Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW

Federal Court of Australia (Full Court)|2005-08-12|Before: Gummow J, Weinberg JJ, Moore J

REASONS FOR JUDGMENT MOORE J: 1 This is an appeal from a judgment of a Federal Magistrate of 25 November 2004 concerning a decision of the Refugee Review Tribunal ("the Tribunal") of 13 July 1999. The appellant is the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"). The Tribunal reviewed a decision of a delegate of the Minister not to grant a protection visa to the respondent to the appeal. It affirmed the decision. The Federal Magistrate made an order quashing the Tribunal's decision and issued a writ of mandamus "requiring the Minister to cause the [Tribunal] to reconsider the [respondent's] protection visa claims according to law". His Honour did so on the basis that the Tribunal had failed to comply with a statutory direction to conduct the review "in private". A central issue in this appeal is whether this conclusion is correct. 2 The respondent applied for a protection visa on 12 November 1998. A delegate of the Minister refused to grant the protection visa on 14 December 1998. On 13 July 1999 the Tribunal affirmed the delegate's decision and on 18 July 2003 the respondent applied to the Federal Magistrates Court for judicial review of that decision. The respondent is a Palestinian who lived in Lebanon. He claimed to fear persecution in Lebanon at the hands of Hezbollah or Islamic Jihad. On the respondent's account, three other applicants for protection visas had shared his experiences in Lebanon. A delegate of the Minister refused to grant any of them a protection visa. 3 Each sought review of the decision by the Tribunal. The respondent and the other three applicants were represented, in the review by the Tribunal, by the Refugee Advice and Casework Service (Australia) Inc ("RACS"). On 23 December 1998, RACS wrote to the Registrar of the Tribunal on behalf of the respondent and requested: We confirm that we act for [the respondent to the appeal] in his application for review of the decision refusing to grant a Protection Visa. Please find attached an application for review signed by him. We note that the four young men ([the three others and the respondent to the appeal]) were together for the events which form their claim. We ask therefore that consideration be given to the same member being allocated to the four persons. 4 Responding to this request of RACS, the Tribunal determined that one member would hear the reviews of the respondent and the three others on the one day. The Tribunal summarised in its reasons for decision how the hearings were conducted: … the advisers [from RACS] had asked that the same Member hear the four applicants in decisions N98/26226-9 because the applicants in the four cases operated as a group. The Tribunal scheduled hearings on the same day for all four applicants, initially planning to question each applicant separately. The evidence of the applicant in decision N98/26228 was heard first, over a period of about three hours. Then with that applicant absent, the applicant who is the subject of this decision [the respondent to this appeal] and the applicants in decisions N98/26226 and N98/26229 were questioned together for about two hours, it having become apparent by the end of the giving of evidence by applicant N98/26228 that the group's claims were based on experiences all four claimed to have shared in common. The applicant in decision N98/26228 afterwards rejoined the hearing and the Tribunal discussed inconsistencies in the evidence with all four applicants together. The applicant in decision N98/26228 requested time to make a series of additional comments, and these were heard. Both the applicants' advisers, who were present throughout, made submissions in common for all the applicants. The Tribunal put adverse evidence to all the four applicants together. In total, the combined hearings took about seven hours in order to give the four applicants sufficient time to put their individual and common concerns to the Tribunal. Two interpreters were used due to the length of the combined hearings; no complaint was made against either. It can be seen that the respondent to this appeal gave his evidence in the presence of two of the three other applicants and inconsistencies with their evidence were discussed with all of them present. 5 The Tribunal found that the hardship and discrimination the respondent would suffer as a Palestinian in Lebanon would not amount to persecution and that his claims relating to a link with Hezbollah lacked credibility. It also concluded any censure or disciplinary action the applicant might suffer from the Palistinian Liberation Organisation or the Palestinian Karate Association, the two organisations he "dragged …into a dishonest visa scheme", would not be for a Convention reason. 6 Before the Federal Magistrate, the respondent successfully contended he was not given a private hearing as required by s 429 of the Migration Act 1958 (Cth) ("the Act"). He also contended, unsuccessfully, that he was denied procedural fairness. In this appeal the Minister challenges the Federal Magistrate's conclusion about whether the hearing was "in private" and the respondent challenges the Federal Magistrate's conclusion that there had been no denial of procedural fairness. 7 It is convenient to deal with the first issue concerning whether the hearing was "in private". Section 429 provided: The hearing of an application for review by the Tribunal must be in private. 8 The Federal Magistrate accepted the respondent's contention (that the hearing had not been "in private") because of the conclusion he had reached in an earlier decision in SZAFE v Minister for Immigration [2003] FMCA 410. In that matter, his Honour issued constitutional writs in relation to the party who, in his Honour's view, had not had a "private" hearing. I note that this judgment appears not to have been challenged by the Minister by way of appeal. His Honour discussed what was comprehended by the notion of "in private" in the following passage from that judgment (at [15]-[19]): [15] The words "in private" are not defined in the Act and neither is the Acts Interpretation Actof assistance. [Counsel for the Minister] took me to the definition of "private" in the New Shorter Oxford English Dictionary which establishes at least that "private" means "not in public". [Counsel for the Minister's] comparison of s.429 with s.31(1) of the ICAC Act is of limited utility. Of more utility is the explanatory memorandum to the Migration Reform Bill 1992 which introduced s.166DF of the Migration Act, which became s.429. Paragraph 377 of the explanatory memorandum states that: This section provides that the review must be in private. This protects applicants and their families as there is a risk that if refugee claims are dealt with in public they may give rise to difficulties for dependents remaining in the country of origin. At the outset of processing, persons seeking protection on refugee status grounds are assured that all details of their applications will be kept strictly confidential. In particular they are assured that all information will under no circumstances be passed to authorities in their own country. This is essential to ensure that applicants are willing to canvass their reasons for seeking protection in an open and frank manner. This section is intended to allow the same guarantee of confidentiality at the review stage. [16] I find that the policy underlying s.429 is to protect applicants and their families from harm that may arise from the hearing of a protection visa application if information about the application became known in the applicant's country of origin. I further find that the protection afforded by s.429 bears specifically upon an RRT hearing. Other provisions of the Migration Act provide a similar protection at an earlier stage of the processing of a protection visa application. In Selliah v Minister for Immigration His Honour Nicholson J considered s.429 in the circumstances of a "tandem" hearing, that is, the hearing of an application conducted in part in tandem with the hearing of another application. His Honour said: "The second way in which it is said the conduct of the hearing in this tandem fashion offended the Act was in relation to the requirements of s.429. That requires the hearing of an application for review by the Tribunal "must be in private". It is accepted for the applicant that the evidence "private" to each applicant was in fact heard in private. It is submitted, nevertheless, the exposure of the applicant's identity to a person (the other applicant) not subject to the confidentiality provisions of s.439 of the Act contravened the requirement of s.429. Therefore it is submitted the hearing falls for review under s.476(1)(a) of the Act [the then applicable ground of review] as a failure to observe procedures required by the Act or, alternatively, under s.476(1)(e) [now also not relevant] as an error involving an incorrect interpretation of the applicable law. Section 429 is to be understood in the context of subsection 431(2) which provides the Tribunal must not publish any statement which may identify an applicant or any relative or other dependant of the applicant. Also s.439(3) provides a duty of non disclosure of confidential information. Again, in this case there was not truly a 'tandem' hearing. The evidence of the applicant was heard 'in private'. In my opinion the disclosure of the applicant's identity to the other applicant cannot properly be said to have breached the requirements of s.429. No complaint was made at the hearing and there is an entire absence of any evidence to show if at all the privacy of the applicant's application was violated other than in respect of the disclosure of his identity." [17] [Counsel for the Minister] submits that s.429 is no more than a requirement that the public be excluded from an RRT hearing and that the obligation cannot be considered in isolation from the obligations to observe confidentiality set out in ss.431 and 439 of the Migration Act. [18] I reject the first part of that submission. Selliah does not stand for the proposition that s.429 is simply a provision requiring hearings not to be in public. Nicholson J was concerned to satisfy himself that s.429 was not breached in the circumstances of the tandem hearing. He regarded it as significant that each applicant was given a private hearing in respect of their claims to a protection visa and the only relevant disclosure between applicants was that of identity. Having regard to the terms of s.429, the legislative context in which it appears, the explanation of the provision in the explanatory memorandum to the bill introducing the section and the terms of the decision of Nicholson J in Selliah I find that there are two relevant requirements in s.429. The first is that the public be excluded from RRT hearings. Obviously, some people need to be present. The presiding member must be there and the applicant. An interpreter may be required by an applicant. RRT staff may need to be in the hearing room from time to time. A sound recordist may need to be there. Witnesses may need to be in the hearing room from time to time. However, in order to comply with s.429 the RRT must ensure that persons having no business in relation to an application are excluded. This would ordinarily include persons making separate applications and persons, such as interpreters and witnesses, attending for the purposes of such a separate application. To my mind, this means that s.429 also requires that applications ordinarily be heard separately. That is the second and related requirement of s.429. Applicants are entitled to expect that they be able to present their claims to the RRT in confidence. That confidence would be imperilled if applicants were required to present their claims in the presence of other unrelated applicants. [19] There will be circumstances in which a presiding member may consider that applications be heard at the same time. Such a circumstance may be where separate applications are made by members of a single family unit and the claims made in the applications depend in whole or part upon one another. In those circumstances it may be desirable, even necessary, for there to be a single or "tandem" hearing. Nevertheless, the affected applicants should be given the opportunity to request a hearing of the whole or part of their application separately from the other applicant(s). Section 429 may also give rise to a legitimate expectation of a private hearing that must not be summarily disappointed. To do so would be procedurally unfair as well as breaching the section. (emphasis added) 9 In applying this reasoning to the facts of the present case, his Honour said (at [31]-[32]): [31] As I observed in SZAFE, the persons who a presiding member may properly permit to be in a hearing room will vary depending upon the circumstances. In any case, the presiding member may properly permit persons to remain if their presence is essential to the conduct of the hearing. That will include witnesses called by an applicant, but only for so long as is necessary for those witnesses to give their evidence. It would be inconsistent with the obligation to maintain privacy for a presiding member to permit witnesses to remain as spectators. In this case, the applicant had requested that the other three applicants attend his hearing as his witnesses. It would therefore have been consistent with the operation of s.429 for the presiding member to permit those persons to be in the hearing room when they gave their evidence. It was, however, unnecessary and inconsistent with the operation of s.429 for the presiding member to permit the other three applicants to be in the hearing room when the applicant gave his evidence. It did not matter that the applicant and his migration adviser raised no objection. They may have even desired the process followed by the presiding member. [32] The fact is that the other three applicants had made separate applications that needed to be considered separately. Because the four applicants obviously knew one another over a long period and had made the same claims in their protection visa applications, the presiding member elected to hear the applications concurrently in what amounted to a tandem hearing. That procedure could only be consistent with s.429 if the presiding member had ensured that the applicants gave their own evidence separately. The presiding member heard the evidence of the first of the four applicants separately but the problem appears to have been that the process took so long that the presiding member considered, for reasons of time efficiency, and because the claims all appeared to be the same, that the other three applicants should be heard together. That constituted a breach of the mandatory requirement of s.429. 10 A hearing might be conducted in a variety of ways. It is not difficult to conceive of several ways in which a hearing might be conducted which could result in each being described as "in private". It may be accepted that the way described by the Federal Magistrate would bring about a private hearing. However, ultimately the issue raised in this appeal is what the legislature intended by the use of the words "in private" and what were the contents of the obligation created by s 429. I should note that we were referred to the judgments of the Full Court in Selliah v Minister for Immigration and Multicultural Affairs [1999] FCA 615 but it is unclear whether the Court was considering the effect of s 429 as an issue in the appeal. 11 Section 429 appeared in Div 4 of Pt 7 of the Act. That division contemplated a review "on the papers": s 424, or a review at which an applicant could appear to give evidence: s 425(1)(a), and where others may give evidence: s 427(1)(a), including where they have been summonsed to do so: s 427(3)(a). The Tribunal was not required to allow any person to address it orally: s 425(2), though it is not prevented from permitting that to happen. Associated provisions were ss 439 and 440 found in Div 7 of the same Part. 12 Section 439 prohibited certain specified classes of people from disclosing (other than for the purposes of the Act) information (or a document) which, in substance, was information gained during the review process about a person. The classes were Tribunal members, acting Tribunal members, officers of the Tribunal and interpreters. This prohibition did not extend to other classes which might have included people who had attended a Tribunal hearing as a witness, as an adviser or a person providing support to an applicant for review. However, s 440 empowered the Tribunal to prohibit, in the public interest, the publication or disclosure of evidence, information or documents provided to the Tribunal. That power could have been exercised to prevent a witness, an adviser or a person providing support to an applicant for review, from disclosing those matters. 13 These provisions either prohibited conduct, or conferred on the Tribunal power to prevent conduct, which might create the mischief referred to by the Federal Magistrate in the passage from [16] of his Honour's reasons in SZAFE v Minister for Immigration set out above. That is, ss 439 and 440 did operate or could have operated to ensure that details concerning an applicant for review were not published and, accordingly, would not have become known to the authorities in the applicant's country of origin. Accordingly, it does not necessarily follow that s 429 was intended to be the sole means of achieving that objective. 14 Another provision which potentially illuminated the content of s 429 was s 365 which provided: (1) Subject to this section, the Tribunal shall take oral evidence in public. (2) Where the Tribunal is satisfied that it is in the public interest to do so, the Tribunal may direct that particular oral evidence, or oral evidence for the purposes of a particular review, is to be taken in private. (3) If the Tribunal is satisfied that it is impracticable to take particular oral evidence in public, the Tribunal may direct that the evidence is to be taken in private. (4) Where the Tribunal gives a direction under subsection (2) or (3), it may give directions as to the persons who may be present when the oral evidence is given. This provision applied to the Immigration Review Tribunal only. However, it created an instructive dichotomy between a public and private hearing. This provision fairly clearly indicated that a private hearing (for the taking of oral evidence) was a hearing which was not a public hearing. The ordinary meaning of the word "public" would, in this context, have suggested a hearing that members of the public could have attended to listen to and see what occurred. Accordingly, a private hearing was one where members of the public could not attend. No greater limitation on how the hearing was to be conducted was suggested by the use of the word "private". While it is not an approach to be adhered to rigidly, it can be assumed, nonetheless, that the legislature would use words uniformly in the same legislation: (see Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452; Hatcher v Cohn (2004) 139 FCR 425 at [51] per Kiefel J; Ruykys v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 538 at [27] per Mansfield J; Social Security, Department of v Copping (1987) 73 ALR 343 at 347-348 per Jenkinson J with whom Burchett J agreed). 15 Other Commonwealth legislation speaks of public and private hearings of administrative tribunals. Examples are s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) and s 14ZZE of the Taxation Administration Act 1953 (Cth). It appears that the application of these provisions is not to be approached on the assumption that they are necessarily directed to the same objective that dictates curial proceedings are ordinarily held in public: see Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 but compare Independent Commission against Corruption v Chaffey (1993) 30 NSWLR 21 at 29 per Gleeson CJ. 16 Whether the legislature intended that, for the purposes of s 429, a "private" hearing must take the form contemplated by the Federal Magistrate, can be tested by reference to how it might operate in the circumstances of this case. It is to be recalled that the adviser acting for the respondent and the other three applicants, requested that their applications for review be dealt with by the one Tribunal member. There is nothing in the Act which would suggest this cannot be done. Indeed, s 420 obliges the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. That obligation would be satisfied in a case such as the present if the Tribunal met a request that one member deal with all related applications for review. Similarly, it would be consistent with that obligation to hear the evidence, in this case, of all four applicants over the one period. 17 However, the approach of the Federal Magistrate would have required the Tribunal to hear the evidence of each applicant in their own application and then to hear it again on at least one further occasion as evidence in each of the other applications. If there were inconsistencies in the evidence, it would almost certainly require, on the Federal Magistrate's approach, that the Tribunal put to each applicant, in the absence of the other three, any inconsistencies between that applicant's account and the account of the other three (and perhaps, also, inconsistencies between the accounts of the other three) and invite comment. If that resulted in additional evidence from that particular applicant, it might be necessary to repeat the process of putting that additional evidence to each of the other three applicants on three occasions when only each applicant was present. It is unlikely, in my opinion, that the legislature intended to fetter the conduct of hearings by the Tribunal in this way particularly bearing in mind that the Tribunal was under the overarching obligation referred to earlier, namely to pursue a mechanism of review that is fair and just. 18 There are other practical considerations that suggest the legislature did not intend that the notion of "private" hearing was as narrow as suggested by the Federal Magistrate. It may be that on his Honour's approach, an applicant would have been precluded from having, in attendance, one or number of people to provide emotional and moral support such as a close personal friend or relative. Whether that was so would depend on what his Honour meant by "persons having no business in relation to an application" in the passage from his judgment referred to at [8]. But if the guiding principle is that a person assisting an applicant is not a person having no business in relation to an application then it is not a large step to say that, similarly, a person giving evidence intended to be generally supportive of the applicant's case (such as the other three in this matter) could be present during some or all of the hearing without violating the requirement that the hearing be "in private". Indeed, it is likely that in many cases it would be to the advantage of an applicant for the person giving evidence in support of the applicant's case to hear evidence from people in the same position. 19 In my opinion, the requirement created by s 429 was satisfied in this matter. The section required that the hearing be closed in the sense that members of the public were not permitted to enter the hearing room while evidence was being given. There is no evidence to suggest that in this matter, members of the public were permitted to hear the evidence of the applicant or other witnesses. 20 The second issue raised in these proceedings was raised by the respondent in a cross-appeal which can be treated as a notice of contention. It was contended that the Federal Magistrate erred in concluding that the respondent was not denied procedural fairness. This was not a matter raised in the application for judicial review in the Federal Magistrates Court and there is no amended application for judicial review in the appeal papers. The precise point raised in the application is unclear. However, it was an issue dealt with by the Federal Magistrate. The complaint now made in the notice of contention is, in effect, that the Federal Magistrate dealt with the allegation on too narrow a basis. That is, his Honour did not realise the complaint extended beyond a complaint that because of the procedures followed, the respondent was not able to give evidence about being a member of a particular organisation. 21 However, the Federal Magistrate recounted in his reasons that the respondent's evidence was that he had secret information that he had been inhibited from revealing to the presiding member because of the presence of the three other applicants. This characterisation of the respondent's evidence was not challenged in these proceedings. The Federal Magistrate later rejected that evidence as false. His Honour's finding that the evidence was false was not challenged. In my opinion, there is no substance to the point raised in the notice of contention as the Federal Magistrate rejected the factual foundation on which the allegation of denial of procedural fairness was ultimately advanced before his Honour. 22 The appeal should be allowed. The orders of the Federal Magistrate should be set aside. In circumstances where the Federal Magistrate was following an earlier judgment which could have been the subject of an appeal by the Minister, there should be no order as to costs in the appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

NEW SOUTH WALES DISTRICT REGISTRY NSD 1878 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT KIEFEL J: 1 The facts relevant to this appeal and the decision appealed from are set out in the reasons for judgment of Moore J. I will not repeat them. At issue was a joint hearing of the cases of four applicants for protection visas in the background of s 429 of the Migration Act 1958 (Cth) ('the Act') which provided that the hearing of an application for review by the Refugee Review Tribunal ('the Tribunal') 'must be in private'. 2 The Federal Magistrate whose decision is appealed from considered that s 429 contained two requirements. The first was that the public be excluded from the Tribunal's hearings. The second was that applications be heard separately. In his Honour's view the section was concerned to provide a circumstance where an applicant could present their claims to the Tribunal in confidence. 3 The approach taken by the Federal Magistrate was one of statutory construction. Having found that the section had not been complied with, his Honour affirmed an earlier view he had expressed in SZAFE & Anor v Minister for Immigration [2003] FMCA 410 at [29] that the observance of s 429 is an essential prerequisite to the exercise of power by the Tribunal. Non-observance was of an 'inviolable jurisdictional restraint' or an 'imperative duty' and therefore constituted jurisdictional error which is not protected by s 474 (referring to Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24). 4 The meaning of the word 'private' in s 429 to describe the hearing to be conducted by the Tribunal is to be ascertained by reference to the Act as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] ('Project Blue Sky'). The process of construction must always begin by examining the context of the provision being construed. The context, general purpose and policy of a provision are important guides to its meaning: Project Blue Sky at [69]. 5 Section 429 appeared in Division 4 Part 7, the Division being entitled 'Conduct of Review', the Part being concerned with the review of protection visa decisions. Section 423 provided for the documents that may be provided by an applicant to the Tribunal; s 424 provided for a review to be conducted 'on the papers' if the decision was the most favourable to the applicant; but otherwise the Tribunal was obliged to allow the applicant an opportunity to appear before it and give evidence and it could obtain other evidence: s 425(1). Section 426 required notification to be given to the applicant of a hearing together with a notice informing them that they might request the Tribunal to obtain evidence from specified persons, although the Tribunal was not bound to do so: s 426. Section 427 dealt with the powers of the Tribunal which included the power to summon witnesses. Those witnesses were not however entitled to examine or cross-examine any other person appearing before the Tribunal. Persons might be authorised by the Tribunal to take evidence: s 428. Section 429 then provided for a hearing to be 'in private'. 6 There were some other provisions in the Act at the relevant time which touched upon issues of confidentiality. Section 431(2) prohibited the Tribunal from publishing any statement which may identify an applicant, a relative or dependant. Section 439(1) created an obligation of confidence on the part of members of the Tribunal and others associated with the review process. Section 440(1) provided that the Tribunal may restrict publication or disclosure of certain matters, if it is satisfied that it is in the public interest. This power extended to any evidence given before the Tribunal; or any information given to the Tribunal on the contents of any document produced to the Tribunal (pars (a), (b) and (c) of subs (1)). 7 By contrast with s 429, s 365(1) provided that any oral evidence taken by the Migration Review Tribunal must be taken in public. One may understand that different policy considerations underlie hearings relating to migration generally and applications for protection visas. But little else can be gained from s 365 with respect to what s 429 requires, save that it is intended to be a hearing which is not open to the public. 8 A truly private hearing, although an exception to the general rule, is not unknown in civil matters before the Courts. Certain cases could be heard in the judge's private room or chambers or the judge could order the doors of the courts to be closed and all persons, except those concerned in the case, to be excluded. 'In camera' proceedings, as they are called, were usually used where it was necessary to protect property rights or the interests of the persons involved: National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217 at 219 ('NCSC v BT') per Lockhart J. The exception has been applied in cases relating to confidential information or secret processes, because they were the essence of the action and would be destroyed if made public: NCSC v BT at p 219. It was a course taken on occasion where private family matters were involved. In either case it was necessary that the court be satisfied that justice could not be done if the hearing was in public: Scott v Scott [1913] AC 417 at pp 437-438; 439.Viscount Haldane LC there observed (at p 439) that rarely would a case come before the Courts in which a choice had to be made between a hearing in public and the demands of the ends of justice. His Lordship wrote: 'If the evidence to be given is of such a character that it would be impracticable to force an unwilling witness to give it in public, the case may come within the exception to the principle that in these proceedings, and not the less because they involve an adjudication on status as distinguished from mere private right, a public hearing must be insisted on in accordance with the rules which govern the general procedure in English Courts of Justice.' 9 The likelihood that a private hearing, in the sense as it has been understood in judicial proceedings, was intended by s 429 would appear to me to be high when regard is had to at least one of the likely reasons for its introduction. As Emmett J pointed out in Selliah v Minister for Immigration & Multicultural Affairs [1999] FCA 615 at [36]: 'An applicant for a protection visa should be confident that nothing said in the course of hearing would find its way back to the authorities in the country in which he or she claims to be persecuted.' 10 In argument on the appeal it was suggested that the authority conferred upon the Tribunal by the sections dealing with confidentiality, such as s 440(1), should be seen as a power incidental to the power of the Tribunal to control who may be present during a hearing. A migration agent is often allowed to be present. The prospect of the Tribunal permitting the presence of a close relative or friend providing emotional support during the hearing was raised. On this view the obligation to afford privacy under s 429 would not be absolute in the sense discussed above. 11 There are a number of difficulties on the part of the Tribunal with a contention that s 429 permits some discretion to be exercised as to who might be present during a hearing. The first is the language of the section. There is no other provision which even inferentially provides the Tribunal with a choice as to attendees. Section 440(1) does not assist the appellant's argument. As Lockhart J pointed out in NCSC v BT (at p 221), the power to maintain the privacy of evidence is a necessary element in the private hearing itself. Alternatively it is to be regarded as a power incidental to or consequential upon the express power to hold a hearing in private. 12 It follows in my view that s 429 would not permit a witness to remain after the giving of their evidence, nor would it allow a person who is supportive of the applicant to remain. A migration advisor falls into a different category as a representative of the person and therefore concerned in the case. Cases of families whose applications are inextricably linked might also need to be viewed as one hearing for the purposes of s 429. 13 Reference was also made in argument on behalf of the appellant to the requirement of s 420(1) that the Tribunal, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism that is 'fair, just, economical, informal and quick'. A similar point was raised in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 ('SAAP'). As McHugh J pointed out (at p 177 [57]), whilst there may be a tension between various elements of the review process, the Tribunal might achieve the objective of efficiency without detracting from its other obligations. In my view there is no need to read s 429 down because of the requirements of s 420(1). Moreover as his Honour held (at [58]), the legislative object of s 420(1) should not be interpreted to detract from a statutory obligation to deal with cases fairly. His Honour was there concerned with s 424A, a provision later added to Div 4, and one that was held to express the requirements of procedural fairness with respect to the giving of information. Later in these reasons I conclude that s 429 is also a provision concerned with procedural fairness. 14 In this case there were other applicants present during the hearing of the respondent's case. Section 429 has been breached. The question which then arises is as to the consequence which follows, since not all breaches of statutory conditions will invalidate the exercise of a statutory power. Whether a breach does so, depends upon whether a legislative purpose to invalidate any act which fails to comply with the condition can be discerned: Project Blue Sky at388-389. 15 Section 424A, considered in SAAP, required the Tribunal, by use of the word 'must', to give particulars of certain information to an applicant for a protection visa and invite comment upon it. The nature of the information was such that it might be a reason to affirm the decision under review, contrary to the applicant's interests. It was held that the information must be given in writing, not orally as it was. McHugh J held that the failure to afford the procedural fairness, which the statute compelled, meant that the Tribunal had not discharged its statutory function (at [77]). A breach of s 424A gave rise to jurisdictional error (at [78]). It would follow from this that the privative clause provision, s 474, did not apply (see at [72]). 16 Hayne J was also of the view that the evident purpose of s 424A and 'several other provisions in Div 4 of Part 7' is to give procedural fairness and that want of it may constitute jurisdictional error (at [206]). In his Honour's view, with which Kirby J agreed (at [173]), because of what the provisions of the Part are directed towards, and because the Tribunal 'must' undertake them, the result was that an event of non-compliance with the section meant invalidity. It did not matter what was adjudged fair or desirable in a particular case. 17 SAAP was decided after this appeal was held. In further submissions, as to its possible application to this case, the appellant accepted that both s 424A and s 429 are expressed in imperative language, but submitted that the element missing from s 429 was that it did not involve procedural fairness. 18 In the appellant's submission there is a stark contrast between a provision directed to informing the applicant of the information that is conveyed and a provision directed to whether the hearing should be in public or in private. The latter should not be regarded as going to jurisdiction. 19 McHugh J in SAAP considered that s 424A was a statutory formulation of the obligation to accord procedural fairness in the conduct of a review (at [73]). The question whether failure to comply with it involved jurisdictional error such that the Tribunal's decision was invalidated, was to be determined by having regard to 'the language of the relevant provision and the scope and object of the whole statute' in order to ascertain Parliament's intention: Project Blue Sky at 390-1 [93]. The 'better test' for determining the issue of validity, as referred to by Gummow, Kirby and Hayne JJ in Project Blue Sky (at 389-91 [91], [93]) is whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In determining purpose regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'. 20 The appellant's submission that the denial of procedural fairness found in SAAP to have occurred was relevant to the reasoning of the majority, is correct. Reference was made in each of the judgments of McHugh J and Hayne J to previous decisions which had held that a failure to accord procedural fairness may give rise to jurisdictional error: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ('Aala'). McHugh J was of the view that the section was the 'centrepiece' of a statutory regime for procedural fairness (at [77]). 21 On one view the language of the section was as influential, if not more so, to the conclusion of jurisdictional error which their Honours reached. Each observed that the section compelled the giving of information in writing (at [77] and [206]). The judgments are replete with descriptions of the section as mandatory and imperative. 22 McHugh J held (at [77]) that it would be an anomalous result if the Tribunal's decision were held valid notwithstanding it failed to discharge the statutory obligation. His Honour said: 'If the requirement to give written particulars is mandatory, then failure to comply means that the tribunal has not discharged its statutory function. There can be no "partial compliance" with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not.' 23 Hayne J was also of the view that the language, scope and objects of the Act 'point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid' (at [208]). The requirements of procedural fairness generally were not relevant because the statute has prescribed what is to be done in every case. 24 The approach of the majority in SAAP to construction emphasises the importance of clear, imperative language. It suggests that considerable weight may be given to such language. That is of some relevance to s 429, where the requirement that the hearing be in private is expressed in the same terms and appears in the same Part of the Act. I do not however suggest that the fact that s 424A dealt with the subject of procedural fairness was unimportant or uninfluential to their Honours' views in SAAP. The case concerns rights to procedural fairness which have been legislated for in a way which compels a Tribunal to ensure they are afforded, and holds that a failure to do so constitutes jurisdictional error. 25 To deprive a person of an opportunity to present their case is a denial of procedural fairness: Aala at 89[4]. As I have said earlier, it seems that s 429 recognises the need for privacy in a hearing to achieve this end and overcome the possible consequences for an applicant if details of their evidence to the Tribunal were published, especially in their homeland. The need for confidentiality is underlined by other provisions, such as s 440. In my view s 429 is concerned to afford procedural fairness. 26 I acknowledge that there may be another purpose to the privacy required by s 429. It may be that it was also thought necessary to limit the prospect of an applicant for review claiming that, because their allegations had been made known or possibly made known in their country because of a public hearing, they could not now return. The later requirement of the Act, that an applicant's name not be published in any way in proceedings (s 91X), may be thought to have this concern in mind. I do not however consider that any such other purpose detracts from the importance of the Tribunal fulfilling its obligation. If anything they underscore it. That another purpose may not be related to the procedural fairness to be accorded to the applicant, is not determinative of the question whether a failure to give effect to the section results in jurisdictional error. On any view the statutory requirement was of particular importance. This is reflected in the imperative terms of the section. The Tribunal was not intended to exercise a choice about the method of hearing. Its statutory function was to hear the application in private as mandated. The failure to do so results in jurisdictional error. 27 There remains the question of the discretion whether to refuse relief under s 39B Judiciary Act 1903 (Cth). 28 In SAAP it was argued that the breach had not made any difference to the conduct of the applicant's case. This argument did not find favour with the majority, McHugh J adding that where a decision was invalid for want of procedural fairness, there was no reason to withhold discretionary relief (at [84]). In his Honour's view, whether the appellant was in fact deprived of a relevant opportunity to deal with the adverse material should not affect the discretion to grant relief. There was in that case no suggestion of waiver or acquiescence and the like (see [84] and [211]). 29 No question of waiver or acquiescence can arise in this case. It is true that the respondent and his migration advisor were parties to the request that the same Tribunal member hear all the cases because of their common facts. It was the Tribunal's decision to conduct the case as it did. All that can be observed is that the applicant and his adviser participated in that hearing. It does not follow that the respondent could be said to have fully understood his rights to a private hearing by virtue of s 429. 30 There is an additional feature to this case said to be relevant to whether the breach made any difference to the applicant's case and as to whether a reconsideration of his matter is important. The Federal Magistrate did not accept the respondent as a credible witness and rejected his claim that he was in fact inhibited by the method of hearing from revealing further details which he said he wished to put forward. Nevertheless his Honour made an order setting the decision aside. In his Honour's view a rehearing could not be said to be futile since the Tribunal member who undertook it might form a different opinion. 31 His Honour's finding was made in the course of his reasons as to whether there had been a want of procedural fairness at common law. The focus was the opportunities given by the Tribunal to the applicant. The finding that he was not prevented from giving further evidence must be read in this context. His Honour did not deal with a denial of procedural fairness arising from a failure on the part of the Tribunal to carry out its statutory obligations. 32 In Aala (at p 108 [57]) Gaudron and Gummow J dealt with the prospect that relief might be refused where the applicant had not in fact suffered injustice. However in their Honours' view the conditioning of statutory power to require procedural fairness has, as its basis, a rationale different from that which underpins the doctrine of excess of power or jurisdiction (at 109 [59]). The concern is with fair decision-making procedures rather than the decision which emerges. In their Honours' view, the bearing of the breach upon the ultimate decision should not determine whether relief should be granted. This would seem to accord with the view expressed by McHugh J in SAAP. 33 In view of the conclusion I have reached it is not necessary to deal with the matters raised on the cross appeal. 34 The appeal should be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

NEW SOUTH WALES DISTRICT REGISTRY NSD 1878 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Weinberg j: 1 I have had the advantage of reading in draft the reasons for judgment prepared by Moore J and Kiefel J. I agree with Moore J that the appeal should be allowed. I propose to state my reasons briefly. 2 The issue in this appeal is primarily one of construction. Section 429 of the Migration Act 1958 (Cth) ("the Act") relevantly provides that the hearing of an application for review by the Refugee Review Tribunal ("RRT") "must be in private". In my view, and contrary to the decision of the Federal Magistrate, the facts in this case do not establish that the hearing that took place before the RRT was not "in private". 3 A few preliminary remarks are in order. There has been a marked change in the approach to statutory construction over the past thirty years or so. The so-called "literal" approach has been abandoned in favour of what is now often described as a purposive and contextual approach. 4 In Palgo Holdings v Gowans (2005) 215 ALR 253 at 262 ("Palgo"), Kirby J set out "three interpretive principles" that he regarded as governing modern statutory interpretation: "purpose", "context", and the greater regard now had to extrinsic materials. 5 In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423, McHugh JA, as his Honour then was, observed that a search for the grammatical meaning of the words in a statute "still constitutes the starting point". His Honour noted however, that if that meaning did not give effect to the purpose of the statute, it could not prevail. It had to give way to the construction that would promote the purpose or object of the Act. So much is clear, in any event, from s 15AA of the Acts Interpretation Act 1901 (Cth). 6 Of course, the form of purposive construction required by s 15AA provides no "warrant for redrafting legislation nearer to an assumed desire of the legislature": Comcare v Thompson (2000) 175 ALR 163 at [40] per Finn J. The purposive approach grew out of what is sometimes described as "the mischief rule" whereby recourse to extrinsic material was permitted, even under the ambit of the "literal approach", in order to identify the "mischief" to which the statute was directed. There are some statements in the authorities that suggest that there must be ambiguity in the provision under consideration before the purpose of the statute, or reference to extrinsic material, becomes relevant. However, the current position is not so constrained. Rather, it requires that purpose and context be considered at the outset, when construing any statutory provision. See for example CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112 per McHugh J ("Newcastle City Council"); and Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1. 7 It goes without saying that this focus upon a purposive approach does not authorise the courts to legislate a meaning to promote the purpose or object underlying a statute unless that meaning can properly be discerned from the words of the Act itself. In a recent paper, "Statutes: The Sir Maurice Byers Annual Address", (2005) 26 Australian Bar Review 121, Justice Gummow cautioned against treating a "purposive" construction as releasing the drafter from the requirements of precision of thought and expression. A similar admonition can be directed towards the courts. 8 It is also necessary to bear in mind the second interpretive principle discussed by Kirby J. His Honour noted in Palgo at [37] "the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum". As his Honour observed: "In the law, context is critical. In a statute, a word (if undefined) normally takes its meaning from the surrounding text." 9 This passage echoes the observations of McHugh J Newcastle City Council to which I have earlier referred. 10 This idea of "context" may make relevant a host of extrinsic material that would otherwise be disregarded. Kirby J referred to the greater resort now commonly had to such material as a third interpretive principle. See generally s 15AB of the Acts Interpretation Act 1901 (Cth). 11 A preliminary question is whether the expression "in private" in s 429 should be given its ordinary and natural meaning, or whether that expression is being used in some special sense. The word "private" is an ordinary word used in everyday language. Prima facie, it should be given its ordinary and natural meaning. The task of the Court then is to determine, from the language used, the legislative purpose for which the expression was invoked, assisted by such aids to construction as can properly be utilised. 12 The starting point must be the dictionary definition of the word "private". The Oxford Dictionary provides an extensive definition of that word, and includes many examples of its use. Principal among its various meanings is "the opposite of public". When applied to a "thing", "private" is said to mean: "not open to the public; restricted or intended only for the use or enjoyment of particular and privileged persons. Also, as a sign or notice indicating that a room or the like is private". Examples of ordinary usage set out in the Oxford Dictionary include "a private bar", "a private beach" and "a private inquiry agent". 13 When viewed in the light of this definition, and considered against these examples, it becomes tolerably clear that what took place before the RRT relevantly occurred "in private". The hearing was in no sense "open to the public". It was restricted to particular persons. Had any member of the public, unconnected to the case, sought to be present during the hearing, there is no way that he or she would have been permitted to attend. 14 There are three additional factors that seem to me to support the conclusion that the expression "in private", in the context of s 429, was not intended to be used in the narrow sense adopted by the Federal Magistrate. Rather, it was simply intended to ensure that hearings before the RRT were not "open to the public". 15 The first of these is the language used in [377] of the Explanatory Memorandum to the Migration Reform Bill 1992 (Cth) (which introduced the forerunner to s 429). That paragraph makes it clear that one of the objects of the section was to protect applicants and their families from the risk that publicity regarding their claims might give rise to difficulties for dependents remaining in the country of origin. It was for that reason, the Explanatory Memorandum noted, that at the outset of processing, persons seeking protection were assured that all details of their application would be kept strictly confidential. In particular, they were assured that information relating to their claims would not be passed to authorities in their own country. That was essential to ensure that they could canvass their reasons for seeking protection in an open and frank manner. The Explanatory Memorandum made it clear that the new provision was intended simply to allow the same guarantee of confidentiality at the review stage. That purpose can easily be achieved without construing the expression "in private" in the narrow way that the Federal Magistrate did. 16 The second factor is based upon the canon of construction that holds that it is to be assumed that words used in a statute are used consistently. In Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452, Hodges J formulated this principle in the following terms: "I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section." 17 As Moore J has noted, s 365 of the Act, which deals with applications for review to the Migration Review Tribunal, specifically, and on two occasions, distinguishes between the taking of oral evidence "in public", and the taking of such evidence "in private". Importantly, s 365(4) provides that where the Migration Review Tribunal gives a direction that particular oral evidence is to be taken "in private", it may give directions as to the persons who may be present when the oral evidence is given. In other words, the fact that particular individuals, apart from the applicant and his or her legal representatives, are permitted to be present does not, of itself, mean that the evidence is not being taken "in private". 18 The third factor that supports the conclusion that what took place before the RRT occurred "in private" stems from another canon of construction. Where there is ambiguity in a particular statutory provision, and one interpretation will lead to results that are reasonable, while the other will produce consequences that are absurd, the Court will lean towards to former rather than the latter. 19 If each claimant, in a group such as the present, had to present his case separately from the others, not only would the same evidence have to be given repeatedly, in this case before the same Member, but procedural fairness would dictate that a "revolving door" process would have to be followed. Any reservations that the RRT might have regarding any part of the evidence given by any claimant would have to be put to each and every claimant separately. This would mean that each claimant would be given the opportunity to respond. That in turn might lead to further reservations on the part of the RRT. These reservations would have to be put to each of the other claimants, once again separately. 20 A process of this type would be protracted and inefficient. More importantly, it would verge upon the irrational. It must be remembered that all of the claims made in the present case were virtually identical. They emanated from the same factual matrix. Each claimant fully supported claims of the others. There was no question of any "cut throat" position being taken by any of them. There was no conflict of interest among them. Indeed, the same Migration Agent comfortably represented them all. 21 If the narrow interpretation accorded to the expression "in private" by the Federal Magistrate were adopted, it could operate in an utterly harsh and oppressive manner. On one view of his Honour's reasoning, a claimant would be denied the assistance of his friends or supporters during the course of a hearing. Indeed, as a matter of logic, this might extend to family members as well. I can see no justification for construing a term that was plainly intended to be beneficial so as to bring about such consequences. 22 It is important to understand that the expression "in private", in the context of s 429, does not affect the RRT's basic duty to consider each claim separately, and on the basis of the evidence relevant to that claim alone. By analogy, in a criminal trial, an order that part of the proceeding be held in camera does not, in any way, diminish the obligation upon a jury to consider the evidence against each of several accused separately. 23 In essence, s 429 operates as a statutory qualification upon the principle of open justice. See generally Scott v Scott [1913] AC 417 at 437, Attorney-General v Leveller Magazines Ltd [1979] AC 440 at 450 and R v Jackson (1986) 20 A Crim R 95 at 97-100. That principle, entrenched in the common law, is of ancient origin. It is not necessarily confined to courts. It can apply to administrative bodies, depending of course upon the nature of their statutory responsibilities. Many Tribunals are required, by statute, to conduct their proceedings in public. The RRT, for perfectly understandable reasons, is not permitted to do so. 24 There is nothing to suggest that what occurred before the RRT in the present case in any way contravened the objectives of s 429. Given the nature of the claims that were being considered, there was no appreciable risk that anything said by the claimants in the presence of the others, would be passed on to their country of origin. 25 Moreover, there were significant advantages to the claimants in having all of their claims heard before a single member of the RRT, in one continuous hearing, with all claimants present throughout. For one thing, a hearing conducted in that manner made it less likely that the claimants would give different accounts of what had taken place in their country of origin. Avoiding inconsistency was obviously of great importance so far as their credibility was concerned. 26 It is as a fact that almost all investigations into criminal behaviour are conducted on the basis that suspects are interviewed separately from each other. The reason is plain. The aim is to have the suspects give different versions of events, so that their credibility, in the eyes of the jury, will be impugned. 27 The principle is well known. It goes back to the Old Testament, and the story of Susanna and the Elders. In James v Heintz 478 NW 2d 31 (1991) the Wisconsin Court of Appeal observed at 36: "The Story of Susanna and the Elders was relied upon almost from the beginning of recorded trials as justifying the practice of separating witnesses in order to expose inconsistencies in their testimony. The rule of exclusion also aims "to prevent the possibility of one witness shaping his testimony to match that given by other witnesses at the trial." Such shaping may be an unconscious reaction to suggestion rather than a deliberate attempt at collusion. The rule thus has a two-fold goal: to prevent falsification and to uncover fabrication that has already taken place." 28 The claimants in the present case had a significant advantage by being able to be present throughout the evidence given by each of them. The only exception was that they were not present during the evidence given by the first claimant. The fact that the respondent to this appeal was questioned in the presence of the other claimants, and that they in turn were questioned in his presence, does not mean that the hearing did not take place "in private". The fact that it did not take place "in public" meant, for the purposes of s 429, that it did take place "in private". 29 This conclusion makes it unnecessary to consider the full scope, and implications, of the recent decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. That case held that a breach of s 424A of the Act, which contains "an inviolable procedural right", invalidates a decision of the RRT. The same principle would no doubt apply had there been a breach of s 429 in this case. However, it plainly has no application if, in fact, there has been no such breach. 30 There is no substance in the respondent's cross-appeal (or perhaps more correctly, his notice of contention) alleging that he was denied procedural fairness. As Moore J has noted, there is no factual foundation for that claim in this case. The RRT disbelieved the respondent when he claimed that he had been hindered from presenting his case properly because of the presence of the other claimants at the hearing. In effect, that is the end of that matter. 31 Moreover, the respondent's failure to object to the course adopted by the RRT, seems to me, in the context of this case, to give rise to the doctrine of waiver. The respondent was represented at the hearing. He sought to have his case heard by the same member as the other claimants. The procedure followed by the RRT was extraordinarily advantageous to him, and to the other claimants. There was no prejudice of any kind in what occurred. It is well established that a person can waive the right to full observance of what is described as "the hearing rule" if that is done voluntarily, and with knowledge of the entitlements waived: Escobar v Spindaleri (1986) 7 NSWLR 51 at 62. The inference that this is what occurred in the present case is one that I would be prepared to draw. 32 It follows that, in my opinion, the appeal should be allowed. I agree with Moore J that there should be no order as to costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Dated: 12 August 2005 Counsel for the Appellant: N J Williams SC with M A Wigney

Migration Act 1958(Cth)ss 365, 429, 474, 423, 424, 425(1), 426, 427, 428, 431(2), 439(1), 440(1), 420(1), 424A

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Legislation Cited (5)

Cases Cited (19)