THE COURSE OF THE TRIBUNAL HEARING
30 The relevant parts of the hearing proceeded in the following manner.
31 Firstly, the Tribunal identified to the appellants that it had information which would be the reason, or part of the reason, for affirming the decision made by the delegate as it could lead to the Tribunal forming the view that neither of the appellants are refugees pursuant to s 424AA(1)(a). Secondly, the Tribunal specified that three of the comments which were made by the first appellant during the course of the Compliance Client Interview could lead to the Tribunal forming this view, and indicated that the appellants would each be given an opportunity to comment on this information.
32 The following exchanges took place at a point after the male appellant had been questioned separately (at the Tribunal's request) and the female appellant had been questioned separately (the male appellant volunteered to absent himself) and they were both in the hearing room.
33 The first piece of adverse information was as follows:
TRIBUNAL: I have information that departmental officers conducted an interview with you, [the male appellant], on 8 March 2014. During the course of that interview, you [the male appellant] were asked if there was any reason why you could not return to Malaysia and you are recorded to have stated no. You are recorded to have stated that you would like to stay in Australia and work. You were asked if you were willing to depart Australia and you answered yes. You are recorded to have stated that you would like to remain in Australia. You did not make any mention of your fears of returning to Malaysia at that time. This raises doubts about the credibility of your claims for protections. Would you like to make any comment on or response to that information? I'll start with [the male appellant] first.
34 The male appellant's response did not accept that he had unequivocally made those statements, and pointed out that he had explained at that interview why he could not return to Malaysia (as he had). It is not necessary to explore why the Tribunal accepted the accuracy of the interviewer's recording of those answers when the basis of other things he said during the interview were clearly to the contrary, and the male appellant suggested those recorded answers were incomplete. The Tribunal then questioned the female appellant as follows:
TRIBUNAL: [Second appellant], were you with your husband when he was interviewed on 8 March? Can you please interpret that?
FEMALE APPELLANT (through interpreter): No.
TRIBUNAL: So you wouldn't know what he said to the officer then?
FEMALE APPELLANT: No.
There were no further questions in relation to this piece of information which were put to the female appellant and she was not invited to comment further.
35 The second piece of adverse information was:
TRIBUNAL: Now, I have information before me from the Department of Immigration that you, [the male appellant] during the interview on 8 March 2014 said that you planned to return to Malaysia for treatment for your lungs and that you wanted to do that before winter. If you were planning to do that, then that raises serious doubts about the credibility of your claim - fears of returning to Malaysia. Would you like to make any comment on or response to that?
36 The male appellant's response explained that he reported his doctor's advice, and claimed that he said he did not want to return and had medical insurance in Australia. He denied having said what was attributed to him. The Tribunal then addressed the female appellant:
TRIBUNAL: [Female appellant], again, you were not present during that interview, so you wouldn't know what was said, so I'm not going to…
The Tribunal member was then interrupted by the second appellant:
FEMALE APPELLANT: Like, first time I talk to the immigration, the officer, I pretty sure he told me - because me and my husband we owe them money and we have, like, no another kind visa we can apply and we have no reason to stay here, so the first time I get caught by them, so I just say, okay. They ask me why I haven't returned to Malaysia, I no intention to say anything because since you say no visa for me can apply, so I just say no. So I just no reason try to hide or lying. Because of what he told me, I have no reason I can apply, so I said, "There's nothing I can do," so I just say no.
It may be observed that each of the appellants in this period of the hearing reported having been told by the interviewer something to the effect that there was no visa for which they could apply to stay in Australia.
37 There were no follow up questions and the second appellant was not further invited to comment or respond further to the information.
38 The third piece of adverse information was:
TRIBUNAL: I have information before me from the department that during the interview on 8 March 2014 you, [the male appellant], said that your mother advised you and your wife to return to Malaysia. It seems to be highly unlikely -
MALE APPELLANT:
(Foreign language)
TRIBUNAL: Please let me finish [male appellant]. You also need to wait until the interpreter finishes before you start talking. Can you interpret that?
MALE APPELLANT: Yes, yes.
TRIBUNAL: It seems highly unlikely that if you are at risk in Malaysia, as you claim, that your mother would be advising you to return to Malaysia. Do you want to make any comment on that?
39 The male appellant's response appears sensible. He said his mother did want to see him, and to care for him, but he arranged for her to come to Australia [it appears the first Compliance Client Interview occurred when the appellants were at the airport to meet his mother, who had travelled from Malaysia to do so]. The Tribunal then considered the female appellant.
TRIBUNAL: [Female appellant], again, you were not present when he was being interviewed, so you're not really able to comment on what he said. Now, I want to talk to both to both of you about [other topics].
40 There was no invitation to the female appellant to respond to this information.
41 Section 424AA(1)(b)(ii) requires the Tribunal to "orally invite the applicant to comment on or respond to the information".
42 In my view, the Tribunal did not properly provide the female appellant with this opportunity in respect of any of the three pieces of adverse information concerning the Compliance Client Interview. Other than confirming that she was not in attendance at that interview, and so could not verify what was said during that interview, she was not orally invited to comment or respond.
43 The adverse information was not simply what the male appellant was reported to have said, but the fact contained in his statement. It is necessary to look at each of the three pieces of adverse information, and then see how the Tribunal dealt with them to identify why that is so.
44 It is clear that the female appellant (if she was not present at the interview) could not comment on what, in fact, the male appellant had said at the Compliance Client Interview. However, the Tribunal's reasons indicate that it placed weight on the fact that the male appellant's mother had urged the appellants to return to Malaysia, and that the Tribunal regarded the male appellant's response as failing to address its concerns. The female appellant may well have been able to provide a response on that issue of fact (it being the case that the Tribunal accepted that the male appellant had said what is attributed to him at that interview).
45 The Tribunal's reasons disclose that, in addition to the fact of the male appellant having said at that interview (as accepted by the Tribunal) that there is no reason why he could not return to Malaysia, the Tribunal notes that the male applicant did give a partial response to the Tribunal and then asked whether his wife could speak to the Tribunal to further answer that matter, and was told she would be given that opportunity. However, as the transcript exposes, the female appellant was not given that opportunity, as the Tribunal simply confirmed she was not present at that interview. So his response to that question was curtailed. The same observations may be made about the assertion that the male appellant had said that he intended to return to Malaysia for treatment for his lung disease and the male appellant's mother's advice that the appellants return to Malaysia.
46 The FCC, as noted above, in the reasons at [35] concluded that s 424AA had not been complied with. His Honour, in addition to the matters referred to above, noted that the Tribunal in introducing that stage of the hearing, and saying that the reported contents of the Compliance Client Interview raised doubts about the credibility of the appellants' claims, said that the Tribunal would first start by seeking the male appellant's comments. As the transcript exposes, the Tribunal did not really give the second appellant the opportunity prescribed by that section.
47 The Minister's notice of contention seeks to sustain the Tribunal's decision on the basis that the transcript read as a whole shows the second appellant was given the opportunity to comment on those matters. It is appropriate to note the following.
48 When the female appellant gave her evidence (the male appellant left the hearing room only for part of that period as he is recorded as having interrupted her evidence on one occasion) in response to questions of the Tribunal, but before the Tribunal sought to fulfil its obligations under s 424AA, she was asked if there was anything else she wished to say, and, after her response and Tribunal questions on it, she was asked whether she had said "everything you want to say".
49 The next sequence of the hearing was the Tribunal addressing the potentially adverse information, as noted in detail above.
50 The Tribunal then directed questions on other matters, clearly directed to the male appellant about the financial dealings leading to their asserted need to leave Malaysia. At the end of that process, the female appellant was asked if there was anything she wished to say. Her response was interrupted as the Tribunal wished to point out that its focus was on why what had been said in the visa application and in the interview by the delegate were different. The female appellant then completed her response. The same procedure was adopted, that is the male appellant being asked to respond and then the female appellant, in relation to the Tribunal's concern that the appellants had left and returned to Malaysia on two or possibly three occasions during the period they said they were unsafe in Malaysia. The same sequence was adopted on the final topic, namely why there had been such a long delay between the appellants' arrival in Australia and their application for a protection visa.
51 I do not accept the Minister's submission that, by confirming that she was not present at the Compliance Client Interview, the female appellant indicated that she could not and therefore did not wish to respond or comment to what was said during the Compliance Client Interview. Indeed, her interruption of the Tribunal at one point indicates that, had she been clearly invited to respond to each piece of adverse information, she would have taken the opportunity to do so. Nor do I place any weight on the female appellant's failure to attempt to make any further comments on those matters without being invited to do so by the Tribunal. The transcript shows that the occasions when the female appellant was asked to comment, she was asked to do so on a different topic, and when she was given a general invitation to say what she wished, that was before the Tribunal had identified the particular pieces of adverse information.
52 Accordingly, I agree with the primary judge that the female appellant was not given the opportunity to comment on the matters which arose out of the Compliance Client Interview.
53 However, I do not consider that the primary judge was correct in concluding that there was no jurisdictional error in the particular circumstances.
54 At [35] the primary judge posed the question "if that has not been done, was it, in all the circumstances, still fair?" His Honour concluded that there was no unfairness in the circumstances as the female appellant was not present at the time of the interview and therefore "[w]hatever was said could only be conjecture and could not have had any value for the Tribunal." It was on this basis that the primary judge found there was no jurisdictional error.
55 It appears that the primary judge was saying that the failure to comply with s 424AA could not have materially affected the Tribunal's decision, so that withholding relief was on the basis that compliance with the requirements of procedural fairness could have made no difference to the result: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at [145].
56 The circumstances in which a court may overlook a 'minor' or 'inconsequential' breach of natural justice was considered by the High Court in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (Aala). In that matter, Kirby J stated at [131] - [132] (footnotes omitted).
It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness "could have made no difference" to the result, that relief will be withheld. This Court has emphasised that such an outcome will be a rarity. It will be "no easy task" to convince a court to adopt it. … Many, if not most, cases of this kind turn on the assessment of the credibility of the applicant for refugee status. There are already enough obstacles to be overcome. Adding to these a mistake affecting the credibility of the applicant is not tolerable.
The reason for the stringent principle of the common law is plain enough. Departure from the fair hearing rule involves a derogation from the assumptions inherent in the grant to the Tribunal by the Parliament of the decision-making power. Those who enjoy such power must conform to the conditions of the grant. If they do not, they have not exercised the power in accordance with law but, instead, in accordance with some personal predilection. Correction by the issue of the constitutional writ simply upholds the rule of law. It does not assure the victim of the breach of ultimate success. But it does assure that person of the privilege belonging to all those affected by the deployment of power by officers of the Commonwealth. This is that such officers will only act in accordance with their lawful mandate. The exception, accepted by Stead, is held in reserve to guard against insignificant, purely formal and immaterial mistakes. Unless the breach can be so classified, the person affected who claims the writ is normally entitled to relief.
57 The primary judge's analysis focuses on the fact that the second appellant was not present at the Compliance Client Interview and that, therefore, she was not in a position to give direct evidence of what was said or to "reach into the mind of the First Applicant and be able to interpret or explain certain answers."
58 For the reasons given, I do not consider that the circumstance admitted such a conclusion. The adverse information which was put to the appellants was not limited to the fact of statements made by the male appellant, but also to the significance of those statements. Nor does the opportunity provided for under s 424SAA(1)(b)(ii) limit the response which may be given to evidence of the fact of such a statement. It may, by way of example, include a response to the allegedly adverse information concerning the circumstances in which it was made so that it may be understood as consistent with the appellant's case, or to the context of the statement and not merely the fact that it was made. As the Tribunal is, of course, operating with a mind open to persuasion, it is not possible to know or predict whether any particular response might sew a seed leading to the particular concern of the Tribunal being assuaged or to the Tribunal being more readily satisfied of the merits of the claim.
59 An illustration of that, by way of example, is to suppose that the male appellant had directly told the officer that the female appellant was not a credible witness. Clearly the female appellant would not be confined to commenting on the fact of what was said and prohibited from commenting on the male appellant's statement, otherwise the female appellant would not be provided with an opportunity to respond. Of course, any example is vulnerable to criticism. It is the principle which is important.
60 Indeed, the Minister, correctly in my view, accepts that the FCC, having found that s 424AA had not been complied with, should have concluded that jurisdictional error had been established: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3.
61 In the circumstances, it is not necessary to address the other contentions of the appellants.