Failure to summons the witness
38 Subsections 361(2), (2A) and (3) in Division 5 of the Act provide:
'(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(2A) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:
(a) written evidence from a person or persons named in the notice; or
(b) other written material relating to the issues arising in relation to the decision under review.
(3) If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant's notice but is not required to comply with it.'
39 Section 363, titled "Powers of the Tribunal", in Division 5 of the Act, provides in ss (3)(a):
'subject to subsection (4), the presiding member in relation to a review may;
(a) summon a person to appear before the Tribunal to give evidence;'
40 Section 357A provides:
'(1) This Division [5] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.'
41 Mr Smith emphasises that s 363(3)(a) of the Act gives a power to the Tribunal rather than imposes a duty upon it to summons a person to give evidence. He also submits that there was no obligation imposed on the Tribunal by the natural justice hearing rule outside, relevantly, this provision. In circumstances where the appellant had been granted two hearings, had had the opportunity to call witnesses and had given evidence himself, Mr Smith argues that the circumstances here meant that there was no obligation to issue a summons.
42 Mr Jones did not seek to support the reasoning of the Federal Magistrate but he submitted that his Honour's conclusion was correct.
43 Mr Jones agrees with Mr Smith that the circumstances of this case bring it within the 'matters' dealt with by Division 5 and that therefore Division 5 is an exhaustive statement of the natural justice hearing rule by reason of s 357A of the Act. However, Mr Jones submits that, in circumstances where the witness would not attend voluntarily and the Tribunal refused to summons her, Mr Katisat was not permitted to call the witness. I do not accept that characterisation.
44 Mr Jones submits that '[t]he Tribunal's duty to summons the witness does not arise out of the bare provisions of the Act, but out of the circumstances in which procedural fairness required that the witness be heard and the witness would not be available to be heard without compulsion'. He claims that it is 'disingenuous' to claim that in those circumstances 'the [Tribunal member] is not under a duty to avail himself or herself of that means'. I take it that this amounts to an assertion that there is a denial of natural justice in failure on the part of the Tribunal to take whatever steps were necessary and available to procure Ms Dimas to give evidence and that such a denial amounts to jurisdictional error despite s 357A of the Act.
45 There is a division of opinion on the Court as to the ambit of ss 357A(1) of the Act. The division of opinion may be illustrated by comparing the approach adopted by French J in WAJR at [47] ‑ [59] and Gray J in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 at [35] ‑ [37] on the one hand with the approach adopted by Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at [50] ‑ [87], Hely J in Wu at [21] - [23]; Branson J in SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 and Edmonds J in SZEGT v Minister for Immigration & multicultural & Indigenous Affairs [2005] FCA 1514 on the other. Although some of the cases involve consideration of ss 357A(1) of the Act and othersconsidered ss 51A(1) or ss 422B(1), the cases provide relevant comparators because the three subsections are in identical terms.
46 In WAJR, French J held in relation to s 422B:
'Division 4 therefore may be taken to be exhaustive of those aspects of the requirements of procedural fairness 'in relation to matters it deals with'. This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the Tribunal. The 'matters' Division 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, i.e. the conduct of reviews by the Tribunal.'
In Moradian Gray J adopted a similar approach to that adopted by French J in WAJR, concluding that the 'matters' dealt with by Div 4 of Pt 7 are those identified in the specific terms of the sections which constitute the division.
47 In NAQF at [59]‑[60] Lindgren J said:
'…on any reckoning the expressions "the matters it deals with" in subs (1) and "the matters they deal with" in subs (2) must have been intended to refer to something wider than the exact text of the enacted procedural requirements, otherwise those subsections would be superfluous. It is inconceivable that the legislature meant the displacement of the natural justice hearing rule to be co-extensive with, and not to go beyond, the precise text of the express protections of a procedural fairness kind, to be found within Div 5 (or ss 375, 375A and 376 and Div 8A).'
48 Ultimately Lindgren J found it unnecessary in that case to determine the full reach of the expression "the matters it deals with" in ss 357A(1). However, in Wu at [23], Hely J observed:
'The legislature cannot have intended the displacement of the natural justice hearing rule to be confined to cases in which the Minister must provide information pursuant to s 57(2). The legislature cannot have intended that the common law hearing rule would continue to apply in circumstances where s 57 did not require the provision of information to an applicant, such as country information (s 57(1)(b)), or information in relation to a visa which can only be granted while the applicant is offshore (s 57(3)): see NAQF.'
49 In many circumstances the differences in approach will not lead to a different outcome. I do not need to reach a conclusion on the ambit of the section. Mr Smith says that, even on the 'narrower view' of the construction of s 357A in WAJR, any question relating to the issuing of a summons by the Tribunal is dealt with by s 363 which specifically imposes no obligation to do so.
50 Mr Katisat's notification complied with s 361(2); that is, it was given within seven days after the notification of the invitation to the hearing. Mr Jones seeks to distinguish WAJR on the basis that, as s 361(3) does not prevent an applicant from asking the Tribunal outside the seven day period to call a person as a witness, it does not prevent the Tribunal from acceding to such a request. As I understand Mr Jones' submission, it is that as s 361(2) refers to a notification within seven days, if the notification were after that time, it is not within the coverage of s 357A and the common law rules of natural justice apply. His submission is that it would be perverse to give less favourable treatment to a timely notification, so the rules of natural justice must apply to a notification given in accordance with s 361(2), despite s 357A and the authorities he himself relies upon. I reject that submission.
51 One of the s 361 "matters", which is in Division 5 of the Act, "deals with" the opportunity to request the Tribunal to call a witness. This does not provide the circumstances for the applicant to call a witness himself. The applicant is otherwise entitled to call witnesses, as Mr Katisat did in his case, pursuant to s 360 of the Act.
52 Even if an applicant requests that the Tribunal summons a witness (or take evidence from a witness) the Tribunal is not required to do so; the Tribunal is under no duty to inquire (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ).
53 I cannot agree with Mr Jones that, while the Tribunal was not obliged to call a witness, it is implied by sections 361 and 363 that in normal circumstances when a timely request is made, it will be acceded to by the Tribunal. Rather, in considering whether the Tribunal's refusal of Mr Katisat's request that the nominator be called involved a denial of procedural fairness, it is important to keep in mind the exact nature of the request and the context in which it was made (SGLB).
54 The Act provides for the procedure to be followed by the Tribunal in the conduct of the review. By s 361(3) the Tribunal is empowered to obtain oral evidence but is not required to do so (VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [23]). In Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118, Kenny and Lander JJ, with whom Spender J agreed, considered whether there was a denial of procedural fairness where a request to obtain oral evidence from witnesses was denied by the Tribunal. In that case, the principal issue before the Tribunal was whether there was a person who was the applicant's "spouse" within the meaning of regulation 1.15A of the Regulations. At [31] their Honours reiterated the principle in Kioa v West (1985) 159 CLR 550 that, where there is an obligation to accord procedural fairness, what is practically required to discharge the obligation depends on the relevant statutory provisions, the nature of the enquiry and the subject-matter and circumstances of the case.
55 As set out by their Honours at [34], Mr Maltsin had given the Tribunal written notice that he wanted the Tribunal to take oral evidence from himself and four other people, all of whom attended the hearing at the request of Mr Maltsin. His representative also indicated that the "spouse", who was in Russia, would be contactable by telephone in the event that the Tribunal wanted to speak to her. The Tribunal did not hear evidence from all of the persons nominated.
56 Kenny and Lander JJ emphasised at [36] the inquisitorial nature of a Tribunal hearing and the fact that s 361(2) and (2A) must be understood in this context and said at [37]:
'It is in keeping with the Tribunal's inquisitorial nature that the Tribunal does not err if it decides that, notwithstanding the applicant wants oral evidence to be obtained from persons named in a notice under s 361(2), it decides not to obtain such evidence, always providing that it acts in conformity with s 361(3) of the Act and has regard to the notice that the applicant has given. In this circumstance, there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant.'
57 Another way of putting this is to say that the requirement that 'the Tribunal must have regard' to the notice that an applicant wants to obtain oral evidence from a person is mandatory and requires more than a superficial acknowledgment of the notice. Failure to comply with a mandatory provision of a section of the Act designed to ensure proper procedure is a jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALR 1009at [77]). There is, however, in s361(3) no prescription of or limitation on the matters to which the Tribunal must have regard.
58 It can be accepted that Ms Dimas' evidence was relevant to the question whether there was an exclusive relationship. It is the case that Mr Katisat requested the Tribunal to issue a summons to obtain oral evidence from her. The Tribunal said that it had regard to the request but would not comply with it. No reasons for that course were given in the decision. Mr Jones submits that the wording of the section stipulates that the Tribunal should hear from the witness 'unless the Tribunal itself has identified cogent and compelling reasons why it should not do so'.
59 If the Presiding Member does not call a witness, as is the case here, the applicant's entitlement to relief depends not on the natural justice hearing rule but on the question of the proper construction of sections 361 and 363, because they deal with the "matter" of an applicant's right to request the Tribunal to call a witness and the Tribunal's power to do so. While the Act confers power on the Tribunal call a witness, the Act does not impose any duty or obligation to do so. If the Tribunal did not 'have regard to the applicant's notice' the Tribunal would have failed to comply with the obligation imposed on it by s 361(3). These provisions have little to say about what is required, and constitute a background against which the Court is to determine the practical requirements of fairness (Re Minister for Immigration and Multicultural Affairs v Ex parte Miah (2001) 206 CLR 57 Gleeson CJ at [53]).
60 It is the potential for a decision to affect rights, interests, or legitimate expectations, that attracts the requirement of procedural fairness (Miah). The nature and impact of Ms Dimas' evidence did not of itself create a legitimate expectation that the Tribunal would accede to a request to call her in circumstances where she was otherwise unwilling. In SGLB the majority of the High Court held that there was no denial of procedural fairness when the Tribunal did not order a further expert psychological assessment of the applicant at his request even though independent expert medical advice would have been particularly compelling evidence.
61 The next question to be considered, as set out in Maltsin at [38], is whether the Tribunal genuinely applied its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individual in accordance with the applicant's wishes. Such genuine consideration must take account of matters such as the relevance and potential importance to the outcome of the review of the evidence that could be given by that witness.
62 In the context of s 361, I take "have regard to" to be used in the sense of "to take into account" or "consider". The transcript of the hearing on 16 August 2004 shows that there was discussion between the Tribunal and Mr Katisat about the request for the summons. The Tribunal pointed out to Mr Katisat that he would not be able to cross-examine Ms Dimas and that it would be the Tribunal that would ask the questions. The Tribunal also said that, even if she were to say things in his favour, the Tribunal would still want documentary evidence; if she were to say things that were adverse to him, then that would not be in his favour. Mr Katisat reiterated his preference to summons Ms Dimas because he wanted 'the truth' to be before the Tribunal. The Tribunal responded that it had decided not to summons her. It gave as a reason 'I suppose part of it is I don't see that she - that having evidence from her would necessarily advance your case'. Later in the hearing, the Tribunal asked Mr Katisat what he thought Ms Dimas would say if she were summonsed. The Tribunal observed that it was 'highly unusual for an ex spouse to be summonsed because generally what they're going to say is not going to be in your favour'. It was clear from the transcript that a somewhat acrimonious relationship was described between Mr Katisat and Ms Dimas, to the extent that he claimed that there was domestic violence against him.
63 It has not been demonstrated, in my view, that the Tribunal failed to have genuine regard or consideration to Mr Katisat's request to summons Ms Dimas. The Tribunal was not required to comply with the request and did not do so. The failure to exercise the power in the absence of a duty or obligation to do so does not go to jurisdiction. The Tribunal's decision was not arbitrary nor demonstrably unreasonable. Ms Dimas' evidence would not, in the view of the Tribunal, have overcome the absence of documentary evidence even if Ms Dimas reverted to her original statement about the genuineness of the relationship.
64 The following factors were relevant to the calling of evidence of Ms Dimas: she had withdrawn her support for Mr Katisat's visa application; Mr Katisat subsequently made serious allegations of violence against her; apart from this, there was no indication whatsoever of the evidence that Ms Dimas would give; Mr Katisat was not entitled to examine or cross-examine her (s 366D); there was no evidence of her willingness or availability to give evidence; Mr Katisat had already had the opportunity of obtaining from her a written statement (as he had done from a number of other witnesses); Mr Katisat himself gave evidence at two hearings, and two other witnesses had given oral evidence in support of his application; and he did not seek to have Ms Dimas called at the first hearing.
65 Mr Katisat did not demonstrate a need for Ms Dimas' evidence so that the Tribunal's decision to not call her would be objectively unfair. As discussed above at [35], the determinative reason for the Tribunal's decision was that the couple was not in a mutually exclusive relationship. The Tribunal was prepared to accept Mr Katisat's claims about the couple living together at their highest as described in oral evidence and written evidence. Ms Dimas could have given evidence about the couple's cohabitation and her view of their commitment to each other. Nevertheless her evidence, even if favourable to Mr Katisat, could not have established a mutually exclusive relationship. The Tribunal had before it considerable evidence from Mr Katisat on those matters. The Tribunal made a factual finding about the lack of mutually exclusivity of the relationship. That was based not upon Ms Dimas' evidence but upon Mr Katisat's evidence of his trips to Jordan.
66 As was pointed out in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [16] principles of natural justice are not concerned with the merits of a particular case but with the procedure that must be observed in its exercise: 'they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached' (original emphasis). In the present case the transcript demonstrates that, in the context of the evidence before the Tribunal, it did properly have regard to the notification. As part of the process before finally determining not to comply with it, the Tribunal canvassed the nature of the proposed evidence with Mr Katisat and expressed the view that even if the evidence was what he hoped it would be, it would not be sufficient in the absence of supporting documentation.
67 The Tribunal's decision not to call Ms Dimas did not involve jurisdictional error. The Tribunal was not obliged to call Ms Dimas under the Act. Mr Katisat did not demonstrate that there had been legitimate expectation that she would be called so that the failure is procedurally unfair. Scarlett FM erred in finding that there was a breach of s 357A(1) in the Tribunal's failure to summons Ms Dimas to give evidence.