Liu v Minister for Immigration and Multicultural Affairs

Submissions 5 The solicitor for the applicant, Mr Simon Diab, contends the course taken by the Tribunal in this case fails to comply with the dictates of s 425 of the Migration Act. That section provides: "425 (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis o the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal." 6 It is common ground that subs (2) does not apply to this case; so it was necessary for the Tribunal to comply with subs (1). 7 Mr Diab submits it is implicit in subs (1) that the oral hearing it prescribes be conducted by the person who makes the Tribunal's ultimate decision. If it were not so, he argues, the apparent promise of s 425(1) would be denied; the whole purpose of an oral hearing is to enable the decision-maker to observe and hear the applicant for a protection visa. This is particularly important, Mr Diab argues, in the types of cases in which issues of credibility may arise. Mr Diab rightly says such issues frequently arise before the Refugee Review Tribunal. 8 Mr Diab also points out that a Tribunal hearing is an inquisitorial procedure; the member is not a passive participant but is expected to question the applicant, especially in connection with any aspect of the applicant's claim about which the member has reservations. Mr Diab says the benefit of presenting oral arguments is lost if those arguments are presented to a person other than the ultimate decision-maker. 9 By way of alternative submission, Mr Diab argues that, if there is no general requirement that the one member both conduct the hearing and make the decision, there is at least a principle precluding a member who has not personally heard the applicant from making a decision that is founded upon an adverse view of the applicant's credit. 10 I asked Mr Diab whether it is possible to reconcile his argument with the use in s 425 (1) of the word "Tribunal", this word being defined by s 410 simply to mean the Refugee Review Tribunal. He suggested this is possible, on the basis that the word "Tribunal", where secondly used in s 425(1), means the Tribunal as constituted by a particular member. 11 Mr Stephen Lloyd, counsel for the Minister for Immigration and Multicultural Affairs, responded by drawing attention to the terms of other sections dealing with review of protection visa decisions. They are 422, 422A and 428. 12 Section 422 provides: "422 (1) If the member who constitutes the Tribunal for the purposes of a particular review: (a) stops being a member; or (b) for any reason, is not available for the purpose of the review at the place where the review is being conducted; the Principal Member must direct another member to constitute the tribunal for the purpose of finishing the review. (2) If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. (3) In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1)." 13 Section 422A deals with reconstitution for a reason other than retirement or unavailability of the member. That section contains a subsection (subs(3)) that is substantially identical to subs (2) of s 422. Both subsections authorise the member who finishes the review, and presumably makes the ultimate decision, to have regard to any earlier record of the proceedings. Mr Lloyd says it is significant that neither s 422 nor s 422A requires that the newly assigned member conduct a fresh oral hearing. 14 Mr Lloyd submits that s 428 is even more significant; it negates Mr Diab's assumption that Parliament would not have countenanced the possibility of the decision being made by a person other than the person who conducted the s 425 hearing. Section 428 is as follows: "428 (1) The power of the Tribunal under paragraph 427(1)(a) to take evidence on oath or affirmation for the purpose of a review may be exercised by the Tribunal or on behalf of the Tribunal by: (a) a person appointed or engaged under the Public Service Act 1999; or (b) another person approved in writing by the Minister for the purposes of this section; who is authorised by the Tribunal. (2) The power of the Tribunal may be exercised under subsection (1): (a) inside or outside Australia; and (b) subject to such limitations (if any) as are specified by the Tribunal. (3) If a person other than the Tribunal is authorised under subsection (1) to take evidence for the purpose of a review: (a) the person has, for the purpose of taking evidence: (i) all the powers of the Tribunal under subsection 427(1); and (ii) the power to administer an oath or affirmation to a person appearing before the first-mentioned person to give evidence; and (b) for the purpose of the exercise of those powers by that person, this Part has effect (except where the context otherwise requires) as if a reference to the Tribunal included a reference to that person. (4) If a person (other than the Tribunal as constituted for the purpose of the review) exercises the power of the Tribunal to take evidence on oath or affirmation for the purpose of a review, the person must cause a written record of the evidence taken to be made and sent to the Tribunal. (5) If the Tribunal receives, under subsection (4), a record of evidence given by the applicant, the Tribunal, for the purposes of section 425, is taken to have given the applicant an opportunity to appear before it to give evidence." 15 Mr Lloyd argues that the word "Tribunal", in s 425, refers to the Refugee Review Tribunal as a corporate entity; it does not refer to any individual. Accordingly, he says, it is sufficient that the Tribunal, through any officer, has invited the applicant to appear before a member in order to give evidence and prevent arguments. Once this is done, according to Mr Lloyd, the command of s 425(1) is spent; it is open to the Tribunal to make a decision through the agency of any other member to whom the case is assigned. However desirable it may be that the same person conduct the s 425(1) hearing and make the ultimate decision, Mr Lloyd says this is not required by the Act.

Conclusions 16 I agree with Mr Diab about the desirability of the oral hearing being conducted by the member who makes the Tribunal's ultimate decision. This is particularly important where there are issues of credibility, but it is desirable in other cases as well. The oral hearing provides to the Tribunal an opportunity to raise matters that seem to stand in the way of acceptance of an applicant's case. Sometimes there is a simple explanation for an apparent difficulty in a party's case or a witness' evidence; once the problem is aired, the explanation is given and the difficulty disappears. It is obviously desirable that the person who has to make the decision be the person who had the opportunity to raise any perceived difficulties. Another person might not have seen any difficulty. 17 There would seem to have been nothing to have precluded Mr Keher inviting Mr Liu to attend for an interview, after Mr Keher had read the file and listened to the tape of the proceedings conducted by Ms Akmeemana. Without requiring Mr Liu to repeat everything he had told Ms Akmeemana, Mr Keher could have put to Mr Liu his difficulties about acceptance of all his evidence. If that had been done, Mr Liu would at least have had the consolation of knowing his case had been fully explained to, and considered by, the person who determined his application. 18 However, desirability is one thing; legal necessity is another. The course taken by Mr Keher is open to challenge in this Court only if the Migration Act, upon its proper construction, requires the oral hearing to be conducted by the person who makes the ultimate decision. I do not think it does. 19 The word "Tribunal", in s 425(1) of the Act, refers to the statutory entity whose full title is "Refugee Review Tribunal". This is apparent from s 410 of the Act. A statutory entity must act through human agents. It follows, I think, that there is compliance with a statutory command that "the Tribunal" carry out some act if the act is performed on behalf of the Tribunal by an authorised person. For example, there are many provisions in the Act concerning invitations or notices to applicants for review: see s 424(2), s 424A(1), s 425(1), s 426, s 427(1)(c) and (d) and s 427(3). It is reasonable to assume Parliament intended that these clerical functions would be undertaken by Tribunal registry officers, although perhaps after consultation with the member assigned to conduct the review. Applying that approach, the words in s 425(1) "before the Tribunal" constitute a reference to the Tribunal as constituted by the member who is, at that time, assigned to the case by virtue of a direction of the Principal Member made under s 421(1) of the Act. 20 The Act makes express provision for re-assignment: see ss 422 and 422A. In each case, the duty of the substituted member is "to finish the review"; that is, to do whatever is necessary to be done in order to make a decision and provide the written statement required by s 430 of the Act. If Parliament had intended to require the substituted member to hold a fresh oral hearing, the appropriate course would have been to insert that requirement in ss 422 and 422A. But Parliament did not do this. Instead, it commanded the substituted member merely to "finish the review". Parliament expressly provided that, for that purpose, the substituted member was entitled to "have regard to any record of the proceedings of the review made by the Tribunal as previously constituted". This would obviously include any tape recording or transcript of any oral hearing conducted by the previous member. 21 It is a fundamental assumption of Mr Diab's argument that Parliament would not have contemplated that someone other than the decision-maker might conduct the s 425(1) hearing. It is difficult to reconcile that assumption with s 428. In that section Parliament provided a mechanism whereby the evidence of an applicant for a protection visa might be taken by a person other than the member of the Tribunal who makes the final decision. Section 428 speaks only of evidence, as distinct from the presentation of arguments. Also s 428(5) makes receipt of a record of evidence, given under s 428(4), a satisfaction of the s 425(5) obligation only in respect the applicant's "opportunity to appear before [the Tribunal] to give evidence". Section 428(5) says nothing about the opportunity under s 425(1) to "present arguments relating to the issues arising in relation to the decision under review". It follows that, where s 428 is used, there may be an obligation on the Tribunal nonetheless to provide to the applicant an opportunity to present arguments directly to the member having carriage of the review. It is unnecessary to determine that point; the only relevance of s 428 to the present case is that it undermines the assumption that Parliament would not have wished to separate the task of conducting any part of the oral hearing from that of deciding a review. 22 It is necessary for the applicant in this case to point to a provision in the Act which, on its proper construction, requires that the oral hearing, or at least the part of it that involves presentation of argument, be conducted by the ultimate decision-maker. As Mr Diab recognises, this result can only be achieved by reading the words "the Tribunal", where they secondly appear in s 425(1), as meaning the individual member who makes the ultimate decision. But that reading is untenable because it would conflict with s 428. The command of s 425(1) extends also to the taking of evidence and s 428 demonstrates an intention that this task need not be undertaken by the ultimate decision-maker. 23 It is appropriate to read s 425(1) in a manner that takes account of principles of natural justice. However, it is not a permissible technique to read the words "the Tribunal" as having one meaning in relation to the taking of evidence and another meaning in respect of receiving argument. The fundamental problem with Mr Diab's argument is that s 425(1) does not distinguish between the Tribunal's obligation in relation to the taking of evidence and its obligation in relation to the presentation of argument. 24 Mr Diab makes the observation that the Tribunal rarely uses s 428. That may be so, but the practice of the Tribunal cannot cast light on the intention of Parliament. 25 Reference was made in argument to two recent authorities, concerning the extent of the obligation cast upon the Tribunal by s 425(1): Minister for Immigration and Multicultural Affairs v Mohamud [2000] FCA 1275 and Hettige v Minister for Immigration and Multicultural Affairs [1999] FCA 1084. However, neither of those decisions addresses the point raised in this case. 26 Mr Lloyd also mentioned the decision of Lindgren J in Velitchko v Minister for Immigration and Multicultural Affairs [2000] FCA 12. This was also a case where a new member had been assigned to a review after completion of the s 425(1) hearing and where the new member merely listened to the tape, without conducting a fresh oral hearing. However, the present point was not raised in argument, so Lindgren J made no observations about it. All that can be said is - what Mr Lloyd does say - that Lindgren J's decision "is entirely consistent" with Mr Lloyd's argument. 27 Mr Diab's alternative argument is untenable. Nowhere does the Migration Act distinguish between cases where credibility is critical and cases where it is not. 28 The application should be dismissed. The applicant must pay the Minister's costs. I certify that this and the preceding twenty-eight (28) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Solicitor for the Respondent: Blake Dawson Waldron