REASONS FOR JUDGMENT
Introduction
1 The second applicant ("Rogelio") and the third applicant ("Myrna") are the parents of the first applicant ("Margaux"), who is the primary visa applicant, the fourth applicant ("Bianca") and the fifth applicant ("Paolo"). Margaux applied for a Change in Circumstance (Residence) (Class AG) visa which is available to a person who arrived in Australia as a minor; became an unlawful non-citizen before turning 18; has since turned 18 and is no longer financially reliant upon, nor living with, the family unit with which that person entered Australia.
2 The visa is within subclass 833 of the Migration Regulations 1994 (Cth) which is a prescribed class for the purposes of s 48 of the Migration Act 1958 (Cth) ("the Act"). Section 48 permits certain non-citizens who are in Australia to apply for visas in a prescribed class. Subclass 833 is a concession that is available to unlawful non-citizens who became unlawful as minors to enable them to regularise their migration status once they are adults if they live independently from the parents through whom they gained their status as unlawful non-citizens. Subclass 833 was repealed by SR 62 of 2000 but that does not affect the review sought by the applicants.
3 A delegate of the Minister refused Margaux's application for a subclass 833 visa. She applied for the review of that decision by the Migration Review Tribunal ("the MRT") which affirmed the decision of the delegate on the ground that Margaux failed to satisfy the independence criterion in cl 833.221, which requires that the applicant:
"…is not a member of, and does not reside with, the family unit (if any), with which the applicant first entered Australia."
Regulation 1.12(1) defines membership of a family unit as including the following:
"…a person is a member of the family unit of another person (in this sub-regulation called the family head) if the person is:
(a) a spouse of the family head; or
(b) a dependent child of the family head or of a spouse of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse of the family head; or
…"
The expression "dependent child" is defined to include a child who has not turned 18 and is in the daily care and control of either or both of the child's parents or has turned 18 and is dependent on either or both of the child's parents: reg 1.03. The word "dependent" includes a child who is, and has been for a substantial period, "wholly or substantially reliant on [the child's parents] for financial support to meet the [child's] basic needs for food, clothing and shelter": reg 1.05A(1)(a)(i).
4 The other applicants founded their claims to a visa on the basis that they were members of Margaux's family unit and that Margaux holds a subclass 833 visa. As Margaux's application for the subclass 833 visa failed, the applications of the other family members also failed.
5 The applicants have applied to the Court under Pt 8 of the Act to review the decision of the MRT.
The MRT decision
6 The issue on which the decision of the MRT turned was whether Margaux was no longer a member of, and did not reside with, the family unit with which she entered Australia. Margaux arrived in Australia in April 1990, aged 8 years, with her mother Myrna and her sister Bianca. Her father Rogelio had already been in Australia for 3 years. Margaux's brother, Paolo, was born in Australia in November 1993. At the time of the MRT's decision all five applicants resided together and Margaux, although aged 18 years, was a dependent child as defined.
7 The applicants' migration agent argued that the family unit with which Margaux entered Australia (Margaux, Myrna and Bianca) was not the same family unit with which she now resides, owing to the addition to that unit of Rogelio and Paolo.
8 The RRT dealt with the agent's argument as follows:
"23. …The Tribunal considers that the agent's argument overlooks the fact that there is often more than one member of the family unit who can be the family head for the purposes of regulation 1.12. For example, either a mother or a father may be considered to be the family head. Thus the fact that the primary visa applicant did not arrive in Australia with her father, but arrived subsequently with her mother, does not mean that the primary visa applicant is not a member of her father's family unit. This is so whether her father or mother is regarded as the family head.
24. The agent's argument also overlooks the fact that the members of [a] family unit can be geographically separated. There is no requirement in regulation 1.12 that members of a family unit be co-located. Thus, when the primary visa applicant, her mother and sister were in the Philippines and her father was in Australia, as well as when all family members were in Australia, there has only been one family unit at all material times. The family unit did not change simply because its members were reunited.
25. The Tribunal notes that this interpretation is consistent with the policy that underpins subclass 833, in that it is a concession to certain unlawful non-citizens who became unlawful as minors (through no 'illegality' on their own part but rather on the part of their parents or guardians) to enable them to regularise their migration status once they are adults, independent from their parents or guardians, through whom they acquired their illegal status. It would be inconsistent with this policy objective to grant a visa to an applicant who is still dependent on persons who have become illegal. In order to cease being a member of her family unit, the primary visa applicant must cease being dependent on the family head(s). She must also cease residing with the family unit in order to satisfy clause 833.221.
26. Accordingly, the Tribunal finds that the primary visa applicant was a member of and resides with the family unit with which she first entered Australia on April 1990, so she does not satisfy clause 833.221."
Grounds of Review
9 Counsel for the applicants relied on two procedural grounds of review and one substantive ground of review.
10 The first procedural ground was that the MRT failed to provide the applicants with "information" that was required to be given to them under s 359A of the Act. The second procedural ground was that the MRT failed to provide the applicants with the written material (or copies thereof) "given or produced to" it for the purposes of the review as required by s 362A of the Act. The applicants contended that a failure to comply with each statutory provision was a failure to comply with a procedure that was required by the Act to be observed in connection with the making of the MRT's decision and is a ground of review under s 476(1)(a) of the Act.
11 The substantive ground of review was that the MRT erred in law in its construction of cl 833.21.
Section 359A
12 Section 359(1) empowers the MRT, in conducting the review, to "get any information that it considers relevant" and requires the MRT to have regard to that information in making its decision. In that context s 359A provides:
"(1) …the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) …
(3) …
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) …"
13 Section 359B provides for the manner in which the MRT may invite persons to give information under s 359 and also for the manner in which an applicant is to be invited to comment upon the particulars of information provided under s 359A.
14 Sections 359, 359A and 359B empower the MRT, acting as an inquisitorial tribunal, to "get" information, but oblige it to inform the applicant of the particulars of relevant information prior to it acting upon that information adversely to the applicant.
15 The applicants relied upon two documents, which the solicitors for the respondent ("the Minister") had included in the Court Book, to provide the factual basis for its claim that the MRT had not complied with s 359A.
16 The first document was a memorandum concerning the proper interpretation of cl 833.221 which had been sent by the member constituting the MRT for the purposes of the review to his "[c]olleagues". The memorandum was as follows:
"From: Mitchell, David
Sent: Thursday, 8 June 2000 1:12 PM
To: Decision Support Requests
Cc: Friedman, Graham
Subject: Proper interpretation of clause 833.221
Dear Colleagues
I seek your advice on the proper interpretation of clause 833.221-
'The applicant is not a member of, and does not reside with, the family unit (if any), with which the applicant first entered Australia.'
The application for a subclass 833 visa was lodged on 18 February 2000 by the 18 year old eldest daughter of the family who arrived in Australia in April 1990 as an 8 year old with her mother and her then 6 year old sister. The visa applicant's father was already in Australia, having arrived here in April 1987. The visa applicant's parents subsequently had a son born in Australia in November 1993.
The visa applicant's migration agent has contended that the family unit with which she first entered Australia (comprising herself, her mother and her sister) is a different family unit to that with which she now resides, owing to the addition of her father and her brother. Accordingly, the agent argues that the visa applicant satisfy the requirements of clause 833.221 as-
1. At the time of decision she is not a member of the family unit with which she first entered Australia; and
2. At the time of decision she does not reside with the family unit with which she first entered Australia.
I cannot find anything on Expert regarding this issue and, as far as I can ascertain, it has not been raised in any previous MRT decision. I have attached below a draft of the evidence and shall fax you shortly the agent's submissions as well as the primary decision.
Please let me know if you need any additional information. I would be grateful to receive your advice as soon as possible as it is the crucial issue to be decided in an otherwise straightforward case. Thank you for your consideration.
Regards
David Mitchell
Part-time Member
Melbourne Registry"
17 The second document was the response to the memorandum from "Andrew" ("Andrew's memorandum"). The evidence does not establish Andrew's identity nor his role within the MRT, but it is likely that he is either an officer or another member of the MRT. The response was as follows:
"David,
My short answer is that I think the agent is stretching the interpretation of reg. 1.12 beyond plausibility.
Analysis
First, it is necessary to point out that departmental policy (PAM3) on this issue is self-contradictory in one respect. The commentary on cl 833.221 of Sch 2 in part states:
2. Note that this criterion is satisfied if any member of the 'original' family unit (ie as it was at the time the applicant entered Australia) has since left the family unit. This is because in such circumstances the current family unit is no longer the same as the original family unit; but, on the other hand, this criterion is not satisfied merely by someone having since joined that original family unit (because the original family unit is still intact).
The agent, while pointing out that the policy is contradictory, has advocated that the correct interpretation is contained in the first half of the paragraph. However, given the contradiction, departmental policy is of limited assistance to the Tribunal and the Tribunal should reach its own mind as to the proper interpretation of reg 1.12 (Re Drake and Minister for Immigration and Ethnic Affairs (1977) 24 ALR 577).
According to the agent's reasoning, a change in the membership of a family unit always results in a different family unit. This overlooks the fact that there is often more than one member of the family unit who can be the family head for the purposes of reg 1.12. For example, either a mother or a father may be considered to be the family head. Thus the fact that the visa applicant did not arrive in Australia with her father, but in fact arrived with her mother three years after him, does not mean that the visa applicant is not a member of her father's family unit. This is so whether her father or mother is regarded as the family head.
The agent's argument also overlooks the fact that the members of [a] family unit can be geographically separated. There is no requirement in reg 1.12 that members of a family unit be collocated. Thus at all material times, when the applicant and her mother in the Philippines and her father in Australia, as well as when all parties were in Australia, there has only been one family unit in question. The family unit did not change simply because its members were united. [Emphasis added]
Finally, the agent's interpretation is inconsistent with the policy behind visa subclass 833. Departmental policy states
This permanent visa is for persons in Australia who
· arrived in Australia as minors;
· became an unlawful non-citizen before turning 18; and
· have since turned 18.
and further, in the context of cl 833.221:
1. The applicant should provide evidence sufficient to satisfy the decision maker that they
· are no longer a 'dependent child'; and
· do not live with the family unit members with whom they entered.
Thus subclass 833 is a concession to certain unlawful non-citizens who became unlawful as minors (through no 'illegality' on their own part but rather on the part of their parents or guardians) to enable them to regularise their migration status once they are adults, independent from their parents or guardians, through whom they acquired their illegal status.
It would be inconsistent with this policy objective to grant a visa to an applicant who is still dependent on people who have become illegal. In order to cease being a member of her family unit, the applicant must cease being dependent on the family head(s). She must also cease residing with the family unit in order to satisfy cl. 833.221.
For these reasons; I think that the delegate is correct in finding cl. 833.221 is not satisfied.
If you wish to discuss any aspect of [this] advice, please do not hesitate to contact me.
Regards,
Andrew"
18 The applicants contend that the statement in emphasis in Andrew's memorandum to the effect that Margaux, her parents and her sister were and remained members of the same family unit as they were only separated geographically constituted "information" that falls within s 359A(1) of the Act. It is said that that information is specifically about Margaux and her family and was not given by them to the MRT. The latter point appears to be correct as the information given by the applicants stated that Rogelio had been separated from the rest of the family for three years and thus was not part of it, but did not state that the separation was only geographical. In fact, so it is said, at the relevant time Myrna and Rogelio were separated in a marital as well as a geographical sense, prior to Myrna's arrival in Australia with her two children.
19 The applicants contended that, had the MRT complied with s 359A, the "separation" issue and its legal consequences could have been addressed and dealt with by them in the MRT.
20 The Minister contended that the information in question is not "information" for the purposes of s 359A as it merely expresses the views of an officer of the MRT about how cl 833.221 operates in the present context. The Minister also contended that the information is not specifically about the applicants but, rather, is about the class of persons that fall within cl 833.221, using the applicants as an example.
21 The operation of s 424A of the Act, which is the counterpart of, s 359A in relation to the Refugee Review Tribunal ("the RRT"), has been considered in a number of cases. The following propositions can be taken to have established:
· the obligation to provide the information in question is enlivened when the Tribunal forms the view that there is knowledge communicated about some fact or circumstance that is material to the review and is adverse to the applicant: see Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336 at [32], Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548 at [58]-[59]; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [52]-[54], Bhasani v Minister for Immigration and Multicultural Affairs [2000] FCA 1773 at [8]-[9];
· if information adverse to an applicant is relied upon in the reasons of the Tribunal, a failure to have complied with the statutory requirements in respect of that information will found a ground of review: see Naing at [33];
· untested assertions communicated to, or received by, the Tribunal can constitute information irrespective of whether the information received is reliable or has a sound factual basis; thus, the section can apply when the Tribunal has received information "regardless of its source" if it considers the information would be a reason or part of the reason for affirming the delegate's decision: see Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 at [18]-[20];
· the section is concerned with information of which the Tribunal becomes aware, rather than with its subjective decision making process: see Tin at [54].
22 The assertion that Rogelio and Myrna's separation was only geographic and that the family was therefore a single family unit at the time of, and since, Margaux's arrival in Australia constitutes a communication of a fact or circumstance that was adverse to the case of the applicants and was treated by the MRT at [24] of its decision as a part of its reasons for affirming the decision of the delegate of the Minister. Although it appears that Andrew has inferred the relevant fact or circumstance from the information he was given by the MRT member, the fact or circumstance nevertheless constituted information adverse to the applicants that was specifically about them and was additional to the facts provided by them. Further, it was information that the applicants could have addressed and dealt with had they been made aware of the MRT's view of its relevance.
23 While there is force in the submission that it was always open to the applicants to address the "separation" issue, and that they failed to do so, that is no answer to the claim that the MRT failed to comply with s 359A.
24 I am satisfied that there was a failure by the MRT to comply with s 359A and that that failure constituted a failure to observe a procedure required to observed for the purposes of s 476(1)(a).
Section 362A
25 Relevantly s 362A(1), which has no counterpart in relation to the RRT, provides:
"the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to [the MRT] for the purposes of the review."
26 The section provides that in certain situations the entitlement does not arise but those situations are not relevant for present purposes.
27 The MRT consists of its members (s 395) and has officers, including a Registrar and Deputy Registrars (s 407). In any particular matter in which the MRT is exercising its power of review it is constituted by the member or members directed to conduct the review (s 354). In these circumstances the obligation arising under s 362A is that of the member or members directed to conduct the review. Andrew's memorandum constituted written material "given or produced" by an officer or another member of the MRT to the MRT member conducting the review. The applicants contend that the memorandum plainly falls within s 362A and was therefore required to be provided to them.
28 The Minister submitted that the section only applies to information provided by third parties to the MRT and not to information circulated within the MRT. The Minister contended that s 362A must be read down to exclude from its operation internal documents produced by officers or other members of the MRT to a MRT member conducting a review to assist or advise that member in relation to the conduct of the particular review. Such documents were said to be indistinguishable from research material regularly produced for a judge by the judge's associate or by a research assistant, which are immune from disclosure.
29 In particular, the Minister justified a reading down of s 362A by reference to the immunity granted to MRT members under s 373(1) which provides:
"A member has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal."
30 Section 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that a member of the Administrative Appeals Tribunal has, in the performance of his or her duties, "the same protection and immunity as a justice of the High Court". The immunity was considered by Gaudron J in Herijanto v Refugee Review Tribunal (2000) 170 ALR 379. Her Honour said at 380 that a justice of the High Court has such protection and immunity as is conferred by the common law and, perhaps, such as is to be derived by implication from Ch III of the Constitution. In determining that certain interrogatories should be rejected by reason of the immunity that is granted to members of the RRT by s 435(1) of the Act, Gaudron J said (at 383):
"…the immunity is immunity from disclosing any aspect of the decision-making process. That is what is required to ensure freedom of thought and independence of judgment."
31 In Herijanto v Refugee Review Tribunal (No 2) (2000) 170 ALR 575 Gaudron J considered whether discovery in respect of documents that might disclose aspects of the RRT's decision making process would breach the immunity conferred by s 435(1). Gaudron J said (at 577):
"[9] So far as the plaintiffs seek discovery to ascertain whether the individual members concerned with their review applications gained access to the Pt B documents stored in computer databases, they seek to achieve indirectly what they cannot achieve directly by means of interrogatories. The protection afforded to individual members of the tribunal by s 435(1) of the Act would be illusory if, although they could not be compelled to disclose their decision-making processes, those processes could be revealed by analysis of computer records.
[10] In my view, the protection and privilege conferred by s 435(1) of the Act extends not merely to disclosure by the individual member concerned, but the revelation, by whatever means, of any aspect of his or her decision-making process. This seems to have been the basis for the decision in Zanatta v McCleary [1976] 1 NSWLR 230. In that case the evidence of counsel was not admissible to prove an out of court statement by a judge as to his decision-making process. And it may also be the rationale for the decision of the Privy Council in Ramlochan v R [1956] AC 475 at 483 in which it was held that a defendant in criminal proceedings was not entitled to production of the notes of the judge who presided at his previous trial.
[11] Whether or not the privilege conferred by s 435(1) of the Act extends to the revelation, by whatever means, of the decision-making processes of individual members of the tribunal, it would not be right, in my view, to order discovery to enable the plaintiffs to do indirectly what they cannot do directly. Accordingly, in each case, the application for further discovery is dismissed with costs."
32 The Minister relied upon the above passages to contend that s 362A does not extend to written material, such as Andrew's memorandum, that reveals aspects of the decision making processes of the MRT in the present matter.
33 In Herijanto Gaudron J was considering the application of the immunity in the context of a claim by an applicant that he was denied procedural fairness and that certain provisions of the Act had not been complied with because the RRT had failed to have regard to documents which had been referred to in the reasons of the earlier decision of the delegate of the Minister. The present case is not concerned with the immunity in s 373(1) as such, but rather with whether s 373(1) requires s 362A to be read down so it does not apply to documents that reveal aspects of the decision making processes of the MRT. It is to be noted that, unlike the situation for High Court judges, the protection of Ch III of the Constitution has no role to play in respect of the MRT as its members are members of an administrative body exercising the powers of the Executive.
34 The operation of s 373(1) must be considered in the context of the statutory duties of the MRT. In conducting a review the MRT may "get any information that it considers relevant" and must have regard to that information in making its decision on the review (s 359). The MRT issues invitations to the applicant to appear (s 360) and may be requested by an applicant to call witnesses and obtain written material (s 361). A person is not entitled to examine or cross-examine any person appearing before the MRT to give evidence (s 366D). There are no parties in a matter before the MRT and no onus of proof is cast upon any person. Thus, the MRT is an inquisitorial tribunal which is responsible for both investigating and determining the relevant facts in any matter before it.
35 The statutory entitlement of an applicant under ss 359A and 362A to have access to the information upon which the MRT may act in any particular case is the means by which the legislature has ensured that an applicant is afforded an opportunity to address and deal with information that is relevant to that applicant's claim. In the absence of those statutory provisions an applicant would have no statutory entitlement to be informed of the material upon which the MRT may act. The extent of the protection afforded by ss 359A and 362A to an applicant therefore assumes fundamental importance to the fair operation of the statutory scheme of review by the MRT.
36 Neither of the decisions of Gaudron J in Herijanto considered the issue arising in the present case, namely how the protection and immunity under s 373(1) in relation to the performance of a Tribunal member's duties is to be reconciled with the specific duties imposed upon the MRT under ss 359A and 362A. Although the protection and immunity provided by s 373(1) extends to the MRT's discharge of its duties under both sections and the performance of those duties will be likely to reveal aspects of the Tribunal's decision making processes, s 373(1) does not purport to narrow the scope of the duties. It would be anomalous if the protection and immunity in respect of the MRT's decision making processes were to operate in a manner that, in a practical sense, deprived applicants of the fundamental rights sought to be afforded to them by ss 359A and 362A in relation to these processes. In particular, it would be anomalous for a Court to rely on the immunity to protect from disclosure a document required to be disclosed under s 362A. Further, in Herijanto leave was sought to deliver interrogatories to, and obtain discovery from, the RRT. This raised the issue of the compellability of members of the RRT directly in respect of interrogatories and indirectly in respect of discovery. The present case does not concern the compellability of an MRT member as such; rather, it concerns the role of an MRT member in discharging his duties under ss 359A and 362A in a particular case.
37 The correct approach to reconciling conflicting statutory provisions was discussed in Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 where McHugh, Gummow, Kirby and Hayne JJ said:
"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions by the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme." [Footnotes omitted]
38 The specific obligations imposed upon the MRT by ss 359A and 362A may fairly be characterised as "leading" provisions designed to give effect to the underlying legislative policy that applicants in matters before the MRT are to be afforded an opportunity to address and deal with information and material before the MRT upon which it will, or may, act in making its decision. Section 362A ensures that an applicant is made aware of the written material given or produced to the MRT member conducting the review. The applicant is then able to address and deal with the written material in so far as it is appropriate to do so. Section 359A is concerned with information irrespective of whether or not it is in written form. Often information will only fall within s 359A after an applicant has been afforded an opportunity to address and deal with written material that has been disclosed under s 362A, as it may only be at that point that the MRT has concluded that the information will form part of its reasons for affirming the decision under review.
39 To treat s 373(1) as the leading provision and ss 359A and 362A as subordinate provisions would be inconsistent with the legislative policy to which I have referred and would effectively immunise a decision of the MRT from being reviewed on the ground that it had not discharged its statutory functions under the sections. Further, I regard read the generality of s 373(1) as being subject to the specific duties imposed by ss 359A and 362A.
40 It follows that I do not accept the Minister's contention that the width of the obligation under s 362A (a specific and leading provision) is to be read down generally by reason of the protection and immunity afforded under s 373(1) (a general and subordinate provision). It does not follow, however, that the immunity is irrelevant to determining whether written material emanating from officers or other members of the MRT is material of the MRT conducting the review rather than material given or produced to the MRT for the purposes of the review.
41 This distinction has been considered in the context of determining the circumstances in which procedural fairness requires that the substance of information provided to a decision maker by officers of his or her department is to be supplied to an affected party. In Aronson and Dyer, Judicial Review of Administrative Action (2nd Edition) at 425-426 the authors state:
"Decision making in the institutional context of a department or agency usually involves contributions, often in documentary form, by many persons other than the ultimate decision-maker. This raises the question of the extent to which procedural fairness requires disclosure of such materials. In some cases the comments of persons other than the ultimate decision-maker have been treated as material from another source and required to be disclosed. In other cases an extension of the alter ego theory has been used to justify treating intradepartmental correspondence as the 'thinking processes' of the responsible Minister or the repository of the power in question. We think both approaches place too much emphasis on the way in which the 'source' of the material is characterised. To the extent that a contribution involves 'material', as opposed to mere comment or evaluation of material already addressed by the persons concerned, the need for disclosure should turn on the principles discussed above. If an institutional process of decision making is permissible, the decision will not require a formal adjudicative hearing and disclosure of virtually all material considered, but disclosure should be more readily required of material concerning adjudicative facts." [Footnotes omitted]
Although s 362A is not concerned with the relevance of the written material, the procedural fairness cases cited by Aronson and Dyer are nevertheless helpful in so far as they draw a line between written legal research material prepared by a research officer specifically assigned to assist a decision maker in a particular matter and factual material provided by investigatory officers in the decision maker's department. The former category is likely to be characterised as material of the decision maker which is protected from disclosure: see for example Bushell v Secretary of State for the Environment [1981] AC 75 at 95-97 and 102. The latter category is likely to be characterised as material from another source: see for example Regina v Secretary of State for Health, Ex parte United States Tobacco International Inc [1992] QB 353 at 371.
42 Similarly, in the United States, the courts protect from disclosure documents that disclose mental processes of a tribunal but not documents that contain relevant factual matters: see J. H. Rutter Rex Mfg. Co. v NLRB, 473 F.2d 223 at 233 (1973), cert. denied, 414 U.S. 822 (1973) ("J.H. Rutter Rex Mfg"). In J.H. Rutter Rex Mfg the Court of Appeals for the Fifth Circuit (at 231) stated that the evidentiary immunity of the National Labor Relations Board protected it from being required to disclose "thoughts, deliberations and impressions of Board officials recorded during and after interviews with" people whose employment claims its was adjudicating. However, (at 238-240) the court found that the Board could not claim the privilege for documents that contained factual matter as revealing such documents would not hinder the Board's deliberative process, and might help resolve a disputed factual issue.
43 The question of whether particular written material will fall within s 362A will be a question of fact in each case but that question must be considered in the context of the MRT's inquisitorial functions. These functions require the MRT to undertake its own factual investigation, including exercising the power to "get any information that it considers relevant" (s 359(1)), which in practical terms requires a member to obtain information from officers or other members of the MRT or from other persons.
44 The cases referred to above give effect to the practical realities of how the member or members constituting a tribunal, such as the MRT and the RRT, function in a particular case. Similar considerations have led me to conclude that a MRT member is not obtaining information from another source when he or she requests and obtains from officers or other members of the Tribunal informed opinions on the legal issues that have arisen in a matter to enable the member conducting the review to form a balanced judgment on the merits of the matter: see Bushell at 102 per Lord Diplock. However, if the information requested relates to factual matters that were required to be determined by the member then the information provided is appropriately characterised as information given or produced to the member from another source: see Secretary of State for Health at 371 per Taylor LJ.
45 Andrew's memorandum is, as a matter of substance, an informed opinion on legal issues pursuant to the request made by the MRT member to his "[c]olleagues" and is therefore more appropriately characterised as written material of the MRT and therefore not within s 362A, notwithstanding that the particulars of certain information contained in the memorandum were required to be disclosed under s 359A.
Error of Law
46 The applicants contended that the MRT also erred in law in its construction of cl 833.221. The error was said to be construing the words "the family unit…with which the applicant first entered Australia" as meaning the broader family unit of which Margaux was a member, rather than the particular family unit with whom she entered Australia, being Margaux, her mother and her sister. The distinction was said to be important in the present case as it is contended that, because Margaux's mother and father were separated in both a marital and a geographical sense at the time, Margaux's father was not a member of Margaux's family unit when she entered Australia.
47 The use of the concept of a "family unit" in cl 833.221 and the definition of membership of a family unit in reg 1.12(1) is an endeavour to deal with the difficulty in defining a family for the purposes of subclass 833. Depending on context, a family can include parents and their children, whether dwelling together or not; any group of persons closely related by blood; or those persons descended from a common progenitor. Although the drafting of cl 833.221 confines the categories of persons who are capable of being members of a family unit, a decision maker is nonetheless required to determine the relevant family unit for the purpose of the subclass on the facts of a particular case.
48 The construction of subclass 833 should seek to give effect to, rather than frustrate, the purpose for which the subclass concession was created: see generally Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 394-397. The concession was created to enable the regularisation of the migration status of minors who became unlawful non-citizens, have since become adults, and now live independently of the family group with whom they came to Australia. In that context the relevant family unit is the family group, in a sociological sense, to which the applicant belonged and with whom the applicant first entered Australia. The sociological family group to which Margaux belonged and with which she first entered Australia was the group that included her mother, herself and her sister.
49 At the time of the MRT hearing Margaux was a member of the same family group as she was still residing with her mother and her sister. It therefore could not be said that she was no longer a member of, and does not reside with, the family group or unit with which she first entered Australia. Even if Margaux's biological father had separated from her mother, it does not follow that Margaux's family group would exclude her father. In any event, the fact that Margaux also resided with her father and her brother (who was subsequently born into the family) did not have the effect of altering the characterisation of the family group with which Margaux first entered Australia. Thus, the MRT was correct in concluding that Margaux remained a member of and resided with the family with which she first entered Australia.
50 The applicants' construction of cl 833.221 requires that the family unit be construed as being limited to the members of her family with whom Margaux first entered Australia. Thus, so it is contended, when Margaux's brother was later born into her family and her biological parents were re-united, Margaux's family unit changed into a new and different unit. In my view the applicant's construction is inconsistent with the purpose of the concession created by the subclass and artificially seeks to create different family units in circumstances where, from Margaux's perspective, she was and remained a member of only one family unit, irrespective of whether her parents were separated or had a new child. The applicants' construction should be rejected because it is not mandated by the words used and would tend to frustrate the purpose for which the subclass was created.
51 It follows from the foregoing that the MRT correctly construed cl 833.221 and, as a result, the failure of the MRT to afford the applicants with the opportunity to address the factual issues concerning the separation of Margaux's parents could not have denied them the possibility of a different outcome at the hearing before the MRT.
Admissibility
52 The Minister objected to the tender of Andrew's memorandum on the ground that it was a document that disclosed aspects of the MRT's decision making processes and is protected by a public interest immunity and the immunity under s 373(1). As the solicitors acting for the Minister unconditionally "published" the memorandum when they incorporated it into the Court Book, the claim that either immunity requires that it not be produced or given in evidence must fail: see Sankey v Whitlam (1978) 142 CLR 1 at 45 per Gibbs ACJ.
53 Nonetheless, it is appropriate to briefly address this issue as it was suggested by the Minister's counsel that the inclusion of the memorandum in the Court Book came about as a result of an excess of enthusiasm resulting from his instructing solicitors' wish for the Minister to be the model litigant. The comment gives rise to some concern as it implies that, in future, such documents may not be disclosed.
54 Plainly, whether a document should be incorporated in the Court Book that is being prepared by the Minister to facilitate the hearing of a migration matter in the Court will depend upon the issues raised in the applicant's application. However, subject to any direction of the Court or agreement between the parties, applicants are entitled to rely upon the Minister to include in the Court Book all documents that are relevant to the proper adjudication of the matter.
55 If the Minister is of the view that a relevant document should not be disclosed, the proper course is to raise that issue with an applicant or the Court in an appropriate manner to allow the issue of disclosure to be determined in accordance with law, rather than in accordance with the view of the Minister or his advisers. If the latter course is pursued it would seriously undermine the confidence placed by applicants in the Court Book and could lead to injustice in a particular case.
Discretion to Refuse Relief
56 In the present case I have found that the applicants have established a reviewable error under s 476(1)(a) by reason of the MRT's failure to comply with s 359A. However, I have also found that the procedural breach on the part of the Tribunal did not deprive the applicants of the possibility of a different outcome as any marital separation of Rogelio and Myrna at the time Margaux entered Australia could not, properly, have affected the outcome before the MRT.
57 In Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214 I discussed the circumstances in which the Court may exercise its discretion to decline to grant relief under s 481(1) of the Act. One such circumstance is where there has been a failure to accord natural justice but the failure did not deprive the applicant of the possibility of avoiding a different outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 164-166 and Abriel v Australian Guarantee Corporation [2001] FCA 165 at [18]. Another circumstance is where, notwithstanding the error made by a Tribunal, the decision it arrived at was clearly correct on the material before it: see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384. In other cases relief has been refused where it was futile to remit the matter because the same result would be inevitable on the remitter: see Nguyen at 213-214. However, if it is possible that a different result might be arrived at on the remitter then the Court is more likely to decline to exercise the discretion to refuse relief: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540; Nguyen at 214 and Arnott v Repatriation Commission [2001] FCA 262 at [35]. Ultimately, the question of whether the discretion is exercised will depend on the particular circumstances of the case.
58 In the present matter the applicants contend that the proper test is to look forward and ask if the same result is inevitable on the remitter, rather than to look backward and ask if the same result must have been arrived at by the Tribunal even if the error complained of had not been made. If the applicants' approach is adopted, the futility principle could not apply as, on the remitter, the MRT would be required to consider the circumstances existing at the time of the hearing, by which time Margaux might be living independently of her family. Thus, so it is contended, the same outcome is not inevitable on the remitter. However, the forward, rather than the backward, looking view was not accepted by the majority in Giretti (see 164-166 per Lindgren J with whom Jenkinson J agreed at 152, cf 174-180 per Merkel J).
59 I have concluded that in the present case it is appropriate to exercise the discretion to decline to grant relief. My reason for doing so is that, as the applicants' claim must have failed even if the procedural breach had not occurred, the breach should not put the applicants in a more advantageous position than they would have been in had the procedural breach not occurred.
60 I would add that it is a matter of speculation as to whether the situation will change hereafter but, if it did, the change may well have been brought about solely by an endeavour to purport to meet the requirements of subclass 833, rather than by the reality of the family circumstances for which the concession was created. Further, it is not suggested that the refusal of the present application will deny Margaux an opportunity of obtaining an appropriate visa under the Act. Accordingly, I am satisfied that no injustice or unfairness is likely to arise as a result of exercising the discretion to decline to grant relief.
61 Accordingly the application of the applicants is to be dismissed.
Costs
62 The applicants have substantially succeeded on the merits in the present case but, ultimately, failed as I have exercised my discretion to decline to grant relief. While costs would usually follow the event, the circumstances of the present case are unusual. The proceeding has come about largely because the MRT proceeded on the basis of information with which the applicants ought to have had the opportunity to deal at the hearing before the MRT. Had the MRT complied with s 359A, the applicants would have been able to deal with that factual basis. In those circumstances the applicant's wish to be able to have the matter determined by the MRT on the facts that they contended were applicable, was denied to them. In all the circumstances it is appropriate to make no order as to costs.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.