Malhi v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs
[2021] FCCA 1080
•20 MAY 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Malhi v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2021] FCCA 1080
File number(s): MLG 1345 of 2017 Judgment of: JUDGE A KELLY Date of judgment: 20 May 2021 Catchwords: MIGRATION – Student (Class TU) (Subclass 572) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of delegate of the Minister not to grant a student visa – where first applicant was the primary applicant for the visa – where second and third applicants, as dependants on the first applicant, were secondary applicants for the visa – where applicant was invited by the Tribunal to attend a hearing and requested to provide any additional material upon which he sought to rely in relation to his application – where the Tribunal delivered its decision orally and in writing – where Tribunal was not satisfied the applicant was a genuine student who intended to stay temporarily in Australia – Part 5 of the Migration Act 1958 provides an exhaustive statement of the requirements of the natural justice hearing rule – conduct of persons cross-examining a witness in a civil proceeding – whether the applicant was afforded a meaningful opportunity to appear before the Tribunal to give evidence and present arguments – application for relief granted. Legislation: Migration Act 1958 (Cth) ss 65, 353, 357A, 359AA, 360, 366A
Migration Regulations 1994 (Cth), Sch 2, cl 572.223
Evidence Act 1995 (Cth) s 41
Cases cited: Arena Management Pty Ltd v Campbell Street Theatre Pty Ltd (No 2) [2010] NSWSC 1230
Attorney-General (NSW) v Quin (1990) 170 CLR 1
AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341
CZD18 v Minister for Home Affairs [2019] FCA 1442
Hewett v Comcare [2020] FCA 527 (170) ALD 239
Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Border Protection v EFX17 (2021) 95 ALJR 342
Minister for Immigration and Border Protection v Singh (2016) 240 4F CR 305
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1
Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1396
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
Number of paragraphs: 44 Date of hearing: 6 May 2021 Place: Melbourne Counsel for the Applicants: Mr McBeth Counsel for the Respondents: Mr Hibbard ORDERS
MLG 1345 of 2017 BETWEEN: PARMINDER JEET SINGH MALHI
First Applicant
PARDEEP KAUR
Second Applicant
EMANPREET KAUR
Third Applicant
AND: MINISTER FOR IMMIGRATION CITIZENSHIP MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
20 MAY 2021
THE COURT ORDERS THAT:
1.Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3.The application filed on 23 June 2017 be allowed.
4.A writ of certiorari issue quashing the decision made on 23 May 2017 of the second respondent (Case Number 1511020).
5.A writ of mandamus issue remitting the matter to the second respondent, differently constituted, for determination according to law.
6.The first respondent pay the costs of the applicant as agreed or assessed.
REASONS FOR JUDGMENT
JUDGE A KELLY
Introduction
By application dated 26 June 2017 the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 23 May 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Student (Class TU) (Subclass 572) (visa) pursuant to s 65 of the Migration Act 1958 (Act).
Determination of the application essentially turns upon a question whether, having regard to the manner in which the Tribunal conducted the hearing, the applicant was denied a meaningful opportunity to present his evidence and arguments; or, alternatively, whether the decision was tainted by apprehended bias. For the reasons which follow, the application should be upheld.
Background
Although the focus of the application was upon the content of the Tribunal’s hearing, it is necessary to understand the context in which that hearing occurred. More precisely, an understanding of the applicant’s visa history is relevant as informing the matter which came before the Tribunal. As the background facts were not in dispute, and in circumstances where the background was not addressed by the applicant’s submissions, it is convenient to take them directly from the Minister’s submissions.
The first applicant, a male citizen of Indian ethnicity aged 29 years (applicant), first came to Australia on 6 August 2009 holding a Student (Subclass 572) visa, expiring on 15 June 2011.
Since his arrival in 2009, the applicant has held either a student visa or an associated bridging visa. Relevantly, on 12 March 2015, being a matter of days before the expiry of his then current visa, the applicant made application for a further student visa, doing so in circumstances where he had enrolled 24-hour’s earlier in a further course of study (Certificate IV, automotive mechanical diagnosis). The first applicant was the primary applicant for the visa. The second and third applicants (as dependants of the first applicant), were secondary applicants for the visa. From evidence before the Tribunal it appears that the third applicant, a daughter, has returned to India.
PRISMS records indicated that the applicant had: (a) enrolled in no fewer than 20 courses over the period 2009 to 2015; (b) completed seven of the courses in which he had enrolled; (c) cancelled or not commenced a number of courses in which he had enrolled in the period June 2010 to December 2012.
Further, Departmental records demonstrated the applicant had only once departed Australia in the period 2009 to March 2015, being for a period of less than one month. In addition to his present application, in that period the applicant had twice made an application for a nomination of Business sponsorship. He had also made an application for a Temporary Work (Skilled) (Class UC subclass 457). Each of these applications were refused.
On 7 April 2015, the applicant’s migration agent wrote to the Department in response to a request for further information, attaching a series of documents and including a letter written by the applicant in which he indicated he had no intention of staying in Australia on a permanent basis as it had already been more than six years of his life which he had spent here and was now pretty sure that his employment phase would be ‘great’ in India.
The applicant, who wished to study further, indicated that armed with both marketing skills combined with the automotive skills would make him the best applicant in the selection criteria for a job. He hoped that the Department would understand his genuine intention to study and grant a student visa to complete his studies further.
On 28 July 2015, a delegate of the Minister made a decision to refuse the application on the substantive basis that the applicant had not satisfied the Minister he intended genuinely to stay in Australia temporarily and so did not satisfy the criterion in cl 572.223(1)(a) in Sch 2 of the Migration Regulations 1994 (Cth).
On 12 August 2015, the applicant applied to the Tribunal for a merits review of that decision.
On 26 April 2017, the applicant was invited to attend a hearing scheduled for 23 May 2017, provided a copy of Ministerial Direction No 53 and requested to provide any additional material upon which he sought to rely in relation to his application. From his testimony to the Tribunal it appears the applicant first retained a migration agent to assist him at that hearing on 22 May 2017 and on that date the Tribunal was supplied with a number of documents including:
a)a written statement constituting submissions;
b)records of nine different courses he had completed, or partially completed, since his arrival in Australia, being:
i)a Certificate III in Automotive Mechanical Technology from Cambridge International College (CIC);
ii)a Diploma of Management from CIC;
iii)a Certificate III in Frontline Management from CIC;
iv)an Advanced Diploma of Management from Imperial College of Technology and Management (Imperial);
v)a Certificate IV in Marketing from ANGAD Australian Institute of Technology (ANGAD);
vi)a Diploma of Marketing from ANGAD;
vii)a Certificate IV in Automotive Mechanical Diagnosis from Ashton College; and
viii)an Advanced Diploma of Leadership and Management from Brighton Institute of Technology; and
c)offers of employment from Global Explorer Motors dated 21 July 2012 and 23 April 2017, a company based in Moga, India.
On 23 May 2017, the applicant, who attended the Tribunal hearing with his migration agent, gave sworn evidence to the Tribunal. From the Tribunal’s record it appears the hearing commenced at 1:37pm and concluded shortly before 4:00pm. The transcript confirms that the hearing proceeded in stages and at some points was stood down.
Immediately following the hearing, the Tribunal member delivered an oral decision, affirming the decision of the delegate to refuse the visa application. Those reasons were embodied in the transcript that was exhibited to an affidavit made by the applicant’s lawyer. On 26 May 2017, the applicant’s lawyer made a request for written reasons.
On 5 June 2017, the Tribunal provided written reasons for the decision so made. No point was made respecting any difference between the reasons as recorded in the transcript and those provided by the written reasons. In substance, the Tribunal:
a)set out the relevant background, role of the Tribunal and role of Ministerial Direction No 53 [1]-[10];
b)noted the applicant’s history in Australia [16]-[20], including that:
i)he had been enrolled “in a large number of courses, many on multiple occasions and many of which have been cancelled”; and
ii)the courses were relatively inexpensive and had some overlap;
c)identified that despite completing the courses nominated in the Visa application (being a Certificate III in Automotive Diesel Engineering Technology and a Certificate IV in Automotive Mechanical Diagnosis), and despite having a job offer in India, the applicant had enrolled in a Diploma of Leadership and Management [21];
d)considered the applicant’s purported desire to return home and the jobs he had been offered: [23]-[26];
e)considered the applicant’s previous applications for business sponsorship and a work visa [27];
f)noted its view that the applicant’s proposed studies did not add value to his proposed career given he had been offered the job at Global Exports Motors on a number of occasions [28];
g)considered the applicant’s incentive to return to India for family reasons [31];
h)noted that the Visa application was made shortly before the expiry of a previous visa [33];
i)concluded that, having considered the applicant’s circumstances as a whole, including the issues in Direction No 53, it was not satisfied that the applicant was a genuine student who intended to stay temporarily in Australia, and on that basis found that the applicant did not meet the requirements of cl 572.223(1)(a) [34]; and
j)affirmed the decision not to grant the visas.
Procedural History
On 23 June 2017, the applicant’s lawyers filed an application for judicial review of the Tribunal’s decision. On the same date, the applicant’s lawyer affirmed an affidavit providing a brief outline of the history of the matter and exhibiting a copy of the Tribunal’s decision.
On 10 July 2017, a response was filed on behalf of the Minister seeking dismissal of the application on the basis that the Authority’s decision was not affected by jurisdictional error.
The proceeding has been the subject of directions on two occasions. First, on 20 February 2018, orders were made that the proceeding be listed for final hearing and directions given affording the applicant opportunities to file and serve an amended and particularised application together with any further evidence and submissions. In the event, while none of those opportunities were taken at that time, the proceeding was listed for final hearing on
6 May 2021. Secondly, on 16 April 2021, an order was made permitting the applicant to file an amended application, any further affidavits and submissions.
On 22 April 2021, the applicant’s lawyer filed a further affidavit to which she exhibited a typed transcript of the hearing before the Tribunal.
An audio file of the Tribunal hearing was tendered in evidence.
Consideration
The application for review contained two grounds of review.
Ground 1 reads:
The applicant was denied procedural fairness, in that the decision of the Tribunal is affected by a reasonable apprehension of bias.
Particulars
The conduct of the Tribunal Member during the hearing, including but not limited to mocking the applicant, interrupting the applicant and telling the applicant that he did not believe him, would lead a fair minded lay observer to reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided.
Ground 2 reads:
The Tribunal failed in its statutory task to provide the applicant with a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review in accordance with s360 of the Migration Act 1958.
Particulars
The Tribunal Member prejudged the question of whether the applicant was a genuine temporary entrant, such that the hearing was an empty gesture.
In the course of submissions, the parties were agreed that if the applicant made out the challenge based upon a failure to afford him a hearing in accordance with the obligation embodied in s 360 of the Act, it would be unnecessary to determine whether the manner in which the hearing was conducted by the Tribunal member carried the result that the subsequent decision was thereby tainted by apprehended bias.
The applicable principles were not in dispute. However, it is convenient to recognise that, just as in cases involving a challenge to the reasons of an administrative decision-maker, so too its processes are not to be scrutinised with an eye that is keenly attuned to error: AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341, [48] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; see also Hewett v Comcare [2020] FCA 527, [33]. As those authorities confirm, the Tribunal is not a court and, more particularly, under the Act, the role of the Tribunal on merits review is to conduct a hearing on standards which do not mirror those to be expected of superior courts.
On judicial review, the applicant as moving party bears the onus of proof in establishing jurisdictional error, a burden which does not shift to the Minister: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [67] (SZGUR); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, [24]. In the context of Pt 5 of the Act, where an applicant’s challenge is to the denial of a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review, it is for the applicant to demonstrate to the requisite standard that such an opportunity was denied.
Part 5 of the Act concerns Review of Part 5-reviewable decisions and is arranged in nine divisions comprising ss 336M–379G. Division 5 of Pt 5 concerns the subject, Conduct of review, which comprises ss 357A–367 of the Act. Division 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals: Act, s 357A(1).
In particular, so far as is presently material, s 360 reads:
360 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 359C(1) or (2) applies to the applicant.
Contextual considerations within Div 5 are also of some importance. First, the Tribunal in reviewing a Part 5-reviewable decision is not bound by the rules of evidence but must act according to the substantial justice and merits of the case: Act, s 353. Relatedly, the Tribunal must act in a way that is fair and just: Act, s 357A. Secondly, the Tribunal may orally give to an applicant clear particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision that is under review and in doing so must ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied upon: Act, s 359AA. Thirdly, for the purposes of Div 5, the term ‘information’ refers to the existence of evidentiary material or documentation, not to the existence of doubts, inconsistencies or the absence of evidence or, more relevantly, a Tribunal’s disbelief: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [18]; cf SZGUR, [9]. Fourthly, a review applicant is also entitled, absent steps taken by a Tribunal to notify him or her to the contrary, that the issues that were considered by the delegate to be dispositive constitute the issues which arise in relation to the decision under review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [32], [35] (SZBEL). For that reason, where, on review, a Tribunal is inclined to reach a decision by a route other than that indicated by those dispositive issues, a failure to notify the applicant would constitute a denial of procedural fairness: SZBEL, [36]-[37]. Fifthly, while entitled to be assisted by another person while appearing before a Tribunal, absent exceptional circumstances, an applicant is denied an entitlement for such assistance to present arguments on his or her behalf: Act, s 366A.
The scope and content of the obligation created by s 360 is of decisive significance in this case. As Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35-36 confirms the relevant question is one about the Tribunal’s processes, not its actual decision: SZBEL, [25], [45].
What is fair and just in relation to a particular matter may be discerned, in part, from the purpose of the provision under consideration, together with surrounding provisions and, relevantly, the purpose of Div 5 as a whole: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [58]. There, the plurality held that sub-s 360(1) required the invitation to be meaningful “in the sense that it must provide the applicant for review with a real chance to present his or her case.” Further, it is settled that the sense in which the invitation must be ‘meaningful’ is that it must provide the applicant with a real chance to present his or her case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, [37] (SCAR); Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305, [61]-[63]. More recently, in Minister for Immigration and Border Protection v EFX17 (2021) 95 ALJR 342 at [29], the Court identified that the invitation with which the section was concerned related to the discharge of the Tribunal’s core function of reviewing a decision on its merits. As the authorities confirm, that core function arises from the essentially inquisitorial nature of the proceedings before a Tribunal on merits review: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, [18]. Compliance with the obligation imposed by s 360 is a precondition to the valid exercise of jurisdiction. Failure to do so entails jurisdictional error: SCAR, [38]; CZD18 v Minister for Home Affairs [2019] FCA 1442, [27].
As the text of s 360 makes clear, in conducting a review of a Part 5-reviewable decision, one aspect of the natural justice hearing rule which governs the manner of merits review is that the Tribunal must invite the applicant to a hearing. The purpose of the invitation is stated explicitly in the section; that is, the applicant is to be afforded an invitation to give evidence and present arguments relating to the issues arising in relation to the primary decision. Contextually, the content of the obligation to invite an applicant to a hearing is informed by par 360(2)(a) inasmuch as the obligation is not engaged where the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it: SZBEL, [27]. In all other circumstances, the obligation is so engaged. This indicates that the premise upon which a hearing of merits review of a Part 5-reviewable decision proceeds is that the Tribunal has formed a preliminary view, on the basis of the material before it, which is not favourable to the application for review. I agree in the submission of counsel for the applicant that the hearing is one in which the applicant is to be afforded a meaningful opportunity to address doubts that may be held by the Tribunal and to assuage concerns in relation to the merits of the application for a visa. On the principles stated above, a Tribunal is under no obligation to inform an applicant of subjective doubts, thought processes or determinations, including as to conclusions arrived at in weighing up the evidence. Those considerations serve to inform the importance that the invitation to give evidence and present arguments (informed by the Tribunal’s preliminary view that it does not consider the application should be granted on the material before it), is directly related to the discharge of the Tribunal’s core function of reviewing a decision on its merits review. In turn, this underscores the imperative importance of the invitation. It represents the opportunity given to an applicant to participate in a meaningful way at a hearing on the merits.
While it is clear that the rules of evidence do not apply in the conduct of the inquisitorial hearing that is to be conducted by a Tribunal in relation to a Part 5-reviewable decision, it is perhaps instructive to reflect upon the clear limits which are placed upon the conduct of persons cross-examining a witness in a civil or criminal proceeding. In particular, within Ch 2 of the Evidence Act 1995 (Cth), Adducing evidence, Div 5 concerns the subject of cross-examination. Section 41 of that Act proscribes a witness from being examined in a manner where the Court is of the opinion the question is, relevantly harassing, intimidating, offensive, oppressive, humiliating or is put “in a manner or tone that is belittling, insulting or otherwise inappropriate”. This provision operates to place appropriate barriers around the process by which a person is examined. The clear entitlement to pursue the examination of a witness in a robust manner is beyond argument. But it does not constitute “a license to offend, ridicule or vilify”: cf Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243, [123] (Adamson J, Basten and Gleeson JJA agreeing); Arena Management Pty Ltd v Campbell Street Theatre Pty Ltd (No 2) [2010] NSWSC 1230, [14] (Palmer J).
I have set out above the history of the matter. The parties were essentially agreed that the applicant’s educational history was fairly suggestive that on merits review difficulties may well be encountered in seeking to persuade the Tribunal that the criteria for the grant of the visa – that he was a person who genuinely intended to stay in Australia temporarily – could be satisfied. In addition, the manner in which the applicant had answered questions was, it was submitted, marked by hesitancy. Further attention was drawn to the manner in which the applicant’s answers were interrupted by the Tribunal. In each of those respects, the case bore marked similarities to Sharma v Minister for Immigration and Border Protection (2017) 256 FCR 1 (Sharma), [31], [38], [39(K)], [53(O)], [53(P)], [53(Q)], [60]. However, as the Full Court observed, at [61], of those considerations “weak cases are not in an area of immunity from fair process. The protection from procedural unfairness applies equally to weak cases as to strong cases.” While Sharma was determined on a ground of apprehended bias, those observations are not unhelpful.
The transcript of evidence confirms that the hearing was of about one hour’s duration and which included the period in which the decision was delivered orally. By way of overview, the approach and tenor of the questioning of the applicant was not a model of restraint. Commendably, the submissions on behalf of the Minister recognised that they were robust and direct. It was also accepted that the approach taken was forthright, vigorous, plain-spoken and blunt: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1396, [38] (Snaden J].
However, it would not be unreasonable to describe much of the exchange as infected by open cynicism and of a lack of restraint which was not infrequently characterised by a hectoring and disbelieving manner. The rapidity with which the Tribunal moved from the introduction and consideration of a topic toward an expression of scepticism and explicit disbelief was notable. As raised with counsel in the course of debate, it appeared that where the applicant made attempts to clarify his evidence or explain his position he was, in effect, ‘shutdown’. Further, an important consequence for the applicant was that where the Tribunal had disbelieved or misunderstood the applicant’s evidence, the tenor of the further exchange displayed that the Tribunal was openly resistant to entertaining a view contrary to what it had expressed. Having regard to the totality of the recording, I do not accept that the applicant’s conduct when seeking to address the Tribunal should be regarded as non-responsive. I am not persuaded that he was afforded an opportunity to explain himself but rather that his answers were cut short. As was submitted with some force, in several instances, the applicant was simply shut down, derailed and constantly interrupted.
Although the parties were agreed that the application fell for determination on judicial review on the basis of the totality of the facts and circumstances including the applicant’s visa history and the manner in which the merits review hearing was conducted, particular focus was paid to three passages in the transcript and recording (each of which I have re-examined), as outlined in an aide memoire supplied to this Court.
First, at T6.11–7.25, the Tribunal explored with the applicant his activity in the period before arriving in Australia. Counsel for the respondent correctly observed that the context in which this exchange arose was more accurately examined from T4.14 and I have done so. Despite the careful submissions of Mr Hibbard, counsel for the Minister, I do not accept the characterisation sought to be placed upon this exchange as one in which the Tribunal became frustrated with the applicant for supposedly non-responsive answers. To the contrary, having listened to the recording it is clear that the applicant was confronted with a series of questions (which, not infrequently, contained multiple queries) and that he was interrupted and cut off and effectively thwarted in his attempts to deal with the issue being asked of him.
Secondly, at T9.23–11.31, the Tribunal examined the topic of the venues at which the applicant had undertaken his study in Australia and pressed him for an explanation as to why he had changed from one college to another. The manner in which this exchange occurred became increasingly overbearing and resulted in the applicant being told he was lying. Without repeating it, the exchange was remarkable.
Thirdly, at the 15.36–17.03, the Tribunal sought detail from the applicant as to the offers of employment he had obtained in India. Again, the applicant was constantly interrupted and prevented from presenting his evidence. While it was suggested that the applicant paused in answering because he was being non-responsive, on another view he was, not unsurprisingly, taken aback by the manner of the inquisition.
I am not persuaded that particular utility is served by setting out at length the passages of transcript to which I have referred. Of no lesser significance is the tone and manner in which the exchange between the decision-maker and applicant occurred at the hearing. Although I considered whether there may be some utility in providing in this judgment a link to the audio recording I have concluded that this too would serve no useful purpose. I am satisfied that the applicant was not afforded a real or meaningful opportunity to address the Tribunal in relation to the issues that were identified by it as matters of concern. In reaching that conclusion I do not ignore that the processes of an administrative decision-maker are not to be scrutinised with an eye that is keenly attuned to error. While the applicant’s visa history might well have engendered a healthy level of scepticism in the decision-maker, this could not be deployed so as to circumvent the applicant’s opportunity to put his case. Insofar as an attempt was made to retrieve the case, upon the basis that both the applicant and his agent had been afforded an opportunity to state whether there was “anything you’d like to say or add?”, I do not accept that this achieved the object of removing the taint of jurisdictional error in this case.
I am not satisfied that there was no practical injustice to the applicant in the manner in which the hearing was conducted, either generally, or in relation to the three specific instances upon which, quite appropriately, the parties focused their submissions: Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1, [37] (Gleeson CJ).
Conclusion
For the foregoing reasons the applicant has discharged the onus of establishing that he was not afforded a meaningful opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
As Ground 2 is made out, the applicant is entitled to relief in the terms sought.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A kelly. Associate:
Dated: 20 May 2021
1
25
3