CVO17 v Minister for Immigration and Border Protection

B The SECOND TRIBUNAL Hearing 11 Mr Hudson accompanied the appellant to the Second Tribunal Hearing on 3 April 2017. Immediately prior to the commencement of the hearing, a woman apparently employed by the Tribunal took the appellant and Mr Hudson to the hearing room and told them that the Tribunal member was coming. The appellant informed her that Mr Hudson "has come to support me" (Affidavit of CVO17 affirmed on 24 April 2019 at [8]). 12 The Second Tribunal Hearing commenced at 11.39am. An interpreter was sworn in and the member explained, in comprehensive detail, the nature of the Tribunal hearing. Among other things the member said (Tribunal Transcript 3 April 2017 (TT) at 2.5-20): I have before me the evidence and submissions that you have made to the department and the [T]ribunal up until now including the primary decision in this matter which you submitted to the [T]ribunal for the purposes of this review and that record contains evidence you gave to the delegate and a discussion of your claims, a discussion that you have addressed in a recent submission to the [T]ribunal. OK so far I have not been able to make a decision favourable to you based on the material in front of me on its own. I need more information and I want to ask you some questions and consider your responses. I will not be coming to any conclusions during this hearing or even necessarily today I will probably go away and considered it stays [sic] over the next few days or weeks and in due course I will make a decision. So this is your hearing feel free to respond robustly to any questions or challenges that I put to you. 13 After dealing with some further introductory matters the member then continued (TT2.30-3.13): Member … OK now you have somebody present who I understand has a written statement? [A reference to the character reference referred to above] [Appellant] Yes Member I will consider that I will put that on the file otherwise he's only here as a friend is that right? [Appellant] Yes Member OK I would still like to interview you on your own for a little while if that is ok with you? Witness It's ok Member Thank you very much. So it may be that we go the whole hearing Witness That's OK Member If you just wait outside, we are booked for about 2 hours we will certainly take a break before then and we will let you know where we are going if we are going on longer. 14 I interpolate to note that although the transcript refers to only the witness (being Mr Hudson) assenting to the question as to whether or not it was acceptable for the Tribunal member to interview the appellant on his own for a "little while", it is an agreed fact between the parties that the response "[i]t's ok" was in fact made by both the witness and the appellant (T34.34). 15 The hearing then continued with the member making some general enquiries as to the risks faced by the appellant, the activities of his wife and other family details. After ascertaining the appellant's occupation, the hearing moved on to details concerning what the appellant said was an attack on his shop and its relationship with other dates. Around this time the appellant referred to the fact that "[i]n dates I forget easy. Even my birthday": TT8.17. He then returned shortly thereafter to the fact that he had "a memory problem with month and date (sic)": TT9.3. This topic was again referred to at TT11-12 where the appellant repeated that he had a problem remembering dates and indeed made reference to the fact that he had visited a doctor and was given a prescription to deal with the stress levels in his life which, he contended, caused memory problems. 16 After further exchanges, about 35 minutes into the hearing, the appellant became sick. The following occurred as recorded in the transcript at TT13-14: Member … You can hang your coat on your chair. If it is too hot let me know it's 22 degrees. Oh oh grab a tissue grab a tissue please if you need to go the bathroom go. [appellant vomiting] You will need some more tissues I think. Maybe even a cup. We will just adjourn [Appellant] Sorry I am so sorry. Member That is OK we will adjourn we will see you in about ten minutes. [Appellant] I am so sorry. 17 The proceeding was then adjourned after the appellant had again stressed the fact that he had problems with dates and referred to the fact that Mr Hudson who lived with him knew he had "a big problem with memorising date even the date of the birthdays of [his] children": TT14.10-14. 18 The member then indicated that he did not believe it would be fair to continue the hearing and it would be better if it was rescheduled to another day. The hearing was eventually adjourned at 12.33pm.

C Events Subsequent to the SECOND TRIBUNAL Hearing 19 After the Second Tribunal Hearing, the appellant apparently saw a doctor who recommended that he seek some further specialist help from a psychiatrist: AB391 at [94]. 20 On 1 May 2017, a letter was sent by the Tribunal notifying the appellant of the resumption of the adjourned hearing, noting that it was to take place on 12 May 2017: AB326. The letter enclosed a further response form and noted that if the appellant had any questions he could contact a person acting on behalf of the Registrar of the Tribunal. 21 On 4 May 2017, the appellant sent a letter to the Tribunal by email. This letter constituted an entreaty that the Tribunal member "not base your judgement on my inability to remember the dates of the occurrences on which I am building my case": AB330. It repeated the fact that he suffered from a poor memory even before coming to Australia and referred to the fact that he had approached a specialist in neurology in Egypt. 22 The hearing resumed at 11:37am on 12 May 2017 (Resumed Tribunal Hearing), however, Mr Hudson did not attend. Before commencing the hearing the Tribunal member indicated to the appellant that (AB418): …if you are feeling any stress just let me know I mean you might be feeling a bit stressed arising from the last hearing but if you are feeling any urgent stress let me know. 23 Subsequent to this exchange, no further mention was made of Mr Hudson or a support person and the hearing concluded at 1:45pm. 24 On 30 May 2017, the Tribunal affirmed the decision of the delegate to refuse a protection visa. The Decision Record at [94] referred to the fact that the appellant claimed to have always been poor at recalling precise dates and that this problem was said to have been exacerbated by the trauma of harm and threats he received in Egypt. The Tribunal member noted at [95] that he weighed this fact with other information provided by the appellant. After referring to what was described by the Tribunal member as "discrepancies", the Tribunal noted at [97]: I am not satisfied on the evidence before me that inconsistencies and other deficiencies in the [appellant's] evidence are due to circumstances beyond his control. In addition, I give no weight to the suggestion that the [appellant's] problems with consistency are, themselves, evidence of relevant harm or trauma experienced in Egypt or since. 25 After then dealing, in comprehensive terms, with other aspects of the evidence the Tribunal member concluded at [112]: This is a case where the well of the [appellant's] evidence is so poisoned by inconsistency and lack of credibility that I can give no weight to the documents and supporting letters that he has provided over time. 26 It was on the basis of this credibility finding that the Tribunal member was not satisfied that the appellant faced a real chance of persecution. 27 Importantly, for the purposes of this appeal, subject to the issue dealt with below, there is no attack on the way in which the Tribunal member dealt with what were said to be the inconsistencies in the evidence. 28 It is now necessary to turn to the nature of the appellant's complaint.

D The Appeal 29 In his amended notice of appeal, the appellant advanced a single ground of appeal. It is in the following terms: The primary judge erred in failing to find that the [Tribunal] fell into jurisdictional error by exercising its discretion in relation to the manner in which it conducted the proceedings before it unreasonably by: i. excluding the appellant's support person from the hearing; and/or ii. conducting the proceedings in such a fashion so as to constructively exclude the appellant's support person from the hearing. 30 The appellant's submissions are fourfold. First, Mr Hudson was excluded or constructively excluded from the hearing. The Tribunal did not give any reason why Mr Hudson was to be excluded for part or all of the Second Tribunal Hearing, and it is contended that there were no circumstances justifying his exclusion. As to the Resumed Tribunal Hearing, Mr Hudson and the appellant gave affidavit evidence that based on the Tribunal member's conduct at the Second Tribunal Hearing, both Mr Hudson and the appellant formed the view that if Mr Hudson were to attend on the next occasion, he would again be excluded and there was therefore no utility in Mr Hudson attending the Resumed Tribunal Hearing: CVO17 Affidavit at [14]; Hudson Affidavit at [9]. 31 Secondly, the exclusion was unreasonable because Mr Hudson attended the Second Tribunal Hearing in a "support person" capacity, and the Tribunal was aware of this fact. It is submitted that a relevant acknowledgment was made both orally towards the commencement of the Second Tribunal Hearing and in writing by the Tribunal's amendments to the "MRD Hearing Record" (AB302-303). The Hearing Record was apparently filled in by the Tribunal member. In this document it notes that Mr Hudson was in attendance, with his "Role" seeming to initially have been recorded as a "witness", but then later amended to "Supporter" by handwritten annotation. 32 Thirdly, the unreasonableness is further demonstrated by the Tribunal's "Guidelines on Vulnerable Persons" (Guidelines). The appellant acknowledges that compliance with the Guidelines is not mandatory, but argues that the Guidelines become relevant if the circumstances are such that it should be evident to the Tribunal that the person's ability to understand and effectively present their case or fully participate in the review process may be impaired in some way. It is submitted that the Tribunal ought to have been aware that the appellant was a vulnerable person by reason of the appellant's use of a translator; the nature of the claims; the fact that a support person attended the hearing; and that the appellant had a memory problem. The Guidelines state that "[v]ulnerable applicants are entitled to have another person present to assist them in migration hearings… An assistant could include a friend…" (emphasis added). The appellant submits that in excluding Mr Hudson, the Tribunal not only failed to consider or apply the Guidelines but actively discouraged Mr Hudson, the appellant's support person, from attending the hearing. 33 Finally, it is said that in all the circumstances, the Tribunal's exclusion of Mr Hudson amounted to an unreasonable exercise of its discretion in conducting the proceedings before it by depriving the appellant of a meaningful opportunity to present evidence and submissions, which the Tribunal was required by the Act to provide. This is said to be enough to establish jurisdictional error. It is submitted that since the unreasonableness goes to a lack of procedural fairness, there is no separate obligation to demonstrate that had the Tribunal acted reasonably, the result could have been different: see DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 366 ALR 665 at 690-691 [96]-[107] (Mortimer J). In oral submissions, Ms Tronson relied upon Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, where Gleeson CJ noted that in circumstances where the appellant had been denied the opportunity to correct a misunderstanding on behalf of the decision-maker which later went to his credit, it could not be concluded that the denial of that opportunity made no difference to the outcome of the proceeding: at [4]. In the event the appellant is required to demonstrate that the unreasonableness was material, the appellant relies upon the evidence given in his affidavit, that it was the stress of Mr Hudson's exclusion that caused him to become confused, mix up facts and experience significant difficulty in answering the Tribunal's questions: at [10]-[14]. 34 The Minister submits that the Tribunal member did not act unreasonably, and as a result, did not fall into jurisdictional error. This is said to be the case for broadly four reasons. First, the appellant was not a 'vulnerable person' within the meaning of the Guidelines; secondly, Mr Hudson did not attend the Second Tribunal Hearing in the capacity of a "support person"; thirdly, the exclusion was not forced or unconditional; and fourthly, the Tribunal enjoys a broad discretion in how it conducts its hearings. 35 Turning to the first reason, the Minister submitted that no evidence had been presented by the appellant that would support the assertion that he was in fact a vulnerable person. The factors identified by the appellant which were said to establish his status as a "vulnerable person" were challenged by the Minister who submitted that a lack of fluency in English, memory problems and feelings of stress were regularly observed by the Tribunal and were common among all applicants for a protection visa under the Refugee Convention. In support of this proposition the Minister relies upon the comments of Gleeson CJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at 16-17 [19] where his Honour said: Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this Court, suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the Court or Tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell. In the present case, the Tribunal, apprehending that the respondent might be disadvantaged by "memory or other difficulties", of its own motion, and with the respondent's agreement, obtained a psychological assessment. That assessment was for a limited and reasonably specific purpose. The Tribunal was not then obliged to embark upon an open-ended investigation of the respondent's psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage… 36 Turning to the second reason, the Minister submitted that the Tribunal's recognition of Mr Hudson being present "as a friend" does not equate to Mr Hudson being a support person. Indeed, even the appellant did not characterise him in this way as he was nominated by the appellant as a potential witness in response to the hearing invitation form (AB301) and, at the conclusion of the Second Tribunal Hearing, the appellant suggested that Mr Hudson, as a friend, could attest to his memory issues: TT14.10-13. 37 As to the third reason, the Minister emphasises the Tribunal member's wording used to express his preference that the appellant be interviewed on his own "for a little while", before then asking both the appellant and Mr Hudson if that was "ok". The Minister unsurprisingly relies upon the now agreed fact that both Mr Hudson and the appellant indicated the proposed course was "ok", and emphasises the fact that Mr Hudson was only asked to wait outside the room and at no point did the appellant ask that Mr Hudson return. The Minister also urges the Court to bear in mind that the Second Tribunal Hearing was adjourned abruptly due to the applicant becoming ill and submits that the Court should not speculate as to whether Mr Hudson would have been brought back into the room had the hearing continued. 38 As to the fourth submission, counsel for the Minister took me to a number of authorities during oral submissions in order to emphasise the nature of the Tribunal's role as a fact-finding inquisitorial process, and the consequent degree of latitude the Tribunal enjoys in its decisional freedom as to what is fair and reasonable in each given case.

E Consideration 39 Insofar as I am required to make factual findings as to the exercise of the discretion, it is clear that the Tribunal member requested Mr Hudson to leave the hearing. It is equally clear that both Mr Hudson and the appellant indicated that this course was acceptable when asked. It is important to bear in mind that shortly after this, the appellant became ill and the Second Tribunal Hearing was adjourned. It is not possible to speculate either way as to whether Mr Hudson would have been invited back into the hearing had it continued, or whether the Tribunal would have allowed him to return had the appellant requested that he do so. 40 I accept the affidavit evidence of the appellant and Mr Hudson, that given the request that Mr Hudson leave the room during the Second Tribunal Hearing, they genuinely formed the view that Mr Hudson would most likely not be allowed to stay in the room for the Resumed Hearing. This evidence was not inherently improbable and counsel for the Minister elected not to cross-examine either Mr Hudson or the appellant on it. I do not, however, find that the Tribunal's decision in asking to interview the appellant on his own, amounted to a constructive exclusion of Mr Hudson from the remainder of the hearing. The view which the appellant subjectively formed is understandable, however, in circumstances where: (a) the Tribunal was never asked whether Mr Hudson could return; (b) the transcript demonstrates that the Tribunal Member did not say anything further about Mr Hudson other than requesting he leave and indicating that "it could be that we go the whole hearing"; and (c) the hearing was aborted, I am not satisfied that the decision was that Mr Hudson was to be excluded for the remainder of the hearing no matter how the rest of the hearing transpired. Further, while I accept that the appellant formed the view he did, I am not satisfied that based upon what transpired, a fair understanding of the situation is that Mr Hudson was constructively excluded. In any event, given my findings below as to unreasonableness, nothing turns upon this finding. 41 Where, as is the case here, a court is asked to consider a Tribunal's exercise of a statutory power involving an area of discretion, it is important to remember that courts will not lightly interfere in such circumstances: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at 376 [108]. The test of unreasonableness is necessarily stringent, and the possibility that a different Tribunal may have adopted a different course is not determinative. This notion is reinforced by an understanding that the Tribunal is not bound by technicalities, legal forms or rules of evidence, but must act according to substantial justice and the merits of the case: Migration Act 1958 (Cth) (Act) s 420. Bearing in mind that in conducting a review of a Part 7-reviewable decision, the Tribunal conducts an inquisitorial proceeding, it is unsurprising that in order for the Tribunal to conduct such a review effectively, it must have a degree of latitude in determining what is fair and just in a given case in the conduct of the review: Minister for Immigration and Citizenship v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at 720 [13] per Kiefel CJ. 42 As was observed in Li at 367 [76] the judicial freedom for an appellate court to draw inferences as to the unreasonableness of a decision is limited. To this end, the High Court noted that: Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. 43 In circumstances such as the present, where no reasons have been provided for the exercise of a discretion, "all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility": Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 446 [45]. This assessment must be made bearing in mind that it is for the repository of the power, and not for the Court, to exercise the power in such a way as the repository of power thinks fit, subject to the requirement that it be done according to law: at 446 [45]; see also Avon Downs Proprietary Limited v Federal Commissioner of Taxation (1949) 78 CLR 353 at 359-360. 44 Ultimately, I must therefore focus upon the outcome of the exercise of power in the factual context presented, being the adjectival outcome, that the appellant was questioned in the absence of Mr Hudson, and assess the intelligibility of that outcome in the factual context I have described above. 45 The appellant makes the broad submission that the exercise of the discretion was unreasonable in that it deprived Mr Hudson of a real and meaningful opportunity to participate in the hearing. Although for the reasons explained below I find that the submission fails at the outset because I do not consider the actions in relation to Mr Hudson to have been unreasonable, it is important not to elide two things which are better dealt with separately: first, the question of whether there was an unreasonable exercise of power by the Tribunal, irrespective of how that may have then subjectively affected the appellant; and secondly, whether the Tribunal denied the appellant the ability to participate meaningfully in the hearing. 46 It seems to me that the first question must be assessed taking into account the knowledge of the Tribunal at the time it made the decision, and the second must consider as a matter of fact, whether the appellant was denied procedural fairness afforded by s 425 of the Act. 47 The question of unreasonableness as to the exercise of a discretion cannot be determined by looking to the subjective effect of such a decision - except to the extent one considers the reasonably foreseeable consequence of the decision, which could be said to have been within the contemplation of the Tribunal at the time. 48 Having considered the reasons put forward by the appellant in submissions, I do not consider that there is reason to conclude that the Tribunal member acted unreasonably in dealing with Mr Hudson and the appellant in the way the member did. I have reached this conclusion cognisant of the latitude given to the Tribunal member, as the decision-maker, in settling upon the course of an inquisitorial proceeding, within the confines of the law. A Tribunal is entitled to test an applicant's evidence robustly and rigorously: Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28; (2001) 75 ALJR 982 at 990 [30]-[31]. 49 I do not accept the submission that the Tribunal member should have recognised Mr Hudson as a vulnerable person within the meaning of the Tribunal guidelines. I acknowledge that a Tribunal hearing is a highly stressful experience but the characteristics of the appellant as revealed on the material before the Tribunal did not demonstrate that he required a support person to participate. The fact that he brought Mr Hudson along as either a witness, or in some sort of support capacity, or as a friend, does not enliven some entitlement referred to in the Guidelines that the hearing must be conducted in a particular way. It was not made clear to the Tribunal that the appellant's ability to effectively present his case or fully participate in the review process may be impaired by the absence of Mr Hudson. The highest it was put was that Mr Hudson would be able to attest to the appellant's difficulty in recalling dates. 50 Ultimately, the question of unreasonableness must depend upon the intelligibility of the outcome that the appellant was questioned on his own. The Minister put forward a series of possible reasons as to why the Tribunal likely asked Mr Hudson to leave. In written submissions, the Minister invited me to draw an inference that since Mr Hudson was initially identified as a witness, he was most likely excluded on the basis that there was a possibility he would later be called to give evidence. Ms Tronson, however, urged that the Court steer away from speculating or indeed finding its own reasons for the exercise of the power. Although I see the force in Ms Tronson's submission, and do not propose to make a finding as to what the reason for the exclusion is likely to have been, the fact that several possible reasons for the exclusion exist does point against a conclusion that no intelligible reason exists. In fact, it appears to come down to the fact that for whatever reason, the Tribunal member, in carrying out his functions, came to the conclusion that the fact-finding process would be better served by questioning the appellant on his own. This does not strike me as intuitively surprising, let alone unintelligible. 51 Lastly, it is worth repeating that at no point did the appellant ask the Tribunal whether Mr Hudson could return. It is difficult to speculate about a counterfactual and what would have happened during the balance of the Second Tribunal Hearing if the unfortunate intervening event of the appellant becoming ill had not taken place. It is necessary to keep steadily in mind, as observed by Kiefel CJ in SZVFW at 720 [12], that the Tribunal has a degree of latitude in determining what is fair and just in a given case in the conduct of a review. 52 As to the question of a denial of the opportunity to meaningfully participate, it may be readily accepted that in Aala at 88 [4] Gleeson CJ made it clear that in those circumstances where there had been the denial of an opportunity to respond to questions, it could not be concluded that such denial would not influence the outcome of the proceeding. This was said to be because it was impossible to be sure of the weight afforded to the different factors which went to the decision-maker's view as to credibility. However, this is a different case. When one views the bespoke facts of this case, there is no basis for concluding that the appellant was denied a real and meaningful opportunity to participate. Further, the appellant was not deprived of having his evidence considered and evaluated according to law as a consequence of the Tribunal's decision to exclude Mr Hudson from the Second Tribunal Hearing. 53 Like the position in Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at 586 [34] (per Keane CJ), this is not a case where it has been shown that the Tribunal was wrong to attribute the appellant's poor performance before it to dishonesty rather than the stress occasioned by the absence of a support person. Like in SZNVW, at the highest, it is contended that the presence of a support person may have meant that different evidence would have been presented by the appellant which might have led to a different view being taken of his credibility. 54 As Keane CJ said in SNZVW at 586 [34]-[35]: … To say only that it is possible that a different view might have been taken of the respondent's credibility had more information been made available to the Tribunal … is to fall short of demonstrating that the respondent was denied a "real and meaningful" opportunity of giving evidence and presenting arguments in support of his application. In this case, in contrast to SCAR, it has not been established, as a fact, by the evidence subsequently adduced before the magistrate, that the Tribunal's adverse view of the respondent's credibility reflects an impaired opportunity for him to give evidence and present arguments. … there is nothing in the text of s 425, or in the statutory context in which it appears, or in the authoritative judicial exegesis of s 425, to suggest that it was the intention of the legislature that the Tribunal should take upon itself the role of ensuring that all possibly arguable lines of argument which might be available to an applicant in any given case are pursued to the applicant's best advantage. 55 Ultimately it comes down to whether or not the Tribunal has properly exercised its review powers pursuant to Pt 7 of the Act. This involves an assessment of the exercise of power in the factual context presented. Having undertaken this analysis, I am not satisfied the power was not exercised in accordance with the limits imposed on the Tribunal by the Act. 56 For these reasons, the appeal must be dismissed with costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.