Section 500(6H), (6J) and (6L) of the Migration Act
72 As previously noted, the primary judge considered that subss 500(6H), (6J) and (6L) had the effect that the AAT's non-compliance with s 39(1) of the AAT Act did not give rise to a denial of procedural fairness. This was because subss (6H) and (6J) in particular precluded the AAT from having regard to any information presented orally, and to any document submitted by the appellant, unless the information and the document had been given to the Minister at least two business days before the AAT's hearing. This time had already elapsed by the time the AAT came to consider the Nevotti article and the Edney/Bagaric textbook. Accordingly, the Judge considered that, even if the AAT had complied with s 39(1), it could not have had regard to any response of the appellant, with the consequence that the contravention had had no practical effect, and there had been no denial of procedural fairness.
73 The relevant provisions in s 500 are as follows:
(6H) If:
(a) an application is made to the Tribunal for a review of a decision under section 501; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
(6J) If:
(a) an application is made to the Tribunal for a review of a decision under section 501; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.
...
(6L) If:
(a) an application is made to the Tribunal for a review of a decision under section 501 of this Act; and
(b) the decision relates to a person in the migration zone; and
(c) the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1).
74 As can be seen, subss (6H) and (6J) require that a written statement containing the information to be relied upon, and any supporting documents, be given to the Minister at least two business days "before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review".
75 The evident purpose of these provisions is to give the Minister an appropriate opportunity to meet the case to be presented by an applicant at the hearing in the AAT, and to avoid the necessity for adjournments. This purpose was discussed by Gray J, with whom R D Nicholson and Stone JJ agreed, in Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378 at [25]:
The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business days' notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the eighty-four day time limit for the whole process, laid down in subs (6L).
76 This view of the effect of subss (6H) and (6J) has been followed in subsequent cases: Milne v Minister for Immigration and Citizenship [2010] FCA 495 at [40] (Gray J); Mordechai v Minister for Immigration and Citizenship [2011] FCA 986, (2011) 196 FCR 509 at [47] (Bennett J); Uelese v Minister for Immigration and Citizenship [2013] FCAFC 86 at [29]-[32] (Jagot, Griffiths and Davies JJ) and Demillo v Minister for Immigration and Border Protection [2013] FCAFC 134; (2013) 139 ALD 29 at [18]-[19] (Greenwood, Buchanan and McKerracher JJ). In Uelese the Full Court said:
The effect of [subs (6H)] is clear. Where the pre-conditions to its engagement are satisfied, the provision operates to preclude the AAT from having regard to information presented orally in support of an appellant's case where the information was not set out in a written statement given to the Minister at least 2 business days before the AAT holds a hearing.
77 This means that the entitlement of an applicant to present information or documents to the AAT in proceedings to which subss (6H) and (6J) apply crystallises on the commencement of the AAT's hearing, with the effect that it may have regard only to that information or those documents provided to the Minister at least two business days before the hearing began. It has also been held that the resumption of an adjourned hearing is not a new hearing: Goldie at [31]; Mordechai at [47]. It is apparent that the primary judge relied on the line of authority commencing with Goldie in reaching his conclusion that any breach of s 39(1) in the present case did not give rise to a denial of procedural fairness.
78 Counsel for the appellant submitted that the conclusion that the resumption of an adjourned hearing was not "a hearing" for the purposes of subss (6H) and (6F) did not give proper effect to the use of the indefinite article "a" before the word "hearing" in those provisions. She contended that, when a hearing is adjourned, the purpose of the provisions would still be satisfied if the Minister had notice at least two business days before the hearing resumed. This was, in effect, a submission that the relevant question is not so much whether the resumption of an adjourned hearing is a new hearing, but whether it is a hearing of the kind contemplated by subss (6H) and (6J).
79 However, this question is foreclosed to this Court. The principle of comity indicates that this Court should follow the earlier decisions of the Full Court unless it is satisfied that those decisions are clearly wrong: Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41; (2009) 176 FCR 53 (Spender, Buchanan and Logan JJ) at [38]-[44]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at [8] (Moore J) and [146] (Weinberg J). We are not so satisfied. In addition, any reconsideration of this aspect of the Goldie line of authority should be undertaken by a Court of five, and the appellant did not seek the constitution of such a Court. We observe however, similarly to Perry J in Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; (2014) 219 FCR 504 at [113], that we have some doubt about the correctness of this aspect of the decision in Goldie, or at least as to precisely when subss (6H) and (6J) are engaged.
80 Counsel for the Minister submitted that, in the light of Goldie and the authorities which have followed it, subss (6H) and (6J) should be regarded as applying to every item of information presented and to every document submitted by an applicant less than the applicable two business days before the hearing, irrespective of the circumstances in which the information or document is put before the AAT.
81 Counsel did not shrink from the logical consequences of acceptance of this submission. He acknowledged that it would mean that an applicant could not present information or a document in answer to a matter raised by the Minister or by the AAT for the first time during the hearing, even when the applicant could not reasonably have anticipated the matter being raised.
82 Counsel also accepted that acceptance of his submission may mean that the AAT could have no, or little, regard to the answers of an applicant, or an applicant's witnesses, in cross-examination unless the requisite prior notice of those answers had been given. If this be correct, the position for which the Minister contended has the potential to render redundant, or at least substantially reduce the utility of, oral evidence on behalf of the applicant in a hearing in the AAT. The Minister's submissions also involved the proposition that the AAT could not have regard to any submissions made by an applicant of which no prior notice had been given, even if only addressing matters raised for the first time by the Minister or by the AAT itself in the hearing.
83 Consequences of these kinds are so contrary to conventional notions of procedural fairness as to require considerable pause before a construction of the legislation which produces them is accepted.
84 In our view, subject to one possible exception, the decisions in Goldie and those which follow it do not foreclose the question of whether ss 500(6H) and (6J) preclude the AAT from having regard to information, documents and submissions of an applicant in response to matters raised by the Minister, or by the AAT itself, when the applicant could not reasonably have anticipated those matters. Goldie itself concerned a different question, namely, whether s 500(6K) had the effect that the Minister could not rely at the hearing in the AAT on documents which the Minister had not produced within the time specified at the AAT's direction under subpar (d). That is to say, Goldie was concerned with the effect on the Minister's ability to present information and documents at the AAT hearing, and not that of the applicant.
85 Mordechai, Demillo, and Paerau were each the relevantly straightforward case of an applicant wishing to lead evidence-in-chief of matters about which no prior notice had been given to the Minister. The judgment of Gray J in Milne was a first instance decision. In that case, the appellant submitted, amongst other things, that the AAT denied him procedural fairness by its omission to inform him that it proposed to make a finding adverse to him by reason of his not having undertaken a rehabilitation program. Gray J rejected this submission on a number of alternate grounds, one of which was that subss (6H) and (6J) would have precluded in any event the AAT having regard to any material which the appellant could have provided. It is also evident that Gray J considered that the issue was one which the applicant could reasonably have anticipated and therefore that he had had the opportunity to present evidence on the topic: at [36]. We note that, on appeal, the Full Court considered it unnecessary to express a view about the effect of s 500(6H), (6J) and (6L) of the Migration Act: Milne v Minister for Immigration and Citizenship [2011] FCAFC 41 at [60] per Ryan, Bennett and Edmonds JJ.
86 The possible exception which we mentioned is the decision of the Full Court in Uelese. In that case, the visa of the applicant had been cancelled on character grounds. In the proceedings in the AAT, he relied on the impact of his removal from Australia on his three children who were minors. In the cross-examination by the Minister of his de facto wife, it emerged that the applicant was also the father of another two children, who were also minors. The AAT declined to consider the interests of these two further children. The Full Court held that it had been right to do so, concluding that s 500(6H) precluded it from having regard to the evidence of the applicant's de facto wife on this topic. On one view therefore, Uelese is a case concerning the use of information raised for the first time during the cross-examination of an applicant's witness.
87 However, three matters about the decision in Uelese may be noted. First, the appellant had presented his case to the AAT on the basis that he had three children whose interests should be considered, and had not relied on his fatherhood of the two additional children at all. Not only this, but the very nature of the case was such that it was reasonable to expect the applicant to have raised his fatherhood of two further children in his own case if it was to be relied upon as part of that case. Secondly, the reasons of the Full Court do not suggest that, as a general principle, the AAT may not have regard to the answers of a witness in cross-examination, unless advance notice of the content of those answers had been given. Thirdly, Uelese was not a case of the Minister presenting evidence, or the AAT itself identifying material, of which the applicant had had no prior notice. Accordingly, we do not regard Uelese as precluding consideration by this Court of the issue raised by the appellant on the present appeal.
88 The appellant's application to the AAT was brought under s 500(1) of the AAT Act. The subsequent provisions in s 500 regulate in a number of respects the conduct and determination of such applications.
89 Several aspects of the relationship between the provisions in s 500 of the Migration Act and the general provisions in the AAT Act concerning the conduct of appeals were discussed by Gray J in Goldie at [23] in a passage with which we respectfully agree. It is evident that the application of some provisions in the AAT Act are expressly excluded in the case of s 500(1) applications, for example, ss 23B, 28 and particular subsections of s 29. It is also possible, as Gray J noted, that the application of some of the AAT Act provisions may be impliedly excluded or modified by the scheme contemplated by s 500.
90 Nevertheless, it is apparent that a number of the AAT Act provisions are applicable to applications brought under s 500(1). Gray J gave the following examples: s 32 (a party to a proceeding may appear in person or may be represented by some other person), s 35 (the hearing is to be in public unless, on specified grounds, the AAT otherwise orders), s 40 (powers of the AAT, including taking evidence on oath or affirmation and adjourning a proceeding from time to time) and s 43 (the AAT may exercise all the powers and discretions conferred on the person who made the decision under review and is required to make a decision in writing affirming, varying or setting aside the decision under review and to give reasons either orally or in writing for its decision).
91 It can be concluded therefore that the provisions of the AAT Act and s 500 are, subject to some qualifications and exceptions, intended to operate in conjunction with one another. It can also be assumed, in accordance with ordinary canons of construction, that the respective provisions are intended to have a harmonious operation.
92 It is evident that both s 500 and the AAT Act contemplate participation by both the applicant and the Minister in the AAT hearing. Although proceedings before the AAT are inquisitorial, rather than adversarial, in their general character (Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-5 per Brennan J), the very nature of the proceedings is such that an applicant will present a "case" in support of his or her application for review of the decision in question. It is also implicit that the Minister may present a "case" in answer to that of the applicant, or a case by way of positive support for affirmation of the decision in question, or, as will commonly be the case, with elements of each. As already noted, one of the purposes of subss (6H) and (6J) is to facilitate the presentation of the Minister's "case" by ensuring that the Minister is on notice of the information upon which the applicant intends to rely.
93 The context in which the AAT hearing may take place allows the possibility that the Minister may adduce evidence at the hearing with little or no prior notice to an applicant. That is because, having had forewarning of the case to be presented by the applicant, the Minister may have conducted investigations or made enquiries eliciting new evidence. That new evidence may be ascertained only within the two business days before the hearing during which the Minister has been in receipt of the applicant's proposed material. The Minister may, for example, compel the production of documents by subpoena and wish to use those documents to support the decision under review.
94 Those circumstances indicate that close attention should be given to the scope of the prohibitions contained in subss (6H) and (6J). It is significant in our opinion that subss (6H) and (6J) are not expressed in unqualified terms, for example, by referring simply to "any" information presented, or to "any" document submitted, by an applicant. Instead, it is only that oral information and those documents presented "in support of the person's case" which are the subject of the prohibition. In context, the term "in support of the person's case" appears to be a qualification on the otherwise broad scope of the two prohibitions. It seems apt as a reference to the information and documents to be provided by applicants as part of their case-in-chief.
95 This view of subss (6H) and (6J) is consistent with the understanding to which we have referred, namely, that at a hearing in the AAT a person may wish to present information or documents in support of the person's own "case" as well as information and documents in answer to the "case" of the Minister. It also serves to give effect to the principle that, in construing statutory provisions, courts should strive to give meaning to every word in the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ.
96 We conclude that the words "in support of the person's case" in each of subss (6H) and (6J) are words of qualification. They indicate that the prohibition relates only to information and documents presented as part of an applicant's case-in-chief to support his or her own case, and not to information or documents which an applicant may wish to present in answer to the case presented by the Minister and which, at the least, the applicant could not reasonably have anticipated.
97 On this understanding, subs (6H) would not preclude the AAT having regard to an applicant's answers in cross-examination unless prior notice of the content of those answers had been given. Nor would subs (6H) preclude the AAT having regard to the answers of an applicant in re-examination. The subsections would have no application to information or documents presented by an applicant in answer to the Minister's case, at least when the applicant could not reasonably have anticipated the evidence or issue raised by the Minister.
98 This understanding of the effect of subss (6H) and (6J) also informs the operation of their provisions in relation to matters raised for the first time by the AAT itself. In this respect, we refer first to s 33 of the AAT Act which concerns the conduct of proceedings in the AAT. Section 33(1) provides:
(1) 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 proceeding 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.
99 As can be seen, subs (1)(a) makes the procedure of the AAT within its discretion but subject to the AAT Act itself and the regulations made under it and "to any other enactment". Section 33(1)(a) can therefore be understood as making the general discretion of the AAT subject to specific provisions such as those contained in s 500 of the Migration Act.
100 However, s 33(1)(c) is significant for present purposes. It provides that the AAT is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. It has been held that s 33(1)(c) permits the AAT to have regard to matters within its own knowledge, and to draw on the experience of the member comprising the AAT in a given case. Thus, in Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642, Moore J said at [26]:
… The Tribunal deals routinely with a range of matters in which common issues of fact of general application will arise. Members of the Tribunal will build up a body of knowledge about facts of general application in a class of matter that it can draw on in deciding a particular application in that class. Those facts may be known to a particular member of the Tribunal because that member has decided cases that are the same or similar and in which findings about those facts have been made. Equally those facts may be known to a particular member through decisions (containing findings of fact) of other members of the Tribunal. Plainly if a member of the Tribunal decides a matter by reference to facts known to the member in either of these ways, it should do so only if the parties have had an opportunity to comment on the facts as they might impact on the particular matter before the Tribunal. If there is a controversy about the facts in the sense that they are contentious, the Tribunal should also give the parties an opportunity to call or tender evidence about the contentious facts.
Thus, s 33(1)(c) contemplates that, subject to the requirements of procedural fairness, the AAT may inform itself by regard to materials to which reference was not made at the hearing. It was s 33(1)(c) which permitted the AAT in the present case to have regard to the Nevotti article and the Edney/Bagaric textbook. By definition a new matter which the AAT itself raises will not have been presented by an applicant as part of his or her case.
101 For the reasons given earlier, we would not regard an applicant's response to a matter raised by the AAT of its own initiative as being presented "in support of the person's case" and therefore a matter to which the AAT could not have regard. The response will be what it is, namely, an answer to the AAT's question or invitation. Whether it be supportive of, adverse to, or relatively neutral in, the applicant's case will be a matter of no consequence as it will not have been presented by the applicant as part of his or her case-in-chief. We add that a construction of subss (6H) and (6J) which would preclude or limit the AAT's consideration of an applicant's responses (or some of them) could stultify the discharge by the AAT of its function under s 500(1) and under the AAT Act.
102 There is a further reason why subss (6H) and (6J) do not have the effect that the AAT's failure to alert the applicant to the Nevotti article and the Edney/Bagaric textbook was not a denial of procedural fairness. Neither in terms operates with respect to submissions. The distinction between evidence, on the one hand, and submissions concerning the effect of that evidence, on the other, is well recognised. Section 39(1) of the AAT Act draws that distinction, as do several provisions in the Migration Act, including s 54. Contrary to the Minister's submission, it is not appropriate to regard the word "information" in subs (6H) as encompassing the submissions which an applicant may wish to make in respect of the evidence before the AAT. Further, the legislature should not reasonably be supposed to have intended that an applicant provide, at least two days in advance of a hearing, a written statement of all the submissions to be made in respect of evidence which, at that stage, the AAT has not received and about which an applicant may not yet be aware.
103 We note that in Williams v Minister for Immigration and Border Protection [2014] FCA 674 (to which counsel for the Minister quite fairly drew attention), Mortimer J at [90]-[91] expressed her agreement with a submission that subs (6H), (6J) and (6L) did not constrain an applicant's ability to make submissions on the evidence before the Tribunal. We share that view. In this case, it was open to the appellant, at the least, to make submissions to the AAT regarding its proposed use of the Nevotti article and the Edney/Bagaric textbook and he was denied that opportunity.