CONSIDERATION
15 In essence, there are four matters for consideration. Ground 1 challenges the conduct of the hearing. Grounds 2 and 3 challenge the way the decision was made. Ground 4 alleges reasonable apprehension of bias. Ground 5 requires consideration of what the Tribunal must do in connection with reg 1.15A(3) of the Regulations.
The conduct of the hearing
16 Counsel for the appellant contended that an analysis of the transcript of the hearing demonstrated that the Tribunal acted in breach of its obligation under s 360(1) of the Act to invite the appellant to appear before it to "give evidence and present arguments relating to issues arising in relation to the decision under review". This was because the Tribunal did not identify the critical issue upon which its decision turned in order that the appellant might present evidence and argument about it. The appellant's argument accepted that it was proper for the Tribunal to question him and Ms Tong on matters affecting their credit and, in particular, to question them about what had occurred in 2003 and Mr Chey's knowledge of Ms Tong's family. Counsel argued, however, that, examination of the transcript showed that, in the course of the hearing, the Tribunal barely addressed the critical question. This was whether there was a genuine spousal relationship at the time of the decision between Mr Chey and Ms Tong. As a result, Mr Chey was denied the opportunity properly to put his case. In the appellant's submission, at the hearing the Tribunal did not address what had happened to the appellant and Ms Tong over the previous two years (that is, in 2004 and 2005) and the appellant was not challenged about these matters. In the appellant's submission, the fact that, in response to the Tribunal, the appellant said that he had nothing further to add and that he did not make any subsequent application to provide further materials did not cure the essential defect in the hearing.
17 Counsel for the first respondent submitted that there was no breach of s 360(1), bearing in mind that the Tribunal invited Mr Chey to a hearing, at which he was given the opportunity to give evidence and present any arguments that he considered relevant to his review application. He was given the opportunity to address, at the hearing, the issues that arose in relation to the decision under review. The respondent specifically noted that Mr Chey was asked at the hearing whether he wanted to add anything further and that he made no application for the admission of any more evidence. According to the first respondent, the Tribunal was entitled to focus at the hearing "on those matters it considered of relevance in considering whether the parties were in a spousal relationship as at the date of its decision" (emphasis original).
18 The parties' submissions as to the reach of s 360(1) of the Act require some consideration as to the nature of the obligation that the provision imposes. The Act, in s 360(1), 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". It is convenient to note here that obligations under s 360(1) are equivalent to the obligations imposed on the Refugee Review Tribunal by s 425(1). The Tribunal is not bound to extend an invitation to an applicant under s 360 (cf s 425), if it considers that "it should decide the review in the applicant's favour on the basis of the material before it": see ss 360(2) and 425(2).
19 The Tribunal's decision is a "privative clause decision" within the meaning of s 474 of the Act. This Court cannot set the decision aside except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. A breach of s 360(1) constitutes jurisdictional error: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 ("SCAR") at 561 per Gray, Cooper and Selway JJ.
20 The authorities establish that, where the Tribunal is not minded to make a decision on the papers in favour of an applicant, s 360(1) requires that there not only be an invitation but also the hearing to which the invitation refers, which affords an opportunity to the applicant to present evidence and arguments to the Tribunal. Although s 360(1) focuses on the invitation, as opposed to the subsequent hearing, the hearing that s 360(1) contemplates must take place and, in substance, afford an opportunity to present evidence and arguments on the issues arising in relation to the decision under review.
21 Thus, the Full Court in SCAR dismissed an appeal from a judge who had granted relief by way of certiorari in circumstances in which, unknown to the Tribunal, on account of his father's recent death, at the time of the hearing, the review applicant was suffering from extreme distress. The Full Court had regard to the obligation that s 425(1) (and therefore s 360(1)) imposed and acknowledged, at 560, that the invitation to attend a hearing "must not be a hollow shell or an empty gesture". It added at 561:
"It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; not does it require the Tribunal to carry out an inquiry in order to identify what the case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671.
On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a 'real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation."
22 Although the reasoning in SCAR has not met with universal approval (see, for example, Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 417 per Graham J), it was a unanimous decision of a Full Court of this Court and has been followed by subsequent Full Courts: see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230; and NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121; and also cf SZFDE at 389 per French J and 400 per Allsop J. In any event SCAR remains binding on me, as on other judges of this Court at first instance: also cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 ("NAQF") at 475-476 per Lindgren J and SZBII v Minister for Immigration and Multicultural Affairs [2006] FCA 1477 at [26] per Cowdroy J. In NAQF, at 476, Lindgren J referred to SCAR and observed, by way of illustration of the nature of the s 360(1) obligation, that there would be a breach of this provision "[i]f, at an MRT hearing, the member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue".
23 SCAR is consistent with the approach adopted more recently by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 ("SZBEL"). SZBEL confirms that conformity with s 360(1) requires the provision of an in-substance opportunity to give evidence and present submissions. At the heart of the reasoning in the joint judgment of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ is the proposition, at 600, that:
"The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the tribunal. The applicant is to be invited 'to give evidence and present arguments relating to the issues arising in relation to the decision under review'. The reference to 'the issues arising in relation to the decision under review' is important." (Emphasis original)
This reference to s 425(1) applies equally to s 360(1) of the Act.
24 The issues to which ss 425(1) and 360(1) refer are to be identified by the tribunal: see SZBEL at 600. Thus, at 602, the joint judgment said:
"First, there may well be cases, perhaps many cases, where either the delegate's decision, or the tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where…there are specific aspects of an applicant's account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted." (Emphasis original)
This does not mean that the Tribunal is required to comment on what it thinks about the evidence that is given as it is given. It does mean, however, that the Tribunal must conduct itself in a way that takes account of the inquisitorial nature of its review process: cf ss 361(3), 362(2) and 363(3).
25 In the circumstances of SZBEL, the Full Court held that the review applicant was not on notice that two aspects of his account were in issue because the primary decision-maker had not based his decision on them, and the Tribunal did not identify them as important issues: see SZBEL at602. The Full Court held that the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about these issues.
26 I accept, as the first respondent submitted, that there is no scope for the operation of the common law notions of procedural fairness outside the specific provisions of Div 5 of Pt 5 of the Act because s 357A applies in the present case: cf ss 357A and 422B; see also Minister for Immigration and Multicultural Affairs v Lat (2006) 151 FCR 214 at 225-226 per Heerey, Conti and Jacobson JJ and NKBT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [85] per Young J with whom Gyles and Stone JJ agreed. I also accept, as the first respondent submitted, that the reasoning in the joint judgment in SZBEL refers to general principles of procedural fairness. This is unsurprising because s 422B (which is equivalent to s 357A) did not apply in SZBEL. I do not accept, however, that, on account of this, I should have no regard to SZBEL in this case. As I have sought to show, the reasoning in SZBEL in fact depends on the language of s 425(1), which was said to define the nature of the opportunity to be heard.
27 In this case, pursuant to s 360(1), the Tribunal invited Mr Chey to appear before it to give evidence and present arguments. There was a hearing at which Mr Chey, Ms Tong, their friends, and Mr Chey's mother gave evidence. Mr Chey and Ms Tong were accompanied at the hearing by a representative of Erskine Rodan. No-one suggests that the Tribunal actively endeavoured to exclude any material that the appellant sought to present. I accept, however, as the appellant submitted, that the authorities show that these facts, though important, are not necessarily dispositive.
28 Almost the entire focus of the hearing in this case was on the communications made by Ms Tong to the Department in July and November 2003, and the events around this time. The transcript of the hearing, which covers some 73 pages, shows that the Tribunal directed almost all its questions to the events of 2003 and, in particular, Ms Tong's communications with the Department in July and November that year. This was the subject matter of almost all the questions that the Tribunal directed to Mr Chey, although, in the course of this line of questioning, the Tribunal also asked some questions as to how much Mr Chey knew about her family. Virtually all the Tribunal's questions of Ms Tong were also addressed to her communications with the Department and to relevant events in 2003, and to a lesser extent to her relationship with her family. The Tribunal limited its questions about the genuineness of Mr Chey's relationship with Ms Tong to the following:
Tribunal member: You've attended today with your wife and child. When was your child born?
Interpreter: He born at 7 April 2005, around 3 to 4 o'clock in the afternoon.
Tribunal member: Do you say that you and Channy are in a genuine, committed relationship?
Interpreter: Yes, husband and wife.
Tribunal member: And that you're committed to a shared life together into the future as husband and wife?
Interpreter: Yes, we live together, we go everywhere together.
The Tribunal did not ask Ms Tong about her commitment to Mr Chey, or the genuineness of her relationship with him. The Tribunal did not ask either Mr Chey or Ms Tong about their relationship in the two years after Ms Tong's 2003 communications with the Department, which preceded the hearing. It did not ask her about their living and working arrangements during this period, or about the effect of significant events, such as the birth of their child, on the relationship. The Tribunal asked very little of the friends who attended to give evidence, although they were both in a position to comment on the relationship over the previous two years.
29 I accept, as the appellant submitted, that critical issues for the Tribunal were whether at the time it came to make its decision (March 2006) it was satisfied that Mr Chey and Ms Tong had a mutual commitment to a shared life together and that their relationship was genuine and continuing. At the time of the primary decision, in September 2004, the first respondent's delegate had determined these issues against them. In a broad sense, the appellant ought to have been aware of the nature of the issues that might arise on review. The Tribunal's s 359 letter ought to have confirmed this for them. Indeed, the documentary material lodged with the Tribunal showed that Mr Chey and Ms Tong appreciated that their financial, household and social arrangements were relevant. Further, given the Tribunal's s 359A letter, they were on notice that Ms Tong's 2003 communications were relevant too. Since, however, almost one and a half years had passed since the delegate's decision, the body of evidence concerning their spousal relationship had necessarily changed (for example a child had been born). Hence, the issues arising in relation to the decision under review (as at the date the Tribunal made its decision) were likely to differ to some extent from the issues that concerned the delegate when the primary decision was made.
30 At the hearing the Tribunal was required to identify the issues arising in relation to the decision under review, in order that the review applicant (here, Mr Chey) might present evidence and argument about them. As it happened, however, the overwhelming focus of the hearing was on the events of over two years earlier. Almost the only matters addressed at the hearing concerned Ms Tong's communications in 2003 and the events relevant to it. Plainly enough, this was not the only issue arising in relation to the decision under review, although, from the Tribunal's perspective, it was an important one. Other issues arose concerning Mr Chey's and Ms Tong's financial and living (including household) arrangements as at the date of the decision, as well as the significance, in terms of commitment, of the birth of their child and other relevant matters. There were also the social aspects of the relationship to be considered as at the date of the decision. This much is made plain by the Tribunal's reasons for decision, in which it made a number of adverse findings against Mr Chey (and Ms Tong) on these matters. At the hearing, the Tribunal did not, however, identify these matters as of potential importance to its decision, in order that the appellant might have the opportunity to expand and explain why his account should be accepted. This was not, moreover, a case in which the Tribunal's statements or questions showed that everything the appellant put forward was in issue. On the contrary, by focusing on one subject only, the appellant (and Ms Tong) might have been led to believe (mistakenly) that if they satisfied the Tribunal about it, then the Tribunal would be satisfied about the remaining issues in the case. Put another way, the appellant and Ms Tong might have been misled to believe that, so far as the Tribunal was concerned, almost the only obstacle in their path was the information given by Ms Tong to the Department in 2003. Save for the matter of Ms Tong's family, the Tribunal did not identify that it had any issue with Mr Chey's or Ms Tong's account of their life together in 2004 and 2005, including their financial, household or social arrangements, such that the Tribunal would reject their "date of decision" evidence, as it did.
31 In this case, the Tribunal did not mislead the appellant in the way contemplated by Lindgren J's example in NAQF (see above at [22]). It has, however, deprived the appellant of an in-substance opportunity to present evidence and argument as effectively as the conduct at issue in SZBEL. The Tribunal in this case identified only one subject as an issue arising in relation to the decision under review. This subject, Ms Tong's communications in 2003, monopolized the Tribunal's attention with the result that it did not identify for the appellant the other issues arising on the review, in order that the appellant might address them by evidence or argument. This constituted a breach of s 360(1) of the Act and jurisdictional error.
32 The fact that the appellant was assisted at the hearing by Erskine Rodan's representative does not diminish the force of the appellant's criticism of the hearing. The representative's participation in the hearing was significantly constrained by the Act and, although the representative protested about the narrow focus of the Tribunal's inquiry, there was little more than the representative could usefully have done. Section 366A(2) denied the representative the right to present arguments or to address the Tribunal "unless the Tribunal [were] satisfied that, because of exceptional circumstances, [she] should be allowed to do so". Bearing this in mind, whether or not a review applicant has assistance, the Tribunal is obliged to provide for a hearing on "the issues arising in relation to the decision under review", which in a case such as this obliged it to identify the issues in order that the review applicant would have an opportunity to present evidence and argument on them.
33 In answer to the representative's criticism of his narrow focus, the Tribunal member referred to the material already in the Tribunal's possession and to the fact that he had previously asked for further information in a letter sent to the appellant under s 359 of the Act. He commented that, "I've received the evidence. So I didn't think that I had to go over that again." This did not meet the point. The appellant's case was not that he had been stopped before the hearing from lodging material for the Tribunal's consideration. It was that the Tribunal had not identified what it saw at the time of the hearing as the issues arising on the review, in order that the appellant might present evidence and argument about them at the hearing.
34 Further, I accept that appellant's submission that this defect was not cured by the Tribunal's addressing a general invitation to Mr Chey at the conclusion of the hearing to add anything further that might occur to him. The timing and context made it clear enough that the Tribunal was not inviting Mr Chey, through his interpreter, to give any further evidence. Moreover, unless the Tribunal had identified what it saw as the issues arising, there was nothing that the appellant might usefully add, either at or after the hearing.
Manner in which the decision was made
35 Counsel for the appellant made what he termed an alternative submission, which was that, because of its conduct of the hearing, the Tribunal "was not in a position to properly consider the appellant's claim to be in a spousal relationship as at the date of decision"; and, if it did so, the Tribunal "was overborne by the issues as to credit" and failed to carry out its statutory task. If it matters, I would not regard this submission as a true alternative to the s 360 submission (considered above at [16]-[34]). Counsel argued that the Tribunal did not address all the witnesses' evidence, and submitted that matters relating to the birth of the child to Mr Chey and Ms Tong were not properly considered. The Tribunal's consideration of the appellant's case as regards significant matters such as this was, so counsel argued, so perfunctory that it did not amount to consideration of his claims at all.
36 Counsel for the first respondent argued that the question of whether a person is a "spouse" is essentially a question of fact and evaluation for the decision-maker. The first respondent submitted that the Tribunal's reasons disclosed that it considered the matters required by reg 1.15A(3) before deciding that it was not satisfied that the appellant was in a spousal relationship with Ms Tong at the date of its decision. Counsel for the first respondent characterised the appellant's complaint as being with the Tribunal's process of reasoning on issues of fact, and submitted that the appellant's argument was simply an invitation to review the merits of the Tribunal's decision. Counsel argued that the Tribunal was not overborne by issues going to credit but properly considered matters relevant to the assessment of credit and, in consequence, made adverse credit findings as it was entitled to do. Further, referring to a passage in the judgment of Bennett J in SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 697 at [31], counsel for the first respondent submitted that "there was no particular threshold that was required to be satisfied before the Tribunal was entitled to disbelieve the claims advanced by the appellant".
37 The Tribunal's reasons for decision were detailed. They recited most of the evidence that had been given by Mr Chey and Ms Tong. I accept, as the first respondent submitted, that the question whether Mr Chey was the "spouse" of Ms Tong was essentially a question of fact. There may be errors in the Tribunal's reasoning in finding facts, or errors in the fact-finding, but this will not amount to jurisdictional error (unless there is error in the finding of a jurisdictional fact): see Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473 at 481-482 per McHugh J. The appellant's submissions in this part of his case took issue with the Tribunal's process of reasoning on issues of fact. No jurisdictional error is made out under this head.