consideration
16 It was not disputed that the Tribunal was required to observe the rules of natural justice and in particular to afford the applicant procedural fairness (McMullen v Commissioner for Superannuation (1985) 61 ALR 189; Donnelly v Repatriation Commission (1987) 73 ALR 350). Nor was it disputed that an allegation that a party before the Tribunal was not afforded procedural fairness will raise a question of law within the meaning of s 44 of the AAT Act (Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 per Davies J at 484; Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 per Weinberg J at 495). However the respondent contended that the Tribunal had not failed to afford the applicant procedural fairness.
17 As Brennan J pointed out in Kioa v West (1985) 159 CLR 550 at 612:
"The principles of natural justice have a flexible quality which, chameleon like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power."
Nonetheless, a fundamental aspect of the rules of natural justice is that a party be given a reasonable opportunity of presenting his or her case (Russell v Duke of Norfolk [1949] 1 All ER 109 at 118; Kioa v West esp per Brennan J at 613-615, Re Refugee Review Tribunal; ex parte AALA [2000] HCA 57; 75 ALJR 52 per Gleeson CJ at [4], Gaudron and Gummow JJ at [78]; McHugh J at [101], Kirby J at [128]).
18 However, what constitutes a reasonable opportunity of presenting a party's case before an administrative decision-maker may differ from what constitutes a reasonable opportunity of presenting a case before a superior court. In Kioa v West at 628-629 Brennan J said:
"Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary [[1981] AC at 97]:
'To "over-judicialise" the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair'."
19 Moreover, in Re Coldham; ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220 Gaudron J observed:
"As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the Tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'."
20 In reviewing the decision of the delegate of the respondent, the Tribunal stood in the shoesof the respondent, or his delegate, and was required to make its own decision on the material before it (Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409).
21 The procedure to be adopted by the Tribunal was governed by s 33(1) of the AAT Act which relevantly provides:
"In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the procedure shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate."
22 The administrative nature of the task being performed by the Tribunal, and the procedure which it was bound to adopt, meant that it would have been wrong for the Tribunal to have treated the respondent's statement of facts and contentions, and his further amended statement of facts and contentions, as akin to pleadings in a court of justice. The decision which the Tribunal was called upon to make had a clear public interest aspect and the Tribunal could not allow the parties, or either of them, to restrict the material otherwise relevant to its inquiry which it could consider.
23 The written reasons for decision of the Tribunal indicate that it was during the course of the visa applicant's evidence that it became clear to the Tribunal that her claims in her protection visa application were untruthful in a number of respects and that she had made the application in order to enable her to stay in Australia for a few years. I understand this aspect of the Tribunal's reasons for decision to indicate that it was the evidence of the visa applicant herself upon which the Tribunal relied in concluding that her application for a protection visa was "false and misleading in a number of important respects". That is, it was not material of which the visa applicant was previously unaware or which could have taken her by surprise. It was not suggested that the knowledge of the visa applicant should be considered separately from the knowledge of the applicant. Indeed, in my view, in a case of this kind the interests of the applicant and the visa applicant are ordinarily to be understood as being identical and the knowledge and tactical decisions of the one are ordinarily to be imputed to the other.
24 Although the visa applicant could not have been taken by surprise by her own evidence, it is possible that she and the applicant were not immediately aware of the use which the Tribunal proposed to make of her evidence. I note, however, that neither of them gave evidence that he or she was taken by surprise by the use which the Tribunal made of the visa applicant's evidence or of what he or she would have done had he or she been placed on notice of the use which the Tribunal proposed to make of her evidence.
25 It was contended by the respondent that Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 (FC) ("Sinnathamby") is authority for the proposition that procedural fairness does not require a decision‑maker to give a party a chance to comment on the view that he or she takes of the material put forward by that party.
26 In Sinnathamby Fox J at 506 said:
"In Kioa's case, the material held to require that a chance be given to comment had come from a source other than the applicant. In the present case … the material which was prejudicial to the appellant had been provided by the appellant herself. In the circumstances, I consider that the decision‑maker was not required to give the appellant a chance to comment on the view that he had taken of it; to do so would amount to a general requirement that a decision‑maker make known in each case his view or evaluation of the material that an applicant puts forward: see Kioa per Brennan J at p 380. His thought processes, if not unreasonably based on evidence, or other material, are a matter for him. I agree with his Honour that there was no denial of natural justice in this respect."
Neaves J expressed a similar view at 513. Burchett J, in dissent, at 517-518 expressed the view that it was necessary in that case for the decision‑maker to draw to the appellant's attention the critical issue or factor upon which the administrative decision is likely to turn so as to allow her an opportunity of dealing with it.
27 In my view, the lodging by the parties in this case of statements of facts and contentions distinguishes this case from Sinnathamby. Although the statements did not restrict the material that it was open to the Tribunal to consider, it can be inferred that the applicant understood that the statements identified the critical issues or factors upon which the Tribunal's decision would turn. Unless the applicant was placed on notice, either expressly or implicitly, that additional issues or factors were regarded by the Tribunal as of importance, the applicant might not have regarded it as appropriate to respond to them.
28 The problem which the applicant faces on this appeal is there is no evidence before the Court to suggest that the Tribunal failed to place the applicant on notice as to the significance which it attached to the visa applicant's evidence concerning her protection visa application.
29 The reasons for decision of the Tribunal tend to suggest that some time was spent exploring with the visa applicant precisely what she did say about the earlier protection visa application. Reference is made to her giving conflicting evidence and to her evidence on the topic of conduct which could fall within the meaning of persecution being "vague and contradictory". It appears from the Tribunal's reasons for decision that the visa applicant was questioned in some detail as to the circumstances in which the protection visa application came into existence. Having regard to the fact that the applicant had legal representation before the Tribunal, it would seem to be a fair inference that the applicant was placed on notice by the course that the hearing took that the Tribunal regarded the visa applicant's conduct in connection with her protection visa application as of importance for the purposes of s 501 of the Act. It may, indeed, be the case that the applicant was expressly advised by the Tribunal of the very matter which the Tribunal regarded as important so far as subpar 501(6)(c)(ii) of the Act was concerned. The applicant chose not to place the transcript of the hearing before the Tribunal in evidence before the Court. However, for present purposes I place that possibility to one side.
30 The inference that the applicant was on notice that the Tribunal regarded the visa applicant's conduct in connection with her protection visa application as relevant for the purposes of s 501 of the Act is strengthened by the fact that the Tribunal's reasons for decision reveal that the solicitor for the applicant sought, and was granted, permission to re‑open his examination in chief of the applicant. This apparently occurred after the evidence of the visa applicant had been completed. The evidence given by the applicant on his resumed examination was to the effect that he had been examined by the Fijian authorities concerning matters of a political nature. This evidence could only, it would seem, have been relevant to the topic of the visa applicant's earlier application for a protection visa. No application is recorded as having been made to re‑open the examination of the visa applicant to further explore the issue of her application for a protection visa. Nor is it suggested that the solicitor for the applicant sought an adjournment of the hearing before the Tribunal to allow the applicant, or the visa applicant, further time to address what the solicitor clearly recognised to be an important matter, namely the evidence of the visa applicant concerning her earlier application for a protection visa. Indeed, as the transcript of the hearing before the Tribunal was not placed before the Court, it is theoretically possible that the applicant was offered time to consider his position with respect to the visa applicant's evidence but declined to take it.
31 In my view the applicant has failed to establish that the Tribunal reached its decision in disregard of the dictates of procedural fairness. On the evidence before the Court, I am not satisfied that the Tribunal failed to draw to the applicant's attention, within a timeframe which was reasonably sufficient for the purpose of allowing the applicant to deal with it, the critical issue or factor upon which the Tribunal's decision turned. That is, I am not satisfied that the applicant was not given a reasonable opportunity of presenting his case.