Liu v Minister for Immigration and Multicultural Affairs

The applicants, Mr Liu and Mr Ahmed, appealed against decisions of the Minister for Immigration and Multicultural Affairs, seeking judicial review of the decisions. Both applicants were citizens of China and Bangladesh respectively and had applied for protection visas in Australia. Their applications were initially reviewed by Ms Akmeemana of the Tribunal, who conducted a hearing for each applicant. However, before delivering their decisions, Ms Akmeemana resigned, leading to the reconstitution of the Tribunal with Mr Keher, who then proceeded to make the decisions. The applicants argued that the reconstituted Tribunal was required to invite them to appear and give evidence in accordance with section 425 of the Act. The central issue before the court was whether the reconstituted Tribunal was obligated to invite the applicants to appear and give evidence under section 425 of the Act, given that they had already appeared before the original Tribunal member.

The court considered the statutory framework and the legislative intent behind the provisions. Section 425 of the Act mandates that the Tribunal must invite the applicant to appear and give evidence unless specific exceptions apply. However, section 428 allows the Tribunal to authorize another person to take evidence on its behalf. The court held that Parliament could not have intended to require the substituted member to hold a fresh oral hearing, as this would be inconsistent with the statutory provisions governing the reconstitution of the Tribunal. The court emphasized that the obligation to invite the applicant to appear before the Tribunal was not repeated in the sections concerning the reconstitution of the Tribunal. Instead, the reconstituted Tribunal has the discretion to decide whether any completed procedures need to be repeated.

The court concluded that the reconstituted Tribunal was not required to invite the applicants to appear and give evidence under section 425 of the Act, as the original Tribunal member had already conducted the hearing. The court held that the statutory framework allowed for the substitution of a Tribunal member without necessitating a repetition of the hearing. The appeal was dismissed, and the applicants were ordered to pay the respondent’s costs.