Did the primary judge neglect to determine whether the Tribunal had failed to provide procedural fairness to the second and third appellants or fail to give adequate reasons for dismissing ground 1 of the application (ground 1)?
57 In the particulars to ground 1 of the notice of appeal the appellants stated that ground 1 of the application in the court below contended, amongst other things, that the Tribunal failed to provide procedural fairness to the second and third appellants by failing to invite them into the hearing room to present evidence and submissions when they had been identified as "separate applicants", had clearly articulated claims separate to those of their mother, and the Tribunal was notified that they would be attending and participating in the hearing. The appellants submitted that the primary judge treated ground 1 of the application only as a complaint that the Tribunal had failed to deal with, or consider, a claim. They argued that this left undetermined the question whether the Tribunal had complied with s 425 of the Act and therefore failed to conduct the review required of it.
58 The appellants submitted that the primary judge failed to determine whether the first appellant could lawfully waive her children's statutory entitlement to procedural fairness. They further submitted that the primary judge should have held that the question of legal disability was irrelevant and that the Tribunal's jurisdiction to hear from the children was not determined by the fact that they were under the age of 18. Rather, according to the appellants, the relevant question was whether the children have the capacity to be heard and, at least in the case of the elder child, the second appellant, who was nearing the age of majority, this is a significant matter. They referred to the following remarks of McHugh J in Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at [103]:
Parents in their capacity as guardians of an infant child have the power under the common law to make decisions on behalf of the child, provided that the child does not have the competence to make the decision. Thus, where a child lacks capacity, the ordinary rules of the common law authorise the parent or guardian of the child to act on the child's behalf. Parental authority diminishes as the child's legal competence emerges. The parent's authority is at an end when the child has sufficient intellectual and emotional maturity to make an informed choice.
(Footnotes omitted.)
59 The appellants argued that the Court should hold, consistently with Australia's obligations under international law, that, when a child asylum seeker applies for review, whether through a parent or in the child's own right, in order to perform its obligations under the Act, the Tribunal must turn its mind to the capacity of the child to present arguments and give evidence. Further, they continued, "if the Tribunal formed the view that the child has the capacity to be meaningfully heard from then a child applicant should be accorded an appropriate opportunity to be heard". They submitted that the primary judge should have held that the invitation to attend the hearing under s 425 of the Act was an "empty gesture".
60 One problem with this ground of appeal is that ground 1 of the application for judicial review did not expressly allege a failure to afford procedural fairness or a failure to comply with s 425.
61 Be that as it may, this point was not taken by the Minister and it was raised in the appellants' submissions below. In these circumstances the primary judge should have dealt with it. The Minister did not argue otherwise. Since his Honour did not do so, his reasons were at least in this respect inadequate. Neither the appellants nor the Minister asked for a new trial, however, and, having heard full argument, there is no reason why this Court should not determine the issue itself. For the following reasons, it should be determined against the appellants.
62 Section 425(1) of the Act provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision. The invitation must be real and meaningful: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553. Devoid of context, the Tribunal's decision to send both the second and third appellants outside the hearing room is puzzling, even disturbing, particularly since the second appellant was then 17 years old. But the question at hand cannot be considered in vacuo. As with everything, context is all-important.
63 The Minister argued that the fact that the second and third appellants were asked to wait outside the hearing room does not establish error on the part of the Tribunal for the following reasons.
64 First, the appellants were represented at all times by a migration agent, who was also a lawyer, and there is no evidence that he raised any objection to the procedural course taken by the Tribunal or to the first appellant's statement that the second and third appellants relied on her claims alone.
65 Second, the appellants did not adduce evidence of material that they would have put before the Tribunal that the procedural course adopted by the Tribunal prevented them from presenting.
66 Third, the Court is not in a position to know precisely how the sequence of events played out without a transcript of the Tribunal hearing and/or evidence from the appellants' then migration agent or the appellants themselves.
67 The Minister also submitted that the error could only have been jurisdictional if it was material and the onus of proving that the error was material rested with the appellants.
68 It is true that the appellants were represented during the hearing. Mr Willis was not in the hearing room but he did participate by telephone and there is no evidence to indicate that he was not present on the phone for the entire hearing. It is true, too, that Mr Willis wanted to attend in person and the Tribunal was so advised. The Tribunal received a telephone call at 10:41 on the morning of the hearing to advise that his flight had been cancelled and the next available flight would delay his presence at the hearing. A request was made on Mr Willis's behalf that the starting time be postponed until 2:30 PM. The Tribunal member did not agree to the request but agreed to him attending by telephone. The hearing commenced at 1:30 PM.
69 While the request appears to have been a reasonable one, the appellants did not argue, either on the appeal or in the court below, that it was unreasonable of the Tribunal to decline to agree to it.
70 It is also true that there is no evidence that Mr Willis objected to the procedure adopted by the Tribunal or that, at the time the first appellant told the Tribunal that the children relied on her claims alone, he intervened to correct her. But the decision record clearly shows that, notwithstanding the terms of the visa application and what the first appellant had said to the Tribunal, Mr Willis reminded the Tribunal that, if it were not persuaded by the first appellant's claims to protection, the children had their own separate claims.
71 Senior counsel for the appellants submitted that the children were "critical witnesses". He argued:
[T]hey could have obviously told the tribunal what - where they had grown up; where they had gone to school; how they were treated; whether they were treated as Rohingyas or not; whether they had access to education; whether they ever met their uncle, who spoke to their father in a funny language that they didn't understand - those things are critical pieces of information, not just for some academic notion of their independent claims but for all of the claims…
72 In theory, this is a sound argument. The problem for the appellants is that they were represented throughout by their registered migration agent.
73 It was not suggested, let alone argued, that the conduct of the migration agent had the effect of stultifying the hearing or subverting the operation of s 425: cf. SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. At no time did the appellants challenge Mr Willis's conduct or his authority. No evidence was presented to this Court, or to the court below, which called his authority into question. Nor was any evidence adduced of what the children would or could have said. In these circumstances, the Court can only proceed on the basis that the agent did not ask that they be questioned because he had instructions that they had no evidence to offer which would have advanced their claims for protection. Thus, although the children were sent out of the hearing room and not questioned, they were not effectively precluded from taking part in the hearing (cf. SCAR). They had an opportunity to be heard but, through their migration agent, they declined to exercise it. In the circumstances, the Tribunal was not obliged to question them.
74 The appellants were not prevented from giving or communicating evidence unless it is assumed that they had evidence to give. No such assumption can be made. Apart from the responses to the hearing invitations, there is no evidence to indicate that the Tribunal was told that either of the children wished to give evidence or that Mr Willis wanted them to be called, or, indeed, that they had any relevant evidence to give. No statements were submitted from them, either before or after the hearing. And neither the pre- nor post-hearing submissions identified such evidence. Section 425 does not require that the Tribunal actively assist an applicant to put his or her case: SCAR at [36]. Nor does it impose an obligation on the Tribunal to call further evidence or to seek out evidence for itself; "the hearing required by s 425 of the Act is not nullified by a mere failure by an applicant to present his case in the best possible light": Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [22] (Keane CJ).
75 It follows that we are not persuaded that there was a denial of procedural fairness or a failure to comply with s 425. As the appellants' submissions in the court below acknowledged, with respect to obligations of procedural fairness, "[t]he concern of the law is to avoid practical injustice": Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] (Gleeson CJ). The appellants, who bear the onus, have not demonstrated that the Tribunal's decision to exclude the children from the hearing room, puzzling though it may seem, resulted in any practical injustice. It was up to them to demonstrate that, in a practical sense, they lost an opportunity to give material evidence or to make a material submission: CSR Ltd v Eddy (2008) 70 NSWLR 725 at [38] (Basten JA, Hodgson and McColl JA agreeing at [1] and [10] respectively). They failed to do so.
76 In reaching this conclusion, we would not want our remarks to be taken as an unqualified endorsement of the approach the Tribunal took. It would have been both prudent and preferable for the Tribunal to have directly raised with Mr Willis at the conclusion of the husband's evidence whether either of the children wanted to give evidence or listen to the submissions or simply re-enter the hearing room. That is particularly so, given that Mr Willis, through no fault of his own, was only able to appear by telephone. In the absence of a transcript or recording of the hearing, however, which might have cast some light on why the children were asked to leave the hearing room and the subsequent events, it would be inappropriate to say anything more.