Submissions of the parties
15 In written submissions the appellant concisely stated the issues she presses on appeal, in the following terms:
2.1 The appeal is directed at the denial of relevant evidence that was sought from the Respondent and the failure by the Court to enforce the requirement for this evidence to be adduced before the Court. This defines the general question of law in this appeal, on the ground that it was unfair and unjust that the Appellant was denied this evidence, and that the circumstances that led to this denial constituted procedural unfairness. Overall this is concisely what is said to have lead [sic] to a miscarriage of justice, either directly and/or on the basis that it is perceived as a denial of justice. Justice must not only be done but also be seen to be done; R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 at 259.
2.2 The evidence has not been provided since it was first made subject of direction No. 1 of the AAT Conference Registrar 16 July 2015 (Pt Tab) which was ;
"On or before 22 July 2015, the Respondent must give to the Tribunal and the Applicant a response to the submissions of the Applicant dated 14 July 2015 in particular paragraphs a) and e)."
Paragraph a) of the Applicant's submissions dated 14 July 2015 (Pt Tab) required that the Respondent be ordered to;
"Provide the full meaning and criteria of the visa codes K4551 and K4552 as they applied from 1984 to 1990 inclusive"
(Emphasis in original.)
16 The appellant submitted further that the respondent failed to abide by the Tribunal's first direction of 16 July 2015, "denying the Tribunal and the Appellant relevant evidence and ultimately the decision to dismiss this matter was made without that evidence".
17 The appellant complained that evidence concerning the "visa codes" was, and continued to be, withheld by the respondent without justification or excuse, and this evidence would have affected the decision whether or not to summarily dismiss the matter before the Tribunal and on appeal before the primary Judge. The appellant contended that both the Tribunal and the primary Judge fell into error by not enforcing the just requirement that the respondent not withhold evidence.
18 In relation to findings of the primary Judge at [73] the appellant claimed that his Honour erred, as the direction concerning the provision of information in respect of "visa codes" was not vacated by the Tribunal on 10 August 2015.
19 The respondent submitted, in summary:
the appellant referred in her submissions to "summary dismissal" of the proceedings by the primary Judge, whereas in fact the primary Judge conducted a trial at first instance;
although the appellant claimed that the Court failed to enforce the requirement for evidence of the visa codes to be adduced before the Court, there was no such requirement in the absence of summons or any other compulsive Court process;
it was open to the primary Judge to find that the Tribunal's dismissal of the appellant's application, in the absence of the visa codes, was not a denial of procedural fairness.
20 Prior to the hearing of the appeal the lawyers acting for the appellant filed a notice of ceasing to act. At the hearing Mr Wrenn, who had previously appeared for the appellant, sought the leave of the Court to withdraw, but also informed the Court of his preparedness to remain at the Bar table to assist the appellant in the capacity of a McKenzie friend (McKenzie v McKenzie [1971] P 33). Following an exchange between the Bench, Mr Wrenn, and the appellant (both directly and through an interpreter), and after having ascertained that the respondent had no objection, we granted leave for Mr Wrenn to remain and assist the appellant in that capacity.
21 We have summarised, in some detail, the reasons of the primary Judge. We are unable to identify any basis on which his Honour's reasons could be described as "unjust and unfair", as claimed by the appellant in her notice of appeal. On the contrary, the reasons demonstrate that his Honour gave thorough and thoughtful attention to the application before him, and that his decision to dismiss the appeal was correct for the reasons he gave.
22 In so finding, we make the following observations.
23 First, and notwithstanding the generality of the terms in which the ground of appeal before us is framed, it is clear from both written and oral submissions of the appellant that her fundamental complaint is that the Department did not provide her with information concerning "visa codes K4551 and K4552 as they applied from 1984 to 1990 inclusive". The appellant submitted that these "visa codes" related to the gender of visa recipients, and that the "female" visa code was K4551. The appellant submitted that the use of the "female" visa code in respect of the visa issued on 11 December 1989 to the man the Department alleged was her son indicated that the Department had erred in identifying him. The appellant claimed that this indicated a fundamental error in the records of the Department, supporting her application for correction of the Department's records.
24 During the course of the hearing of the appeal however it became apparent that the so-called "visa codes K4551 and K4552" were, in fact, not referable to gender, but were classes of visas prescribed by regulations made under the Migration Act and this information was publicly available. The Commonwealth of Australia Government Gazette No S15 published on 17 January 1995 in respect of classes of visas approved under s 25(1) of the Social Security Act 1991 (Cth) for social security pensions indicated that:
visa sub-classes K4551 and K4552 were referable to Iranian Baha'is under a Special Humanitarian Program introduced prior to 1 September 1994;
visa subclass 4551 was referable to the principal applicant for a visa; and
visa subclass 4552 was referable to accompanying family members.
25 We also note the speech of the then Minister for Immigration and Ethnic Affairs, House of Representatives Hansard, 18 November 1981 announcing the introduction of the Special Humanitarian Program for visas, and the subsequent speech of the Minister in House of Representatives Hansard, 24 March 1982 confirming that the Special Humanitarian Program and visa classes would be extended to Baha'is from Iran.
26 If this is the case - and we have no reason to doubt this publicly available information - it is likely that the appellant is incorrect in her submission that "visa codes K4551 and K4552 as they applied from 1984 to 1990 inclusive" were gender-related. In that light, while we query the wisdom of the Department's decision not to provide the appellant with information concerning visa sub-classes K4551 and K4552, we are unable to see how the provision of that information by the Department would have assisted the appellant's case before the Tribunal.
27 Second, the appellant maintained that the Department had failed to comply with paragraph 1 of the directions of the Tribunal of 16 July 2015.
28 In her submissions to the Tribunal dated 14 July 2015 the appellant sought, as a preliminary requirement to the advancement of the matter, that the Department be ordered to (inter alia):
a) Provide the full meaning and criteria of the Visa Codes K4551 and K4552 as they applied from 1984 to 1990;
b) …
29 We have examined the relevant directions of the Tribunal and certain correspondence from the lawyers for the Department in the period prior to the Tribunal hearing the appellant's application. On 16 July 2015 the Tribunal directed as follows:
1. On or before 22 July 2015, the Respondent must give to the Tribunal and the Applicant a response to the submissions of the Applicant dated 14 July 2015, in particular paragraphs a) and e)
2. On or before 27 July 2015, the Applicant must request the Tribunal to issue any summonses on which she intends to rely.
3. On or before 12 August 2015, the Respondent must give to the Tribunal and the Applicant:
a. an affidavit addressing paragraphs a), c) and e) of the Applicant's submissions dated 14 July 2015; AND
b. a copy of page 2 of the Belgrade fax.
30 In a letter dated 22 July 2015 the Department's lawyers, the Australian Government Solicitor, wrote to the Tribunal and the appellant in respect of the proceedings. The introductory paragraphs of that letter state:
1. We act for the respondent in the above matter. We write to respond to the Tribunal's directions dated 16 July 2015 and the applicant's request for further direction dated 20 July 2015. We further wish to draw the Tribunal's attention to the history of this matter and raise our concerns regarding the progression of this current proceeding.
Direction 1
2. Pursuant to direction 1, the respondent confirms that it is in the process of ascertaining the details of visa codes K4551 and K4552, as provided at paragraph a) of the applicant's submissions dated 14 July 2015. The respondent will provide this information in affidavit form in accordance with direction 3.
31 On 10 August 2015 the Tribunal directed:
The Tribunal VACATES Direction no 3(a) of 16 July 2015.
32 It does not appear to be in dispute that the Tribunal's direction of 10 August 2015 was in anticipation of the Tribunal determining whether the proceedings should be summarily dismissed. The Tribunal delivered its decision in this respect on 9 October 2015.
33 At [65] of the primary judgment his Honour noted:
65. In his oral submissions, Mr Wrenn clarified that Ms Fard's complaint concerning the Department's non-compliance with the directions made on 16 July 2015 related to its failure to provide a "response" as referred to in paragraph 1 of those directions. He said that the complaint did not relate to paragraph 3(a), which he acknowledged was subsequently vacated
34 His Honour at [73] found that the Department had provided "a response" in accordance with paragraph 1 of the Tribunal's directions of 16 July 2015, and that the response had taken the form of the letter of 22 July 2015. In particular, his Honour observed:
73. First, the Department's failure to provide information or material concerning the meaning of visa codes K4551 and K4552 did not give rise to procedural unfairness. That is because:
(a) I am not satisfied that the Department failed to comply with paragraph 1 of the directions made on 16 July 2015, which direction formed the basis for Ms Fard's complaint of procedural unfairness relating to the visa codes. I accept the Department's submission that its letter dated 22 July 2015 (see [15] above) constituted a "response" within the meaning of that direction. That response included a statement that the Department would provide information regarding the details of the relevant visa codes in an affidavit consistently with paragraph 3 of the 16 July 2015 directions. This particular direction was subsequently vacated by the senior member on 10 August 2015, which relieved the Department of the requirement to provide such an affidavit. Ms Fard was given an appropriate opportunity to be heard on these matters. Her opposition to vacating paragraph 3 of the directions made on 16 July 2015 was brought to the attention of the AAT prior to the senior member deciding on 10 August 2015 to vacate the direction.
(b) As Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]:
... Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
(Emphasis added.)
No practical injustice has been established. The meaning of the relevant visa codes remains unclear but it was open to Ms Fard to take other steps to ascertain that meaning prior to the AAT hearing on 24 September 2015. For example, she could have sought to summons the relevant material in the six week period after the AAT vacated the direction on 10 August 2015. Alternatively, if she was concerned that the AAT may not have regarded such a summons to be relevant, it was open to her to make a request to the Department for that information to be provided to her under relevant provisions of the FOI Act. She did neither of these things. Nor did she seek to challenge the senior member's decision on 10 August 2015 to vacate the earlier direction, as she could have done in this "appeal".
35 We find no fault in his Honour's reasoning. The letter of 22 July 2015 constituted "a response to the submissions of the Applicant dated 14 July 2015, in particular paragraphs a) …". The response did not satisfy the appellant, but that does not mean that it was not "a response" within the meaning of the Tribunal's directions.
36 The appellant sought to equate the response referred to in paragraph 1 of the Tribunal's directions of 16 July 2015 with the provision of the information itself. We do not accept this characterisation. That the Tribunal's directions contemplated a distinction between the "response" on the one hand (that is, in accordance with paragraph 1 of the directions), and the actual provision of the information on the other (that is, pursuant to paragraph 3(a) of the directions), is clear from the separate directions to that effect made by the Tribunal on 16 July 2015.
37 It follows that even if the information in respect of "visa codes K4551 and K4552" was supportive of the proposition advanced by the appellant concerning alleged forgery of travel documentation (which, in our view, it was not), the Department did not fail to comply with a direction of the Tribunal that that information be supplied to the appellant.
38 Third, the appellant submitted that the failure of the Department to comply with paragraph 1 of the directions of the Tribunal of 16 July 2015 resulted in the Tribunal being deprived of relevant information, in circumstances where the provision of that information would have made a difference to the Tribunal's decision. For reasons given earlier in this judgment in respect of the apparent nature of the "visa codes", we do not consider the travel documentation to which the appellant referred could be considered a forgery for the simple reason that it bore the "visa code K4551".
39 Fourth, the appellant submitted that the Tribunal failed to address the Department's non-compliance with paragraph 1 of the directions of 16 July 2015.
40 We do not accept this submission. That the Tribunal did address this issue is evident on an examination of the appellant's written submissions of 24 September 2015 in the Tribunal, and the decision of the Tribunal itself. In particular, in her written submissions of 24 September 2015 the appellant stated:
The applicant's interests would be best served by referring this matter to the Federal Court under Section 45 of the AAT [sic] on the questions of law that arise, particularly when the Federal Court has already made determinations and retains the Exhibits. It would be the most timely and efficient way to deal with the issues by just means.
…
The Respondent has not complied with Order 1 made by the Tribunal 16 July 2015. The respondent has failed to disclose to the Tribunal and the applicant information, and matter contained in documents, and under Section 36D(2)(a), the question whether the information or matter should be disclosed, is a question of law.
41 In its decision the Tribunal said as follows:
Referral of a question of law
38. In her submissions, Ms Nozohoor Mehrabad requested that the Tribunal refer a number of questions of law to the Federal Court. Those questions include whether the "fresh evidence" should be admitted, and whether it should be reviewed by the Court.
39. Under s 45 of the AAT Act, I may, with the agreement of the President of the Tribunal, refer a question of law arising in a proceeding before the Tribunal to the Federal Court for decision. I do not think any questions of law arise in this review that are appropriate to refer to the Federal Court. I note that, under s 44(1), either party to this review may appeal to the Federal court, on a question of law, from this decision.
(We interpolate that, like his Honour, we understand that the person to whom the Tribunal refers as Ms Nozohoor Mehrabad is the appellant.)
42 It is clear that the appellant sought to have the Tribunal deal with the Department's alleged non-compliance with paragraph 1 of the Tribunal's directions of 16 July 2015 in one way only - that is, by referring the question of the alleged non-compliance to this Court pursuant to s 45 of the AAT Act. As his Honour correctly explained at [85] of the primary judgment, s 45 confers a discretion on the Tribunal to, with the agreement of the President of the Tribunal, refer a question of law arising in a proceeding before the Tribunal to the Federal Court for decision. His Honour pointed out that the appellant had failed to identify any reviewable error in the Tribunal's decision not to exercise the discretion under s 45 of the AAT Act. We, in turn, see no error in his Honour's reasoning in this respect and this aspect of the reasons was not challenged (at least directly) on the appeal.
43 The submissions of the appellant to the contrary are not substantiated.
44 The sole ground of appeal from the decision of the primary Judge is without merit. Consequently, the appeal should be dismissed. Costs should follow the event.