Tuimaseve and Minister for Immigration and Border Protection
[2016] AATA 924
•18 November 2016
Tuimaseve and Minister for Immigration and Border Protection [2016] AATA 924 (18 November 2016)
Division: GENERAL DIVISION
File Number: 2016/1304
Re: DAVID TUIMASEVE
APPLICANT
And:MINISTER FOR IMMIGRATION AND BORDER PROTECTION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 18 November 2016
Place Melbourne
The Tribunal decides to:
decline the respondent’s request under s 33A of the Administrative Appeals Tribunal Act 1975 that the applicant participate in the hearing by video.
………[sgd]…………….
Deputy President
CATCHWORDS – PRACTICE AND PROCEDURE – Video conferencing – request by respondent for applicant to attend via video conferencing technology – request declined
LEGISLATION
Administrative Appeals Tribunal Act 1975; ss 2A, 33, 33(1)(a), 33(1)(b), 33(1)(c), 33A(1), 35, 36, 36B, 37(1), 39(1), 43
Migration Act 1958; ss 499, 500, 500(6A)-500(6L), 501, 501(3A), 501(3A)(a)(i), 501(6)(a), 501(7)(c), 501CA, 501CA(3), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501CA(5)
CASES
Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
Drakev Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409
Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 276; (2003) 135 FCR 306; 78 ALD 65; 203 ALR 320
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jones v Hyde [1989] HCA 20; (1989) 85 ALR 23; 63 ALJR 349
Lokanc v Secretary, Department of Social Services [2016] FCA 1134
Minister for Immigration and Multicultural Affairs v Eshutu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; 73 ALJR 746
Naisauvou v Minister for Immigration & Multicultural Affairs [1999] FCA 86; (1999) 89 FCR 435; 29 AAR 391
Re Jagroop and Minister for Immigration and Border Protection (2015) 67 AAR 288; [2015] AATA 751
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33; 36 FLR 482; 26 ALR 247
Re KLLV and Minister for Immigration and Border Protection [2016] AATA 896
Re Saleh and Minister for Immigration and Border Protection [2016] AATA 841
Re The Trustee for the Confidential Trust and Commissioner of Taxation[2013] AATA 682; (2013) 138 ALD 409; 61 AAR 215; 92 ATR 730
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324
Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203; 319 ALR 181; 151 ALD 107; 66 AAR 136; 89 ALJR 498OTHER MATERIALS
Commonwealth Attorney General’s Department, Strategic Framework for Access to Justice ( No. 65; pars 13, 14
Transcript of proceedings in matter No. 2016/1304 dated 10 May 2016REASONS FOR DECISION
Mr Tuimaseve held a Class TY Subclass 444 Special Category (Temporary) visa. When he was convicted of various offences he had a “substantial criminal record” within the meaning of the Migration Act 1958 (Migration Act) because he had been sentenced to a term of imprisonment of 12 months or more.[1] That led to the Minister’s cancelling Mr Tuimaseve’s visa under s 501(3A)(a)(i) of the Migration Act as he was required to do. Under s 501CA, Mr Tuimaseve has asked the Minister to revoke his decision but a delegate of the Minister has declined his request. Mr Tuimaseve applied to this Tribunal for review of the Minister’s decision under s 501CA. His application was heard by a differently constituted Tribunal but remitted by consent of the parties by the Federal Court to be reheard. Before I can commence that review, I must resolve the Minister’s request made under s 33A(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) that Mr Tuimaseve be required to participate in the hearing by means of video telecommunications. I have decided to refuse the Minister’s request under that section.
[1] Migration Act; ss 501(3A)(a) and 501(6)(a) and (7)(c)
REGULATORY BACKGROUND
Section 33A(1) of the AAT Act provides that:
“The Tribunal for the purposes of a hearing, or the person conducting a directions hearing or alternative dispute resolution process, may allow or require a person to participate by telephone or by means of other electronic communications equipment.”
The decision that I must review has been made under s 501CA of the Migration Act. When Mr Tuimaseve made representations to the Minister to revoke his decision in accordance with an invitation to do so, the Minister had power to revoke the visa cancellation decision that he made under s 501(3A) on one or other of two grounds. One of those grounds, set out in s 501CA(4)(b)(i), is that the person passes the character test as defined by s 501. In view of the sentences imposed on his convictions, Mr Tuimaseve cannot pass that test. That leaves the second ground provided for in s 501CA(4)(b)(ii). That reason is that:
“that there is another reason why the original decision should be revoked.”
If the Minister decides that there is another reason and revokes the visa cancellation decision, that decision being what is called the “original decision”, is taken not to have been made.[2]
[2] Migration Act; s 501CA(5)
Section 501CA(4)(b)(ii) does not contain any parameters as to what constitutes “another reason why the original decision should be revoked”. The Minister has, however, given written directions in Direction No. 65 dated 22 December 2014. Section 499 permits the Minister to give written directions to a person or body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those powers.[3] Part C of Direction No. 65 is directed to the exercise of power under s 501CA(4). Paragraph 13 outlines the circumstances in which the power arises and then continues:
[3] Migration Act; s 499(1)
“(1) Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s
visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.”
Subsequent paragraphs in Part C go on to develop each of these considerations.
Paragraph 14 is concerned with other considerations that must be taken into account where relevant to do so. They include, but are not limited to, considerations relating to international non-refoulement obligations, the strength, nature and duration of the applicant’s ties, the impact on Australian business interests, impact on victims and the extent of impediments faced by the applicant if removed from Australia. Those considerations are developed in cl 14.
The way in which the power is to be exercised was considered by the Federal Court in the recent case of Gaspar v Minister for Immigration and Border Protection.[4] In that case, North J rejected a submission that s 501CA(4) involved a two-step process i.e. a step to determine whether one or other of the grounds set out in ss 501CA(4)(b)(i) and (ii) has been established and, if so, a second step to determine whether the Minister should, as a matter of discretion, decide to revoke the original decision. His Honour said:
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[5]
[4] [2016] FCA 1166; North J
[5] [2016] FCA 1180 at [38]
BACKGROUND
Mr Tuimaseve was convicted on 17 July 2014 of recklessly causing serious injury and sentenced to a term of 15 months imprisonment.[6] On the same day, he was also convicted of recklessly causing injury and acting as a security guard without a licence for which he was sentenced to ten months’ imprisonment on the first and fined $750 on the second. Mr Tuimaseve had two previous convictions in 2012. On 29 February 2012, he was convicted of intentionally causing injury and affray for which a community correction order (CCO) was imposed for 12 months requiring him to perform 100 hours of community work. A similar CCO was made on the same conditions when Mr Tuimaseve was convicted on 19 April 2012 of recklessly causing injury.
[6] G documents; G7 at 58
Mr Tuimaseve was due to be released from prison on 16 March 2016.[7] On 3 August 2015 and while Mr Tuimaseve was still serving his sentence, a delegate of the Minister cancelled his visa under s 501(3A). As required by s 501CA(3), the Minister invited Mr Tuimaseve to make representations to him about revocation of the decision he had made to cancel the visa.[8] Mr Tuimaseve lodged a request for revocation dated 5 August 2015.[9] At that time, he was still in prison where he remained when he wrote a letter setting out his situation on 19 August 2015.[10] His solicitor wrote comprehensive submissions, which included further evidentiary material, on Mr Tuimaseve’s behalf.[11] On 26 February 2016, a delegate of the Minister refused Mr Tuimaseve’s request. On 11 March 2016, Mr Tuimaseve applied to the Tribunal for review of the Minister’s decision. As the delegate’s decision was made under s 501CA(4) and not under s 501, the application was not subject to the expedited review processes set out in s 500(6A) to (6L).
[7] G documents; G4 at 42
[8] G documents; G6 at 54-57
[9] G documents; G9 at 63-74
[10] G documents; G11 at 75
[11] G documents; G12-G20
On his release from prison on 16 March 2016, the Department of Immigration and Border Patrol (DIBP) took Mr Tuimaseve into immigration detention. He was taken to the Maribyrnong Immigration Detention Centre (MIDC) on that day and remained there until 6 April 2016. On that day, Mr Tuimaseve was taken by aircraft to the North West Point Immigration Detention Centre (NWPIDC) on Christmas Island.
A differently constituted Tribunal heard his application on 10 May 2016 and affirmed the decision on 17 May 2016. On appeal and with the consent of the parties, that decision was set aside by the Federal Court on 24 August 2016 and a writ of mandamus issued to the Tribunal requiring it to determine the application according to law.
The Detention Service Provider (DSP), Serco, prepared a document attached to a Security Risk Assessment for the period from 16 March 2016 to 10 October 2016. In that document, Serco noted Mr Tuimaseve’s incident history while in immigration detention. In particular, it noted that he has been involved in the following “Incidents”: Assault-Serious (1), Disturbance-Minor (1), Accident/Injury-Minor (1) and Use of Force (2). Except for one use of force recorded earlier, all of the incidents had occurred in the previous three months. Details of those incidents are given in an attachment reading:
Incident
Date
Category
Location
Summary
…
23/09/2016
Disturbance - Minor
CIIDC
Detainees involved in a heated verbal altercation
…
01/09/2016
Accident/Injury - Minor
CIIDC
Detainee unable to attend medical due to a sports injury
…
20/07/2016
Assault - Serious
CIIDC
Detainee seriously assaulted by other detainees … [seven detainees named] SERCO staff used unplanned force on detainees [seven detainees named]
…
20/07/2016
Use of Force
CIIDC
…
07/04/2016
Use of Force
MIDC
Serco planned use of Force (without ABF approval) MR for transfer of multiple detainees
The Security Risk Assessment for that period records a rating of “Nil” for each of the Escape Indicators. The same rating was given to the Medical Risk Indicators and the Intelligence Reports. The DSP assessed Mr Tuimaseve’s risk of demonstrating, escaping or self-harming as “Low” but his risk of Aggression/Violence as ”High” and his Criminal Profile as “High”. It also rated its own Placement Risk and Escort Risk as “High”.
On first reading of the summary of the incident on 20 July 2016, I had thought that there might be more than seven detainees named as having been the subject of force. On re-reading the document, it seems to me that there may be a full-stop placed after the name and number of the seventh person against whom SERCO used unplanned force but, given the way in which the words have been copied, it may be a comma. I asked for a clean copy of those words but it has not been provided. Whether a full-stop or comma, Mr Tuimaseve’s name does not appear among those seven and the only way in which I can read the summary of Incidents attached to the Security Risk Assessment is that he was the person seriously assaulted. He was one of the “detainees” involved in a heated verbal altercation, he was the “detainee” who was unable to attend the medical and he was one of the “multiple detainees” against whom Serco used planned force without ABF approval for the purposes of transfer. It follows that Mr Tuimaseve was the “detainee” who was seriously assaulted by the seven other named detainees. No mention was made of the incident in the section marked “Additional Comments” on the Security Risk Assessment.
In its Aviation Security Risk assessment dated 4 November 2016, the DSP answered the following questions in the negative:
“Aviation
·Is there any known reason to consider the person likely to attempt unlawful interference with aviation?
·Are additional security measures necessary for embarkation and disembarkation?
·May it be necessary to restrain the person at any stage during the flight?
…
·Is the person likely to attempt to escape from custody during transportation?
·Is there any reason to expect a third person to attempt to release/harm the person or otherwise disrupt the transfer?
Behavioural History
·Is the person known to have engaged in sexually-related criminal activity?
·Has the person been involved in an attempt to escape from custody?
· Has the person been involved in a major disturbance while in detention?
…
· Does the person have a history of attempted or actual self-harm?”
Four questions were answered in the affirmative:
“Aviation
…
·Is the person likely to be offensive or disruptive towards crew, passengers or escorts?
·Has the person previously required restraint or required a use of force while being transported?
…
Behavioural History
…
·Is the person known to have a history of violence?
·Is the DSP aware that the person has ever charged with, or convicted of, a crime involving violence or serious property damage?
…”
The overall Security Risk Rating for the purposes of aviation transport was then assessed as “High”. In reaching that assessment, Serco noted Mr Tuimaseve’s six criminal convictions but did not note their dates. In relation to the other matters, Serco noted that:
“Mr TUIMASEVE has had mechanical restraints applied for transport purposes in accordance with current policies and procedures
...
Mr TUIMASEVE has been involved in three key indicator incident of adverse behaviour, namely:
Assault – Serious (1), Disturbance – Minor (1) and Unplanned Use of Force (1)SIS Intel note that Mr TUIMASEVE was involved in a large 8 on 1 serious assault, he quickly became involved even though he was not an instigator and positioned himself to give an upper cut as the victim was thrown down a stairwell.
Mr TUIMASEVE has a serious propensity for violence as demonstrated through his criminal and incident reporting history. Mr TUIMASEVE has shown that he has been unable to adhere to Australian community standards, rules and laws through his criminal and incident reporting history.
SIS Intel assess Mr TUIMASEVE as HIGH risk for aviation purposes.”
The description of the serious assault given in the document attached to the Aviation Security Risk assessment is clearly different from that in the document attached to the Security Risk assessment. I had understood that I would be given a clearer copy of the passage from the details of the Incident History. What I have been given is an updated Security Risk Assessment for the period from 16 March 2016 to 14 November 2016 and I will come to that. What I will note at this stage is that the reference to Mr Tuimaseve’s having been involved in a large 8 on 1 serious assault does not match the negative answer given under the Behavioural History regarding whether he had been involved in a major disturbance while in detention.
The essential details remain the same although the passing of time means that only two of the five incidents have occurred in the last three months. The details of those incidents are given in an attachment in which the two incidents occurring on 20 July 2016 are recorded in different terms. I have set out the whole table:
Incident
Date
Category
Location
Summary
…
23/09/2016
Disturbance - Minor
CIIDC
Detainees involved in a heated verbal altercation
…
01/09/2016
Accident/Injury - Minor
CIIDC
Detainee unable to attend medical due to a sports injury
…
20/07/2016
Assault – Serious
CIIDC
8 detainees seriously assaulted 1 detainee
…
20/07/2016
Use of Force
CIIDC
Unplanned UoF used to separated [sic] 8 detainees from 1 detainee to prevent further harm.
…
07/04/2016
Use of Force
Maribyrnong IDC
Serco planned use of Force (without ABF approval) MR for transfer of multiple detainees
The section marked “Additional Comments” now includes a statement that:
“Mr Tuimaseve was involved in a large 8 on 1 assault, he quickly became involved and positioned himself to give an uppercut as the victim was thrown down a stairwell.”
This sentence is reminiscent of the statement in the Aviation Security Risk assessment but differs in two respects. One is that the incident is described as an “assault’ in this document and as a “serious assault” in the earlier Aviation Security Risk assessment and in both versions of the Incident history. The other is that the document omits the reference appearing in the Aviation Security Risk assessment to Mr Tuimaseve’s not being an instigator.
THE SUBMISSIONS
On behalf of the Minister, Mr Young submitted that I should require Mr Tuimaseve to attend the hearing by video conference. The video link between the NWPIDC on Christmas Island and Melbourne will enable Mr Tuimaseve to participate in the proceedings in the Tribunal. Arranging for Mr Tuimaseve to attend the hearing in person is prohibitively expensive. The cost would be in the order of $8,000 to $10,000.
Ms Dickinson submitted that I should not exercise my discretion to permit Mr Tuimaseve to attend the hearing by video conference. She submitted that, in these circumstances, natural justice required that Mr Tuimaseve attend the Tribunal in person so that the Tribunal may properly assess his character and credibility. Further, she emphasised that due to her client’s mental health issues and long period in detention, a hearing conducted by video conferencing technology would mean that the applicant could not properly receive psychological and legal support. She also argued that, in her experience, video conferencing technology is susceptible to technical issues, such as lag, which could create difficulties for the Mr Tuimaseve when giving evidence.
CONSIDERATION
Power is a discretionary power
In Re Saleh and Minister for Immigration and Border Protection[12] (Saleh) I concluded that the Tribunal does not have power to require the Minister to arrange for a person who has an application in the Tribunal and whom he has detained under the Migration Act to attend the hearing of a proceeding in the Tribunal.[13] That conclusion does not lead automatically to the further conclusion that applicant must be required to attend the hearing by means of some form of telephone or electronic communications equipment. The power granted by s 33A of the AAT Act is expressed in terms that the Tribunal “may” permit or require attendance in that way. Given the nature of the powers given to the Tribunal under s 33 that generally permit it to determine its own procedures within its own discretion,[14] the power given to it under s 33A must also be regarded as discretionary.
[12] [2016] AATA 841
[13] [2016] AATA 841 at [30]-[36]
[14] AAT Act; s 33(1)(a)
Boundaries within which discretion is exercised
Discretionary powers are not unlimited powers. They find their limits in the provision conferring them and, in most instances, the enactment granting them.[15] This is true too of powers granted by the AAT Act but regard must be had both to the provisions of the AAT Act and to those of other enactments providing for applications to be made to the Tribunal.
[15] Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J
I will begin with the objects of the AAT Act which are to be found in s 2A when it provides:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.”
Provisions of this sort have been described as “general exhortatoryprovisions”.[16] They are intended to be facultative and not restrictive.[17] They cannot be more than that because the ideals that are to be pursued are necessarily relative concepts. They are determined by the nature and complexity of the issues raised by the application for review and the decision under review. Those considerations mean that it will be possible in some instances to achieve an outcome that achieves each and every ideal but it is not always possible to do so. It may be possible to achieve fairness, justice and informality but at the cost of speed. It may be possible to achieve speed but at the cost of fairness and justice. Whether that balance is permitted, depends on a consideration of the AAT Act as a whole together with the terms of the relevant enactment under which an application is made to the Tribunal.
[16] Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 per Lindgren J
[17] Minister for Immigration and Multicultural Affairs v Eshutu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; 73 ALJR 746 at [49]; 628; 588; 301; 754-755 per Gleeson CJ and McHugh J and [158]; 659; 613; 326; 773 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at [69]-[77]; 633-635; 592-594; 305-307;757-759
Regard must be had to the terms of the enactment providing for an application to be made to the Tribunal, that same enactment may include provisions adding to, excluding or modifying the operation of any of the provisions of ss 27, 29, 29AB, 29AC, 32, 33 and 35 or of ss 41(1) or 43(1) or (2) in relation to such an application.[18] Sections 33(1)(a) and (b) repeat the same qualification when they provide that:
“In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; …”
[18] For reasons I gave in Re The Trustee for the Confidential Trust and Commissioner of Taxation[2013] AATA 682; (2013) 138 ALD 409; 61 AAR 215; 92 ATR 730 at [21]-[28]; 415-418; 221-224; 737-739
The Migration Act is an example of an enactment that has provided for applications to the Tribunal. I am concerned only with Part 9 of that enactment and, in particular, with decisions made by the Minister to refuse or cancel a visa on the basis of the person’s seeking or holding it being a person who does not pass the character test. Where that person is in the migration zone, ss 500 and 501 add to, exclude or modify some of the provisions of the AAT Act. In those cases, the framework of provisions included in the AAT Act and regulating the procedure the Tribunal must follow is modified in relation to certain matters. Those matters include the evidentiary material that must be provided to the Tribunal and on which an applicant may rely. Section 500(6D) replaces the obligations imposed on the decision-maker to provide documents under s 37(1) of the AAT Act with those provided to an applicant under s 501G(2) and by the applicant to the Tribunal under s 500(6C). Sections 500(6H) and (6J) limit the evidence on which an applicant may rely to that previously stated in writing and lodged within a certain time before the hearing. Others relate to the time within which the Tribunal must make a decision. Section 500(6L) imposes a time limit of 84 days and imposes a consequence for failure to meet the time limit. In doing so, it excludes the operation of s 43 of the AAT Act if the Tribunal makes its decision outside that time limit.
It is apparent from this summary that the Migration Act expressly excludes or modifies provisions of the AAT Act when an applicant is in the migration zone. For the reasons I gave in Re Jagroop and Minister for Immigration and Border Protection,[19] those restrictions continue to apply in Mr Tuimaseve’s case but with modifications necessitated by the fact that I am hearing the matter on remittal and not in first instance. Even having regard to the exclusions or modifications it specifies, the Migration Act does not change the fundamental task that the Tribunal must undertake and the way in which it must undertake it. So, for example, the Tribunal’s role to review decisions on their merits is not altered and nor is the question it must determine:
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferableone on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferableone on the material before the Tribunal. ...”[20]
[19] (2015) 67 AAR 288; [2015] AATA 751
[20] Drakev Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 589; 68, 419 per Bowen CJ and Deane J
The limitations imposed upon an applicant with regard to the evidentiary material on which he or she may rely does not limit the Tribunal in making its own enquiries using its power under the AAT Act. Section 33(1)(c) provides that:
“In a proceeding before the Tribunal:
…
(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”
The High Court confirmed that is so in Uelese v Minister for Immigration and Border Protection.[21]
[21] [2015] HCA 15; (2015) 256 CLR 203; 319 ALR 181; 151 ALD 107; 66 AAR 136; 89 ALJR 498; French CJ, Kiefel, Bell; Keane and Nettle JJ at [42]-[59]; 217-220; 189-192; 115-118; 145-148; 505-507 and [97]-[99]; 231-232; 201; 126-127; 156-157; 513-514 per Nettle J
The Tribunal’s power to make its own enquiries is subject to s 39(1), which applies when the Tribunal reviews a decision under s 501 of the Migration Act. It provides:
“Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”[22]
[22] Section 35 relates to public hearings, private hearings, non-publication and non-disclosure. Sections 36 and 36B provide for disclosure or non-disclosure of information when the Commonwealth Attorney-General or a State Attorney-General has issued a public interest certificate.
That accords with the common law principles of procedural fairness, which continue to apply to the Tribunal unless clearly excluded by the particular enactment conferring the entitlement to make an application to it. This was explained by Kenny J in Evans v Minister for Immigration & Multicultural & Indigenous Affairs:[23]
“ In Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, at 598-600, the majority (Mason CJ and Deane and McHugh JJ) decided that the duty to accord procedural fairness was a common law duty which may be excluded by statute, and not a mere obligation to be implied in the statute pursuant to which the decision-maker acted. The duty to accord procedural fairness to a person whose interests are likely to be affected by an exercise of power is a restraint on the lawful exercise of the power, in order to protect such a person from a decision arrived at after an unfair decision-making process. In Annetts v McCann, the majority affirmed the principle that, where a statute confers powers of the kind contained in ss 501, 501A, 501B and 501C, then the decision-maker will be obliged to act with procedural fairness, unless the statute necessarily excludes such a duty. At 598, the majority said:
It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: ... . In [Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395-396], Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from `indirect references, uncertain inferences or equivocal considerations’. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: ... . In Kioa v West [[1985] HCA 81; (1985) 159 CLR 550 at 585], Mason J said that the law in relation to administrative decisions ‘has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.’ In Haoucher[v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 653], Deane J said that the law seemed to him ‘to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making’.”[24]
[23] [2003] FCAFC 276; (2003) 135 FCR 306; 78 ALD 65; 203 ALR 320; Gray, Kenny and Downes JJ
[24] [2003] FCAFC 276; (2003) 135 FCR 306; 78 ALD 65; 203 ALR 320; at [52]; 322; 80; 335
Subject to qualifications such as those in s 500 of the Migration Act, there is nothing in the AAT Act that qualifies the Tribunal’s common law duty to act in accordance with the rules of natural justice. On the contrary, provisions such as s 33(1)(b) and 39(1) reinforce its duty in that regard.
The power under section 33A
The boundaries of the power given under s 33A are drawn by these considerations but it seems to me that the most relevant is the duty of the Tribunal to conduct its proceedings and proceed to the review of each decision while acting with procedural fairness. Sections 33(1)(b) and 39(1) are consistent with that common law duty rather than diminishing it. There is nothing in the Migration Act that diminishes that duty in the context of this case.
What does procedural fairness require? It requires that Mr Tuimaseve have a reasonable opportunity to present his case. What amounts to a reasonable opportunity? It is not possible to give to that question a single answer having universal application. In some cases, a reasonable opportunity may amount to having an opportunity to lodge written material and make submissions leaving it to the Tribunal to come to a decision on that written material without a hearing. That is provided for in s 34J but both parties must consent to that course before the Tribunal may decide to embark upon it. In some rare cases, the issues may be such that one or other of the parties is not required to attend a hearing held by the Tribunal but chooses to rely on the written material and on its written submissions. In other cases, both parties are expected to attend the hearing. Section 32(1) of the AAT Act permits a party to a proceeding in a Division other than the Social Services and Child Support Division to appear in person or be represented by another person. Where the facts of a matter are not in issue and the applicant does not have to give evidence, it may be that the Tribunal can be said to be acting with procedural fairness even if it proceeds with a hearing in the absence of an applicant but in the presence of his or her representative. Whether it does, depends on a full assessment of the circumstances.
None of those scenarios applies in this case. Mr Tuimaseve is represented by his solicitor but this is not a case in which the facts are settled or in which he is not expected to give evidence. The facts are not settled and Mr Tuimaseve’s evidence is an essential part of the case that he wishes to put.
When a person gives evidence to a court or tribunal, it is often given in a form that is responsive to questions asked by the parties’ legal representatives. When a person is a party but not represented, the format will be a little less structured at least when he or she is giving evidence in support of his or her case. Whether the form is structured or not structured, communication is fundamental to the whole process. Communication takes place between the questioner and the person questioned. It also takes place between each and both of the questioner and the questioned and the judge or member hearing the case. This is so even if the judge or member plays a passive role in the questioning.
Communication takes place in various ways. If communication is verbal, each person must be able to hear what it is that is said. Hearing is one thing and understanding is another. When the parties do not speak the same language or are not comfortable in communicating in the language spoken by the others, an interpreter will be required. Communication between the person and the interpreter cannot be assured simply by their having a common language and if they cannot communicate, the court or tribunal is denied the opportunity to understand the person. In the case of Lokanc v Secretary, Department of Social Services[25] (Lokanc), North J impliedly criticised the Tribunal when it held a hearing in which the applicant attended by telephone but the interpreter was present with the Tribunal member.
[25] [2016] FCA 1134 at [22]-[24]; North J
The manner and tone of delivery of the spoken word is also an important part of communication but they are factors that can be affected by culture and environment. Unless the person listening to the delivery also understands that culture and the environment as well as having insight into the person speaking, he or she may misunderstand what is being said. For some courts and tribunals, demeanour is important. For others, the patterns formed by the evidence assume a much greater significance. As I said in Saleh, the Tribunal is best placed to observe the nuances and manner in which a person gives his or evidence when the two are in the same room. Even for those for whom demeanour does not have such significance, it has been said by McHugh J in Jones v Hyde:[26]
“… When a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his determination cannot be overlooked. …”[27]
[26] [1989] HCA 20; (1989) 85 ALR 23; 63 ALJR 349; Brennan, Deane, Dawson, Toohey and McHugh JJ
[27] [1989] HCA 20; (1989) 85 ALR 23; 63 ALJR 349 at [18]; 27; 351 per McHugh J with whom Brennan, Deane, Dawson and Toohey JJ agreed
Communication is a two way street. It is not enough that the court or tribunal thinks that it has an understanding of what has been said by and on behalf of the parties and by the witnesses. The parties must also feel that they have been heard and have had an opportunity to make themselves understood. To quote from the judgment of North J in Lokanc:
“… The Tribunal was obliged to provide him with a real opportunity to be heard. … That required the Tribunal to draw out from the applicant what he meant by his criticisms of the JCA [Joint Capacity Report] report.”[28]
[28] [2016] FCA 1134 at [23]
A different illustration of the requirement that parties are given a proper opportunity to present their cases arose in the case of Naisauvou v Minister for Immigration & Multicultural Affairs.[29] The police arrived at the Tribunal’s premises when Mr Naisauvou’s application to review the Minister’s decision to deport him was being reviewed by the Tribunal. They wanted to execute a warrant for his arrest for having breached his parole. The Tribunal permitted the police to arrest Mr Naisauvou after he had given evidence but before the conclusion of the presentation of his case. At the hearing, he was represented by his uncle. Moore J expressed the view that it would have been open to the Tribunal to have indicated to the police that Mr Naisauvou was required by the Tribunal to remain until the end of the hearing. His Honour concluded:
“ Because the Tribunal did not adopt this course, the applicant was not present when witnesses called on his behalf were cross-examined and when the opportunity arose for their re-examination. Nor was he present when his unqualified representative was confronted with strongly expressed views of the Tribunal concerning the prospect of the applicant re-offending about which the representative of the Minister then made submissions. It is possible that the applicant would have done either very little or nothing by way of instructing Mr Leone in the further conduct of his case had he remained. However the fact that the best opportunity might not have been taken advantage of does not conclude the inquiry. As Deane J said in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 632 in relation to a denial of an opportunity to be heard before a deportation order was made:
‘Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision-maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious.’
The critical issue is whether the applicant was deprived of the opportunity of doing so in circumstances where he might have desired to do so. He was and this, in my opinion, constituted a denial of procedural fairness. …”[30]
[29] [1999] FCA 86; (1999) 89 FCR 435; 29 AAR 391; Moore J
[30] [1999] FCA 86; (1999) 89 FCR 435; 29 AAR 391 at [27]-[28]; 442; 398
A similar principle was followed by Brennan J when, sitting as the Tribunal’s President, he said in Re Pochi and Minister for Immigration and Ethnic Affairs[31] (Pochi):
“ Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him - a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal.
[31] [1979] AATA 64; (1979) 2 ALD 33; 36 FLR 482; 26 ALR 247 at 54; 508; 270
Applying the principles in this case
On behalf of the Minister it is said that Mr Tuimaseve should be required to give evidence by way of video conference from the NWPIDC. I have decided that my requiring him to do so would not be consistent with my duty to accord him procedural fairness to present his case. I will set out my reasons for reaching that conclusion but, before I do, I will address the position of the Minister.
I am aware that I am under no lesser a duty to accord the Minister the same procedural fairness. Requiring or not requiring Mr Tuimaseve to appear by video link does not impinge on the ability of the Minister to present his case. What any requirement impinges upon is the expense DIBP must incur in producing Mr Tuimaseve at the hearing. That expense is incurred because the DIBP, or those acting on DIBP’s behalf have taken Mr Tuimaseve from the MIDC to Christmas Island at a time when he had an application pending in the Tribunal. At that time, his application had to be heard and determined by the Tribunal by 3 June 2016 but the decision was taken to remove him to Christmas Island on 6 April 2016. There is no question that costs would have been incurred by DIBP in detaining him, as it was required to do under Division 7 of Part 2 of the Migration Act, and in keeping him at the MIDC. The additional costs are a consequence of the decision to locate him at the NWPIDC on Christmas Island. Why that decision was taken is not a matter that I have explored or that I have the power to explore. I note, however, that the decision taken by DIBP cuts across the principles that underscore those of procedural fairness and the government’s own Strategic Framework for Access to Justice administered by the Attorney-General’s Department.[32]
[32] type="1">
The costs that will be incurred in transporting Mr Tuimaseve from Christmas Island to Melbourne are said to be increased because of his security assessment as “High” risk for aviation purposes. Review of that security assessment is not a task given to the Tribunal. If it were, consideration would be given to why matters over which, on the papers prepared by Serco, Mr Tuimaseve has had no control and which do not appear to have arisen from his behaviour appear to have been taken into account in making that assessment. Those matters include his being unable to attend a medical due to a sports injury and his being the subject of a removal in which Serco engaged in the “… planned use of Force (without ABF approval) MR for transfer of multiple detainees”. I have taken the descriptions of these matters from a document prepared by Serco describing the incidents in which Mr Tuimaseve has been involved.
I note that, in a separate document assessing his risk to be transported by air, Serco has described the incident in which he was seriously assaulted by others as an incident in which he was involved neither as a victim nor as an instigator but as a bystander readying himself to become involved. In the later Security Risk Assessment, the incident has now been described as a large eight on one assault where Mr Tuimaseve quickly became involved and positioned himself to give an uppercut at the victim was thrown down a stairwell. These discrepancies and those I raised at [17]-[19] above are not explained. The affirmative answer given to whether Mr Tuimaseve had ever previously required restraint or required a use of force while being transported can, on the documents, refer only to the occasion on which Serco engaged in the “… planned use of Force (without ABF approval) MR for transfer of multiple detainees” and he is not among those named as requiring restraint as a result of the incident on 20 July 2016. The Aviation Security Risk assessment records that it will not be necessary to restrain Mr Tuimaseve at any time during the flight and that additional security measures will not be necessary for embarkation or disembarkation.
If travel arrangements are made according to Serco’s assessment of Mr Tuimaseve as a “High” risk to aviation, I have been told that it is unlikely that a domestic carrier will accept him as a passenger for the trip from Christmas Island. That is so even though there was no disagreement with the proposition that a domestic carrier would accept him if he were expatriated to New Zealand. Be that as it may, I have been told that a flight would have to be chartered to bring Mr Tuimaseve to Melbourne at the cost of approximately $8,000 to $10,000.
The alternative to his being transported to Melbourne is to have him attend by video as the Minister has asked me to do. This might be a feasible option for a person such as Mr Tuimaseve who does not require an interpreter if appropriate arrangements could be made for him to present his case adequately. Appropriate arrangements include his not only being able to give evidence and to observe the proceedings but to instruct his legal representatives. This can be done in some instances by means of video link or by means of a combination of both video link and, for private discussions between an applicant and his or her legal representatives, by telephone out of earshot of the video link. The success or otherwise of such arrangements depends upon a number of matters.
One of those matters centres on the ability of an applicant to have the capacity to communicate in that way. I note that Mr Tuimaseve has been diagnosed with an adjustment disorder as a result of his detention and related separation from his family. I do not, though, need to explore that issue for the other matter is determinative in my view. That other matter is the quality of the video connection that the Tribunal can obtain.
I have the transcript of the earlier hearing of Mr Tuimaseve’s application and note that there were difficulties with communication. The first passage is an exchange between the Tribunal member and Mr Tuimaseve. It indicates a common difficulty:
“MEMBER: Okay. The other thing I need to assure myself I think, that Mr Tuimaseve is able to hear you and your opponent clearly, and is able to see and hear you and see and hear me. Mr Tuimaseve, can you see and hear me?
MR TUIMASEVE: Yes.
MEMBER: Okay. And you feel – you’re comfortable enough there?
MR TUIMASEVE: Yes, I’m just – the audio is a bit of a ---
MEMBER: What was that, sorry? Say it again?
MR TUIMASEVE: Yes.
MEMBER: Could you repeat what you just said?
MR TUIMASEVE: There’s like a delay in the audio.
MEMBER: Yes. Yes. No, that’s understood.
MR TUIMASEVE: Yes.”[33]
[33] Transcript of proceedings dated 10 May 2016 at 3-4
In making submissions on behalf of his client, the following exchange occurred between Mr Gilbert of counsel and the Tribunal member:
“MR GILBERT: … If there were issues as to his credit in terms of the evidence he’s given, which I would hope there would not be, but I would then ask the Tribunal to take into account the difficulties of giving evidence by video.
MEMBER: Well, it is difficult all right. We know that, yes.
MR GILBERT: And so it does make the task of assessing credit or the ability of the applicant to impress the tribunal as best he can that he is genuine in what he is saying. And so if there were any issues that you were concerned about, I would ask you to bear in mind the circumstances in which he is giving his evidence.
MEMBER: And I have indicated in the past, it would be far preferable if I had been able to see him in person.
MR GILBERT: Yes.
MEMBER: I have said that, but I can’t do anything about it.
MR GILBERT: No, and as the tribunal is aware, that is the situation, the cards we are dealt, and it was important that the matter get on and get on when it did. …”[34]
[34] Transcript of proceedings dated 10 May 2016 at 53
My own recent experience with video links between mainland Australian capital cities is that it is unsatisfactory. Pixilation is common with consequent breakup of the picture and of the sound. My experience is consistent with that described by Senior Member Fice after trying to conduct a hearing by video link between Melbourne and Christmas Island:
“I should add a caveat because his evidence was taken by video link to North West Point Immigration Detention Centre on Christmas Island, where he was in immigration detention. The video link was extraordinarily poor with an audio delay of at least, if not in excess, of about six seconds. Furthermore, there was frequent pixilation and breaks in the audio and video, which were usually followed by undecipherable rapid speech subsequently reverting to normal speed. This evidence is taken from my notes as best I could understand the applicant’s story.”[35]
[35] Re KLLV and Minister for Immigration and Border Protection [2016] AATA 896 at [16]
Procedural fairness requires not only that Mr Tuimaseve be given a proper opportunity to attend the hearing in a manner that permits him not only to give evidence and be cross-examined and questioned by the Tribunal but also that he have a proper opportunity to hear what is said by every other participant in the hearing. That is to say, he must have a means of communication by which he can present his case and hear the case that is put against him. He must have that proper opportunity to hear the case that is put against him so that he can address those issues. If legally represented as Mr Tuimaseve is, he will do that by giving instructions to his legal representatives. Were he not legally represented, he would need that proper opportunity to address the issues himself.
The current stage of development of the video equipment and connections available to the Tribunal in Melbourne and to the NWPIDC on Christmas Island does not allow me to have any reasonable level of confidence that it will permit me to give Mr Tuimaseve a reasonable opportunity to present his case, hear the evidence given by other witnesses and representatives and respond to the Minister’s case. If he cannot hear that evidence, he cannot give proper instructions to his legal representatives. The not insignificant cost to the Minister may or may not be reduced on a re-assessment of the risk level but that is not a matter over which I have any power. Even if the cost remains the same, that cost does not outweigh the responsibility I have to ensure that the hearing is conducted with procedural fairness. Therefore, I have decided to decline the Minister’s request under s 33A that I require Mr Tuimaseve to participate in the hearing of the application by telephone or by means of other electronic communications equipment including video conferencing.
In the case of Saleh, I noted that there are administrative arrangements in place whereby the Tribunal contacts the relevant authorities and the person is brought to the Tribunal for the hearing. That is so when they are held in a State prison or correctional facility[36] or in immigration detention. The Department has previously made similar arrangements. Although Mr Tuimaseve’s application is not subject to the strict time limits imposed under s 500 in relation to decisions made under s 501, his matter should be heard and decided as quickly as possible. I will, therefore, schedule a directions hearing at a time when the parties have had a chance to consider their positions following my decision on this point.
[36] See, for example, Corrections Act 1986 (Vic); s 6F and the administrative arrangements in the Sentence Management Manual; Interprison and Police/Court Transfers
I certify that the fifty-four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.
Signed: ………....................[sgd]..................................
Associate
Dates of Directions Hearings 21 and 28 October 2016
2 November 2016
Last Submissions received 16 November 2016
Date of Decision 18 November 2016
Solicitor for the Applicant Ms H. Dickinson
Carina Ford Immigration Lawyers
Solicitor for the Respondent Mr O. Young
Sparke Helmore
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