Federal Court of Australia

FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 397

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The Applicant pay the First Respondent’s costs, 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

HESPE J:

1    This is an application for judicial review of a decision by the Administrative Appeals Tribunal made under s 500 of the Migration Act 1958 (Cth) (the Act) to not revoke the mandatory cancellation of the Applicant’s Partner (Class BC) (Subclass 100) (Migrant) visa (Visa).

Factual Background

2    The Applicant is a citizen of the Philippines and arrived in Australia on a Sports Visa about 15 years ago. In 2010 the Applicant married an Australian citizen. He was issued the Visa in 2013.

3    The Applicant’s Visa was mandatorily cancelled in May 2020 following his conviction in 2017 for attempted rape (for which he received a sentence of six years’ imprisonment) and for intentionally causing injury (for which he received a sentence of four years’ imprisonment). Because two years of the sentence for the latter offence was made cumulative upon the attempted rape offence, a total effective sentence of eight years’ imprisonment was imposed.

4    On 16 May 2023, a delegate of the Minister decided not to revoke the cancellation decision (non-revocation decision).

5    On 19 May 2023, the Applicant applied to the Tribunal to review the delegate’s decision not to revoke the mandatory cancellation.

6    The Applicant is illiterate and speaks very little English.

7    At a case management hearing held by telephone on 29 May 2023, the Tribunal was informed by the Applicant’s wife, Mrs AA, that she would have to act as her husband’s representative for that case management hearing because her husband “has intellectual and cognitive impairment that doesn’t enable him to represent himself”. When asked if she would be representing the Applicant at the final hearing or whether he would be represented by a lawyer, Mrs AA said:

At this stage, it will be me. Your office has organized for me to speak to legal counsel Wednesday of this week…through legal aid.

And later:

Senior Member:…Your husband will be represented by legal counsel at the hearing?

Mrs AA: At this point, no decision has been made on that.

Senior Member: Okay.

Mrs AA: As we've said earlier, your office has organized for me to have a conversation this week. I'll also explore the pro bono, and I'm also going to be exploring engaging the counsel of a solicitor in Sydney…-

Senior Member: Very good.

Mrs AA:…I can't make commitments to that at the moment, but I'm exploring all options at this stage.

Senior Member: Very good. I'll just say to you, [Mrs AA], it is always better if a party can have legal representation by virtue—

Mrs AA: I understand that.

8    Later in the case management hearing, Mrs AA raised the issue of her also being a witness. Then ensued the following exchange:

Mrs AA: I do have some questions. My first question is, am I able to also be treated as a witness in terms of putting forward, for want of a better word, character statement for my husband so that to be tested by the other side? Am I able to be treated also as a witness as well as representing him?

Senior Member: The difficulty we've got is that it's difficult for someone to be a witness and an advocate at the same time because when you're on the stand, if you like, being a witness, who is it that is acting as your husband's advocate? That is something of a difficulty. However, the procedure of the tribunal under Section 33 of the AAT Act is…for the tribunal. If you wanted to submit a statement in support of your husband as well, then you could do that under the scheduling orders, and we could determine how to deal with that as we got closer to the date. As I said to you earlier, [Mrs AA], it's always better if you can get a legal representative. These meetings that you discussed with legal aid…,et cetera, that would obviate that difficulty.

Mrs AA: I understand that, but I'm asking this question, should that option not be available to us where, for whatever reason, we don't have formal legal counsel? That's why I'm asking this question. To be very clear, we're very focused on engaging appropriate legal counsel, but I do have to ask these questions because if that doesn't eventuate, then I'm left wanting or left having clarity. My interpretation from what your response is that, yes, it's difficult because I'd be serving as both witness and advocate, but I can make an application for the AAT to consider that.

Senior Member: There's no reason why you can't put a statement in, in support of your husband. You can do that.

Mrs AA: Okay. Can I just understand then your commentary in relation to it's difficult for being a witness and an advocate?

Senior Member: Yes. Just think about-- have you appeared in a tribunal before or not?

Mrs AA: I have exposure to, not the tribunal system, but indeed the legal system in both New South Wales and Victoria. In context, yes, I can understand it would be difficult to appear as somebody's legal counsel and then also put in a character reference for them. I understand that context [crosstalk].

Senior Member: Well, you wouldn't be their legal counsel. You're your husband's advocate.

…

Mrs AA: I'm definitely not legal counsel, but I was highlighting that I understand that-…-hypothetically, if you're in a legal setting, so if you're in the county court, you need to be the defendant's barrister or you wouldn't be their barrister and then going on the witness stand to say, "Hey, let me give a character reference." I'm just highlighting. I understand what you've said about the challenges between advocate and witness, but then you've just said that I am able to put a statement in, so I'm just trying to get clarity on that.

Senior Member: Yes. With self-represented applicants, or an applicant who has a family member who is representing them who is not a lawyer, you can put a witness statement in. The challenge arises when you, for example, leave your advocate's position and go and sit in a witness box, but we can deal with that close to the date. I'm saying there's no impediment to you providing a witness statement for your husband. Do you understand that?

Mrs AA: Yes, I do.

9    The Tribunal provided Mrs AA with a couple of sources of potential pro bono assistance. As matters transpired, the Applicant and Mrs AA were considered not to be eligible for pro bono assistance.

10    At the case management hearing the Tribunal provided the following explanation of the limitations imposed by the Act on the supporting material that the Tribunal could take into account:

Senior Member:..there is something called the two-day rule in the Migration Act. It's Sections 506H and 506J of the Migration Act. What those two provisions say is, the tribunal cannot have regard for something that's either presented orally in support of an applicant's case, or in written form in support of an applicant's case, unless it's provided at least two full business days prior to the hearing to the respondent. Two full business days prior to the hearing on the 3rd and 4th of August is by close of business on Monday, the 31st of July. Anything final that the applicant intends to submit-- I said that the respondent would provide their materials by the 10th of July-- anything finally from the applicant would have to be in by Monday, the 31st of July. Does that make sense?

Mrs AA: Yes, it does.

Senior Member: Very good. All right. All of those scheduling—

Mrs AA: I'm sorry, the line has dropped.

…

Mrs AA: Sorry, Member. When your line cut out, you cut out when you were talking about a deadline of close of business Monday, 31st of July, that's the last that I heard from you. I don't know if you said anything else between that and what you're saying now, but that's the last bit that I heard from you.

Senior Member: All right. Perhaps I'll backtrack and just explain. Did you hear what I said about the two-day rule in Sections 500 6H and 6J of the Migration Act?

Mrs AA: I did. That's where you said that there's a two-day business rule for oral or written submissions and that that deadline was closed of business Monday the 31st of July to coincide with the hearing date on the 4th of August.

Senior Member: All right. You understand the two-day rule, or would you like me to elaborate further on that?

Mrs AA: Yes. No, I understand that.

11    Mrs AA acted as the Applicant’s representative during the final hearing. At one point, the Tribunal observed that:

Senior Member: Yes. Look, I'm in a difficult position, [Mrs AA], because I could see him giving answers and you shaking your head to the, as I understand it, the effect that he wasn't being truthful. I'm in a difficult position because the applicant has sworn an oath and if he doesn't tell the truth, then that's a real issue for him. I would also say to you that as his advocate--

Mrs AA: May I address him directly as his advocate?

Senior Member: No, no. I think I know what you're trying to do and put to him that he needs to be truthful. That there will come a time when you give your evidence where it's open to the tribunal to recall him if I believe that there's an inconsistency in the evidence, okay? For now, I think the best thing to do is just to hear his responses as they are and then when we do your evidence, if there's something there that I believe he needs to be recalled to respond to, then I can do it to him. All right?

Mrs AA: Thank you.

12    As the hearing evolved, the Tribunal became increasingly concerned about certain mental health issues relating to Mrs AA. The Tribunal recorded at TR [58]:

Mrs AA adopted her four-page statement dated 12 July 2023 as true and correct. She appeared in this matter both as the Applicant’s advocate and only witness. She experienced emotional difficulties on several occasions requiring adjournments. The Tribunal encouraged Mrs AA to maintain the longstanding therapeutic relationship with clinical psychologist, Ms Novella, and to seek support from the network of close personal friends that she says have stood by her since the Applicant’s incarceration.

13    The Tribunal subsequently decided to apply an anonym to the Applicant and his wife based on concerns relating to Mrs AA. The Court has also made orders which have resulted in the anonyms continuing to apply.

14    It was not disputed before the Tribunal that the Applicant failed the character test under s 501CA of the Act. The issue to be determined under s 501CA(4)(b)(ii) of the Act, was whether the Tribunal was satisfied of “another reason” to revoke the cancellation decision. In forming its state of satisfaction, the Tribunal was required to comply with Ministerial Direction No. 99.

15    The evidence adduced by the Applicant before the Tribunal consisted of:

(1)    A ten-page handwritten statement narrated by the Applicant but written by Mrs AA. The Applicant also gave oral evidence and was cross-examined;

(2)    A four-page statement of Mrs AA dated 12 July 2023. Mrs AA also gave oral evidence and was cross-examined; and

(3)    A four-page letter of clinical psychologist Ms Novella, based on instructions provided to her by Mrs AA. Ms Novella was a provider of psychological services to Mrs AA. The evidence was that Mrs AA has several mental health diagnoses and takes psychotropic medication. There had been past Emergency Department admissions. In the aftermath of the non-revocation decision and subsequent review before the Tribunal, Mrs AA’s mental health “deteriorated significantly” with disruptive symptoms like catastrophising, poor sleep, nightmares, and flashbacks. Her evidence was that Mrs AA “is experiencing suicidal ideation without intent at this time”.

16    Weighing all relevant considerations individually and cumulatively, the Tribunal concluded there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked.

Legislative Context

17    It is not disputed that the decision by the delegate of the Minister to not revoke the mandatory cancellation of the Applicant’s visa is reviewable by the Tribunal pursuant to s 500 of the Act.

18    Under s 500(6L) of the Act, the Tribunal was required to decide the application within 84 days of the Applicant being properly notified of the non-revocation decision (84-Day Rule). This fell two working days after the hearing ended. A failure by the Tribunal to comply with the 84-Day Rule would have resulted in the reviewable decision being affirmed by operation of law.

19    The Tribunal is required to conduct the review in accordance with the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) except to the extent modified by provisions of the Act: s 25(6) of the AAT Act.

20    Under s 500(6H) of the Act, the Tribunal was prohibited from having regard to any information presented orally in support of the Applicant’s case unless the information was set out in a written document given to the Minister at least two business days before the hearing. Under s 500(6J) the Tribunal was prohibited from having regard to any documents submitted in support of the Applicant’s case unless the document was given to the Minister at least two business days before the hearing.

21    Section 32 of the AAT Act relevantly states:

Parties

(1)    At the hearing of a proceeding before the Tribunal, the following parties may appear in person or be represented by another person:

(a)    a party to a proceeding in a Division other than the Social Services and Child Support Division;

(b)    the agency party to a proceeding in the Social Services and Child Support Division.

(2)    At the hearing of a proceeding before the Tribunal in the Social Services and Child Support Division, a party to the proceeding (other than the agency party) may appear in person or, with the Tribunal’s permission, may be represented by another person.

(3)    In deciding whether to grant permission for the purposes of subsection (2), the Tribunal must have regard to:

(a)    the Tribunal’s objective in section 2A; and

(b)    the wishes of the parties and the need to protect their privacy.

Persons required to appear

(4)    A person who is required to appear in a proceeding before the Tribunal may, with the permission of the Tribunal, be represented by another person.

22    Section 33 of the AAT Act relevantly provides:

(1)    In a proceeding before the Tribunal:

(a)    the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)     the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)     the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

Decision‑maker must assist Tribunal

(1AA)    In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.

Parties etc. must assist Tribunal

(1AB)    A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.

23    Section 2A of the AAT Act provides:

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a)    is accessible; and

(b)    is fair, just, economical, informal and quick; and

(c)    is proportionate to the importance and complexity of the matter; and

(d)    promotes public trust and confidence in the decision‑making of the Tribunal.

24    Section 39 provides:

(1)    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.

(2)    This section does not apply to:

(a)    a proceeding in the Security Division to which section 39A or 39BA applies; or

(b)    the agency party to a proceeding in the Social Services and Child Support Division.

Note:     Section 39AA deals with the rights of the agency party to a proceeding in the Social Services and Child Support Division.

(3)    This section does not limit subsection 25(4A) (Tribunal may determine scope of review).

Grounds of Review

25    This application concerns the manner in which the Tribunal conducted the review. The Applicant contends that:

(1)    The Tribunal made a jurisdictional error constituted by a denial or denials of natural justice. The Applicant referred to alleged failures by the Tribunal to give the Applicant and/or Mrs AA an adequate explanation of matters of process and procedure. The matters identified included the operation and effect of s 500(6H) and the need, therefore, to ensure any final submissions the Applicant wished to make were properly supported by evidence or corroborating material; the issues arising in the hearing — including that the Applicant should be prepared for questioning about his offending; the right to object to questions during cross-examination, including where the question is unfair and providing a sufficient opportunity to be heard and/or guidance on the issue of a summons to the Australian Federal Police. The Applicant also contended that the Tribunal had failed to give an adequate explanation of “the role of the representative and limitations on the representative’s ability to support the Applicant and confer with the Applicant during the hearing” and failed to give “a proper explanation as to the difficulties that would attend Mrs AA occupying the role of representative, support person and witness simultaneously”.

(2)    The Tribunal made a jurisdictional error by unreasonably exercising its power under s 32(4) of the AAT Act insofar as it granted permission for Mrs AA to represent the Applicant and maintained or failed to consider revoking that permission, notwithstanding Mrs AA’s mental health conditions and fragile mental health meant she was impaired and/or became impaired over the course of the hearing and having regard to the surrounding circumstances.

(3)    The Tribunal made a jurisdictional error by misconstruing s 32(4) of the AAT Act by treating a decision to permit representation under s 32(4) of the AAT Act as relieving it of its obligation to include the Applicant in the hearing.

26    Having regard to the manner in which the parties developed their positions in their written submissions, the parties at the hearing were requested to address the Court on whether there was a denial of procedural fairness by reason of Mrs AA being the Applicant’s representative or advocate in this case. The parties also wish to rely upon the entirety of their written submissions.

27    In so far as the Applicant’s second and third ground of review are concerned, the Court observes that:

(1)    Section 32(4) applies to a person who is required to appear in a proceeding before a Tribunal. Section 32(1) applies to a party. As the Applicant was a party to the proceedings before the Tribunal, s 32(1) is applicable. That section is not expressed as a right to representation “with the permission of the Tribunal”. The discretion of the Tribunal under s 32(4) does not appear to be applicable in the present case. Nor is there a question of the Tribunal misconstruing s 32(4) of the AAT Act.

(2)    The First Respondent referred to ss 32(2) and (3) of the AAT Act. Those sections apply to hearings in the Social Services and Child Support Division and have no relevance in the present case.

(3)    The decision under review is the Tribunal’s decision to affirm the delegate’s decision. The reasonableness or otherwise of the processes adopted by the Tribunal in making that decision may go to whether the Tribunal failed to carry out its review function, but the procedural decisions themselves are not the subject of the review.

(4)    The real issue is whether the manner in which the review was conducted resulted in the Tribunal failing to afford the Applicant a fair opportunity to present his case. Accordingly the remainder of these reasons focus on the manner in which the review was conducted.

REview by the tribunAL

Legal framework

28    In discharging its statutory review function, the Tribunal was required to comply with the rules of procedural fairness: see Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 (Mason J); Fletcher v Commissioner of Taxation (Cth) [1988] FCA 362; (1988) 19 FCR 442 at 454–5 (Lockhart, Wilcox and Burchett JJ); Kohli v Minister for Immigration and Border Protection [2018] FCA 540 at [11] (Flick J).

29    This requirement is reinforced by s 39 of the AAT Act. In Kohli Flick J observed at [17]:

…the requirement imposed by s 39 upon the Tribunal [is] to ‘ensure’ that a party is afforded a reasonable opportunity to present his case. The section imposes upon the Tribunal a requirement not only to conduct a hearing in a procedurally fair manner but to ‘ensure’ that a party has such an opportunity. The Tribunal, at least to this extent, is not a passive by-stander in the hearing as it progresses; it is the body entrusted with the responsibility to ‘ensure’ that a party has a reasonable opportunity to present his case.

30    The process and procedure adopted by the Tribunal is generally a matter for the Tribunal: s 33 of the AAT Act. However, the Tribunal’s discretion is not at large. It is subject to the AAT Act as whole. It cannot be exercised in a manner which is inconsistent with s 2A of the AAT Act. The procedure adopted cannot result in the deprivation of a reasonable opportunity for the Applicant to present the Applicant’s case. The reasonable opportunity afforded to an applicant must itself be consistent with the objectives of the Tribunal.

31    The Tribunal’s discretion as to procedure is also subject to s 32 of the AAT Act. Section 32(1) entitles a party to be represented by another person. Section 32(1) does not confer on the Tribunal a discretion to allow a person to be represented (unlike s 32(4)). It confers on a party a right of representation.

32    Section 32(1) too must be applied in the context of the statutory scheme of review as a whole. Entitling a party to be represented by another is intended to promote and facilitate the statutory review process. Section 33(1AB) imposes a duty on a party and the party’s representative to use best endeavours to assist the Tribunal to fulfil the objectives set out in s 2A. This includes having a representative to assist in the presentation of the applicant’s case with a view to assisting the Tribunal to fulfil its objective of providing a mechanism of review that is, amongst other things, fair, just, economical and quick and promotes public trust and confidence in the decision-making process.

33    The AAT Act does not preclude representation of a party by a person who is not a lawyer. It does not require the representative to be independent of the applicant or to provide objective advice or guidance to the applicant. To conduct a review that is fair, just and economical does not require the necessary preclusion of a person who is also a witness from acting as a representative provided that by a representative so acting, the applicant is not deprived of a fair opportunity to present his or her case.

34    The requirement to accord procedural fairness is not a requirement to ensure that a party takes best advantage of the opportunity to present their case; the requirement is to ensure that a party is given a “reasonable” opportunity to present his case: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J). What is required to accord procedural fairness “inevitably depends upon the facts and circumstances of any individual case”: Kohli at [13] (Flick J).

35    In the context of court proceedings involving an unrepresented litigant, it has been said that what a judge must do 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: Abram v Bank of New Zealand [1996] ATPR 41-507 (Hill, Tamberlin and Sundberg JJ). So too must the Tribunal ensure that an applicant is not, by virtue of being represented by a non-lawyer, deprived of a fair opportunity to be heard.

36    But whilst the Tribunal is required to ensure that a party has a reasonable opportunity to present his or her case, the Tribunal is required to act impartially. It cannot present the party’s case. It cannot advise the party on the case to present.

37    A misunderstanding by a party as to the directions given by the Tribunal may mean that a party was denied procedural fairness if the misunderstanding results in a denial of an opportunity to make submissions on a critical issue: Jones v Ekermawi [2009] NSWCA 388 at [41]–[42]. However, not every misunderstanding will have such a result. A hearing does not cease to meet the requirements of the AAT Act by a mere failure by an applicant to present his case in the best possible light: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [22] (Keane CJ) (in the context of the Refugee Review Tribunal. The requirements of former s 420 of the Act are not relevantly dissimilar to those of the AAT Act).

38    An applicant who has a diagnosed mental impairment which does not render him or her “entirely unfit” to attend a Tribunal hearing and answer questions cannot be held to have been denied a “real and meaningful” opportunity to participate in the hearing in which he represents himself. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing: SZNVW at [20] (Keane CJ); Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30] (Tracey J).

Application to the Facts

39    The Applicant invoked his right under s 32(1) to be represented by Mrs AA. The Tribunal rejected the claim that the Applicant is suffering from undiagnosed cognitive/intellectual impairment, or an acquired brain injury. There was no basis for the Tribunal to question the Applicant’s capacity.

40    The essential issue in this case is whether Mrs AA’s representation of the Applicant resulted in undermining the reasonableness of the opportunity for the Applicant to present his case in a manner that was fair and just and promoted public trust and confidence in the Tribunal’s decision-making process.

41    Mrs AA is not a legal practitioner. She was not subject to the rules of professional conduct that are incumbent on members of the legal profession. She was not engaged to act as an independent advocate for the Applicant. The fact that she was the spouse of the Applicant and had a vested interest in the outcome of the proceedings did not preclude her from acting as representative of the Applicant. Nor did those facts result in the Applicant being denied a reasonable opportunity to present his case.

42    Mrs AA was also a witness called in support of the Applicant. She was the only lay witness aside from the Applicant himself. Mrs AA, not being a legal practitioner, was not subject to the professional obligations of independence. The implications of Mrs AA acting as advocate and witness had been explained to Mrs AA in the case management hearing at which she acted as the Applicant’s representative. The Tribunal explained that the difficulties would be obviated if legal representation was engaged. However, having not engaged legal representation by the time of the hearing, the fact that Mrs AA was also a witness in the proceedings was not a basis for denying the Applicant his right to choose to be represented by Mrs AA.

43    Mrs AA opened the final hearing with the following remark, demonstrating that she was aware of the fact that she was both an advocate and the Applicant’s spouse, with an emotional investment in the proceedings:

Mrs AA: I'm obviously in this room in the capacity of the applicant as his advocate but also his spouse. It is a challenging situation that I'm in. I'll be doing my best throughout the day to remain composed and professional in conduct that would be expected of me in that capacity, but I do just want to air the personal challenges that it is from an emotional perspective and that I will do my very best to uphold the behaviour that you expect. There may be times that if I become upset, I will seek to remedy that as soon as I can.

44    The Tribunal responded indicating to Mrs AA that she was also a witness in the proceeding and the Tribunal would take steps to ensure that she would be heard:

Senior Member: I fully understand that, [Mrs AA]. If we need to take a break at some stage, we'll do that. Normally if an applicant is represented by a solicitor or a barrister, it's a different procedure. In your case, you're appearing not only as an advocate, but as a witness. [N]ow under Section 33 of the AAT [Act] the procedure of the tribunal, [is] a matter for the tribunal. I'll make arrangements to lead you through the process and to make sure that you are given opportunity both as an advocate and as a witness to say what you would like. If we do need to adjourn at any point, then we can also do that, okay?

Mrs AA: Thank you, sir.

45    When it came to dealing with Mrs AA’s witness statement, the following exchange took place:

Mrs AA: Thank you. How will we address the statement that I've put in earlier today? You mentioned that you would be leading me through, or you would be managing that aspect.

Senior Member: Yes, so what will happen is, I can't say that in seven years, I've had a situation where an applicant's advocate was also a witness. That's normally not allowed, it's certainly not allowed in courts, but the tribunal under Section 33 is not bound by the rules of evidence. The procedure of the tribunal is a matter for the tribunal and given that you have submitted a statement at least four business days prior to the commencement of the hearing, I'm going to hear from you as a witness. What will happen is, you'll come in, you'll be offered to do an oath or an affirmation. Once that's done, I will then get you to what's called adopt your statement as true and correct, or if there's any changes that you wish to make. Then I might have some questions for you about your statement. Okay? It's a bit hard for you, as his advocate, to ask you as a witness questions, but I'll certainly ask some questions about that.

46    Evidence was in fact adduced from Mrs AA. The fact that Mrs AA was both a witness and advocate did not deprive the Applicant of a reasonable opportunity to present his case.

47    The expert evidence led related to Mrs AA and to the Applicant based entirely on instructions received from Mrs AA. The expert evidence, in so far as it was based on the expert’s expertise, went to the nature and seriousness of Mrs AA’s mental health issues. The oral evidence was (at TR [68]):

…When asked if she was concerned about Mrs AA’s mental health given the stressors she has been exposed to since 2016, Ms Novella said she was not concerned because Mrs AA ‘has a community she’s supported by’ and a network of supportive friends. Ms Novella confirmed she was part of Mrs AA’s treatment plans and would work with her general practitioner as ‘part of a team’.

48    The expert evidence did not suggest that Mrs AA’s capacity for rational thought was impeded. The evidence was that Mrs AA worked full-time in a managerial role.

49    The distress in fact experienced by Mrs AA during the course of the Tribunal hearing was significant and manifest. The Tribunal intervened to remind her of her own support networks. The Tribunal reasons record (at TR [110]):

…The Tribunal accepts this hearing was very stressful for Mrs AA and she described her options in stark terms - ‘either taking my life here or travelling to the Philippines knowing that our life wouldn’t go much further’. The Tribunal encouraged her at this point to maintain her therapeutic relationship with Ms Novella and the close circle of supportive friends she has relied upon during the stressful years since the Applicant’s incarceration.

50    A review of the transcripts of the hearing and the case management hearing also discloses that Mrs AA is articulate and intelligent. Mrs AA had a history of acting for the Applicant during his imprisonment in seeking treatments and the like for him. Whilst distressed during the hearing, Mrs AA did not behave irrationally and she was able to continue after being granted short adjournments. For example, during her closing submissions, the following exchange took place:

Mrs AA: I am urging you for that assessment to take place, understand further the potential and the real risk to [the Applicant] returning to the Philippines. You commented earlier that your hopeful intention is to [cries] [unintelligible 05:55:07]

Senior Member: I'm just going to adjourn for another couple of minutes, [Mrs AA], and allow you to collect yourself. So I'll come back in a couple of minutes.

Mrs AA: I just hope I'll be able to.

Court Clerk: The hearing is adjourned.

….

Mrs AA: To conclude what I was saying before the adjournment, I'd like to finish with, [the Applicant] is incredibly and deeply remorseful…

51    It is unlikely that the legislature intended that a hearing before the Tribunal could not proceed by reason of “some measure of psychological stress and disorder in the applicant”: NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983, at [51]-[52] (Branson J). The same might equally apply to a lay representative who is a family member. Whilst the transcript of the proceedings before the Tribunal shows that Mrs AA suffered distress during the course of proceedings, breaking into cries at one point, it does not demonstrate that Mrs AA at any point became irrational or behaved in a way that was illogical, as opposed to behaving in a way that would not be expected of a professional advocate or lawyer. The evidence does not demonstrate that Mrs AA was unfit to present arguments on behalf of the Applicant or give evidence. To describe Mrs AA as unfit to present the Applicant’s case does not accurately reflect the effort she made before the Tribunal.

52    A fair opportunity to be heard does not require an ideal opportunity be afforded. There was no suggestion by Mrs AA at the case management conference that she considered herself incapable of representing the Applicant. Mrs AA had advised the Tribunal that, at that stage, the Applicant was pursuing options for legal representation. The review process did not require the Tribunal to review material as it was filed. At the very commencement of the hearing, the Applicant was asked by the Tribunal to confirm that he had asked his wife to act as his advocate. The Applicant did so confirm (via an interpreter). To deny the Applicant his right to be represented at that moment would have arguably deprived the Applicant of an ability to have a fair hearing.

53    This case is far from an ideal. Although fault is not to be attributed to any individual, there was an unfortunate confluence of circumstances in this case. Mrs AA was the Applicant’s spouse, advocate/representative and a key witness with evidence of suffering significant mental health issues. The Applicant is an individual who was illiterate and had very little knowledge of the English language, practically unable to represent himself. The Applicant and Mrs AA had investigated and been denied pro bono assistance in respect of the proceedings before the Tribunal. The Applicant had no readily identifiable alternative source of representation, absent Mrs AA being practically compelled to expend her funds on securing representation.

54    By the time of the hearing, the Tribunal was faced with a difficult choice — to allow Mrs AA to represent the Applicant or to have the Applicant, an illiterate individual with a very limited ability to speak English, represent himself at the hearing. An adjournment was not practicable because of the impending statutory deadline. The Tribunal did its best to deal with the position it found itself in by the time of the hearing.

55    As far as possible, a circumstance in which an applicant’s representative is also a critical witness ought to be avoided. As this case demonstrates, if nothing else such circumstances put a burden on the Tribunal.

56    However, on balance, the Court is satisfied that the Tribunal in this case performed its review function in a manner which accorded procedural fairness to the Applicant. The AAT Act does not require a representative to be legally qualified. The AAT Act does not require a representative of an applicant to be independent or objective. Mrs AA’s mental health condition did not result in her not being able to present the Applicant’s case. There was no jurisdictional error as a result of Mrs AA acting as the Applicant’s representative in the unique circumstances of this case.

57    In so far as each of the alleged inadequacies in the Tribunal’s explanations to Mrs AA of its processes is concerned, the following observations are made.

58    The Applicant submitted that the Tribunal did not discuss s 500(6H) of the Act with Mrs AA at the case management hearing. The opportunity for a fair hearing required that the Applicant (through his representative) be able to understand and make decisions about the critical and fundamental factual and legal issues in his application: SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [53] (Allsop CJ).

59    The Court does not accept the alleged deficiencies in the Tribunal’s explanations or assistance given to Mrs AA in relation to s 500(6H) or (6J). Mrs AA was provided with an explanation as to the operation of ss 500(6H) and (6J) as set out above. In addition, the Tribunal sent information to Mrs AA about those requirements. The information sheet relevantly stated:

You must give the Minister’s representative written statements of what you and your witnesses are going to say at least 2 business days before the Hearing.

You must also give the Minister’s representative any documents you want the Member to consider at least 2 business days before the Hearing.

(A business day is a day that is not a Saturday, Sunday, or a public holiday in the ACT or in the place where the hearing is to be held.)

If you do not give the Minister’s representative a copy of what you and your witnesses are going to say and any documents you want the Member to consider, the Member cannot consider the evidence when making the decision in your case.

60    In these circumstances, there was no failure to accord procedural fairness by reason of a failure to provide an explanation of ss 500(6H) and (6J).

61    Nor was there a failure to accord procedural fairness by reason of an inadequate explanation of the issues that would arise in the hearing, in particular that the Applicant should be prepared to face questions about his offending. The information sheet provided to the Applicant in advance of the first case management hearing directed the Applicant to Ministerial Direction No. 90 and informed the Applicant that the Tribunal must take into account the matters referred to in Direction No. 90. In its covering email by which the information sheet was provided to the Applicant, the Tribunal noted that Direction No. 90 had been replaced by Direction No. 99 which came into effect in March 2023 and would be the Ministerial Direction applicable in the matter. The Tribunal also attached a copy of Direction No. 99. The nature and seriousness of the criminal offending is identified in that direction as a matter required to be taken into account. Against that background, it is not apparent how an alleged failure to inform the Applicant to be prepared to face questioning about his offending might result in a failure to accord the Applicant an opportunity for a fair hearing.

62    The Applicant was not excluded from the hearing merely because not every exchange between the Tribunal and the parties’ representatives was translated for the benefit of the Applicant. The requirement to include an applicant who is represented in a hearing is not a requirement to include the applicant in every exchange nor a requirement to direct every remark or statement to both the applicant and his representative. It depends on the matters being discussed.

63    During the hearing itself, the Tribunal was concerned to ensure that relevant matters were translated for the benefit of the Applicant. Each of the Applicant and Mrs AA were informed at the commencement of the hearing that the first primary consideration that the Tribunal was to consider would involve the Tribunal looking at the nature and seriousness of any crimes or other misconduct. Neither the Applicant nor Mrs AA had any questions.

64    In relation to an alleged failure to give an adequate explanation of the right to object to questions during cross-examination, the transcript discloses numerous occasions on which Mrs AA sought and was granted permission to interrupt in the course of cross-examination. When she was unsure of the process, she asked. The following exchange took place during the course of the Applicant’s cross-examination:

Mrs AA: Senior Member, do I object to process or when I am--

Senior Member: Well, you can object if you think that the question that's being put is not accurate or reflective of what's here. You can object to it as we go but only if you believe there's a proper basis to it. [crosstalk]

Mrs AA: I just wasn't sure of the process, but if I did have to.

65    Mrs AA also intervened to ask the Tribunal for a short adjournment when she observed the Applicant to be distressed. The Court does not accept that Mrs AA did not understand that she had a right to object, even though she may not have been in a position to articulate in legal terms the basis for objections or framed her interjections as objections as such. There was no failure to accord the Applicant a fair hearing by reason of an inadequate explanation of Mrs AA’s right to object.

66    The Applicant submitted that because Mrs AA did not fully understand the basis on which objections could be made — including on the basis of unfairness — unfair questioning of the Applicant occurred. The Applicant pointed to questions posed to him in cross-examination in relation to photographs that had been found on his phone but which were not in evidence before the Tribunal and which were not shown to him.

67    That submission is not accepted. The Tribunal is not constrained by the rules of an adversarial system. Whether an objection is taken during cross-examination does not determine the questions that the Tribunal can have asked or the manner in which the Tribunal deals with the responses given in cross-examination. The Tribunal’s reasons disclose that the Tribunal in forming a view about the Applicant’s credit (at TR[69]), was concerned with the Applicant’s responses in relation to questions about how photographs, which the police found on his phone, came to be on his phone and inconsistencies with responses he had given to police. The Tribunal was placed to see the Applicant in cross-examination. The Tribunal reasons (at TR[77]) also record that:

The Court made no finding about these photographs and video, and the Tribunal has only had regard for the Applicant’s oral evidence about these matters.

68    The Tribunal did not draw inferences from the content of the photographs or from the Applicant’s recollection of the content of the photographs. Where questions were asked of the Applicant that did not accurately reflect the transcript record of his interview with police, the Tribunal was quick to intervene in the framing of the question. The Tribunal was entitled to compare the explanations given by the Applicant to the Tribunal for photographs being found by the police on his phone with the explanations he gave to the police.

69    In so far as the issue of a summons was concerned, the Applicant’s argument concerned an alleged insufficiency in the opportunity for the Applicant to be heard on the issue of a summons to the Australian Federal Police. The Tribunal gave Mrs AA a detailed explanation during the hearing of why the summons was not issued in the form she had sought. The Tribunal issued a summons in terms it considered balanced a number of competing interests, including the width of the request and its impact on the privacy of others. Given that neither the Applicant nor Mrs AA had actual knowledge of the nature of the material sought to be summoned, any representations they might have made in relation to the nature and relevance of the documents sought to be summoned could only be based on speculation. The Tribunal’s decision to affirm the delegate’s decision was not attended by a failure to accord natural justice by reason of the Tribunal failing to hear from Mrs AA before declining to issue the summons in the form she had sought.

70    For the above reasons, the application is dismissed.

Associate:

Dated:    19 April 2024