Pham v Minister for Immigration - [2018] FCCA 2522

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHAM & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2522

Catchwords:
MIGRATION – Where adverse findings on the credibility of first and second applicants made by Tribunal member – Where transcript of proceedings not produced due to “technical errors” – Where court unable to look to transcript to address procedural fairness issues – Where a fair hearing with the provision of a transcript was offered to applicant in AAT correspondence prior to hearing before Tribunal – Where decision of Tribunal quashed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.24Z, 35(3), 35(5), 62A

Migration Act 1958 (Cth), ss.5F, 368

Migration Regulations 1994 (Cth), sch 2.

Cases cited:

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43

Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149

ZJYA v Minister for Immigration and Citizenship(No. 2) 102 ALD 598

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1

First Applicant:

HIEU MINH PHAM

Second Applicant:

THI MINH THANG HOANG

Third Applicant:

HUONG THAO HOANG

Fourth Applicant:

MINH TUAN HOANG

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 347 of 2017

Judgment of:

Judge Egan

Hearing date:

4 September 2018

Date of Last Submission:

4 September 2018

Delivered at:

Brisbane

Delivered on:

4 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr L Boccabella

Solicitors for the Applicant:

T Lawyers

Counsel for the Respondents:

Mr J.D. Byrnes

Solicitors for the Respondents:

Clayton Utz

ORDERS

That the decision of the Administrative Appeals Tribunal handed down on 14 March 2017 be quashed.
That a writ of mandamus be directed to the Administrative Appeals Tribunal requiring it to determine the Applicants’ Application according to law.
That for the purpose of the Administrative Appeals Tribunal determining the Applicants’ application, that it be constituted by a different member than that who handed down the decision on 14 March 2017.
That the First Respondents pay the Applicant’s costs to be taxed pursuant to Part 40 of the Federal Court Rules 2001 (Cth).

IT IS NOTED:

A. Order 4 has been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to show “40” in lieu of “4” and “That the First Respondents pay the Applicant’s costs to be taxed pursuant to Part 40 of the Federal Court Rules 2001 (Cth)” in lieu of “That the Applicant’s costs be taxed pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth)”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 347 of 2017

HIEU MINH PHAM

First Applicant

THI MINH THANG HOANG

Second Applicant

HUONG THAO HOANG

Third Applicant

MINH TUAN HOANG

Fourth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The First Applicant and the Second Applicant sought the grant of a Subclass 309 Partner (Provisional) visa. That application was refused by a delegate of the Minister. 2. Subclass 309 of the Migration Regulations 1994 (Cth) (“the Regulations”) provides as follows:
Subclass 309 -- Partner (Provisional)
309.1--Interpretation
309.111
In this Part:
intended spouse means the person referred to in subparagraph 309.211(3)(a)(i), (ii) or (iii).
woman-at-risk visa means:
(a) a Subclass 204 (Woman at Risk) visa; or
(b) a Class 204 (woman at risk) visa within the meaning of the Migration (1993) Regulations; or
(c) a woman at risk visa (code number 204) within the meaning of the Migration (1989) Regulations; or
(d) a transitional (permanent) visa granted on the basis of an application for a visa of a kind referred to in paragraph (b) or (c).
Note: eligible New Zealand citizen and guardian are defined in regulation 1.03, parent is defined in subsection 5(1) of the Act (also see regulation 1.14A), de facto partner is defined in section 5CB of the Act (also see regulation 1.09A), and spouse is defined in section 5F of the Act (also see regulation 1.15A).
309.2--Primary criteria
Note: The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
309.21--Criteria to be satisfied at time of application
309.211
(1) The applicant meets the requirements of subclause (2) or (3).
(2) The applicant meets the requirements of this subclause if the applicant is the spouse or de facto partner of:
(a) an Australian citizen; or
(b) an Australian permanent resident; or
(c) an eligible New Zealand citizen.
(3) The applicant meets the requirements of this subclause if:
(a) the applicant intends to marry:
(i) an Australian citizen; or
(ii) an Australian permanent resident; or
(iii) an eligible New Zealand citizen; and
(b) the intended marriage will, if it takes place, be a valid marriage for the purposes of section 12 of the Act.
Note: If the applicant is an applicant referred to in subclause 309.211(3), the marriage must have taken place before the applicant can be granted a visa of this subclass: see clause 309.224.
309.212
(1) The spouse, de facto partner or intended spouse of the applicant is not prohibited by subclause (2) from being a sponsor.
(2) The spouse, de facto partner or intended spouse is prohibited from being a sponsor if:
(a) the applicant is a male person; and
(b) the spouse, de facto partner or intended spouse is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application; and
(c) on the date of grant of that visa:
(i) the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or
(ii) the applicant was the spouse or de facto partner of that woman and that relationship had not been declared to Immigration.
309.213
(1) If the applicant is an applicant referred to in subclause 309.211(2), the applicant is sponsored:
(a) if the applicant's spouse or de facto partner has turned 18--by that spouse or de facto partner; or
(b) if the applicant's spouse has not turned 18--by a parent or guardian of that spouse who:
(i) has turned 18; and
(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
(2) If the applicant is an applicant referred to in subclause 309.211(3), the applicant is sponsored:
(a) if the applicant's intended spouse has turned 18--by that intended spouse; or
(b) if the applicant's intended spouse has not turned 18--by a parent or guardian of that intended spouse who:
(i) has turned 18; and
(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
309.22--Criteria to be satisfied at time of decision
309.221
The applicant continues to satisfy the criterion in clause 309.211.
309.222
(1) The sponsorship referred to in clause 309.213 has been approved by the Minister and is still in force.
Note: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships.
(2) The sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).
Note: The sponsor may be asked to consent to such disclosure on the approved form required to be completed by the sponsor in relation to the visa application.
(3) For the purposes of subclause (2), the conviction of the sponsor for a relevant offence is to be disregarded if:
(a) the conviction has been quashed or otherwise nullified; or
(b) both:
(i) the sponsor has been pardoned in relation to the conviction; and
(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.
309.223
In the case of an applicant who meets the requirements of subclause 309.211(2), the applicant continues to be the spouse or de facto partner of the person referred to in paragraph 309.211(2)(a), (b) or (c) who was the applicant's spouse or de facto partner at the time of the application.
309.224
If the applicant is an applicant referred to in subclause 309.211(3), the marriage referred to in that subclause has taken place and the applicant continues to be the spouse of the intended spouse.
309.225
The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 , 4020 and 4021 ; and
(b) if the applicant had turned 18 at the time of application--satisfies public interest criterion 4019.
309.226
If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.
309.228
(1) Each member of the family unit of the applicant who is an applicant for a Subclass 309 visa is a person who:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 , 4009 and 4020 ; and
(aa) if the person had turned 18 at the time of application, satisfies public interest criterion 4019; and
(b)  if the person has previously been in Australia, satisfies special return criteria 5001 and 5002.
(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 309 visa is a person who:
(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and
(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.
309.229
If a person (in this clause called the additional applicant):
(a) is a member of the family unit of the applicant; and
(b) has not turned 18; and
(c) made a combined application with the applicant--
public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant.
309.3--Secondary criteria
Note: These criteria must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.
309.31--Criteria to be satisfied at time of application
309.311
The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.
309.312
The sponsorship referred to in clause 309.213 of the person who satisfies the primary criteria includes sponsorship of the applicant.
309.32--Criteria to be satisfied at time of decision
309.321
The applicant:
(a) continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa (the person who satisfies the primary criteria ); or
(b) is a person to whom each of the following applies:
(i) the person made a combined application with the person who satisfies the primary criteria;
(ii) subsequent to the combined application being made, the person was found by the Minister not to be a member of the family unit of the person who satisfies the primary criteria;
(iii) subsequent to the person who satisfies the primary criteria being granted a Subclass 309 (Partner (Provisional)) visa and Subclass 100 (Partner) visa--the Tribunal found the person to be a member of the family unit of the person who satisfies the primary criteria.
309.322
The sponsorship referred to in clause 309.312 has been approved by the Minister and is still in force.
Note: For limitations on the Minister's discretion to approve sponsorships see regulation 1.20J.
309.323
The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021; and
(b)if the applicant had turned 18 at the time of application--satisfies public interest criterion 4019.
309.324
If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.
309.326
If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.
309.4--Circumstances applicable to grant
309.412
The applicant must be outside Australia at the time of grant.
309.5--When visa is in effect
309.511
Temporary visa permitting the holder to travel to, enter and remain in Australia until the end of the day on which:
(a) the holder is notified that the holder's application for a Partner (Migrant) (Class BC) visa has been decided; or
(b) that application is withdrawn.
309.6--Conditions
309.611
First entry must be made before a date specified by the Minister for the purpose.
309.612
If the applicant meets the primary criteria, condition 8502 may be imposed.
309.613
If the applicant meets the secondary criteria, either or both of conditions 8502 and 8515 may be imposed.
This application for judicial review of a decision of the Administrative Appeals Tribunal was filed on 18 April 2017. The AAT decision, handed down on 14 March 2017, affirmed a decision of the delegate of the first respondent not to grant to the applicants a Partner (Provisional) (class UF) visa. Adverse findings on credibility were made against the First Applicant and the Second Applicant in [45] – [47] of the reasons (CB 15 and 16). The Tribunal was not satisfied that the expounded spousal relationship between the First Applicant and the Second Applicant was anything more than a fabrication. At [43] and [44] of the reasons the Tribunal found that they were not credible witnesses.
The first applicant husband was the review applicant before the Tribunal, and, also, he was the sponsor of the first named second applicant, namely Thi Minh Thang Hoang, who is the wife of the first applicant. The other two named second applicants are children of the wife, born to the wife in another relationship.
There were 10 grounds of review.
At the outset, Mr Boccabella of counsel on behalf of the applicants advised the Court that reliance was no longer placed upon grounds numbered 6, 8 and 10, respectively. Subsequently, Mr Boccabella revived his interest in ground number 10, and he was allowed to do so. Accordingly, the only two grounds not pressed at the hearing before the Court were grounds 6 and 8.
The submissions filed on behalf of the applicants refer to the provisions of section 368 of the Migration Act1958 (Cth) (“the Act”), which provision is as follows:
Tribunal’s decision and written statement
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application--indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
Note: Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.
How and when written decisions are taken to be made
(2) A decision on a review (other than an oral decision) is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
Note: For oral decisions, see section 368D.
(2A) The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
Return of documents etc.
(3) After the Tribunal makes the written statement, the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Validity etc. not affected by procedural irregularities
(4) The validity of a decision on a review, and the operation of subsection (2A), are not affected by:
(a) a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or
(b) a failure to comply with subsection (3).
That section imposes upon the AAT the obligation of providing a written statement which sets out the decision of the Tribunal on review; sets out the reasons for the decision; and sets out the findings on any material questions of fact, amongst other things.
Counsel for the applicants cited the well-known decisions of Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [54] and [55] and Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 at [31] – [36] inclusive.
At [32] of Nguyen, it was said as follows:
…the requirement imposed by s 368(1)(c) of the Migration Act to make “findings on any material questions of fact” is not met by a statement as to an ultimate conclusion grounded upon a series of primary facts without statement as to what those primary facts are, those being the facts which are “material” to the conclusion reached; and
…although there is no necessary difficulty with an administrative decision-maker making a statement such as that contained in paragraph [55] that consideration has been given to

“the evidence overall”, such a statement does not shield from scrutiny such consideration as was in fact given to the evidence and (in particular) evidence going to a centrally relevant submission. A statement that a Minister, for example, has “considered all relevant matters” and “all other evidence” may be said to fall short of an adequate reference to the evidence and fall short of putting a party in a position whereby they can “connect” in any meaningful manner the “findings” to the evidence (see King v Minister for Immigration and Border Protection [2014] FCA 776 at [37]).
The applicants’ submissions point to paragraph 45 of the reasons of the Tribunal as being the paragraph which, under the heading “Findings”, records relevant findings as made. Criticism of the findings as set out in that one paragraph are advanced on behalf of the applicants. It was submitted that the paragraph consists of generalisations, marginal reasoning and no actual findings of fact as drawn from the evidence before it.
The supervisory jurisdiction of this Court is such that in the usual course, the findings as contained in the reasons of the Tribunal are able to be looked at, in the light of the evidence before the Tribunal, as set out in a transcript of evidence. That course today, however, is not open to this Court.
Annexure TWH-6 to the affidavit of Ting Wei Hu (a lawyer) constitutes an email trail whereby on 21 March 2017, presumably pursuant to a request made for a copy of the transcript by or on behalf of the applicants, a copy of the audio recording of the “hearing” was sent to him.
The further email trail records that on 12 July 2017, a further email was sent to Mr Hu, which recorded as follows:
Please note the attached mp3 copy of the audio hearing. Duration is 1:08:52. The remainder of the hearing was not recorded due to technical difficulties.
The affidavit of Pamela Nhi Tieu, filed on behalf of the applicants on 8 May 2018, records that Ms Tieu was a solicitor who was present at the AAT hearing concerning the applicants on 24 February 2017.
The hearing was recorded as having started at about 11.23 am and as having been completed at about 1.50 pm. It was said that the hearing was heard in two parts, with a break of about 15 minutes in between.
If the audio hearing provided was of one hour and eight minutes in duration, then at least an hour of the hearing was unrecorded, based upon the contents of annexure TWH-6 and the evidence of Ms Tieu.

Ms Tieu deposed that the Member spent the first part of the hearing questioning the first applicant and that the second part of the hearing concerned evidence given by the first named second applicant, namely the wife.
In paragraph 6 of that affidavit, Ms Tieu deposed as follows:
There were many occasions when the applicant, Thi Minh Thang Hoang (the wife), had more to say. However, the Member would move on to another question, in effect cutting her off.
Reference was made by Ms Tieu to the fact that the first applicant had been questioned for about one hour and 10 minutes, whereas the wife had only been questioned for about 25 minutes by the Member.
Ms Tieu further observed that the Member’s questioning of the applicant wife did not relate to the Member ascertaining whether the criteria of schedule 2 of the Regulations and section 5F of the Act had been met or not, but rather that the Member had questioned the applicant wife about her opportunities to marry someone in Vietnam instead of the first named applicant.
It is submitted on behalf of the applicants that there is simply no way for the Court to ascertain, in the exercise of its supervisory jurisdiction, whether the proceedings before the AAT miscarried or not because there is no transcript, relevantly, able to be looked at in respect of the evidence of the applicant wife.
Mr Byrnes, on behalf of the first respondent, referred to a decision of Rares J in SZJYA v Minister for Immigration and Citizenship(No. 2) (2008) 102 ALD 598. At [32] of the judgment of Rares J, his Honour made reference to a decision of the High Court in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1, where, at [28] – [41], McHugh, Gummow, Callinan and Heydon JJ analysed the course of a hearing before a tribunal in circumstances where such analysis was based solely upon the decision record.
The learned Justices of the High Court noted at [28] that without access either to the tape recording or transcript of the hearing before the Tribunal, it was not easy for the Court to appreciate the detail of everything that happened at the hearing.
It was said by Rares J at [32], in respect of that High Court decision:
As is clear from NAFF of 2002, the Tribunal’s decision record alone is evidence of what happened at the hearing.
It was submitted on behalf of the first respondent by Mr Byrnes that in the present case, the decision record is evidence of what transpired at the hearing sufficient to enable this Court to properly assess whether any jurisdictional error had occurred in the proceedings before the AAT or not.
He pointed to paragraph 110 of the submissions filed on behalf of the first respondent as evidencing a basis for the Court concluding that all of the relevant criteria had been the subject of questioning before the Tribunal, and that the decision of the Tribunal speaks for itself in that regard.
That submission does not take into account, however, the evidence of Ms Tieu, which, at least in paragraph 6 of her affidavit, is suggestive of the Member having unfairly cut the first named applicant wife off when answering questions put to her by the Member.
The submission also does not have regard to the fact that the relevant findings of the Tribunal were made in circumstances where the Tribunal had, as an apparent foundation for arriving at its decision, expressed itself in terms of either “the Tribunal accepts” or “the Tribunal suspects” or “the Tribunal does not accept” or “nor does it accept” or “the Tribunal notes” or “the Tribunal places little weight on” or “no convincing evidence was provided to the Tribunal”, without a reasoned analysis being undertaken by the member as to why such observations were made, or the pathway by which the Tribunal arrived at such a position.
Had there been a transcript available, then this Court could have been in the position of assessing whether, as submitted on behalf of the first respondent, the record as contained in the reasons correctly reflected the evidence adduced before the Tribunal or not. In the absence of a transcript, particularly in relation to the giving of important evidence by the applicant wife, this Court is unable to do so.
It cannot also be said that the reasons of the Tribunal were so particular, concise or detailed so as to enable the Court to have comfort in the findings as expressed in the reasons so as to be able to proceed to adequately review the decision of the AAT pursuant to the application for review filed on behalf of the applicants.
It should also be observed that the AAT sent to the applicants an “invitation to attend a hearing – Mr Hieu Minh Pham” by letter dated 13 December 2016 (CB306).
At CB 308, there was attached to the letter of invitation a document entitled “Information about hearings – MR division”.
At CB 309, the following is set out on the accompanying information:
Is the hearing recorded?
All hearings are audio recorded. You may ask us for a copy of the recording at the end of the hearing.
And:
When the hearing is ready to commence, the audio recording will be started, and the Member will enter the room. The Member will commence the hearing and administer an oath or affirmation to any person giving evidence, and to the interpreter.
From the above, it can be clearly gleaned that an applicant who is to appear before the AAT does so with the reasonable expectation that the hearing conducted before the AAT will be recorded.
Section 24Z of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) excludes the provisions of section 35 of the AAT Act from operation. Sections 24Z and section 35, respectively, are as follows:
24Z Scope of operation of this Part
(1) Except for the provisions specified in subsection (2), this Part does not apply in relation to a proceeding in the Migration and Refugee Division.
Note 1: For the conduct of proceedings in the Migration and Refugee Division, see Parts 5 and 7 of the Migration Act 1958.
Note 2: Enactments that authorise the making of applications for review to the Tribunal can add to, exclude or modify the operation of this Part.
(2) The following provisions of this Part apply in relation to a proceeding in the Migration and Refugee Division:
(a) section 25;
(b) section 42.
35 Public hearings and orders for private hearings, non‑publication and non‑disclosure
Public hearing
(1) Subject to this section, the hearing of a proceeding before the Tribunal must be in public.
Private hearing
(2) The Tribunal may, by order:
(a) direct that a hearing or part of a hearing is to take place in private; and
(b) give directions in relation to the persons who may be present.
Orders for non‑publication or non‑disclosure
(3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a) information tending to reveal the identity of:
(i) a party to or witness in a proceeding before the Tribunal; or
(ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b) information otherwise concerning a person referred to in paragraph (a).
(4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i) information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.
(5) In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
Not applicable to Security Division review of security assessment
(6) This section does not apply in relation to a proceeding in the Security Division to which section 39A applies.
Note: See section 35AA.
It will be noted that, therefore, the expression in section 35(5) of the AAT Act that it is desirable that proceedings before the Administrative Appeals Tribunal be held in public, and that evidence given before the Tribunal be made available to the public, and to all the parties, does not apply in respect of proceedings within the migration and refugee division.
However, if one looks at the provisions of section 62A of the AAT Act, one cannot escape the conclusion that such section does apply to proceedings within the migration and refugee division, notably in circumstances where a heavy penalty is imposed for the commission of an offence pursuant to that section. Section 62A of the Act provides as follows:
62A False or misleading evidence
A person commits an offence if:
(a) the person appears as a witness before the Tribunal; and
(b) the person gives evidence; and
(c) the person does so knowing that the evidence is false or misleading.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
The section is not excluded from operation in circumstances such as the present.
This is not a case where this Court has been able to have comfort in being able to assess the short reasons of the Tribunal by reference to a transcript, and, in those circumstances, the proceedings before the Tribunal have miscarried.
This Court has been unable to assess whether the Tribunal has, or has not, given proper reasons, or whether the Tribunal has properly considered all relevant matters, because it has been unable to look at the relevant evidence to enable it to do so. The same applies to a consideration as to whether the Tribunal properly explained the pathway of reasoning by which it arrived at its decision or whether its reasons were adequate or inadequate.
In all of the circumstances, there would, in my view, be a miscarriage of justice should the decision of the Tribunal not be quashed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 20 September 2018