grounds of appeal
21 The Minister appeals against the judgment of the Federal Magistrate on the ground that his Honour erred in holding that the Tribunal's decision was made in breach of the rules of procedural fairness on the basis that:
(1) Section 361(3) of the Migration Act 1956 (Cth) ("the Act") excluded the rules of procedural fairness in so far as they related to the Tribunal's obligation to obtain oral evidence from persons nominated by Mr Maltsin (Ground 1);
(2) Alternatively, even if the rules of procedural fairness applied, they did not require the Tribunal to hear oral evidence from all of the witnesses nominated by Mr Maltsin (Ground 2);
(3) It was open to the Tribunal to require the hearing to be concluded within a two hour period, particularly as:
(i) the rules of procedural fairness did not require the Tribunal to "test" the evidence of witnesses before declining to accept their written evidence; and/or
(ii) the acquiescence of Mr Maltsin and Ms Bogodist and their representative in the procedures adopted by the Tribunal in relation to the calling of witnesses and the length of the hearing constituted the waiver of any right to object to those procedures (Ground 3).
22 Shortly before the hearing of the appeal, the respondents sought leave to raise two further questions by way of a notice of contention filed out of time, namely, whether the Federal Magistrate erred in not finding that there was jurisdictional error on the Tribunal's part in failing to consider sub-reg 1.15A(5) of the Regulations and "in deciding it was satisfied for the purposes of s 65(1)(a)(ii) of the [Act] that the criteria in Cl 309.211 of the [Regulations] was [sic] not satisfied as at 18 July 2000 by reference to circumstances that occurred after that date and should properly have been considered in deciding whether the criterion in Cl 309.221 were satisfied". At the hearing of the appeal, the appellant submitted that the respondents should not be permitted to raise these questions, principally because they had not been raised before the Federal Magistrate: see, for example, Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 at 77-78 [25]-[26] per Mansfield J and 85-86 [58]-[62] per Gyles J. The Court indicated that it would hear argument on the matters that the respondents sought to raise in their notice of contention and subsequently consider the matter of leave.
the parties' submissions
23 The appellant accepted that s 357A of the Act had no application to the appeal because in this case application was made to the Tribunal well before the commencement of that provision in July 2002: see Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 ("Miah"). Referring to numerous authorities, including Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 ("Aala") at 109 [60] per Gaudron and Gummow JJ and 142-143 [168] per Hayne, the appellant contended that, so far as the Tribunal was concerned, the content of the rules of procedural fairness was affected by Pt 5 of the Act (including ss 353, 359A, 360, 360A, 361, 366, 366A and 366D) which made comprehensive provision for the calling of witness to give evidence during the conduct of a review by the Tribunal. Citing SAAX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 356 at [31] per Tamberlin, Mansfield and Jacobson JJ, Narang v Minister for Immigration and Multicultural Affairs [2000] FCA 1515 at [14] per Tamberlin J, NAGR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 853 at [17] per Madgwick J, Nourbakhshrad v Minister for Immigration and Multicultural Affairs [2001] FCA 1248 at [37] per Emmett J and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 ("SGLB") at 21 [43] per Gummow and Hayne JJ and 49 [124] per Callinan J, the appellant contended that, as he said in written submissions, s 362(3):
"expressly negates the proposition that the Tribunal errs if it decides not to comply with an applicant's request that witnesses be called, provided that it 'has regard' to the applicant's request."
24 The appellant submitted that the word "obtain" in s 362(3) of the Act meant "acquire or secure", which, in the context of the Tribunal's inquisitorial procedures, was equivalent to the receiving of evidence in a court. There was, counsel submitted, no indication in the general legislative scheme that ss 360, 360A and 361 were confined to uncooperative witnesses. The appellant submitted that the decision of Hill J in NAQS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1137 ("NAQS") should not be followed, noting that his Honour was apparently not directed to the above-mentioned authorities, which took a wider view of the operation of s 426(3) (the counterpart provision to s 362(3) for the Refugee Review Tribunal). The appellant contended that, if Hill J's reasoning were accepted, then "the applicant's right to advance evidence would depend upon the degree to which a witness was prepared to co-operate with the applicant by attending the hearing voluntarily".
25 Furthermore, the appellant submitted that there was no jurisdictional error in the Tribunal's exercise of its discretion under s 361(3) of the Act, because, in deciding whether to have Mr Maltsin's proposed witnesses give oral evidence, the Tribunal took into account all relevant matters - Mr Maltsin's wishes, the available hearing time, and the importance of the evidence that the witnesses proposed to give. In oral submissions, counsel for the appellant directed the Court's attention to the Tribunal Member's statement, at the commencement of the hearing, that she did not want Mr Maltsin's best witnesses "missing out"; and that his representative told her that the evidence to be given by Mr Maltsin's witnesses was "pretty much the same". The weight to be given these considerations was, so the appellant submitted, solely a matter for the Tribunal. It was, so the appellant contended, open to the Tribunal to conclude that the evidence that might have been given by the other proposed witnesses was not of sufficient importance to warrant giving evidence orally. Counsel for the appellant contended that the Tribunal was not obliged to hear all the evidence that an applicant might wish to call simply because it was relevant. In oral submissions, counsel conceded that the transcript of the hearing before the Tribunal plainly showed that "speed and time were very much upper most" in the Tribunal Member's mind, but he argued that she asked the right questions and the representatives' answers enabled her to proceed as she did. The appellant submitted that the Federal Magistrate erred by involving himself in the assessment of the weight to be given to the factors that were relevant to the exercise of the Tribunal's discretion.
26 Referring to SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [33] per Carr J, with whom Cooper and Finkelstein JJ agreed, the appellant also contended that it was not open to the respondents to complain about the procedure in the Tribunal because they "gave the Tribunal no indication that [they were] unhappy with the procedure that had been adopted, or that they wanted an opportunity to advance further evidence".
27 Finally, the appellant submitted that there was nothing inherently procedurally unfair about the imposition of time limits, especially as the oral hearing was just one of a number of ways in which an applicant was afforded an opportunity of placing material and submissions before the Tribunal and the Tribunal was under no obligation to "test" the evidence of any witness. In written submissions, after referring to Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54] per Sackville J, the appellant observed that:
"All of the witnesses must … have been aware that their evidence may be rejected. They were aware of the 'critical issue' in the proceeding, and that is all that procedural fairness required.
That is particularly the case because the evidence of the witnesses in this case was principally corroborative evidence."
Citing Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 ("Applicant S20/2002") at 63 [12] per Gleeson CJ, the appellant contended that once the Tribunal rejected the evidence of Mr Maltsin and Ms Bogodist, the Tribunal was not obliged to hear from other witnesses "who would have attempted to corroborate the evidence that had already been disbelieved on credit grounds that plainly were open to the Tribunal". Counsel for the appellant submitted that, even if the Tribunal made findings about Mr Maltsin's witnesses that were unfair to them, such unfairness could not invalidate the decision. The decision in Mahon v Air New Zealand Ltd [1984] 1 AC 808 ("Mahon v Air New Zealand") at 821, which was relied on by the respondents, was, in the appellant's submission, distinguishable because the unfairness in that case concerned a person in a similar position to an applicant before the Tribunal, rather than a witness in the proceeding.
28 The respondents sought to uphold the Federal Magistrates' decision. In written submissions, counsel for the respondents contended that:
"[T]hereferences to 'obtain' evidence in ss 361(2) and (2A) refer to a situation where an Applicant asks the [Tribunal] to exercise the powers given by s 363(1)(d) and (3) to "obtain" evidence from the Secretary or other person. Therefore the limitation in s 361(3) only operates where a request is made 'to obtain' evidence from persons named in the notice. It does not apply where the Applicant arranges for those persons to attend at hearing."
Whilst the respondents' counsel accepted that the Tribunal was not required to hear from a witness whose evidence was irrelevant to the matters before the Tribunal, referring to NAQS at [28]-[30] per Hill J, Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 ("Mazhar") at 194-195 [31] per Goldberg J, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ("SCAR") at [37] per Gray, Cooper and Selway JJ, NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ("NALQ") at [30] per Ryan, French and RD Nicholson JJ, as well as s 361(1)(a) of the Act, he maintained that the Tribunal was required to hear orally any relevant evidence from the applicant and other persons who attended the Tribunal for this purpose at the applicant's request. The respondents submitted that the Tribunal's failure to hear all the witnesses that Mr Maltsin wished it to hear resulted in practical injustice. For example, according to the respondents:
"Photographs (with date stamps) of the parties taken on a boat owned by Mr Nismal were submitted to [the Tribunal] after the hearing … . Mr Nismal had filed a statement .. . The [Tribunal] concluded … that the Respondents were living together in December 1998. Mr Nismal had attended the tribunal hearing but was unable to give evidence "due to time constraints" … . His evidence may have persuaded the [Tribunal] the Respondents were living on that date as they said."
29 The respondents further submitted that, in any case, s 361(3) was not to be construed so as "to authorise the [Tribunal] to not comply with a request that evidence be obtained on the basis that this is inconvenient to the [Tribunal]". The respondents denied that their representatives' conduct had constituted any relevant waiver. Referring to Mahon v Air New Zealand Ltd at 821 per Lord Diplock, Aala at 116 [78] per Gaudron and Gummow JJ, National Companies Securities Commission v The News Corporation Ltd (1984) 156 CLR 296 at 316 per Gibbs CJ, and Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, the respondents contended that the Tribunal should not have found "a web of deceit throughout the review applicant's family and social connections …". The respondent also submitted that, in the circumstances of the case, it was not open to the Tribunal to limit the hearing to two hours, since this allocation of time was plainly inadequate and "the compressed hearing did not comply with the requirements of [s 353(1)] of the [Act]". The respondents contended that patent errors or deficiencies in the Tribunal's fact-finding were "the consequences of … conducting the review hastily".
30 Referring to the Notice of Contention filed on their behalf, the respondents submitted that the Tribunal erred in failing to consider sub-reg 1.15A(5) of the Regulations, as evidenced by its failure to make a finding as to whether Mr Maltsin and Ms Bogodist lived together at the same address for at least six months before Ms Bogodist departed Australia (as under the Regulations she had to do in order to make her current visa application). The respondents also contended that the Tribunal erred "in finding the criterion to be satisfied at date of application was not satisfied by reference to material that principally occurred after that date". Referring to Bretag v Immigration Review Tribunal [1991] FCA 755 and Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J, the respondents submitted that the Tribunal erred by making no finding about whether the respondents have lived together as married persons before Ms Bogodist left Australia. The respondents submitted that there was ample material before the Tribunal that showed that they had been in just such a relationship for more than two years before she left Australia. Moreover, the respondents submitted that a consequence of the Tribunal's failure to hear from two witnesses (a Mr Conrad and a Mr Nisman) was that it did not hear relevant evidence relating to the applicability of sub-reg 1.15A(5) of the Regulations. It was not enough, so the respondents said, that the Tribunal had before it written statements from these witnesses, because these witnesses were apparently among the people involved in what the Tribunal described as a "web of deceit".
reasoning of the court
31 The decision of the Tribunal may involve a jurisdictional error of the kind discussed in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ("Yusuf") at 351-352 [82]-83] per McHugh, Gummow and Hayne JJ, as a consequence of a denial of procedural fairness, a failure to identify the correct issue or asking the wrong question, disregard of relevant material or reliance on irrelevant material and, in some circumstances, the making of an erroneous finding of fact or a mistaken conclusion: see also Aala at 89 [4] per Gleeson CJ, 109 [59] per Gaudron and Gummow JJ, 131 [132] per Kirby J and 143 [169] per Hayne J; and SGLB at [49] per Gummow and Hayne JJ. Whether there has been a breach of the rules of procedural fairness or, indeed, any other kind of jurisdictional error ordinarily depends in large part on the terms of the governing statute. 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: see Kioa v West (1985) 159 CLR 550 at 584-585 per Mason J; 614 per Brennan J and 633 per Deane J; also Aala at 109 [59] per Gaudron and Gummow JJ; and Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 652-653 per Deane J.
32 In the present case, in reaching a decision regarding Ms Bogodist's visa application, the Tribunal was, as the appellant conceded, obliged to observe the rules of procedural fairness: see Miah. The content of these rules depends in part on Pt 5 of the Act, as it then stood, which sets out the legislative regime for the conduct of a review by the Tribunal. Section 360 requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in the review (unless there had been a failure on the applicant's part to comply with s 359C, or the applicant consents to the Tribunal deciding the review without her or him, or the Tribunal is disposed to make a decision in the applicant's favour). Pursuant to s 360A, the Tribunal must give the applicant notice of the day, place and time of the hearing.
33 By virtue of s 361 of the Act, the notice inviting the applicant to appear must also inform the applicant that the applicant can give the Tribunal written notice that she or he wants the Tribunal to obtain oral or written evidence from a named person or persons or other written material. Section 361 of the Act relevantly provides:
"(1) In the notice under section 360A, the Tribunal shall notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and
(b) of the effect of subsections (2) and (2A) of this section.
(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."
34 In the present case, Mr Maltsin gave written notice to the Tribunal 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. Further, his representative also indicated that Ms Bogodist, who was in Russia, would be contactable by telephone in the event the Tribunal wanted to speak with her. As it happened, the Tribunal heard the oral evidence of only two of the people that Mr Maltsin had named in the notice. Further, the Tribunal did not hear oral evidence from at least one other person who attended the hearing with Mr Maltsin, apparently for this purpose. As we have seen, the appellant submitted that there was no error in this regard, particularly having regard to s 361(3) of the Act.
35 Part 5 of the Act specifically confers a number of powers on the Tribunal for the purpose of conducting a review. The Tribunal may, for example, take evidence on oath or affirmation (s 363(1)(a)), adjourn the review from time to time (s 363(1)(b)), summon a person to appear before the Tribunal to give evidence or to produce documents (s 363(3)(a) and (b)), and allow evidence to be given by telephone (s 366(1)(a)). Part 5 also contains provisions that expressly give or deny the applicant and other persons certain rights. Thus, the applicant is entitled to have another person assist him or her before the Tribunal (s 366A(1)), but is not entitled to examine or cross-examine anyone appearing before the Tribunal to give evidence (s 366D).
36 The provisions of Pt 5 of the Act, including ss 361(3) and 366D, emphasise that the Tribunal's process is essentially inquisitorial in nature. A review by the Tribunal is not to be conducted on the adversarial model of the courts. Under the regime established by the Act, it is for the Tribunal, not the applicant, to gather the evidence for the purposes of a review and to decide the manner in which the evidence will be taken. The use of the word "obtain" in sub-ss 361(2) and (2A) must be understood in this context. In this context, it is the Tribunal, and not the applicant, who "obtains" or "acquires" the evidence for the purposes of a review, whether or not the evidence is volunteered or compulsorily acquired. Unlike a court, the Tribunal does not "receive" evidence from a party to the proceeding. Only the Tribunal can examine a witness whose oral evidence the Tribunal has determined to obtain. On the respondents' construction, the Tribunal would lose control of a function that defines its inquisitorial character. One may illustrate this by the example discussed in the argument of the appeal. If, for example, there were a hundred witnesses to a ceremony of marriage and an applicant gave notice that he wanted to call them all - to establish that he had been through the ceremony - then, assuming this was a relevant fact and they all attended the hearing, on the respondents' argument, the Tribunal would be obliged to hear from all hundred witnesses. Plainly enough, this would deny the Tribunal's inquisitorial nature and defeat the objectives set out in s 353(1) of the Act.
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.
38 It does not follow from this, however, that the appeal in this case should be upheld. By virtue of s 361(3), the Tribunal is obliged to have regard to any notice given by an applicant under sub-ss 361(2) or (2A) of the Act. This means that the Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant's wishes. The Tribunal must not merely go through the motions of considering the applicant's wishes as expressed in the notice. As the respondents' counsel said, the authorities establish that the invitation to appear before the Tribunal must be "real and meaningful and not just an empty gesture": NALQ at [30]; SCAR at [37]; and Mazhar at 188 [31]. It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant's wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (compare W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 ("W360/01A") at [2] per Lee and Finkelstein JJ and [30]-[32] per Carr J)), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal. These considerations flow from the nature of the Tribunal's overarching objective, which is to provide a review that is "fair, just, economical, informal and quick": see s 353(1). The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.
39 The real question in this case is whether or not the Tribunal gave genuine consideration to the notice given by Mr Maltsin under s 361(2) of the Act. At the commencement of the hearing, the Tribunal Member specifically asked Mr Maltsin's representative "about the value of the evidence" of the prospective witnesses. This was, as the appellant said, a relevant inquiry. Even before she received an answer, however, the Tribunal Member made it plain that she did not have sufficient time on the day to hear much more than the evidence of Mr Maltsin and Ms Bogodist. She introduced the hearing in the following way: