1419015 (Practice and Procedure) - [2016] AATA 3075

1419015 (Practice and Procedure) [2016] AATA 3075 (29 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1419015
DIBP REFERENCE(S):  CLF2013/68581
MEMBER:President Kerr
DATE:29 January 2016
PLACE OF DECISION:  Hobart
DECISION:The Tribunal remain as constituted

CATCHWORDS
PRACTICE AND PROCEDURE - application for reconstitution of Tribunal under s 19D(2)(a)(iii) of the Administrative Appeals Tribunal Act 1975 (Cth) - after hearing of a proceeding commences and before the Tribunal determines the proceeding - matter capable of being advanced as basis for application for member’s recusal - asserted basis not sufficient for reconstitution - direction that Tribunal remain as constituted
LEGISLATION
Tribunals Amalgamation Act 2015 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 19A, 19D, former 21A
CASES
Andelman v Secretary FHCSI [2011] FCA 299
Plaintiff S157/2002 v Commonwealth [2003] HCA 2
SRBP and Tax Practitioners Board [2015] AATA 302
SECONDARY MATERIALS
Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (Cth)
REASONS FOR DECISION

This is an application seeking the reconstitution of the Tribunal after the hearing of a matter had commenced but prior to its determination by Senior Member Kira Raif.
The application has been made to the Administrative Appeals Tribunal (the Tribunal or AAT) by Parish Patience Immigration Lawyers (Parish Patience) acting for the Applicant. The request for reconstitution was made by letter from Parish Patience, dated 27 November 2015, addressed to Dr Irene O’Connell the Acting Division Head, Migration and Refugee Division of the AAT.
Initially managed as a complaint, the letter requesting the reconstitution was referred to me, as the President of the AAT, on 18 January 2016.
A letter apologising for the delay has been sent to the Applicant.
The subject matter of the review was the Applicant’s entitlement or otherwise to a Partner visa. The Applicant’s case was that her relationship had broken down following domestic violence.
The Applicant was assisted at the hearing before Senior Member Raif by Mr Michael Jones, Special Counsel for Parish Patience.
The Applicant is seeking the reconstitution of the Tribunal on the basis, as asserted by Parish Patience, that Senior Member Raif was “unsympathetic” and lacked sensitivity during the hearing of the Applicant’s review on 17 November 2015.
Parish Patience provided the following details of Senior Member Raif’s alleged conduct:
Mr Jones reported after the hearing that [the Applicant] clearly did not understand the technical and repetitive attempts by Member [sic] Raif to explain the issue of the Schedule 3 requirements and the waiver provisions of the Regulations. The Member made no attempt to explain, rather than simply repeat, the requirements. Mr Jones was of the opinion that the manner in which the Member conducted the hearing was abrupt and technical and clearly conveyed the impression that she was unsympathetic to [the Applicant’s] case. He was also concerned that the Member had shown little sensitivity in relation to domestic violence issues, asking [the Applicant] why she had remained so long in a violent relationship.
Parish Patience advised that on 18 November 2015 (the day after the hearing) the Applicant was involuntarily admitted to the Kiloh Centre, Prince of Wales Hospital as a result of a suicide attempt.
In support of the application to reconstitute the Tribunal, Parish Patience supplied a letter dated 27 November 2015 from Dr Adam Bayes, staff specialist psychiatrist, Eastern Suburbs Mental Health Service, NSW Health.
In his letter, Dr Bayes advises that the Applicant reported to him that:
…she made the attempt because she was distressed by the recent Migration Review Tribunal [sic] hearing which she found highly distressing and confrontational. She also worries about the future of her 4 year old daughter, should she be deported.
Dr Bayes’ letter continues:
The ongoing Migration Review Tribunal [sic] hearings - both [the Applicant’s] experience of the process being confrontational as well as the possibility she might be deported - could act as ongoing triggers for low mood and possible reactivation of suicidal ideation.
There is no reason for me to doubt Dr Bayes’ statement as to the Applicant’s reported reasons for her suicide attempt or his assessment of her current vulnerability to future suicidal ideation.
PRE-AMALGAMATION PRACTICE
Before the Tribunals Amalgamation Act 2015 (Cth) (the amalgamating Act) came into force, each of the Administrative Appeals Tribunal, the Migration Review Tribunal - Refugee Review Tribunal (MRT-RRT) and the Social Security Appeals Tribunal had varying legal powers to address the reconstitution of their respective tribunals and appear to have had differing practices in that regard.
Section 21A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), as it stood prior to the amalgamating Act, provided an explicit mechanism allowing a party to request the reconstitution of the Tribunal. If those processes were followed the President might then reconstitute the Tribunal if he or she considered that ‘the matters to which the proceedings relate[d were] of such public importance as to justify him or her so doing’.
SRBP and Tax Practitioners Board [2015] AATA 302 (SRBP) provides an illustration of the limited circumstances in which that power was exercised. In SRBP the Respondent requested that the President reconstitute the Tribunal on the basis of the member’s apprehended bias. I rejected that proposition. I concluded that s 21A did not confer on the President an unconfined discretion in determining such applications.
In SRBP, I reasoned that ordinarily the power would not be engaged in respect of a circumstance which could be dealt with by a recusal application. This was because the occasion for the exercise of the power conferred by s 21A was confined to instances in which the matters to which the proceedings related were of such public importance to justify that consequence.
I considered that that conclusion was consistent with Jagot J’s observations in Andelman v Secretary FHCSI [2011] FCA 299 (Andelman) at [30]:
Ordinarily, an application that a decision-maker disqualify himself or herself on the ground of bias (apprehended or actual) must be made in the first instance by the decision-maker in question. Section 21A is not a substitute for the ordinary common law position. The section has a limited operation. The touchstone of it (sic) operation is that the matters to which the proceeding relates be matters which the President might consider of such public importance as to justify the giving of a direction for reconstitution of the Tribunal. Accordingly, if a party requests reconstitution of the Tribunal merely on the ground of bias (actual or apprehended) then, in the ordinary course, the Tribunal would be entitled to treat that application as one based on the common law principles by which the Tribunal is bound and not as an application under s 21A of the AAT Act. Nothing in such an application, in the ordinary course, would engage the provisions of s 21A. This conclusion is consistent with the recent decision of Downes J in Kowalski and Repatriation Commission [2011] AATA 197.
Different legal rules and practices existed in the other pre-amalgamation Commonwealth tribunals.
In the MRT-RRT a tribunal constituted for a particular review might be reconstituted even if a recusal application could have, but had not, been made. The member in respect of whom a complaint was made might be instructed to take no further step in a proceeding pending the completion of an investigation. If the Principal Member then formed the opinion that the conduct of the proceeding was capable of being characterised as involving an error which might justify the member’s recusal or otherwise attract judicial review, then the tribunal could be reconstituted on that basis.
The present application, addressed to the Acting Division Head of the Migration and Refugee Division (MRD) of the AAT, may assume that the former, less constrained, practice of the MRT-RRT remains available in the MRD and may be exercised by its Division Head notwithstanding the merger of those tribunals with the AAT. If so, that assumption is incorrect.
THE CURRENT LEGAL FRAMEWORK
As cl 279 of the Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (Cth) (EM) explains, the rules formerly in s 21A were simplified by removing the explicit ability for parties to request reconstitution of the Tribunal. That was not intended to remove or limit the right to make such a request. The EM states that the President would still carefully consider any such requests.
Section 19D of the AAT Act now governs and provides the rules for the reconstitution of the Tribunal for a proceeding. That section provides:
19D Reconstitution
Before hearing commences
(1) At any time before the hearing of a proceeding commences, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction.
After hearing commences
(2) At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction, if:
(a) the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding:
(i) stops being a member; or
(ii) is for any reason unavailable; or
(iii) is directed by the President not to take part in the proceeding; or
(b) the President considers that doing so is in the interests of achieving the expeditious and efficient conduct of the proceeding.
(3) Subsection (2) does not apply in relation to a proceeding in the Security Division.
(4) The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).
President’s directions
(5) The President must not give a direction referred to in subparagraph (2)(a)(iii) unless the President:
(a) is satisfied that it is the interests of justice to do so; and
(b) has consulted the member concerned.
(6) The President must not, for the purposes of subsection (2), revoke a direction under subsection 19A(1) in relation to a proceeding and give another such direction unless the President:
(a) is satisfied that it is in the interests of justice to do so; and
(b) has consulted each member who as a result ceases to be a member of the Tribunal as constituted for the purposes of the proceeding.
(7) In giving directions for the purposes of this section, the President must have regard to the Tribunal’s objective in section 2A.
Although I need not decide the question, I take the preliminary view that circumstances relating to the public importance of a proceeding that formerly could have warranted the reconstitution of the Tribunal pursuant to the former s 21A of the AAT Act remain open to advance pursuant to s 19D(2)(b).
However, neither that provision, nor those of s 19D(2)(a)(i) [member stops being a member] and s 19D(2)(a)(ii) [member unavailable] empower the President to reconstitute the Tribunal as a result of the President having formed an adverse view of the way in which a member has conducted a hearing. If that power exists it must reside in s 19D(2)(a)(iii) which states that a direction to reconstitute the Tribunal may be made if the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding ‘is directed … not to take part in the proceeding’.
Section 19D(2) vests the power to make such a direction in the President. This important power has not been delegated and can be exercised only by him or her.
GENERAL PRINCIPLES TO BE APPLIED IN RESPECT OF SECTION 19D(2)(a)(iii)
A first reading might suggest that s 19D(2)(a)(iii) allows the President to freely replace one decision maker with another at will. However such a reading ignores the statutory principles the President is directed to apply in respect of making of directions pursuant to the subsection. Section 19D(2)(a)(iii) must be read subject to the other provisions of s 19D and in the context of the AAT Act as a whole.
Section 19D(5) states that the President cannot direct a member not to take part in a proceeding under s 19D(2)(a)(iii) unless (a) he or she is satisfied that it is in the interests of justice to do so and (b) he or she has previously consulted the member concerned. Identical obligations must be observed before the President gives a direction for the reconstitution of the Tribunal (s 19D(6)).
As cls 286 and 287 of the EM state, those obligations did not exist in the former MRT-RRT.
Furthermore, the President is directed by s 19D(7) to have regard to the Tribunal’s objectives in s 2A of the AAT Act which is as follows:
2A Tribunal’s objective
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.
Once properly understood against that statutory background and the necessary independence of members to undertake merits review in the AAT, the terms of s 19D(2)(a)(iii) require the conclusion that the power must be exercised with restraint.
Members’ independence is a core pillar in the architecture of the AAT. Its members are appointed by the Governor-General (s 6) and are removable only by an address of both Houses of Parliament (s 13). Members of the AAT are afforded the same protections and immunity as a Justice of the High Court of Australia (s 60(1)).
The AAT as an organisation does not make decisions or conduct reviews as a corporate body. It is fundamental to recognise that, although the President can give written directions in relation to the operation and procedures of the Tribunal (s 18B) the President has no role in hearings and decisions except if he or she is a member of a Tribunal as constituted for a particular proceeding.
In addition to the President, who is a Judge of the Federal Court of Australia, the membership of the Tribunal includes other Judges of the Federal Court of Australia, Judges of the Family Court of Australia, Deputy Presidents, Senior Members (two levels) and Members (3 levels). Within that membership, and subject to certain restrictions, the President (or those senior members of the AAT to whom that power has been delegated) can constitute the Tribunal for a particular matter. However, once that is done, all references to the ‘Tribunal’ in relation to a proceeding in the AAT Act are references to the AAT ‘as constituted for the purpose of the proceeding’ (see definition of ‘Tribunal’ s 3).
Once a member has, or members have, been constituted to hear and determine a particular review that member or those members are alone responsible for the conduct and outcome of that review.
A restrained approach to the power in s 19D(2)(a)(iii) is therefore required. The President has no licence to replace a member at will. The power is not to be exercised unless the President is satisfied it is in the interests of justice to do so.
It would not ordinarily be in the interests of justice for the President to exercise this power in respect of alleged conduct that could otherwise be addressed by an application for the member’s recusal, which application, if refused, could be subject to review in the Federal Court of Australia or the Federal Circuit Court of Australia as may be available to an applicant under the various mechanisms permitting judicial review.
Nor would it be in the interests of justice that the President accedes to a request to dispose privately of claims for recusal that could be made publicly in the Tribunal. Making a recusal application where it is warranted ought to be the normal and proper course for an aggrieved party to pursue. Such a practice helps ensure that members of the AAT remain accountable in an open and transparent way for the fairness of the procedures they have adopted.
For the President to substitute his directions in place of judicial review by determining when to, or not to, remove a member when an ordinary recusal application might properly be made would not only become a practical burden on his or her administration of a tribunal now having in the order of some 300 full and part-time members, but would also necessarily add to delay and costs. Although the AAT Act has been amended since the decisions in SRBP and Andelman, the underlying principles articulated in those cases remain relevant and persuasive.
It would be wrong for the President to use the effectively unexaminable and private power conferred by s 19D(2) to reconstitute the Tribunal in an ordinary instance of alleged pre-judgement or bias. If this was done routinely the effect would be to sweep error under the carpet and to avoid transparent judicial scrutiny of the conduct of members of the Tribunal.
Moreover, too routine recourse to reconstitution by the President after a complaint of that nature would inevitably lead to member shopping.
The role of a member, once constituted as the Tribunal (and their duty as an incident of procedural fairness), not infrequently will require them to put unfavourable matters to an applicant. Such instances can be innocently or wilfully misunderstood as evidence of bias or pre-judgement. A member’s obligation to put such matters and their responsibility as an inquisitorial tribunal to ask sometimes challenging questions where, as is the case in the MRD the agency whose decision is subject to review takes no part in the hearing, may flag to an applicant the weakness of their case. It would not be in the interests of justice and it would be inconsistent with the principles in s 2A of the AAT Act for the President readily to reconstitute the Tribunal in such circumstances.
Having been constituted for the purpose of a proceeding the member or members so constituted exercise the deliberative and decisional powers of the AAT. A member, whatever their status, having been constituted for a proceeding, is independently responsible for exercising all of the powers and duties of the AAT in respect of that proceeding. It should be expected that that includes the responsibility to hear and determine, according to law, any recusal application. If an error in that regard occurs, its correction, subject to rare and exceptional circumstances, must be for the courts and not the President of the AAT.
The jurisdiction of the High Court of Australia to supervise the conduct of Commonwealth tribunals is constitutionally entrenched (Plaintiff S157/2002 v Commonwealth [2003] HCA 2). One or more of s 44 of the AAT Act (appeal to the Federal Court of Australia), judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) or judicial review as constitutionally entrenched by s 75(v) of the Constitution are available avenues to redress alleged errors in those circumstances.
For the same reasons the complaints policy of the AAT explicitly excludes complaints going to the merits of decisions made by members. A complaint that a decision is wrong (including for reasons going to bias and want of procedural fairness) may give rise to grounds for an appeal or an application for judicial review but is outside the scope of the complaints policy.
The complaints policy does not exclude complaints regarding member behaviour when the complaint is not in respect of the merits in a particular proceeding. That is because merits review is underpinned not only by rule of law but also dignitarian considerations. Any party in a proceeding before the AAT is entitled to expect not only that their substantive rights, if they exist, will be protected but also that, irrespective of the substantive merits of their case they will be listened to with respect and spoken to with courtesy.

To assist its members in undertaking their responsibilities having regard to the above principles the AAT maintains induction programmes, mentoring and assessment schemes and ongoing structured programs of professional development and training.
APPLYING THE PRINCIPLES
The alleged conduct of Senior Member Raif that is said to justify the reconstitution of the Tribunal is based on a report to Parish Patience by Mr Michael Jones, Special Counsel (as set out at [8] above).
As required by s 19D(5) I have consulted Senior Member Raif.
Senior Member Raif accepts that she experienced difficulty in conveying to the Applicant the precise content of the Regulations that the Applicant needed to answer questions about. I am advised that Senior Member Raif sought Mr Jones’ assistance in explaining those matters to the Applicant but he declined to take up that opportunity.
Senior Member Raif also accepts that she pressed the Applicant on matters relating to the Applicant’s history of asserted domestic violence as was her duty but without any intention of her appearing unsympathetic to the Applicant’s case.
I need not make findings regarding the impressions Mr Jones asserted were conveyed by Senior Member Raif in that respect. That is because there is an objective record of what occurred. Parish Patience have asked for and have been provided with a recording of the hearing.
It remains open to the Applicant to make a request, on the basis of the allegations made in this application, if so advised, on entirely conventional grounds, for Senior Member Raif to recuse herself for reasons of apprehended bias. Senior Member Raif has agreed to take no further step in the proceedings until 7 days after the date of these reasons to permit that possible course to be pursued.
Senior Member Raif advises me that she is aware of her legal responsibility to hear and determine on the merits any application of that nature that the Applicant may make. I am not satisfied that the interests of justice require a different course.
Finally I turn to the matters recounted in Dr Bayes’ letter of 27 November 2015. I do not ignore their gravity.
It is heart-wrenching that the Applicant sought to take her own life on the day following the hearing for reasons that included her fear of the possibility that she might ultimately be deported.
It is a stark reminder that although the AAT is designed to be a remedial institution allowing those who are aggrieved by decisions made by public officials to obtain independent arms-length review, nonetheless, because of the significance of the issues at stake, the process can be inherently highly stressful.
The consequences for an unsuccessful applicant in a proceeding in the AAT can be profound. Professionals such as pilots or financial advisors held to have failed to meet regulatory standards may lose their livelihoods, workers seeking compensation found to have suffered their injury as a result of reasonable administrative action may be left without income, and social security recipients may face periods of poverty if they cannot establish a proper basis to resist repayment of benefits overpaid. The stakes in reviews in the MRD can be even higher.
It has not been suggested by Parish Patience that Senior Member Raif was told anything by Mr Jones about the Applicant’s fragile mental state. However, even had the Senior Member been so advised, it would have remained her duty, with sensitivity and respect for the Applicant’s dignity, to test, even robustly, the Applicant’s asserted reasons to be entitled to the visa she sought notwithstanding those reasons were linked to claims of domestic violence.
To the extent that I have been provided with Dr Bayes’ opinion as support for this application, the Applicant’s mental health and subsequent suicide attempt in those circumstances cannot be accepted as a lawful reason for the President to reconstitute the Tribunal.
That said, now that Senior Member Raif is aware of Dr Bayes’ opinion regarding possible reactivation of suicidal ideation, if there are to be further steps in this proceeding it will be incumbent on the Tribunal to do all that is reasonably open, within the confines of the responsibilities and obligations of the Tribunal, to mitigate that risk. But that cannot be at the cost of the Tribunal’s duty to determine the application before it according to law.
For the above reasons, and in light of my observations regarding the operation of s 19D at [27]–[47] above, I do not accept that this matter is a proper occasion for the exercise of my power to reconstitute the Tribunal.
Because clarifying the principles governing the reconstitution of the AAT in the amalgamated tribunal has significance beyond the resolution of this specific application I publish these reasons for my decision, with the name of the applicant suppressed, that the Tribunal not be reconstituted.

I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of President Kerr
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Associate
Dated 29 January 2016