A denial of procedural fairness
11 The thrust of the argument as to a denial of procedural fairness was, as Mr Dharma put it in his oral submissions, that the Tribunal member "refused to hear me out". The Tribunal, so the argument ran, was "not interested" in considering what Mr Dharma wished to advance in support of his case.
12 Two of the instances relied upon by Mr Dharma when he developed this submission were:
the shortness of time within which he was required to provide further documents and further information; and
the pejorative characterisation of materials he had obtained from computer searches, the Tribunal member referring to that material as his "research".
Neither of these examples provides any basis for an argument as to the Tribunal member approaching his decision-making task with anything other than an open mind. There is certainly no basis for any argument as to a reasonable apprehension of bias on the part of the Tribunal member.
13 The Tribunal had extensive material before it which had been provided by Mr Dharma. The Tribunal lists this material in its reasons for decision: [2019] AATA 4065 at [25]. In addition to this material, on 14 May 2019 the Tribunal held a telephone directions hearing at which Mr Dharma was directed to provide:
any witness statements and other evidence on which he intended to rely by 17 June 2019; and
any further materials on which he intended to rely by 22 July 2019.
During the course of the hearing, further directions were made requiring any further materials to be lodged by:
15 August 2019
but later extended to:
29 August 2019.
Notwithstanding the failure on the part of Mr Dharma to provide any witness statements, he sought and was granted at the outset of the Tribunal hearing the opportunity to call as witnesses his former partner and his two eldest children. Any suggestion that Mr Dharma was not extended an adequate opportunity - both prior to and subsequent to the hearing - to provide all materials in support of his case is without substance.
14 As to the second matter referred to by Mr Dharma during his oral submissions, he contended that the Tribunal's use of the term "research" was indicative of a commitment on the part of the Tribunal to be summarily dismissive of his case. Instances of the Tribunal's use of the term "research" in its reasons for decision include the following:
[64] When asked about the multiple missed sessions with a psychologist recorded in his clinical records while in immigration detention, Mr Dharma said he did not see the benefit of such sessions. He also claimed to have declined follow-up consultations on occasions because he 'was coping well at that time.' He explained a reference to his non-compliance with the prescribed anti-depressant Sertraline, as choosing not to take it after conducting his own research on the internet and becoming concerned about potential side-effects. Mr Dharma said in preference to mental health consultations while in prison or immigration detention, he would go to his 'own choice' of mental health practitioner if released, who he 'felt comfortable with.'
…
[66] Mr Dharma highlighted what he contends are significant impediments confronting him if repatriated to Indonesia. He characterises those as 'social, cultural and language barriers,' as well as the practicalities of resettlement. The latter includes finding somewhere to live, accessing medical support, and daily living requirements. Mr Dharma said his 'research' on the internet had revealed that income and other support arrangements in Indonesia were far below that available in Australia. …
…
[144] In relation to language and cultural impediments, Mr Dharma contends he 'can't speak read and understand [the Indonesian] language properly. He submits in his statement:
'I've been in Australia for 27 years and haven't been back there since 1994. If I was deported back to Indonesia...I will have no one to help me or support me. I don't know my way around and way of life over there. I will face with language, social, cultural and religion barriers. I will not be able to support myself and let alone support my children...I was still a child...and had no time to learn or absorb the social mores and values...I don't have any degrees in any subject and based on the research I did about Indonesia that is not easy to get a job there and the average wage is around $300 - $400 a month. Indonesia doesn't have government housing, Medicare and Welfare benefit so yes I will suffer from severe hardship with no help and support and I don't know how I am going to survive over there especially with my health issue from depression and stomach ulcer.
(footnotes omitted)
The Tribunal used the same term on a number of other occasions.
15 Although different terminology could well have been used, the Tribunal's use of the term "research" evidences nothing other than the Tribunal's use of the same language as that employed by Mr Dharma in his statement and nothing other than as a convenient way of communicating the course of Mr Dharma's evidence.
16 Neither of these two instances, accordingly, supports any argument as to a denial of procedural fairness.
17 Although not a matter developed during his oral submissions, the first Ground of Review concluded with the following:
… As the decision maker I believe that it is their duty to observe and to guide and to instruct and finally to decide not just with fairness and compassion but in this case the tribunal was lacking in procedural fairness and impartiality.
Subject to a Court maintaining a position of neutrality, there may be circumstances in which a Court "should provide some advice and assistance to an unrepresented litigant": cf. Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 at [26] per Finn J. A Court's duty, however, "is not solely to the unrepresented litigant": Hamod v New South Wales [2011] NSWCA 375 ("Hamod") at [310] per Beazley JA (Giles and Whealy JJA agreeing). Beazley JA there went on to observe that although there "may be fine a tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance": at [315]. See also: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [38]-[39], (2016) 241 FCR 30 at 44-45 per Flick, Griffiths and Perry JJ.
18 No question, it is respectfully concluded, arises as to the Tribunal member in the present case - being an administrative and not a judicial decision-maker - not having acted with "procedural fairness and impartiality". Even though Mr Dharma appeared before the Tribunal unrepresented, as he did before this Court, any disadvantage that he may thereby have suffered did not prejudice his ability to fully present and develop his case. The opportunity to call witnesses despite the absence of compliance with a direction to file witness statements and the careful attention of the Tribunal to the evidence before it denies any claim as to any lack of procedural fairness or partiality on the part of the Tribunal.
19 It must further be recognised that any argument founded upon a denial of procedural fairness necessarily had to confront a number of obstacles, including the fact that:
it is difficult to make out any such argument founded merely upon reasons for decision (cf. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [14], (2005) 225 CLR 88 at 95 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ), rather than by reference to (for example) an affidavit setting forth what happened during the course of an administrative hearing or by reference to a transcript (see for example, BWM15 v Minister for Immigration and Border Protection [2017] FCA 1157 per Perram J at [19]);
the hearing before the Tribunal took place over two days;
the reasons for decision are self-evidently of some length and canvass in considerable detail the evidence given; and
the reasons expose some matters being resolved in favour of Mr Dharma (e.g., the best interests of his two minor children at paras [107] to [113]) and other matters being resolved against him (e.g., the expectations of the Australian community at [121] to [122]), in other words an apparently balanced and objective determination of competing considerations.
The facts relied upon to confront these difficulties, with respect, do not occasion any reason to question the impartiality with which the Tribunal approached its decision-making task.
20 A review of the course of the Tribunal hearing does not disclose any further basis upon which a denial of procedural fairness could have been made out.
21 The first Ground of Review is rejected.