supplementary material was contrary to its direction. At page 8 of the transcript of the hearing on 24 November 2022, the presiding officer said as follows:

DEPUTY PRESIDENT: Yes. I must admit, I expected more from the respondent, in that regard, having had the discussion last week… as a Model Litigant directed to act in a way that would assist the tribunal and deal with the specific issues that have been raised in the report, it seems to me that the provision of that material so late was contrary to what I had requested.

28    As will be seen, however, in determining that the decision to refuse the applicant the Protection Visa should be affirmed, the Tribunal did not return to the difficulties that the failure to provide the relevant material in a timely fashion caused the applicant in the hearing.

29    The applicant submits that in failing to serve the list of relevant pages in sufficient time for the material to be properly considered, and by failing to give notice of the topics of cross-examination in advance, the Minister breached the model litigant obligations contained in s 2 of Appendix B to the Legal Services Direction 2017 (Cth). In this regard see Melbourne Steamship Co Ltd v Morehead (1912) 15 CLR 333 at 342 (Griffiths CJ); Scott v Handley (1999) 58 ALD 373; [1999] FCA 404 at [43] (Spender, Finn and Weinberg JJ).

30    The Tribunal accepted that the Minister had failed to act as a model litigant, observing as follows at [49] of its reasons:

The applicant submitted that little weight should be given to these incident reports because the authors of them and detention officers involved were not made available for cross examination. I accept that less weight should be given to them. Further, the applicant submitted that insufficient advance notice was given with respect to the particular incidents which were to be the subject of cross examination. The applicant said that this was contrary to the recommendations made by Dr Scally. I accept that the respondent failed to comply with the recommendations in that regard and failed with respect to the duty to act as a model litigant, but the applicant told the Tribunal that he had been informed about these incidents before and, whilst he was unable to remember some of them, he was able to give positive evidence about others of them…

(Emphasis added.)

The practical effect of the breach of the model litigant obligations

31    It is against this factual background that the question of whether the Tribunal afforded the applicant procedural fairness arises. Was it appropriate to continue with the hearing in circumstances where Dr Scally’s recommendations had been effectively ignored and the Minister’s model litigant obligations breached? The Minister notes that the focus must be on the way in which the Tribunal conducted the hearing and not on shortcomings on his part. However, the relevant point is that the Tribunal dismissed the impact of the Minster’s failure to act as a model litigant as being procedurally unfair, and the applicant submits that it was erroneous to do so. It is the applicant’s position that this complaint is not put as a mere breach of the model litigant obligations, but rather goes to the heart of the way in which the Tribunal conducted the hearing.

32    The applicant maintains that the practical effect of the provision to his advisors of the page numbers of the further material at such short notice, and asking longer questions than suggested by Dr Scally, is that he did not have an opportunity to have his case heard by the Tribunal in a manner which took account of and paid due deference to his particular medical conditions. He asserts that this is analogous to a situation where a failure to provide an interpreter constitutes a breach of the requirements of procedural fairness, given that interpreters serve to remove any barriers which prevent or impede understanding or communication: Perera v MIMA (1999) 92 FCR 6 at [45]–[46] (Kenny J); see also the discussion in SZAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 312 at [40]-[43] (Hill J), although in SZAAJ his Honour ultimately found there had been no failure to provide procedural fairness at [47]-[48]. In Perera the applicant’s language barrier created a particular condition that the Tribunal was required to address in order to afford procedural fairness. In the present case the applicant contends the relevant barrier is his cogitative difficulties, and Dr Scally’s recommendations provided the way to address the problem.

33    The Minister submits that the applicant was taken in cross-examination to only ten out of the approximately 20-25 recorded incidents in the further material. This, it is said, shows that the applicant was not ambushed by the way in which the cross-examination occurred. The applicant does not accept the Minister’s submission in this regard, contending that the number of incidents does not necessarily correlate to the number of pages that were relevant. The applicant submits that the number of incidents to which the applicant was taken during the hearing did not alter the wide range of material that may have been relevant in the hearing. Even if his representative had been able to work out what may have been relevant and draw some conclusions, she was not informed of the specific incident reports in the way that met the applicant’s particular requirements.

34    The Minister submits also that while the relevant material comprised some 482 pages, it was “obvious to any competent representative which pages of that material were relevant”, and that there could not have been any practical injustice to the applicant. The Minister contends that the present circumstances are different to those prevailing in Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396, where the existence of a piece of evidence relating to the incidents in detention was only made available during cross-examination. Here, it is said, the relevant reports were provided to the applicant on 7 July 2022, which was four and a half months before the resumed hearing on 24 November 2022. Moreover, the Minister submits that the applicant was aware that the Minister would tender this material from 2 May 2022, as the existence of these reports was discussed at that hearing.

35    In Tuimaseve, the applicant had given detailed evidence at a Tribunal hearing and was cross-examined about an incident that was alleged to have occurred in immigration detention. The Minister, without providing a copy of relevant video footage to the applicant or to the Tribunal in advance, tendered the footage of the incident for the purpose of impugning the applicant’s credibility. The Tribunal admitted the footage and affirmed the decision to cancel the applicant’s visa. The applicant sought judicial review on the ground that admitting the footage constituted a denial of procedural fairness and argued that the respondent breached ss 37 and 38AA of the AAT Act. Moshinsky J accepted the applicant’s argument and found that the Tribunal’s decision to admit the video footage resulted in a denial of procedural fairness to the applicant: Tuimaseve at [76]. His Honour explained how surprising the applicant in this way was productive of practical injustice at [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.

36    It is the Minister’s position that the circumstances in the present case are different to Tuimaseve and more closely approximate to those in Australian Postal Commission v Hayes (1989) 23 FCR 320 (Wilcox J) and Australian Postal Corp v Bessey (2001) 32 AAR 508; [2001] FCA 266 (Gyles J). These two cases concerned the use of video surveillance evidence during cross-examination. The Minister accepted that in Tuimaseve, Moshinsky J found (at [78]) that Hayes and Bessey were inapplicable to the question before the court as these cases concerned disputes as to the existence of a physical disability, the existence or otherwise of which could be established by independent objective evidence. The Minister submits, however, that there was no comparable element of surprise as in Tuimaseve in the present circumstances, and on this basis Hayes and Bessey provide a more relevant analogue.

37    It may be accepted that not every breach of an obligation to disclose documents will involve practical injustice: Tuimaseve at [84]. However, I accept the applicant’s submission that the underlying proposition is the same, namely that in the present circumstances being taken by surprise caused practical injustice. This is because the applicant’s representative could not easily communicate with her client and obtain instructions about the relevant incidents in the way recommended by Dr Scally and, apparently, endorsed by the Tribunal at the directions hearing. I accept that, as in Tuimaseve, the applicant may have presented his case differently if he had been given a suitable opportunity to refresh his memory about the relevant events and provide instructions to those representing him.

38    I also reject the Minister’s submission that there was no practical injustice caused to the applicant because Dr Scally’s recommendations related to his difficulty processing information, rather than his impaired memory. This is not a case where the applicant needed page numbers identified to him so that he could refresh his memory. Rather, the purpose of the identification of the page numbers was to supplement or assist the applicant with the form of questions that were to be put, and his ability to understand those questions. Dr Scally explained the position in the following terms at page 14 of her report:

Specifically, his significant verbal learning and memory impairment (see paragraph 50), means he is likely to struggle to process and recall lengthy verbal information when being questioned as a witness. To put this into functional terms, he has an immediate attention span of five to eight pieces of information meaning that when he concentrates, he can correctly repeat back a phone number. However, when presented with verbal information that exceeds his immediate attention span, for instance 12 words, he is only able to recall five of those twelve words.

39    Moreover, even if Dr Scally’s recommendations did only relate to the applicant’s difficulty in processing information, in my assessment this too, in the circumstances, would be sufficient to demonstrate practical injustice.

40    Insofar as the Minister also submits that procedural fairness does not require a cross-examiner to identify particular pages to which it is intended to take an applicant in advance of the hearing, the following may be said. At a level of generality procedural fairness will not usually require advance notice of the content of cross-examination. However, the specific cogitative difficulties of the applicant in this particular case, which were the subject of a detailed medical report and a direction by the Tribunal as to their management, required the provision to the applicant of the relevant page numbers if the hearing was to be conducted in a procedurally fair manner. I do not accept the Minister’s submission that requiring a cross-examiner to provide advance notice of the topics in this form might deny procedural fairness to the cross-examiner, as to which see Hayes at 326-327. We are not here concerned with the problem of the “mendacious witness”, to use the language of Wilcox J in Hayes at 327. The problems which needed to be accommodated by the Tribunal were the applicant’s cognitive difficulties, the fact that he could not read English beyond a grade two level, and the fact that he required an interpreter. I accept that these problems made it unlikely that the applicant would have been able to take advantage of any advance notice in the manner which arose in Hayes.

The length of the questions put to the applicant

41    The applicant also submits as an aspect of his argument on ground one that the effect of the lack of notice of the documents to which he was taken was compounded because large slabs of text were put to him on the same day that he received effective notice. Counsel for the applicant pointed to various instances where the text in the transcript ran more than ten words. This occurred in the face of Dr Scally’s report which explained that there was a particular way to address the applicant’s cognitive difficulties, and the Tribunal’s direction that the parties keep questions put to him short.

42    The Minister’s response to this, in substance, is that the appearance of long questions on the transcript does not necessarily mean that the relevant questions were asked in an unduly extended way because the transcript does not account for the breaks that inevitably occur in translation. It was apparent that the Minister’s response on this point in this Court was based on the experience of counsel for the Minister at the hearing in the Tribunal, rather than on any admissible evidence that the transcript gave a misleading impression of the manner in which the questions were asked.

43    Having regard to the transcript it would seem to be the case that a significant volume of text from the documents was put to the applicant in a way which did not always align with Dr Scally’s recommendations about how this should be done to accommodate the applicant’s cognitive difficulties. Dr Scally had emphasised the importance of information being conveyed to the applicant in short and simple sentences with appropriate breaks to allow him to process the questions. Dr Scally relevantly wrote:

Based on the balance of information from [the applicant]’s self-reported difficulties with oral and written communication, his solicitor’s observations of poor comprehension and/or retention of information and observations at interview as well as the formal findings with respect to significant verbal memory impairment, I would like to raise some concern for [the applicant]’s ability to adequately receive instruction and comprehend questions put to him during complicated proceedings. It is highly likely he will be unable to retain instruction by legal counsel and may miss significant portions of verbal information put to him within the Tribunal setting, thereby impacting his ability to provide accurate responses to the Tribunal.

…

It is also recommended that questions are put to [the applicant] in very simple short sentences of no more than ten words and that an interpreter is instructed to keep translations also in this format.

(Emphasis added.)

44    It is clear that Dr Scally had advised that both the questions put to the applicant should be of no more than ten words, and that the interpreter should keep to this approach. In my view the fact that questions may at times have been broken up by breaks in translation, if that is indeed what occurred, does not ameliorate the problem. Putting long questions to the applicant, even if broken up for the purposes of translation, compounded the procedural unfairness in the conduct of the resumed hearing before the Tribunal.

The Tribunal denied the applicant procedural fairness

45    In all the circumstances the Minister’s failure to act as a model litigant by failing to provide the relevant page numbers in a timely manner and by asking questions that exceeded the length recommended by Dr Scally, together with the fact that the Tribunal recognised these failures but set them to one side, resulted in a hearing that was procedurally unfair. As the applicant submits, an arid and technical approach to determining procedural fairness not based on the practical nature of fairness is to be avoided. The ultimate question is whether there has been unfairness: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 9 [25] and 12–13 [34] (Gleeson CJ).

46    The Minister’s submissions that the failure to provide page numbers at the earliest possible date only made a difference of three days’ preparation time, that the relevant issues should have been obvious to the applicant, that Dr Scally’s report was not explicit enough in relation to the impact on the applicant’s memory, that topics generally do not need to be provided to the applicant in advance of cross-examination, and that the breaks in translation meant that the questions were not longer than the length recommended by Dr Scally, do not provide a sufficient answer to the practical injustice that the conduct of the hearing in this way caused the applicant.

47    Dr Scally made two specific recommendations, which the Tribunal directed the parties to follow. When the Minister failed to act in accordance with these recommendation and directions, the Tribunal pressed ahead. In determining his application adversely to him, the Tribunal deprived the applicant of an opportunity to provide instructions to his legal representatives and present his case in a way that may have enabled him to overcome the barriers caused by his cognitive difficulties.

Did the applicant waive his right to object to any denial of procedural fairness?

48    The Minister submits that even if the applicant was denied procedural fairness, his right to object was waived at the hearing. The Minister points to the fact that at the outset of the resumed hearing there was no objection to the cross-examination of the applicant, nor was an application made for an adjournment to seek additional time for him to digest the additional documents. It is submitted that in the absence of any objection to the applicant being cross-examined on the incident reports, any entitlement to have the relevant pages specifically identified in advance and questions kept short was consciously and effectively waived at the hearing. It is the Minister’s position that if the applicant’s representative had concerns about the process, she should have applied to adjourn the hearing (again) when the Minister provided the page numbers, rather than reserving the applicant’s position, which was what she effectively did. Similarly, it is said that if there were objections to particular questions being put to the applicant, these should have been the subject of objection at the time. The Minister relies on the observations of the Court of Appeal of the Supreme Court of Victoria in MH6 v Mental Health Review Board (2009) 25 VR 382 at 395-396 [49] in relation to waiver by the conduct of a legal representative in support of these submissions.

49    The Minister submits that the following extract from page 3 of the transcript of the resumed hearing on 24 November 2022 constitutes a clear statement of acquiescence or waiver to the hearing proceeding despite the late provision of the page numbers:

MS BATTISSON [the applicant’s representative]: Thank you. The other issue - not an issue - is I think we haven’t had time to really discuss structure of questioning. We received at 8.57 this morning the list of pages that my friend will take the applicant to. We have not had time to brief our client on which pages he will be taken to, because we only just received that list. I see that the entire supplementary G docs have been printed for him, and I think we’ll just need to see how we go with him running through those.

50    The Minister also contends that the applicant himself did not indicate (as he was invited to do) that he was having difficulty understanding particular questions, and did not demonstrate a lack of comprehension. It is said to be relevant that the applicant’s representative did not submit in closing that the applicant’s evidence at the hearing on 24 November 2022 should not be admitted or should not be given weight in light of any failure to comply with Dr Scally’s recommendations. This, the Minister submits, provides a further indication that the applicant’s representatives acquiesced or waived any entitlement the applicant had to complain about any breach of procedural fairness in the conduct of the hearing.

51    The applicant submits in response that his representative at the time did not consciously and effectively waive his right to object to the process, but protested as to the conduct of the hearing (as to which see the passage extracted above). It is said that it would have been difficult to seek an adjournment on 24 November 2022 because the hearing had initially started in May 2022, was adjourned at that time, and then there were two subsequent directions hearings in May and November. The applicant submits that the question of whether a waiver occurred must be understood in the context of the events as they unfolded on the day and the litigation as a whole, and that in all the circumstances it was unrealistic to contemplate an application for a further adjournment at the resumed hearing.

52    Insofar as objecting to particular questions is concerned, the applicant submits that his representative did object to the length of questions posed to him at the hearing on 24 November 2022, referring in particular to the following exchange:

MS BATTISSON: May I suggest: as the applicant can’t read English, he doesn’t need to turn to the pages. We didn’t have enough time to get them translated or, you know, deal with them properly. They’re just going to be confusing to him.

WITNESS: At 465?

MS BATTISSON: Yes. Applicant, it’s okay. You don’t need to turn the pages. They will be read to you. Interpreter?

INTERPRETER: I’m sorry, what was that again please?

MS BATTISSON: He doesn’t need to turn to the pages. They will be read to him.

WITNESS: Okay.

MR BARRINGTON: NDBR, it’s alleged here that you were seen on the camera pushing another detainee called […] against the wall and then raising your hand as if to strike him in the face. And then - - -

WITNESS: Sorry?

DEPUTY PRESIDENT: Mr Barrington, move a bit quicker.

MR BARRINGTON: I was waiting for that to be interpreted. I think the applicant said something.

INTERPRETER: Can you kindly just complete the sentence so that I can just - - -

MS BATTISSON: But I think that’s the point, is that the statements have to be short. So we can’t complete the sentence, because he can’t grasp it.

(Emphasis added.)

53    In the applicant’s submission, to focus on the nature of the objections made on his behalf and ask whether particular rights are being waived is to distract attention from the real question, which is whether the proceeding was conducted in a fair manner. The applicant contends in effect that where the Tribunal had directed that the parties adopt a particular course, the Minister did not comply with this direction, and the Tribunal proceeded anyway, the hearing was conducted in a procedurally unfair manner and the question of waiver or acquiescence does not properly arise.

54    As the learned authors of Aronson et al, Judicial Review of Administrative Action and Government Liability (7th ed, Lawbook, 2022) observe, the question of whether it is possible or even conceivable to waive the right to a fair hearing raises several difficult issues: see generally at [8.310] and the cases there cited. At one level it may be thought to be intuitively unsatisfying to conclude that that the hearing rule of procedural fairness can be waived or its breach acquiesced in, although the burden of the rather limited number of authorities on the point seems to be that, in an appropriate case, there can be a waiver: see Escobar v Spindaleri (1986) 7 NSWLR 51 at 56-57 (Kirby P and Glass JA); MH6 at [33], [43], [53]; Lawrie v Lawler (No 3) [2016] NTCA 3 at [419] (Heenan AJ); although see the alternative way in which Beatson LJ framed the issue in Regina (Hill) v Institute of Chartered Accountants in England and Wales [2014] 1 WLR 86 at 102-105 [43]-[52].

55    It will always be important, however, to gauge whether fairness has been provided or denied, which will itself generally turn on whether a sufficient opportunity for a fair hearing was provided — whether there was “fair play in action”, as Beatson LJ put it in Hill at [47]: see also Ex parte Lam at 14 [38] (Gleeson CJ), 38-39 [122] (Hayne J); and Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 339-340 [45]-[46] (Kiefel, Bell and Keane JJ), 342-343 [60] (Gageler and Gordon JJ).

56    If jurisdictional error is established there will always be the question of whether the Court should, in the exercise of its discretion. grant relief. On the question of whether acquiescence in an unfair procedure in excess of jurisdiction would be a sufficient basis to decline to grant relief, the Full Court in MZZMG v Minister for Immigration and Border Protection (2015) 234 FCR 180 at 196-197 [69] (Tracey, Murphy and Mortimer JJ) said the following:

In our opinion, at the level of general principle, it will be a rare case where a decision of an administrative tribunal found to be without, or in excess, of that tribunal’s jurisdiction is allowed to stand, and to affect the rights of a person, for reasons based on discretionary considerations such as delay or “acquiescence” in a process before the tribunal which the Court has found to be unlawful. In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [55]-[62], Gaudron and Gummow JJ explained why relief would seldom be refused where jurisdictional error is established. …

57    In MZZMG the Full Court did not uphold any ground of appeal, and in those circumstances did not need to express a concluded view on the Minister’s submission that the appellant’s acquiescence in a particular procedure was a sufficient basis to decline relief: see at 196-197 [69].

58    I accept that it may, with the benefit of hindsight, have been better for the applicant’s representative to have sought an adjournment at the resumed hearing when confronted with the reality that the Minister had not acted consistently with the Tribunal’s directions the previous week and provided page numbers for the further documents to be relied on, or sought to exclude the applicant’s evidence given at the resumed hearing when she came to final submissions. However, when all of the relevant circumstances are taken into account I do not consider that there was a waiver or acquiescence of a kind which could justify the applicant being denied relief.

59    Notwithstanding the fact that she did not seek an adjournment, the applicant’s representative did object to the late provision of the list of pages to which the Minister’s counsel proposed to take the applicant, as the passage from transcript extracted above indicates. She said that they would need to see how the applicant coped with the material as the cross-examination proceeded. This was hardly an unreasonable position to adopt in circumstances where there had already been one adjournment, and given the long history of the applicant’s request for a protection visa in the Tribunal and this Court. Further, as the other passage extracted above from the transcript indicates, the applicant’s representative objected to the length of some questions put to the applicant. She said that it was difficult for the applicant because he could not read English, that the documents had not been provided in sufficient time for them to be translated or for him to be able to give instructions about them, that they would be confusing for him, and that he would not be able to grasp what was being put to him.

60    These protestations, although falling short of a formal application to adjourn the hearing or that any evidence the applicant gave in answer to questions from the Minister’s counsel should be disregarded, were real. They are properly to be regarded as a complaint that the process was unfair. They are not at all analogous to the conduct of the applicant’s counsel in MH6, or the conduct of the appellant and her lawyers in Lawrie. In my assessment it would be a distortion of language and inconsistent with existing authorities on the subject of waiver to regard the applicant as having intentionally and voluntarily, by positive conduct or conscious silence, abandoned a right or privilege by acting inconstantly with that right or privilege: see Craine v Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 at 326 (Isaacs J for the Court); Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 658 (Latham CJ); Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 at 315–316 [30]-[31] (French CJ, Kiefel, Bell, Gageler and Keane JJ); Mann v Carnell (1999) 201 CLR 1 at 13 [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).

61    As the applicant’s counsel submitted in this Court, the litigation context must also be taken into account. The applicant’s tortured path through the refugee assessment process had been ongoing for twelve years. In this particular iteration of it in the Tribunal there had already been one adjournment and two directions hearings. The applicant was being represented on a pro bono basis not by counsel but by a solicitor at a human rights community legal service. In the context of the complaints which the applicant’s representative did make at the resumed hearing, with a developing situation on her hands, these are further matters which inform my conclusion that there was no waiver or acquiescence of a kind which could justify the applicant being denied relief in circumstances where the procedure in the Tribunal is properly to be regarded as having been unfair.

Conclusion

62    Having determined that the Tribunal denied the applicant procedural fairness in the conduct of the hearing on the grounds contended for by the applicant, and that the applicant cannot properly be said to have waived his right to object or have otherwise acquiesced in what occurred, it follows that ground one succeeds and the applicant will have the relief that he seeks. There will be orders to this effect, including that the Minister pay the applicant’s costs of and incidental to the application, to be taxed if not agreed.

Associate:

Dated:    1 March 2024