CNU17, by his litigation representative the Mother of CNU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2019] FCA 1651
•9 October 2019
FEDERAL COURT OF AUSTRALIA
CNU17, by his litigation representative the Mother of CNU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2019] FCA 1651
Appeal from: CNU17 v Minister for Immigration and Anor [2017] FCCA 2900 File number: QUD 733 of 2017 Judge: LOGAN J Date of judgment: 9 October 2019 Catchwords: ADMINISTRATIVE LAW – appeal from the Federal Circuit Court judicially reviewing a decision of the Administrative Appeals Tribunal – where the appellant was born in Australia to Vietnamese parents – where the appellant’s parents lodged an application for a protection visa on his behalf – where at the Tribunal hearing the appellant’s mother tried to provide to the Tribunal a copy of a news article relevant to the appellant’s claim – where the Tribunal mistakenly refused to accept the article – whether the Tribunal was bound to accept the article – where the article was later lodged online with the Tribunal – where the article was not considered by the Tribunal – whether the Tribunal’s refusal to accept the article is a jurisdictional error – whether the Tribunal failed to offer the appellant an objectively meaningful hearing – whether the Tribunal’s error was material
PRACTICE AND PROCEDURE – litigation representatives – where an application was lodged in Court for the appellant’s mother to be his litigation representative – where the appellant is four years old – where no application was lodge electronically as directed – where the appellant’s mother made an affidavit which satisfied the requirements of r 9.63 of the Federal Court Rules 2011 (Cth) – whether litigation representative orders should be made nunc pro tunc
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 18B, 24Z, 33
Migration Act 1958 (Cth) ss 5, 36, 48A, 420, 425, 441F
Federal Court Rules 2011 (Cth) rr 9.61, 9.63
Cases cited: CNU17 v Minister for Immigration and Border Protection [2018] FCA 1301
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Immigration and Border Protection v CPA16 (2019) 163 ALD 469
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Stead v State Government Insurance Commission (1986) 161 CLR 141
Date of hearing: 19 November 2018 Date of last submissions filed by the Respondents: 26 November 2018 Date of last submissions filed by the Appellant: 5 December 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 42 Counsel for the Appellant: Mr MA Rawlings Solicitor for the Appellant: McKenzie Mitchell Solicitors Counsel for the Respondents: Ms S Forder Solicitor for the Respondents: Sparke Helmore ORDERS
QUD 733 of 2017 BETWEEN: CNU17, BY HIS LITIGATION REPRESENTATIVE THE MOTHER OF CNU17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
9 OCTOBER 2019
THE COURT ORDERS THAT:
1.For the purposes of the both the appellant’s application for an extension of time within which to appeal against the judgment of the Federal Circuit Court of Australia given on 24 November 2017 and his consequential appeal pursuant to an extension of time granted on 7 August 2018, the appellant’s mother be known by the pseudonym, “the Mother of CNU17”.
2.The Mother of CNU17 be appointed as the appellant’s litigation representative both for the purposes of his extension of time application and for his consequential appeal.
3.The appointment of the Mother of CNU17 as his litigation representative take effect, nunc pro tunc, on and from the filing of the appellant’s extension of time application on 22 December 2017.
4.The title of the proceedings be amended accordingly.
5.The appeal be allowed.
6.The orders made by the Federal Circuit Court of Australia on 24 November 2017 be set aside.
7.In lieu thereof:
(a)a writ of certiorari issue directed to the second respondent quashing its decision dated 5 May 2017.
(b)a writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review made on 12 December 2016 according to law.
8.The first respondent pay the appellant’s costs of and incidental to the appeal, including those of the extension of time application, and in the Federal Circuit Court, to be taxed if not agreed.
9.The name of the first respondent be amended so as to reflect the present Ministerial office, namely: “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
LOGAN J:
Procedural history
The appellant was born in Australia in 2015. His parents and his older brother had arrived in Australia without visas by boat from Vietnam in March 2013. They were therefore what the Migration Act 1958 (Cth) (the Act) terms “unauthorised maritime arrivals”.
After their arrival and before the appellant’s birth, the appellant’s family applied under the Act for that class of visa known as a Protection (class XA) visa. Their application was not successful. After the appellant was born, they applied, in July 2016, for a Temporary Protection (class XD) visa. The appellant was included in his parents’ family unit, but his mother made separate, additional, claims for protection on his behalf.
In late September 2016, the appellant’s parents were informed by an officer of the then Department of Immigration and Border Protection (Department) that, by virtue of s 48A(1) of the Act, their application was invalid, as their earlier applications for a protection visa had been refused. However, the appellant’s and his brother’s claims for the visa were treated as valid and were considered on their merits. In December 2016, a delegate of the present first respondent, the Minister for Immigration and Border Protection refused their applications.
Insofar as it affected him, the appellant sought the review of this visa refusal decision by the Administrative Appeals Tribunal (Tribunal). It will shortly be necessary to detail certain aspects of the proceedings before the Tribunal. For the purposes of this procedural narrative, it is only necessary to record that, on 5 May 2017, the Tribunal (Member M Hawkins) affirmed the Minister’s delegate’s decision.
The appellant then sought the judicial review of the Tribunal’s decision by the Federal Circuit Court. On 24 November 2017, that court ordered that his judicial review application be dismissed with costs.
An appeal against that order of dismissal was not instituted within the time prescribed by the Federal Court Rules 2011 (Cth) (Rules). However, on 7 August 2018, I was persuaded that an extension of time ought to be granted to the appellant within which to appeal against that order: CNU17 v Minister for Immigration and Border Protection [2018] FCA 1301.
Also on that date, an application was filed in court by leave seeking the appointment by the Court of the appellant’s mother as his litigation representative for the purpose of these proceedings. Such an appointment is necessary, because the appellant was and remains, by virtue of his age, a person under a legal incapacity. Such a person may only commence or defend a proceeding by a litigation representative: r 9.61 of the Rules. The appellant, via his solicitor has not subsequently, as he ought to have done, given that the Court’s file is electronic, filed the appointment application electronically. Nonetheless, an affidavit made by the appellant’s mother agreeing to act as his litigation representative has been filed. Having regard to that affidavit, I am satisfied that the requirements specified in r 9.63 of the Rules for the appointment of the appellant’s mother as his litigation representative have been met such that she should be so appointed. Further, it is in the interests of justice that the appointment take effect nunc pro tunc on and from the date upon which the extension of time application was filed (22 December 2017) so that there can be no doubt as to the regularity of the proceedings. To preserve, to the extent at all still possible, the appellant’s anonymity, his mother ought also to be afforded a pseudonym for the purposes of these proceedings. For simplicity, the pseudonym “the Mother of CNU17” (Mother) will be adopted for this purpose.
It should be recorded that, as it had before the Federal Circuit Court and no less appropriately, the Tribunal made a submitting appearance only in respect of the appeal.
Proceedings before the Tribunal
To understand the error which allegedly attends the judgement below it is first necessary to detail certain features of the proceedings before the Tribunal. Some of these features emerge from the Tribunal’s reasons and procedural records and the material before the Tribunal, all as found in the appeal book, others from an affidavit of one Erin Kennedy, affirmed on 1 June 2017, which was filed and read without objection or contradiction on the hearing of the judicial review application in the Federal Circuit Court. Ms Kennedy had attended as the Mother’s support person each of the hearings conducted by the Tribunal for the purposes of its review. The account below is based on facts evidenced in the sources mentioned. It does not contradict but is more detailed than the findings of fact made by the learned primary judge. While the account is factually uncontroversial, whether in the circumstances related any jurisdictional error by the Tribunal is revealed is controversial.
The Tribunal conducted two hearings in relation to the review application. The first was on 24 April 2017, the second on 5 May 2017. The Mother and two other witnesses gave evidence at the first hearing. A second hearing was held on 5 May 2017. Ms Kennedy and the Mother attended both hearings.
Prior to the second hearing and so as to assist the Mother, Ms Kennedy accessed and printed out two news articles, one by the ABC entitled “Asylum seekers who came on boats to Australia jailed in Vietnam, advocacy group says” (the ABC article), and one by SBS, dated 15 February 2017, entitled “Women flee Vietnam for second time following turn-back from Australia” (the SBS article). At the second hearing, the Mother handed both articles to the Tribunal. The member constituting the Tribunal “glanced at them, and said he had already seen them, handing them back.” The ABC article had indeed previously been provided to the Tribunal. It came to be referred to by the Tribunal at [143] of its reasons for decision (Reasons). The SBS article had not previously been provided to the Tribunal by or on behalf of the appellant (or otherwise).
After the conclusion of the second hearing, at 10.39am on 5 May 2017, the SBS article was submitted online to the Tribunal by the Mother with the assistance of Ms Kennedy. The Tribunal’s decision was made later on 5 May 2017, at 12.42pm. The Tribunal did receive the SBS article before then. The appellant received notification of the decision and its reasons from the Tribunal at 4.36pm that same afternoon. No mention is made of the SBS article in the Tribunal’s reasons.
Basis of Visa Claim
The appellant’s claim, made via the Mother, was, as accurately summarised by the learned primary judge:
a.He is Catholic and was baptised in Australia. He feared he would be targeted and prohibited from practising the Catholic religion in Vietnam;
b.He feared return to Vietnam as his parents were practising Catholics who left Vietnam illegally and were failed asylum seekers who would be branded traitors by the Vietnamese government and the community generally. As a result he feared that he would be imprisoned with his parents or alternatively separated from his parents if they were imprisoned and consequently he would be orphaned or abandoned. He feared that he would be branded a traitor, stigmatised and shunned by the community, and would be denied public services and an education.
The Tribunal’s reasons
I gratefully adopt this summary of the Tribunal’s reasons, as offered the learned primary judge:
The Tribunal accepted that the applicant had been baptised, was a Catholic and was the child of parents who were practising Catholics. However, it did not accept any of the applicant’s claims to fear harm, and made the following findings:
a.The applicant’s parents had not been harmed, caught up or involved in a certain incident described in the material as the “Con Cuong Church protest” and were not the subject of any resulting discrimination or harm;
b.Neither parent had expressed any political or anti-government views and would not be perceived to hold them;
c.Notwithstanding that the Vietnamese authorities were aware that the applicant was in detention in Australia and had applied for protection, the Vietnamese government was facilitating the return of failed asylum seekers and did not harm people because they had applied for asylum in another country or had departed illegally;
d.The applicant’s parents had paid people smugglers to get them to Australia and would be perceived as victims of crime. It did not accept that his parents would be imprisoned on return and found at worst, they may be subject to a fine;
e.The applicant would not be prevented from practising his religion;
f.The applicant’s parents would not be imprisoned, they were not anti-government and the appellant would not be left to fend for himself, become homeless, trafficked, exploited or kidnapped;
g.The applicant would be of no interest to the Vietnamese authorities;
h.The applicant would not be unable to access public services and essential rights like education or have problems attending school;
i.The applicant would be able to acquire Vietnamese citizenship through the process for registration of overseas births;
j.It was plausible that some returnees were held for questioning by reason of their involvement in the organisation of people smuggling ventures and/or their political opinions, but the applicant’s mother was not an organiser of people smuggling ventures and had paid a people smuggler;
k.The applicant would not be impacted by a criminal conviction that his father had received in the United Kingdom.
The Tribunal had before it a report from a clinical psychologist, Ms Fritz, as to adverse mental health, developmental and educational outcomes suffered by children subjected to social ostracising and bullying. The Tribunal dismissed this prospect on the basis of the conclusions it reached as to what would be the appellant’s fate if he returned to Vietnam.
The Federal Circuit Court’s reasoning
The learned primary judge accepted that the SBS article was relevant to the review which the Tribunal was required by the Act to undertake of the Minister’s delegate’s decision. What his Honour did not accept was that the SBS article had a quality of materiality to an assessment of the appellant’s claims such that the failure to take it into account constituted a jurisdictional error. His Honour’s further conclusion was that the rejection of Ms Fritz’s evidence of potential harm was just a logical sequel to conclusions permissibly reached by the Tribunal as to the appellant’s fate if he were returned to Vietnam.
The issues in the appeal
As pleaded, the grounds of appeal are as follows:
1.The learned Judge at first instance erred in finding that it was not unlawful for the Tribunal to refuse to receive the SBS article.
2.The learned Judge at first instance erred in finding that it was not a jurisdictional error for the AAT Member to refuse to receive the SBS article.
3.The learned Judge at first instance erred in finding that it was open to the tribunal to find that the harm identified by Ms Fritz would not satisfy s.5(j)(5) or s.36(2A).
[sic]
Contrary to what might be thought from the way it was pleaded, it emerged in submissions that ground 3 did not entail a contention that the learned primary judge had misconstrued s 5(j)(5) or s 36(2A) of the Act. Indeed, the learned primary judge did not embark upon a consideration of the meaning of either provision. Instead, his Honour did no more than conclude (at [42]) that, “the conclusion reached by the Tribunal that the harm identified by Ms Fritz would not befall the [appellant] was clearly open to it” such that there was no error in the Tribunal’s conclusion that, “the Tribunal is not satisfied that the [appellant] would be prohibited from obtaining public services and an education and does not find this harm would rise to the level of threat to his life or liberty or to other forms of serious harm as required by s.5(J)(5), or to significant harm as required by s.36(2A)” (Reasons, [145]).
Ground 1 adds nothing to ground 2. That is because the Tribunal will have not have conducted a review according to law if that review was attended with a jurisdictional error. A decision wanting in authority is one and the same as a decision attended with jurisdictional error: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain) at [25] - [26] per Kiefel CJ, Gageler and Keane JJ.
The nature of the jurisdictional error alleged is such that the fate of ground 3 is necessarily dependent upon whether the jurisdictional error alleged is made out.
As submissions progressed on the hearing of the appeal, it became apparent that the disposition of the appeal necessarily also entailed consideration of the following:
(a)Whether the Tribunal’s decision was affected by jurisdictional error, constituted by a failure to comply with s 425 of the Act, by declining to receive the SBS article.
(b)Whether, by declining to receive the SBS article, the Tribunal departed, without notice, from paragraph 5 of the Presidential Directions made under s 18B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and thereby committed jurisdictional error.
(c)The applicability of s 24Z of the AAT Act to the review conducted by the Tribunal.
The interests of justice dictated that the appellant and the Minister each be afforded an opportunity after the conclusion of oral argument to file supplementary submissions in relation to these additional issues. Each took up this opportunity.
Resolution of issues
In submissions, the Minister stated that he “accepts that the Tribunal acted under a mistaken belief that the SBS article was already before it, and so denied itself the opportunity to consider the document.” Somewhat confusingly, in light of this concession, the Minister nonetheless repeated a submission made to but rejected by the learned primary judge that it should be inferred that the Tribunal took the SBS article into account because it appears in the Appeal Book as being part of the material held by the Tribunal for the purposes of the review. The learned primary judge (at [28]), was not prepared to draw this inference, “because the unchallenged evidence of Ms Kennedy was that the Tribunal member’s view was that he had seen the articles before and did not need to take them”. When this unchallenged evidence is considered in conjunction with the short time frame between the online dispatch of the article to the Tribunal and the publication of the Tribunal’s decision and reasons later that same day and the absence of any reference in the Tribunal’s reasons to the SBS article, it is indeed more likely than not that the Tribunal failed to take the SBS article into account when making its decision. So, not only should the Minister be held to his concession, the learned primary judge made no error in proceeding on the basis of his factual conclusion that the SBS article had not been taken into account by the Tribunal. The appeal should be determined on that basis.
At the very heart of the visa claim made on behalf of the appellant was the assertion that mistreatment could be expected for a person who departed Vietnam without authority, even if that person had not been involved in any people smuggling or trafficking aspect of such a departure. On the material before it which, as a result of the Tribunal’s mistaken tender rejection decision at the second hearing, did not include the SBS article, the Tribunal was satisfied that persons such as the appellant’s parents, who were not people smugglers, would not be imprisoned on return to Vietnam. Accordingly, the Tribunal was not satisfied that, upon a return to Vietnam with his parents that the appellant would be “left to fend for himself or homeless or on the streets or trafficked, exploited or kidnaped or in any way harmed” (Reasons, [142]). The Tribunal drew a deliberate distinction between the circumstances of the children of one witness, a person held for questioning in relation to the organisation of people smuggling and those of another who merely paid a people smuggler (Reasons, [145]).
Within the SBS article, the following passages appear:
a. The sub-headline of the article states:
“Three women who fled Vietnam, only to be sent back by the Australian Government, have again fled their homeland, as Vietnamese authorities “strictly punish” the ‘unauthorised exit of country’.”
b. On the second to last page of the article it is stated that:
“Vietnamese state media said authorities there would be launching a new criminal investigation into the group for leaving the country without official permission.”
c. The final two pages of the article says:
i.“The 2016 “unauthorised exist of country” charges were handed down by a court in Binh Thuan province, despite assurances given to Australian immigration officials from Vietnam that the group would not face prosecution following their repatriation via HMAS Choules.”
ii.“The trial took place amidst allegations that local Communist Party authorities had intervened to make sure the asylum seekers were heavily punished.”
iii.““The La Gi Township Administration (local communist party) had instructed to punish heavily,” Vo An Don told SBS News and other media in interviews following the trial.”
iv.“The fact that the Township Administration instructed the judicial authorities on the trial is completely against Vietnamese law.”
Of course these passages must be read in the context of the SBS article as a whole. Even so read they apparently corroborate the evidentiary case advanced by the appellant to the Tribunal, which was that, in practice, harm was faced not just by people smugglers who returned after an unauthorised departure but also in practice by those who did nothing more than pay a people smuggler, departed without authorisation, sought asylum abroad unsuccessfully and were returned to Vietnam. The learned primary judge concluded (at [26]) that the SBS article was relevant to the review being conducted by the Tribunal. I agree. Evidence capable, if accepted, of corroborating an essential element in an applicant’s claim for a visa could hardly be regarded otherwise.
Not every error made by a Tribunal in the conduct of a review constitutes jurisdictional error. To be jurisdictional, the error must be material: Hossain. Materiality can be established by an error which has deprived an applicant of the possibility of a successful outcome: Hossain at [30] per Kiefel CJ, Gageler and Keane JJ; at [70] per Edelman J (Nettle J at [39] agreeing), each, notably, referring to Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 (Stead). One of the examples given in Stead whereby an applicant can be deprived of the possibility of a successful outcome is the ignoring of relevant material.
In these circumstances, one might, with respect, have thought that this case would long ago have been resolved by a ready concession in the original jurisdiction by the Minister that the Tribunal’s decision had been attended with jurisdictional error such that it should be quashed and the matter remitted to the Tribunal for rehearing. Had that course been adopted, it is likely that the appellant, the Mother and the Minister would long ago have had the benefit of a decision on the merits on that remitter. It is also certain that public funds devoted by the Minister to this case could have been alternatively employed, as could the judicial resources devoted to it.
At that rehearing, it would have fallen to the Tribunal to consider, in conjunction with all of the material then before it, the SBS article and to decide afresh whether or not it was satisfied that the criteria in s 36(2)(a) or s 36(2)(aa) of the Act were met. Perhaps other material might have shown that the events described in the SBS article in fact related only to those who had been engaged in people smuggling, perhaps not or perhaps there may have been no such other material introduced. Such speculation by a court as to what might have occurred on a rehearing would have been, and is, nothing to the point. It would have been, and is, enough that the visa applicant, here the appellant, has been deprived of the possibility of a successful outcome. The corroboration offered by the SBS article could, realistically, have made a difference. That is sufficient. As the Full Court recently stated in Minister for Immigration and Border Protection v CPA16 (2019) 163 ALD 469, at [33]:
[The] relevant test does not require an assessment of the likelihood of the omitted review material affecting the decision. The test is whether the omitted review material could realistically have resulted in the decision-maker making a different decision: ie, whether the visa applicant has been deprived of the realistic possibility of a successful outcome.
[Emphasis in original]
As it happens, no such ready concession was made by the Minister. Instead, each and every ground of review was closely contested by him in the original jurisdiction, as was each and every ground of appeal and other issue raised in the course of the hearing of the appeal. In these circumstances, and notwithstanding a clear view that, for the reasons just given, the Tribunal’s decision was attended by a jurisdictional error constituted by the ignoring of relevant material (the SBS article) such that the appeal must be allowed, the Tribunal’s decision quashed and the matter remitted for rehearing, I am obliged to address each of the issues raised.
The appellant submitted that the Tribunal was obliged in law to accept the SBS article on its tender by the Mother at the second hearing. Before the Federal Circuit Court, this obligation was said to be found via either or each of s 441F of the Act or paragraph s 5.4 of the Migration and Refugee Matters Practice Direction (Practice Direction), issued by the President of the Tribunal on 30 June 2015 pursuant to s 18B of the AAT Act. This version of the Practice Direction is now superseded. However, paragraph 5.4 remains unchanged. The learned primary judge did not expressly address the meaning and effect of these provisions, instead concluding (at [29]) that it was not unlawful for the Tribunal to have refused the tender of the SBS article because, by virtue of s 33(1)(b) of the AAT Act, it had power to inform itself on any matter in such manner as it thought appropriate.
The appellant repeated his reliance on the identified provisions in support of grounds 1 and 2 in the notice of appeal. Initially, the Minister was disposed, in response, to contend that the reliance by the primary judge on s 33 of the AAT Act was a complete answer to these grounds. It emerged, however, in the course of the hearing of the appeal that s 33 of the AAT Act was not applicable to the review which the Tribunal was conducting. That review was necessarily heard and determined in the Tribunal’s Migration and Refugee Division. Section 33 falls within Pt IV of the AAT Act. Except for the provisions specified in s 24Z(2) of that Act, Pt IV of the AAT Act does not apply in relation to a proceeding in the Migration and Refugee Division. Section 33 is not one of the provisions specified in s 24Z(2).
Perhaps, given his initial disposition in submissions in this Court, the Minister led the primary judge into error in relation to the application of s 33 of the AAT Act. However this may be, the answer to the appellant’s argument based on s 441F of the Act and paragraph 5.4 of the Practice Direction is not to be found in s 33 of the AAT Act. Nor, for that matter, is it to be found in s 420 of the Act, which came later to be canvassed in submissions. Section 420, applicable to a review like the present undertaken under Pt 7 of the Act, is an analogue but not an exact counterpart of s 33 of the AAT Act. Like s 33(1)(b) and s 33(1)(c) of the AAT Act respectively, s 420 provides, by paragraph (a), that the Tribunal “is not bound by technicalities, legal forms or rules of evidence” and, by paragraph (b), that it “must act according to substantial justice and the merits of the case”. But neither of these prescriptions is a charter enabling the Tribunal to decline to accept the tender by or on behalf of an applicant at a hearing of a document containing information capable of corroborating the basis of that applicant’s visa claim, at least if that document is not already in the possession of the Tribunal. If anything, and quite apart from constituting, as discussed below, a transgression of s 425 of the Act, such conduct by the Tribunal might be regarded as not acting “according to the substantial justice of the case”.
Section 441F of the Act is directed to the manner of giving documents to the Tribunal when that is required or permitted. It provides:
441F Giving documents etc. to the Tribunal
If, in relation to the review of a Part 7-reviewable decision, a person is required or permitted to give a document or thing to the Tribunal, the person must do so:
(a)by giving the document or thing to an officer of the Tribunal; or
(b)by a method set out in directions under section 18B of the Administrative Appeals Tribunal Act 1975; or
(c)if the regulations set out a method for doing so--by that method.
Paragraph 5.4 of the Practice Direction forms part of a number of directions which address the manner in which documents are given to the Tribunal, particularly the circumstances in which it is necessary to produce the original of a document. It provides (and provided):
5.4If you bring an original document to the hearing to submit as evidence, you are requested to bring a copy of the document as well.
As is evident from the conditional qualification of “required or permitted” in the chapeau to s 441F, that section has nothing at all to say about when or in what circumstances the Tribunal is required to accept a document tendered by an applicant. Rather, it assumes the existence of a requirement or at least an ability (“permitted”) to produce and specifies the manner in which it is to be done. That same conditional feature attends (and attended) paragraph 5.4 of the Practice Direction. The only procedural expectations which these provisions engender are with respect to how documents are to be given to the Tribunal.
Appreciating this common feature of s 441F and paragraph 5.4, attention came to focus in the course of submissions on s 425 of the Act. That provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
It was long ago settled that s 425 of the Act imposes an obligation on the Tribunal, as a precondition to the valid exercise of its jurisdiction, to extend an objectively meaningful invitation to an applicant to attend the Tribunal’s hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553. A failure to comply with the requirements of s 425 involves a jurisdictional error. Contrary to the Minister’s submission, in the present case, by rejecting, during the course of the hearing, the tender by the Mother of the SBS article, the Tribunal denied the appellant an objectively meaningful hearing in that it rejected a tendered document capable of corroborating other evidence that was central to the appellant’s visa claim. The position which obtained under Pt 7 of the Act, both expressly and by necessary implication, in relation to the Tribunal’s conduct of the review for which the appellant had applied was recently and materially summarised in this way by Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection vSZMTA (2019) 93 ALJR 252 at [13]:
13.Amongst the obligations to be observed by the Tribunal in the conduct of the review which are implicit in the scheme of Pt 7 is the obligation to reconsider the merits of the decision under review “in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself”. That obligation is fundamental to the nature of the review for which Pt 7 provides. Whilst it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence, the Federal Court has properly recognised that the Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to the applicant's case, including any such evidence contained in a document or report provided to it by the Secretary, in the same way that the Tribunal would fail to perform that duty if it failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case.
[Emphasis added; footnotes omitted]
The emphasised reference in this passage to “provided to it” is exactly apposite in the circumstances of the present case.
Earlier in time in this Court is Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (Robertson J), later cited with approval in the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [68] - [70] and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [29]. These cases stand for the proposition that the “fundamental question is the importance of the material to the exercise of the tribunal’s function and the seriousness of the error.” As I have already pointed out, the information in the SBS article went to the heart of the appellant’s visa claim. Related to that, if the corroboration it offered of other evidence led for the appellant before the Tribunal led to the acceptance of that evidence, the factual foundation for the type of harm described by Ms Fritz would exist. So the appellant would then have a persuasive case for satisfaction of the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.
An endeavour was made both by the learned primary judge in his reasons for judgement and by the Minister in submissions to discount the contents of the SBS article to the end of demonstrating that it introduced nothing new. However, with respect, what to make of the passages in that article, which I have excerpted above and which on their face bespeak adverse consequences in practice for returnees, irrespective of whether or not they had an involvement in people smuggling, is a matter for the Tribunal. One must be astute not to embark on what is in truth merits review under the guise of determining whether or not particular information was or was not material.
Given the unimpeachable finding of fact by the primary judge that the Tribunal paid no regard to the SBS article as lodged within it online after the hearing before making its decision, that emailing does not, contrary to the Minister’s submission, offer a panacea. To the contrary and put bluntly, the ignoring of the SBS article as emailed prior to the decision added insult, in the circumstances, to the injury already done by the Tribunal at the hearing by the refusal of the tender. It served to confirm that the error made at the hearing was indeed jurisdictional. In the ordinary course of events, the gratuitous emailing of further information by an applicant to the Tribunal, after the offering by the Tribunal, as s 425 of the Act obliged, of an objectively meaningful hearing, would not give rise to an obligation to consider that further information. That is not to say the Tribunal could not permissibly consider such information, for s 424 would permit that, only that it would not be obliged to. However, in the circumstances of the present case, by ignoring the SBS article when later lodged the Tribunal’s conduct removed any possibility that its earlier non-compliance at the hearing with s 425 of the Act could be characterised as anything other than a jurisdictional error.
Disposal of appeal
It necessarily follows from the foregoing that the appellant has made out grounds 1 and 2 in the notice of appeal. The appeal must therefore be allowed, the orders made in the Federal Circuit Court set aside. In lieu thereof, the Tribunal’s decision must be quashed by a writ of certiorari and a writ of mandamus must issue requiring the Tribunal to decide the review according to law. The Minister must pay the appellant’s costs both in this Court (including those of the extension of time application) and in the court below.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 9 October 2019
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