Ground One
30 As the appellant recognised, this ground could have been expressed in a variety of ways. There is not necessarily one "correct" characterisation of a miscarriage of the Tribunal's task of the kind with which we are concerned. In Huluba v Minister for Immigration and Ethnic Affairs [1995] FCA 1561; 59 FCR 518 (about which we say more below), Beazley J characterised the error as a denial of procedural fairness. In LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166, the Full Court characterised it as a constructive failure to exercise the jurisdiction conferred by the Administrative Appeals Tribunal Act 1975 (Cth) on the Tribunal. In other cases, substantial copying has been contended to disclose bias: SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; 314 ALR 146; Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223. It could also be described as a failure to discharge the statutory function, and indeed that is one of the descriptions used in LVR (at [91]).
31 The Minister correctly submits that in each case it will be necessary to examine not only the extent of the copying, but its nature, context and degree. At a broad level, and subject to what we say below, the Minister is also correct that having conducted such an examination the Court must decide whether it is satisfied that the Tribunal brought its own independent mind to bear on what would be the correct or preferable decision on the review. We did not understand the appellant to quarrel with these propositions. The difference between the parties lies in the application of this approach to the second Tribunal decision, and the inferences which can be drawn from the nature, extent and context of the copying in this case.
32 A comparison with the Corrigan decision enables us to make the following findings about the Boddison decision:
(1) Although not identified and not in issue, the first four paragraphs of the second Tribunal's decision are substantially similar to the Corrigan decision. The next portion of its decision (headed "Relevant Law" and consisting of 14 paragraphs) is largely identical, although these parts of Refugee Review Tribunal decisions seldom differ between decisions.
(2) The headings and sub-headings used by the second Tribunal are different to those used in the Corrigan decision.
(3) The summary of the appellant's claims in the second Tribunal decision is substantively identical to the Corrigan decision.
(4) The finding explaining why the Tribunal accepted the appellant's account of his father's disappearance is substantively identical to the Corrigan decision, including findings about consistency in the appellant's account of this event and consistency with country information.
(5) The key claim made by the appellant, based upon the fact of his father's disappearance (and the claimed reason for that disappearance, which the first and second Tribunals accepted) - namely, the authorities' interest in the appellant between 2002 (when his father disappeared) and 2012 (when he fled Sri Lanka) - was rejected for eight identified reasons by Member Boddison. Three of those reasons are substantively identical, in form and content, to the Corrigan decision.
(6) The very next paragraph, which is Member Boddison's summary of why the appellant's claims that the Sri Lankan authorities were and are interested in him should be rejected, is substantively identical to the Corrigan decision. The only part which is not a reproduction of what was in the Corrigan decision is a case reference.
(7) The next, and separate, aspect of the appellant's claims - whether he had been attacked by what are known in Sri Lanka as "grease devils" also contains three out of five paragraphs of reasoning substantively identical to that in the Corrigan decision. The appellant submitted these passages also contain a factual error (about the source of this claim - namely, that it was made in the appellant's protection visa application rather than at a subsequent interview) which demonstrates Member Boddison had not read the protection visa application for herself. We accept the Minister's submission that inference should not be drawn. It is also unnecessary to our conclusion on this ground.
(8) Member Boddison then turns (at [43]-[58]) of the decision record) to deal with the appellant's claims based on his ethnicity as a Tamil and his Hindu religion. In this part of her reasons again there are many passages which are substantively identical to the Corrigan decision. Some are word-for-word reproductions of what is said to be the applicable country information: that is, the selection of that material is Member Corrigan's selection. Other parts mix a recitation of what the appellant said to Member Corrigan (by using the phrases such as "[a]t the hearing before the previous tribunal") with what purport to be Member Boddison's own findings (by the use of phrases such as "[t]he tribunal accepts") but where what is "accepted" is what Member Corrigan stated in his reasons that he accepted.
(9) A series of findings are expressed in this section by Member Boddison about what the country information (all of which is copied from Member Corrigan's decision except information that post-dates his decision) shows. Those findings are substantively identical to the ones in the Corrigan decision - so much so that there appear to be no new or independent findings expressed to be based on the country information that post-dated the Corrigan decision. The parts which do not reproduce Member Corrigan's findings are parts dealing with questions asked by Member Boddison of the appellant during the second Tribunal hearing. Notwithstanding that, in summarising and expressing her conclusions about why these claims must be rejected, Member Boddison uses passages from the Corrigan decision once again.
(10) There then follows a substantial part of the decision record where the appellant does not allege there is any copying from the Corrigan decision. This part concerns the appellant's claims to fear harm on return by reason of being a failed asylum seeker who departed Sri Lanka illegally. Some parts of this section relate to what was said by the appellant to Member Boddison during the second Tribunal hearing. A large part of this section consists of general findings about country information, expressed in general terms and not specifically about the appellant although applied to him by virtue of its presence in the reasons. Although the Minister placed some considerable weight on this section as evidence the Member brought an independent mind to her task, when its contents are examined that submission has less force. Although it is a long section, if we put to one side those paragraphs which recite the evidence given to Member Boddison at the hearing (but which make no findings), the remainder of this section is highly generalised. That is why it is not appropriate to conduct, as the Minister's submissions invited us to, some kind of percentage analysis of the copying undertaken by Member Boddison. Even in the paragraphs containing findings as to why Member Boddison does not accept the appellant would face serious harm on return, or (in respect of complementary protection) a real risk of significant harm, the findings are expressed at a high level of generality. The single exception to this might be paragraph [74], but that is one paragraph amongst 30 paragraphs in this section. Their high level of generality and their failure to descend into much detail about the appellant's particular circumstances (outside what might be said to be boilerplate phrases such as "the applicant's individual circumstances") give us no confidence that Member Boddison brought an independent mind to this decision, with the requisite examination of the circumstances of the particular applicant before her and her own assessment of them.
(11) There then follows the "cumulative consideration" and "conclusion" of Member Boddison (at [90]-[94]). Although the appellant did not highlight these, we have compared them and only paragraph [90] of these five paragraphs differs from the words used by Member Corrigan to express his concluding opinions.
33 Having outlined what we consider to be the nature and extent of the copying, we turn to the three principal cases relied on by the appellant. The Minister's submissions also engaged in detail with two of these cases, plus some other decisions to which we refer below.
34 The first case is Huluba [1995] FCA 1561; 59 FCR 518. We accept the appellant's submissions that this is the case most closely similar to the present circumstances. In that case a tribunal member used what Beazley J found to be "substantial portions" of the report of the first decision-maker. Her Honour characterised the excess of jurisdiction involved in this copying as a denial of procedural fairness. There was some debate before her Honour whether the task of the second decision-maker (this being a case about decisions taken prior to the 1992 amendments to the Migration Act) was to review the first decision for error or to make a "new determination". Her Honour concluded at 529:
However, the language used by the Department that there was to be a "new determination", indicates that the matter was to be considered afresh and was not to be merely subject to review. It is in that context that the approach taken by the second decision-maker has to be considered.
35 We extract that, and her Honour's use of the word "afresh", so that later in these reasons we can address a criticism of the Minister about the approach taken by the appellant in his submissions. Noting that the decision was required to be made in accordance with the principles of procedural fairness, her Honour then continued (at 529):
Procedural fairness requires a decision-maker to apply an independent mind to the application subject of administrative action. A decision-maker is entitled to have regard to research and investigations carried out by others as well as to assessments and reports and recommendations prepared by others in the course of the administrative process. A decision-maker may have regard to and adopt, if thought appropriate, the reasoning of some other person involved in the administrative process. Thus a decision-maker could accept the reasoning of an officer whose function it had been to provide a recommendation and could adopt verbatim, such report or recommendation, provided at all times that the decision was the independent decision of the decision-maker. This case is different. The second decision-maker's task was to make a new determination. In doing so there would have been no breach of the rules of procedural fairness for the second decision-maker to read and consider the findings of the first decision-maker. However, procedural fairness required that she reach an independent decision in the matter.
It is obvious from the passages set out above that the second decision-maker used substantial portions of the report of the first decision-maker. The coincidence of the language makes any other conclusion improbable. Those passages contain critical findings. The question arises, therefore, whether this coincidence of language demonstrates a failure by the second decision-maker to bring an independent mind to the determination of the application.
36 In Huluba the respondent submitted (as the Minister in substance submits before us) that it could not be inferred that a similarity of language meant that the second decision-maker had not brought an independent mind to the decision and that it was not improper for the second decision-maker to adopt the reasons of the first decision-maker after reading the first decision and the additional material which was lodged in further support of the application. The respondent submitted that because the Court could be satisfied that the second decision-maker had considered the fresh material, the second decision did not offend against the principles of natural justice. Her Honour rejected that submission and concluded (at 530):
I do not agree that, as was submitted by counsel for the respondent, that it was sufficient for the second decision-maker to consider the new material. Accepting that the new material was considered, there could still be a breach of procedural fairness. If a decision-maker adopted the reasoning of another without applying an independent mind to the matter, the consideration of other material could not cure the breach of procedural fairness that had occurred. In the present case, I consider that the use of the same language, sometimes in florid terms, on critical aspects of the decision-making process, makes it more probable than not that the second decision-maker did not apply an independent mind to the decision-making process. It follows that the applicant was denied procedural fairness by the second decision-maker.
37 Her Honour distinguished (at 530) what was said in Lek v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 297; 43 FCR 100 by Wilcox J, which concerned the use of standard paragraphs about the applicable law and about country information in Cambodia. Her Honour did so on the basis that the second decision-maker used material from the first decision-maker's report which was specific to the applicant, and the impugned copied passages contained the decision-maker's findings about whether the applicant's fear of persecution in Romania was well-founded and the applicant's credibility, which her Honour described as "critical factors" in both decisions.
38 The Minister did not submit we should find Huluba was wrongly decided. Nor did he seek to distinguish it. He made no submissions at all about it.
39 The second critical case is WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1293; 133 FCR 209, a decision of French J, as his Honour then was. In that case one tribunal member had copied text from the decision of another tribunal member about a different applicant. The appellant before us contended the copied passages in WAFK were either country information or "framework" parts of the decision. The Minister contended that is not how French J characterised the copying.
40 At [38] his Honour held that the coincidence of the text of country information did not support the inference of copying at all, because there "will be a good deal of commonality in the independent country information referred to by various tribunals and … similar citations will be made". His Honour said that it may be the case that "Tribunal members are using similar surveys of relevant country information in similar cases and adopting a 'cut and paste' technique to incorporate those in their judgments" and he did not draw the inference for which the appellant in that case contended.
41 Most of the passages in WAFK were passages where the second tribunal had adopted text concerning conclusions on country information from another tribunal decision about a different applicant. There were (as the Minister submits before us) some passages impugned which were about the appellant himself and appeared to have been copied, in a considerable part but not identically, from other tribunal decisions about other applicants with the same ethnic background.
42 At [52], French J concluded:
It appears clear that the Tribunal has borrowed from the text of earlier Tribunal decisions or from some common source which is used in cases of this kind. While each case must turn upon its own circumstances, I am not satisfied that the mere fact of the use of common form text in relation to statements of general principle, general conclusions about country information and even findings of credibility in similar cases is necessarily indicative of jurisdictional error. It is, of course, in the latter area, that is to say findings of credibility in the particular case, that the Tribunal should be at pains to make it clear that it has given careful consideration to the detail of the application which it is required by the Act to review. I do not consider that resort by the Tribunal to common form texts for the purpose of findings of credibility in respect of a particular applicant is desirable. However, in this case the use of that text was sufficiently modified by reference to the particular circumstances of the appellant's claims to indicate that the Tribunal was giving consideration to the appellant's case.
43 This paragraph discloses two matters of significance for the approach we adopt. First, as French J observed, each case turns on its own circumstances, which is as it must be where the subject matter of the inference is whether a decision-maker has brought an independent mind to the determination of the review. Second, his Honour made it clear that the copying of credibility passages is of most concern. With the greatest respect to his Honour, we would characterise the matter as more than "[un]desirable". It is an abdication of the Tribunal's task.
44 The Minister's submissions appeared to invite the Court to follow the outcome of French J's analysis. Such an approach would be inconsistent with what his Honour recognised as the imperative for each case of copying to turn upon its own circumstances. In our view there are some critical differences between the circumstances in WAFK and those of the present appeal. First, most of the copying in WAFK concerned country information. The part concerning the appellant (see [46] and [49] of his Honour's reasons) was very small (some six small sentences), was not all identical, was not anywhere near the kind of wholesale adoption which has occurred in the present appeal, and was not as central a credibility finding as those in the present appeal. Where the same text on a credibility finding was used (see [46] of his Honour's reasons) it was quite generally expressed. Second, what was copied was not prior opinions of another Tribunal member about the individual claims of the same applicant.
45 In its circumstances, WAFK is distinguishable from the present appeal. In point of principle, we see no inconsistency between the approach taken by French J and the approach we take.
46 The third case is LVR [2012] FCAFC 90; 203 FCR 166. The proceeding concerned an Administrative Appeals Tribunal decision whereby applications for review (in relation to objections to assessments of GST and income tax and penalties imposed by the Commissioner) were dismissed for non-compliance with procedural directions made by the Tribunal.
47 In this decision the Full Court considered in some detail the applicable principles where there is copying by one decision-maker of passages from another source. In LVR the source was not another decision-maker, but the submissions of one of the parties to the review before the Tribunal. The Full Court described the circumstances early in the reasons (at [5]):
The reasons of the Tribunal extend to 59 paragraphs and, with the exception of a small number of words, phrases and sentences, were taken verbatim and without attribution from the written submissions filed in the Tribunal on behalf of the Commissioner. Approximately 95% of the paragraphs of the reasons were so taken from the Commissioner's written submissions filed in the Tribunal before the hearing in the Tribunal on 24 June 2010 and a further three or four paragraphs of the Tribunal's reasons were taken from the Commissioner's written reply, dated 14 July 2010, to the written submissions of the appellants before the Tribunal.
48 The Full Court said, of that level of copying (also at [5]):
Of themselves, these circumstances would give rise to a serious concern that the Tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction. That jurisdiction in the present circumstances would include whether or not to exercise the discretion conferred on the Tribunal by s 42A(5)(b) of the AAT Act to dismiss the applications without proceeding to review the Commissioner's decisions. The position in the present case is not, however, left at that level of generality because of an additional fact. Thus we do not need to decide and do not decide whether or not there has been a constructive failure to exercise jurisdiction.
49 The "additional fact" to which the Full Court referred was that the copying meant that the Tribunal failed to consider in its reasons an affidavit filed only very shortly before the submissions which it copied, and with which those submissions dealt only briefly. That additional fact led the Court to make the following finding (at [67]), when it turned to consider the way in which the Tribunal had copied the Commissioner's submissions:
In our opinion, if the Tribunal had taken into account the Schokker affidavit this was where reference to it would have been made. As the Schokker affidavit went to compliance with the Relevant Directions it should have been dealt with, one way or another, by the Tribunal. It is unnecessary to go into detail because the Tribunal did not.
50 It was this omission which became the principal ground on which the Full Court determined the appeal. At [136]-[137] and [139] the Court held:
In our opinion, the Tribunal did not conduct that evaluation of the material in the Schokker affidavit, whether by reference to written submissions on behalf [of] the Commissioner or oral submissions on behalf [of] the Commissioner or otherwise. For the reasons we have explained, the Tribunal did not address compliance with reference to the Schokker affidavit although in a paragraph copied verbatim and without attribution from the Commissioner's written reply submissions there is a reference to a submission which refers to the Schokker affidavit. Importantly, nowhere does the Tribunal refer to the detailed analysis of the Schokker affidavit by counsel for the Commissioner in oral submissions.
We find that the Tribunal did not have regard to the material in the Schokker affidavit and thus it failed to have regard to the appellants' explanation relevant both to the question of breach of the Tribunal's directions and to the exercise of the Tribunal's discretion conferred by s 42A(5)(b) of the AAT Act.
….
Similarly, if it was the position, as put as a matter of speculation to us on behalf of the Commissioner, that the Tribunal did not refer to the Schokker affidavit because it did not advance the case of the appellants, then the Tribunal should have said so in its reasons.
51 In its reasons at [81] the Full Court acknowledged that there did not appear to be any Australian authorities about unattributed and wholesale copying of a party's submissions by a tribunal, although there were some decisions about copying by judges which their Honours considered.
52 We agree with the appellant's submission that at [89] in LVR the Full Court appears to have referred to both the reasoning and the conclusions of Beazley J in Huluba with apparent approval. Although the Full Court took a different approach to the characterisation of the kind of jurisdictional error which arises in circumstances where a decision-maker substantively copies findings, reasoning and conclusions from another source, we do not see these passages as the Full Court casting any doubt on the reasoning or outcome in Huluba. Characterisation is a matter on which reasonable judicial minds may differ.
53 The Full Court expressed (at [91]) a preference for an analysis that asks whether the decision-maker has "discharged its statutory role" and before us the Minister contends this is a more appropriate characterisation. It may be, for reasons more related to ground two of the appellant's appeal, that even if that characterisation is adopted, there is also a denial of procedural fairness in a decision-maker copying the text and opinion of another Tribunal member as a substantial part of the determination of a merits review. In that sense, we should not be taken as suggesting there is anything erroneous in the approach taken by Beazley J in Huluba: the characterisation of a denial of procedural fairness may be an available characterisation in a given case. On the present appeal we characterise the error as a failure to discharge the Tribunal's statutory task.
54 At [92] in LVR the Full Court set out some of the factors which might be considered in determining whether the copying resulted in the decision-maker exceeding her or his jurisdiction:
(i) the function of the decision-maker and the source of that function;
(ii) the source of the copied material;
(iii) the subject-matter of the copied material;
(iv) whether the copied material was controversial;
(v) the similarity of the claim to the claim from which the material was copied;
(vi) the extent of the copying;
(vii) whether the copied material was up to date;
(viii) whether the material was used in addressing the individual circumstances of an applicant, including credibility, particularly in evaluating the claim or application; and
(ix) whether the fact of copying and the source of the copied material was acknowledged.
55 Contrary to the Minister's submissions we do not consider the use by the appellant of this list distracted from the primary question of whether we are satisfied that Member Boddison brought an independent mind to all aspects of her task on review. Rather, those factors were designed to, and do, assist answering this question.
56 It has been said many times that the Refugee Review Tribunal (as it then was), in common with bodies such as the Administrative Appeals Tribunal, operates in an inquisitorial manner, and is under a duty to arrive at the correct or preferable decision on review according to the material before it, determining the substantive issues which arise on that review without restricting itself to any "case" put by an applicant: see for example Grant v Repatriation Commission [1999] FCA 1629; 57 ALD 1 at [17]-[18], referring to Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 424-425; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10] and [93], also referring to Bushell at 425.
57 If it were not already obvious from the nature of the task imposed on the Tribunal by Pt 7 of the Migration Act, the terms of s 421 of the Act make it plain that the task is discharged by a specific member of the Tribunal who is constituted to deal with that review. The Act deals in some detail with the constitution of the Tribunal, and its reconstitution in given circumstances. Some of those provisions are relevant to other grounds relied on by the appellant on this appeal. Those provisions also show that the statutory task is intended by Parliament to be performed by a particular member to whom that task is allocated. It is non-delegable. It is not to be performed by adopting the views of a differently constituted tribunal about the same applicant. Whatever the criticism might be of a decision-maker transferring across findings by another decision-maker about a different applicant and applying them to the applicant before the decision-maker, those criticisms pale against the wholesale adoption of the opinions of a previously constituted tribunal about the same applicant.
58 The emphasis of the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 136 ALD 547 at [32] that a tribunal on review must consider "for itself" whether it is satisfied a person meets the prescribed criterion for a protection visa is, with respect, an appropriate emphasis. The nature of the task was described by Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 at [71]-[73]:
In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision - in this case the grant of a protection visa - and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision.
The Tribunal's written statement of its reasons and, in particular, its statement of the findings on any material questions of fact, must be understood in this way. Indeed, so much follows from Minister for Immigration and Multicultural Affairs v Yusuf, where six members of the Court held that the Act's requirement for the Tribunal to set out findings of fact was a requirement that focused upon the subjective thought processes of the Tribunal, not some objectively determined set of "material" facts. That is, it was held that the Act required the Tribunal to set out the findings it did make rather than findings it ought to have made.
Necessarily, the findings that are recorded in the Tribunal's written statement of its decision and reasons will reflect the matters that the applicant for review will have sought to agitate. No less importantly, the findings that are recorded will reflect what the Tribunal considered to be material to the decision which it made on the review. And what was material to that decision will depend upon the view that the Tribunal formed about the relevant legal questions that the review presented.
(Emphasis added; citations omitted.)
59 It need hardly be said that the extraordinary circumstances of the present appeal would not have been in the contemplation of their Honours when they described the nature of the review task and the purpose of discharging the reasons obligation under s 430. What the extract does reveal is the underlying assumption in a scheme such as Pt 7 (or for that matter any merits review scheme which has similar features, including constitution of a body by particular members) that the member constituted to the review will bring her own mind to bear on the issues arising in the review, freed not only from infections such as prejudgment or other bias but from the inevitable constraints on thought, consideration and reflection which flow from the adoption of not only the conclusions of others, but the way those conclusions have been formulated and framed in language.
60 As Beazley J stated in Huluba, merits review involves considering an application for review, and the arguments and claims put forward in it, "afresh". In SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390; 168 FCR 1 at [20] - to which we refer below - Flick J spoke of a reconstituted tribunal being called upon to "resolve afresh the claims made". That does not mean the merits review decision-maker considers matters uninstructed by what has gone before, whether at first instance or in other review applications which have not finally determined the merits review process. In our opinion "afresh" is simply a shorthand way of saying "with fresh eyes", and is intended to encapsulate the essence of merits review, and indeed its strength in any robust process of administrative decision-making: namely, that within the limits of the applicable law, a new decision-maker brings her or his own perspectives, approach and reasoning to the claims made by an applicant for review.
61 We do not accept that Member Boddison considered the appellant's claims "afresh" in this manner. As our findings at [32] above indicate, the adoption of Member Corrigan's reasons, and reasoning, by Member Boddison is substantial and substantive. It includes many passages where there are findings about the credibility of the appellant's claims, at a specific level. The structure of Member Boddison's findings and conclusions under the heading "Consideration of claims and evidence" uses four sub-headings describing four aspects of the appellant's claims, each of which she determines adversely to the appellant. Of those four aspects, three of them involve substantial and substantive copying from Member Corrigan's reasons for decision. To this we add the first part of her reasons under the heading "Consideration of claims and evidence", where she summarises the appellant's claims in terms which are lifted from Member Corrigan's reasons almost entirely, including paragraphs (such as [26]) which represent her findings.
62 There is a further particularly troubling aspect of the reasons where Member Boddison refers to evidence given before Member Corrigan. These references are in and of themselves orthodox, and the very kind of references one might expect to see in a second review concerning the same applicant. However, Member Boddison makes what purports to be a finding of her own but which is, in fact, a finding of Member Corrigan placed in her reasons in a way which appears as if it is a new finding made by her on reviewing the appellant's evidence before Member Corrigan.
63 Paragraph [48] of the reasons, which is materially identical in its text to Member Corrigan's reasons, is illustrative. We have highlighted the passages which purport to be Member Boddison's findings but which are copied from Member Corrigan's reasons at [49].
The applicant has provided a number of articles regarding violent incidents against Tamils. Some were undated but the others were during the period 2006-08. At the hearing, before the previous tribunal when asked how the articles directly related to him, the applicant stated that he was aware of one particular incident that was reported that occurred in their town. He said a father of a friend was shot dead and he does not know what happened to his friend. He said it probably occurred 8-9 years ago and he has not seen his friend after that. He said he did not know whether his friend disappeared or why his father was shot. The tribunal accepts that there and have been [sic] incidents of violence directed against Tamils by the authorities particularly prior to the ending of the war in 2009 and have taken these articles into account. The tribunal accepts that a friend's father was shot. However the applicant was not able to give any details about why the father was shot or what has happened to his friend. There is no apparent link to the applicant and he has not claimed that he has been or will be targeted by anyone because of this incident. The tribunal does not accept that this incident which happened long ago means the applicant now or in the reasonably foreseeable future faces a real chance of persecution or faces a real risk of significant harm.
64 Paragraph [49] of Member Corrigan's reasons was as follows (with Member Corrigan's findings as copied by Member Boddison highlighted):
During the hearing, the interpreter and the applicant's brother translated a number of documents that were on the applicant's DIAC file at ff.31-35. They referred to a number of incidents [sic] regarding violent incidents against Tamils. A couple were undated but the others were during the period 2006-08. At the hearing, when asked how the articles directly related to him, the applicant stated that he was aware of one particular incident that was reported that occurred in their town. He said one a father of a friend was shot dead and he does not know what happened to his friend. He said it probably occurred 8-9 years ago and he has not seen his friend after that. He said he did not know whether his friend disappeared or why his father was shot. I accept that there are and have been incidents of violence directed against Tamils by the authorities particularly prior to the ending of the war in 2009 and have taken these articles into account. However, I have considered this information in the light of the general information (discussed below) about the situation for Tamils and the applicant's individual circumstances. I accept that the applicant knew a friend whose father was shot. However, he was not able to give any details about why the father was shot or what has happened to the son. There is no apparent link to the applicant and there has been no claim made that the applicant has been targeted by anyone because of this incident. I do not accept that the incident which happened long ago means that the applicant now or in the reasonably foreseeable future faces a real chance of persecution or faces a real risk of significant harm.
65 Member Boddison's paragraph [48] illustrates how, having referred to Member Corrigan's decision it seems by way of background, she transposed his findings and language into her findings and language, but so as to appear as if she had formulated the finding. In fact it is a finding formulated and made by Member Corrigan and Member Boddison merely changed Member Corrigan's words "I accept" to "the Tribunal accepts" and "he" to "the applicant", but little more.
66 Taking all the circumstances into account, including reading the reasons published by Member Boddison as fairly as we can, we are not satisfied Member Boddison brought an independent mind to the consideration of the appellant's claims. She failed to discharge the statutory task imposed on the Tribunal to consider an applicant's claims on review for itself, afresh (as we have explained that term) and to make the decision which the Tribunal, as constituted, considers the correct and preferable one. The Tribunal's task includes exposing the reasoning of that Tribunal, as constituted, for making material findings of fact and setting out the material on which those findings are based, not the reasons of some other decision-maker. Necessarily, a conclusion of this kind involves the Court forming an overall impression, and it is one on which it is possible reasonable judicial minds might differ. However, we have reached a clear and unanimous opinion that, having failed to perform the task imposed by the statute, the Tribunal's decision must be set aside.
67 What we have said should not be taken to cast doubt on the proposition that it is legitimate, and indeed in many cases, necessary, for a differently constituted tribunal to have regard to what occurred during any hearing or process previously conducted by a tribunal in relation to the same applicant. However, the use to which a tribunal might legitimately put the specific findings and conclusions of a tribunal whose decision has been quashed is a matter we consider best left for a case where that issue must necessarily be determined.
68 We turn now to deal with a number of supporting arguments made by the Minister on this first ground.
69 The Minister emphasises the demands of high volume decision-making in his submissions, and we accept that a Court reviewing such decisions for jurisdictional error must keep those demands in mind. However, whilst high volume decision-making might justify the use of some standard paragraphs, it does not and has never been seen to justify anything other than active and full consideration of the merits in a particular review in order to decide what the correct or preferable decision is, nor can it camouflage jurisdictional error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 266. In LVR, the Full Court said (at [88]):
Further, different and more benign considerations arise with respect to the copying of common form material in high volume decision-making in relation to many similar claims, providing always that it is evident that this has not been done to the exclusion of a consideration of the merits of an individual case.
(Emphasis added.)
70 Submissions based on "high volume" decision-making can tend to suggest applicants, whose claims relate to matters of liberty and personal safety, are entitled to some kind of "short cut" version of administrative justice with patched together decisions. We fail to see where or how the terms of the Migration Act suggest that is the kind of review the Act contemplates. To the contrary, the Act recognises the seriousness of the subject matter of reviews by the Tribunal. It imposes standards designed to ensure thorough, considered and fair decision-making so that people are not removed from Australia in circumstances where Australia's international obligations under the 1951 Refugees Convention are put at risk of contravention.
71 The Minister also relied on the observations of Nicholson J in Chu Sing Wun v Minister for Immigration and Ethnic Affairs [1997] FCA 99; 47 ALD 538 at 553, to the effect that decision-makers in refugee matters should not have to engage in "unnecessary re-wording" merely to avoid an inference that they did not apply an independent mind to the decision-making process. This submission should be rejected as having any relevance to what was done by the Tribunal in the circumstances of this appeal. If the effect of Nicholson J's observations is confined to the proposition that it is permissible for the Tribunal, in pursuit of the objectives in s 420 of the Migration Act, to use standard paragraphs to set out the applicable law for the decision on review then we respectfully agree. Our agreement is of course subject to the qualification that in a given case it might be shown that those standard paragraphs are deficient in a material respect which could affect the validity of the Tribunal's decision.
72 The circumstances of the present appeal do not concern "re-wording", such as in the use of template paragraphs with which a decision-maker might begin and then refine and alter their content. Whether or not that process would be a lawful discharge of the statutory task would depend, as French J said in WAFK [2003] FCA 1293; 133 FCR 209, on an examination of the particular circumstances in a given case. This appeal concerns more than that. It concerns the Tribunal member adopting the reasoning processes, findings and conclusions of another member about the same applicant as if they were her own.
73 The Minister submits:
But Tribunal members may also consider it appropriate to copy material that is evaluative and even contentious, if the Tribunal member has first concluded that that material (or a modified version of it) accurately reflects his or her own views. In such a case, no error is made by copying material from another decision.
74 That submission should be rejected in the present appeal, if for no other reason than that it relies on a matter not established by the evidence: namely that the Tribunal member had concluded the copied material reflected her views. It is doubtful Member Boddison could be interrogated in a judicial review proceeding about her own intentions, motivations and reasoning processes: see Herijanto v Refugee Review Tribunal [2000] HCA 16; 170 ALR 379 at [16]; Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21; 170 ALR 575 at [10]. Whether later evidence of a decision-maker's reasons would be admissible is also doubtful, unless Member Boddison was available for cross-examination: see French J in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263; 133 FCR 190 at [46]-[59].
75 Therefore the Minister's proposition can only be established by way of inference. On the reasons as they stand we do not see how that is an appropriate inference, let alone a plausible one. Another inference might be that Member Boddison started with a copy of Member Corrigan's reasons and his conclusions and then sought to change parts of them as she considered necessary only to reflect updated material, or what the appellant had said in the second hearing. If that was her process, it would also constitute a failure to discharge her statutory task. However, we need not go so far and the evidence does not permit us to draw any inference about how Member Boddison's reasons came to be structured as they are. The Court should have regard to the Tribunal's reasons as expressed in its decision record, which is what we have done.
76 The Minister's submissions prominently featured the proposition that all Member Boddison did was to use the "text" composed by Member Corrigan, not his reasoning. The Minister sought to rely upon:
… the obvious possibility that Member Boddison might have thought that some claims should be rejected for the same reasons that they were rejected by Member Corrigan. Once Member Boddison reached that conclusion, to express that conclusion in the same language as Member Corrigan does not provide any basis to infer that she constructively failed to perform her function, or that she misconceived that function as involving review of the Corrigan decision.
77 That submission, and the Delphic distinction it seeks to draw between use of identical text and non-use of the ideas embodied in that text, should also be rejected. We are not persuaded that Member Boddison formed her own independent views about the same applicant and his claims using precisely the same words to express her reasoning as those used by another member on an earlier occasion.