Procedural fairness: time limit and interruptions
77 The Tribunal did not warn Ms Antipova, in advance of its hearing, that it intended to impose a time limit on the hearing. Nor did it warn her that she should keep her answers brief, and direct them only to what the Tribunal member thought was the relevant aspect of what she was saying. The information the Tribunal gave to Ms Antipova prior to the hearing was to the opposite effect. The Tribunal's standard-form information sheet, which I have quoted in [17], invited Ms Antipova to take her time in answering questions. Nor did the Tribunal member warn Ms Antipova at the outset of the hearing that she had a limited time. It was only some way into the hearing that Ms Antipova first heard that her time was limited. She learned of this limit in the context of attempting to follow the advice she had been given in advance of the hearing, to take her time answering the Tribunal member's questions. The Tribunal member countermanded this advice.
78 A different, but related, issue was that of interruptions. As I have said in [23], the Tribunal member repeatedly interrupted Ms Antipova's answers, in an attempt to persuade her to make them briefer, with a view to concluding the hearing within what the Tribunal member regarded as the time allocated for the hearing. Again, this practice was not the subject of prior warning and was in contradiction of what Ms Antipova had been told by means of the standard-form information sheet. The result of the frequent interruptions, and the attempts of the Tribunal member to persuade Ms Antipova to be brief, was that she did not tell the Tribunal all that she could have, and all that she wanted to tell, about her case, particularly about the circumstances in which she left her former husband so soon after marrying him, and came to live with Mr Petrou. This conclusion is obvious from an examination of the transcript of the hearing, particularly the interruptions I have quoted in [23] - [28]. The Tribunal member had revealed her scepticism about the claim that Ms Antipova had ended her relationship with her former husband so soon after marrying him, and begun a relationship with Mr Petrou immediately, by the third question on the subject, which I have quoted in [22]. It is understandable that Ms Antipova would have been concerned to give detailed evidence about the circumstances in which she changed partners, to convince the Tribunal that her claim was true. She was not allowed to do this.
79 In my view, the Tribunal did not give Ms Antipova a fair hearing in these two respects. It sought to impose an arbitrary time limit on her, and it interrupted her to the extent that she was prevented from giving her evidence as she wished to. Counsel for the Minister argued that, like a court, the Tribunal has the power to impose time limits on hearings. Accepting that to be so, in the present case the Tribunal did not exercise that power in a manner that was fair to Ms Antipova. Fairness would have required that she be warned, either in the standard-form information sheet or, at the very least, at the outset of the hearing, that her time was limited. Fairness would also have required that the advice given in the standard-form information sheet should have been different, so that it was not countermanded by the Tribunal's imposition of a time limit, and exhortations to shorten the answers to questions, in order to fit within that time limit. Even when Mr Petrou made his complaint about the imposition of the time limit, which I have quoted in [30], the Tribunal was not dissuaded from its course. If nothing else alerted the Tribunal member to the need to change her approach to the hearing, that complaint should have, especially Mr Petrou's contention that 'obviously we're not getting all the information across'. Instead of abandoning her attempt to adhere strictly to a time limit, the Tribunal member berated Mr Petrou for wasting the time available by making his complaint.
80 It is also clear that Ms Antipova was disadvantaged in the presentation of her case by the Tribunal's unfairness in both respects. She lost an opportunity to make her case to the Tribunal in the way she wished to make it. The crucial issue was whether the Tribunal would accept what it regarded as the unlikely claim that Ms Antipova, having married on 30 April, after she met Mr Petrou, would have left her husband on 18 May and gone on to begin a de facto relationship with Mr Petrou. It was this issue on which Ms Antipova had failed at the first stage, the decision of the Minister's delegate. It was the issue identified by the Tribunal in the question I have quoted in [22]. The Tribunal ultimately found that Ms Antipova failed on this issue. Had she been allowed to go into detail as to the circumstances of her separation from her former husband and her flight to Mr Petrou, she might have been able to persuade the Tribunal not to reject her claim.
81 Denial of procedural fairness, potentially affecting the outcome of a proceeding in the Tribunal, is a jurisdictional error. Ordinarily, it justifies the Court quashing the decision of the Tribunal. See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 and Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (2003) 211 CLR 476. The question is whether any provision of the Migration Act prevents Ms Antipova from relying on this jurisdictional error in the present case. In particular, the question is whether s 357A(1) of the Migration Act has that effect.
82 There are two possible answers to this question. The first is that s 360(1) of the Migration Act requires the Tribunal to 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.' If the Tribunal has conducted what purports to be a hearing, but has not in truth allowed an applicant to give evidence and present arguments relating to those issues, it has not complied with this statutory obligation. The Tribunal has failed to comply with an essential precondition to making a decision on the applicant's application to review the decision of the Minister's delegate, and has therefore failed to perform the duty, conferred on it by s 348 of the Migration Act, to review that decision. Its decision is invalid and must be set aside. This is the reasoning followed by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33] - [41], in relation to s 425(1) of the Migration Act, which imposes on the Refugee Review Tribunal an obligation in terms identical with the obligation imposed on the Tribunal by s 360(1). At [33], the Full Court approved the statement of Goldberg J in Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 (2000) 183 ALR 188 at [31] that:
'The invitation must not be a hollow shell or an empty gesture.'
83 In the same paragraph, Goldberg J expressed the view that:
'where the applicant appears, but is not able through the conduct of the tribunal to give evidence or present arguments, albeit that the applicant has been invited by the tribunal to appear, then there will be a contravention of s 425(1).'
84 In SCAR at [38], the Full Court recognised that compliance with s 425 is a 'precondition to the valid exercise of the Tribunal's jurisdiction', and that failure to comply involves a jurisdictional error. At [41], the Full Court found that the Refugee Review Tribunal in that case had not extended 'a meaningful invitation'.
85 In the present case, because it interrupted her and imposed an arbitrary time limit on her, the Tribunal did not permit Ms Antipova to give evidence and present arguments as she wished to do. Although there was a semblance of a hearing, and the Tribunal invited Ms Antipova to it in terms mandated by s 360(1) of the Migration Act, the invitation was not a real and meaningful one, because what she was invited to do was denied to her. The Tribunal failed to observe a precondition of the exercise of the jurisdiction conferred on it. Its decision was made without an invitation to attend a hearing of the kind required, because such a hearing has not yet been conducted.
86 Counsel for the Minister submitted that SCAR has been the subject of judicial criticism, and even that it has been not followed. Reference was made to WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 (2004) 204 ALR 624, in which French J distinguished SCAR on the facts at [46]. At [57] - [59], his Honour discussed the question whether s 422B of the Migration Act operated to preclude the application of the principles of procedural fairness in the context of the failure of the Refugee Review Tribunal to ask any questions at the hearing as to a particular issue on which it later found adversely to the person seeking a protection visa. In the course of that discussion, his Honour examined whether there had been a failure to comply with s 425 of the Migration Act. In the alternative, his Honour examined the issue on the assumption that s 425 had no application, holding that the denial of procedural fairness in that case amounted to jurisdictional error, notwithstanding s 422B. Nothing that his Honour said in that passage amounted to a criticism of SCAR, or a refusal to follow it. Indeed, at [58], his Honour affirmed the central propositions for which SCAR stands, saying:
'A failure to conduct a hearing of the kind contemplated by s 425 in my opinion would amount to a failure to comply with the obligation imposed by that section upon the tribunal to invite an applicant to participate in such a hearing. That obligation is so central to the conduct of the tribunal process that it necessarily conditions the power to make an adverse decision on review.'
87 In M17/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 86 (2005) 85 ALD 597, Ryan J also dealt with the alleged failure of the Refugee Review Tribunal to raise at the hearing an issue on which it later found against the person applying for a protection visa. At [58], his Honour accepted that compliance with s 425 was held in SCAR to be a precondition to the valid exercise of the Refugee Review Tribunal's jurisdiction, and that failure to comply would therefore be jurisdictional error. At [59], his Honour quoted from the joint judgment of Tamberlin and Katz JJ in Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946 (1999) 92 FCR 315 at [29], where their Honours said:
'In considering the extent of the requirements imposed by s 425 it is important to keep in mind that the exercise is essentially one of statutory interpretation…Care must be taken not to confuse the question of the interpretation of s 425 according to its language with a question as to whether the full range of natural justice requirements should be injected into s 425 under the guise of giving content to an obligation to afford an "opportunity to give evidence".'
88 Incidentally, in Cho at [33], Tamberlin and Katz JJ also said:
'We do not consider that there is any special significance in the reference to the word "genuine" which would expand the content of s 425 beyond the ordinary and natural meaning of the language used. According to its terms the section simply requires that an opportunity be given to the applicant to appear and give evidence. Obviously if there is no real opportunity given then the section has not been complied with. This could arise, for example, where relevant evidence is not admitted or misleading statements are made by the decision-maker which discourage an applicant from calling or proceeding with a particular line of evidence.'
89 In M17/2004, Ryan J did not refer to this additional passage, although what his Honour said at [61] indicates that he was aware of the requirement for the invitation required by s 425 to be a genuine one. What his Honour there said was:
'I accept the submission advanced on behalf of the Minister that s 425 in its present form requires the Tribunal to issue a genuine invitation to the applicant to appear but does not bear on the procedures to be followed at or after the hearing which results from acceptance of that invitation.'
90 At [62], Ryan J quoted from NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30], a passage in which the Full Court recognised that the invitation required by s 425 must be 'real and meaningful and not just an empty gesture', citing both SCAR and Mazhar. The Full Court in NALQ proceeded to discuss earlier authorities on the nature of the invitation required. At [34], there was a discussion of whether the Full Court in SCAR at [37] had misconstrued the judgment of Hely J in Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 (2003) 128 FCR 359, but the Full Court in NALQ did not determine this question.
91 This examination of the authorities demonstrates that, far from having been criticised or not followed, SCAR is very much in the mainstream of authority. The invitation required by s 425 of the Migration Act (and, for identical reasons, that required by s 360), must be real and genuine. As the reasoning of Tamberlin and Katz JJ in Cho at [33] demonstrates, it is legitimate to examine what occurred at the hearing, in order to ascertain whether the invitation extended satisfies that requirement. If what took place under the guise of a hearing was not a genuine opportunity for an applicant for review 'to give evidence and present arguments relating to the issues arising in relation to a decision under review', then the invitation required by s 425 (or s 360) will not have been extended as required. Of course, it is necessary to bear in mind, as Tamberlin and Katz JJ said in Cho at [29], that it is not legitimate to regard every want of procedural fairness as nullifying the invitation. It is only defects rendering the proceedings ineffective to fulfil the purpose for which the invitation is required that will have this effect. SCAR is therefore binding on me as a single judge. In any event, in my view, it is correctly decided.
92 The next question is whether what took place at the hearing in the present case was so defective as to render the invitation to a hearing other than real and genuine. Manifestly, this was the case. Ms Antipova was interrupted often in attempting to give evidence, so that what she was attempting to say was cut short. She was invited to give evidence in a form, or to give a version of her evidence, that the Tribunal member found more acceptable because of its brevity. This was not the evidence that Ms Antipova wanted to give. It was not the evidence that the invitation to the hearing entitled her to give. It was not the evidence that she was encouraged by the material accompanying the invitation to believe she would be permitted to give. The behaviour of the Tribunal member amounted to a refusal to hear the evidence Ms Antipova wanted to give about a crucial question. There can be no doubt that the question was one of 'the issues arising in relation to the decision under review', in the words of s 360(1) of the Migration Act. The invitation purportedly given pursuant to that provision was not perfected, because Ms Antipova was not allowed to 'give evidence and present arguments' relating to that issue.
93 If SCAR is wrongly decided, and s 360(1) of the Migration Act is not to be given the meaning it bears in my opinion, it is necessary to consider the second answer to the question whether s 357A of the Migration Act ousts the right, which Ms Antipova would have otherwise, to establish that the Tribunal's unfairness to her constitutes jurisdictional error, entitling her to have the Tribunal's decision set aside. Section 357A is a difficult provision to construe. It does not exclude altogether the principles of procedural fairness. There must be some doubt as to whether Parliament could exclude procedural fairness altogether, given that a denial of procedural fairness is a ground for the remedies referred to in s 75(v) of the Constitution. At best, the legislative power extends to regulating procedures, and this is what s 357A attempts to do. It provides that Div 5 of Pt 5 of the Migration Act is taken to be 'an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with'. The provision assumes that there will be aspects of the 'natural justice hearing rule' that are not matters dealt with by any provision of Div 5. As the cases so far have shown, identifying a provision dealing with a particular 'matter', relating to procedural fairness is not always easy. See, for example, the passages in WAJR, to which I have referred in [86]. The present case is relatively easy. No provision of Div 5 deals with the imposition of time limits on the hearings of the Tribunal. Unless it be s 360(1), no provision deals with the process by which evidence is adduced at a Tribunal hearing. There is certainly no provision dealing with the 'matter' of a Tribunal member interrupting answers to questions. No provision gives the Tribunal member a right to control and censor the evidence given, by refusing to hear what the applicant for review wishes to say.
94 In Minister for Immigration & Multicultural & Indigenous Affairs v WAFJ [2004] FCAFC 5 (2004) 137 FCR 30, the Full Court dealt with a case in which, on more than one occasion, the Refugee Review Tribunal had interrupted the evidence of an applicant for a protection visa, accused him of misbehaving, asserted that his evidence could not be believed, and treated him rudely and with sarcasm, to the point where he was likely to have become upset, confused and distressed, and to have been deflected from the presentation of his case. By majority, the Full Court upheld a judgment of a federal magistrate, setting aside the Refugee Review Tribunal's decision, by reason of denial of procedural fairness. In Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 (2005) 88 ALD 304, another Full Court dealt with the case of an applicant for a visa similar to that sought by Ms Antipova. In that case, similarly to this one, the Tribunal announced in the course of the hearing that it did not have sufficient time to hear all the evidence the applicant wished to give. The Tribunal also interrupted the applicant and prevented him from giving details in the course of his evidence. The Tribunal made repeated references to the need to hurry, and to the shortage of available time. It did not hear all the witnesses who had attended for the purpose of giving evidence on behalf of the applicant. The Full Court held that the resulting decision of the Tribunal was the result of jurisdictional error, which involved a denial of procedural fairness.
95 These two cases illustrate that denial of procedural fairness can arise from the manner in which the Tribunal conducts its hearing, particularly the curtailment of the opportunity, which the hearing is intended to afford, for the applicant to give evidence. If the Tribunal attempts to hurry the course of evidence unduly and interrupts frequently, and if the behaviour of the member constituting the Tribunal betrays a lack of interest in what the applicant is saying, a denial of procedural fairness can occur. In the absence of provisions in Div 5 of Pt 5 of the Migration Act dealing with these matters, s 357A does not operate to exclude from operation those aspects of procedural fairness, or the natural justice hearing rule as it is called. The Tribunal's jurisdictional error in denying the applicant procedural fairness can be a ground for quashing the Tribunal's decision. The degree to which Ms Antipova's evidence was interrupted and curtailed in the present case was sufficient to give rise to a denial of procedural fairness, capable of amounting to jurisdictional error if it affected the exercise of the Tribunal's statutory function.
96 Since writing these reasons for judgment, I have become aware of the judgment of the Full Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61. That judgment deals with an appeal by the Minister from a judgment of the Federal Magistrates Court, which quashed a decision of a delegate of the Minister to refuse a Business Skills Migrant visa to the respondent to the appeal, a person who had applied from outside Australia for that visa. The issue was whether the respondent had been denied what the Full Court called 'common law procedural fairness', because the decision-maker did not draw to the respondent's attention the point on which the decision against him turned. If the respondent were entitled to succeed on that issue, there was then an issue as to whether a right to procedural fairness was excluded by s 51A of the Migration Act, a provision in terms similar to both s 357A and s 422B, but relating to decisions by the Minister or delegates of the Minister. At [46] - [59], the Full Court held that there had been no denial of procedural fairness, because the relevant point was obvious to the respondent. The Full Court then proceeded, at [60] - [70], to make some observations, which are clearly obiter, on the effect of s 51A. Following VXDC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1388 (2005) 146 FCR 562, the Full Court expressed the view that s 51A operates to exclude the 'common law natural justice hearing rule' altogether.
97 To the extent to which Lay Lat might be taken to be authority on the meaning and effect of s 357A of the Migration Act, it does not bind me to hold that Ms Antipova's only entitlement to procedural fairness is to be found in the meagre provisions of Div 5 of Pt 5 of the Migration Act. In my view, to the extent that it suggests that s 422B excludes all principles of procedural fairness, other than those found in Div 4 of Pt 7 of the Migration Act, VXDC is fundamentally wrong. The obiter remarks in Lay Lat are entitled to great respect, appearing as they do in a considered judgment of a Full Court, but I cannot bring myself to accept that they are correct. For the reasons I gave in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590 (2004) 142 FCR 170 at [28], I remain of the view that the words 'in relation to the matters it deals with', appearing in each of ss 51A, 357A and 422B of the Migration Act are intended to qualify the words preceding them, and to reduce what would otherwise be the absolute effect of those exclusionary words. If this were not the case, the words 'in relation to the matters it deals with' would be otiose, and it is not to be supposed that Parliament intended to enact meaningless, surplus words in a crucial amendment. The words are not the 'plain words of necessary intendment' required to exclude the requirements of procedural fairness. See Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ, and the authorities there cited. It is highly unlikely that Parliament had in mind all of the myriad ways in which procedural fairness, a concept the content of which is dependent on the circumstances of each case, could arise. The present case forms a good example of what would result if the view expressed in Lay Lat were to be followed. Assuming that s 360(1) of the Migration Act does not have the meaning that it has in my view, the Tribunal could reduce the time of a hearing arbitrarily as much as it chose, interrupt and curtail the evidence of the applicant constantly, and deprive the applicant of any opportunity to put his or her case, and the applicant would have no redress. It is impossible to imagine that Parliament intended such a drastic result.
98 To the extent to which the views expressed in VXDC and Lay Lat are said to be based on a reading of the explanatory memorandum and the second reading speech relating to the bill by which ss 51A, 357A and 422B were introduced into the Migration Act, I repeat the view I expressed in Moradian at [35]. Those documents do not contain statements specific enough to resolve any ambiguity in those provisions, or to disclose a purpose specific enough to warrant a construction of the provisions that would regard them as excluding the entirety of the principle of procedural fairness described as the 'natural justice hearing rule'.
99 For these reasons, if it is necessary to ask the question whether Ms Antipova is entitled to succeed on the basis that the Tribunal denied her procedural fairness, by the manner in which it conducted her hearing, I do not regard VXDC and Lay Lat as requiring me to take a view different from that I have expressed above.
100 It is therefore necessary to see whether the particular denial of procedural fairness made a difference, in the sense referred to in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147, ie whether the Tribunal's error deprived Ms Antipova 'of the possibility of a successful outcome.' In the present case, the answer is plain. The Tribunal disbelieved Ms Antipova when she said that she was determined to make a life with Mr Petrou from the time she went to live with him on 18 May 2001. To a significant extent, the Tribunal's reasoning in this respect was based on its refusal to accept Ms Antipova's explanation of how she had come to continue with her marriage plans after meeting Mr Petrou, and then abandoned her marriage so soon after she had undertaken it. It was this very question that Ms Antipova was attempting to answer when the Tribunal member interrupted her, on several occasions, and asked her for a less detailed answer. If the Tribunal had been patient enough to listen to the detail, it might well have been persuaded to accept what Ms Antipova said. In other words, the very point on which Ms Antipova lost, because she was disbelieved, is one on which she would have given a fuller explanation, if the Tribunal had permitted her to do so. It cannot be said that the denial of procedural fairness in truncating Ms Antipova's evidence, to fit within a timetable about which she had not been warned, could have made no difference to the outcome of the proceeding.
101 It follows that the performance of the Tribunal's statutory function was affected by the denial of procedural fairness. The Tribunal's decision is therefore tainted by jurisdictional error, either because of its failure to comply with s 360 of the Migration Act, or because of a denial of procedural fairness, which s 357A of the Migration Act does not exclude from consideration.