11 A similar issue was considered by the Full Court in Liu v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 541; [2001] FCA 1362 (Liu). The issue was described by the Court (Black CJ, Hill and Weinberg JJ) at 543, [3] in the following terms
'If the Tribunal member who constitutes the Tribunal for the purposes of a particular review stops being a member after there has been an oral hearing, and the Tribunal is reconstituted by another member to finish the review, is the second member required to invite the applicant to appear and give evidence and present arguments in accordance with s 425 of the Act?'
12 The Court, recognised that s 425 of the Act gives rise to an important substantive right to a visa applicant to have the opportunity to appear before the Tribunal. However, the Court concluded that s 425 does not in the circumstances give rise to a right to a further hearing before the Tribunal as reconstituted. The court at 553, [47] determined that the right granted by s 425 is qualified by the discretion given to the Tribunal under s 428, and so was not an absolute right. Section 428(1) empowers the Tribunal to authorise a person other than the decision-maker to take evidence from an applicant for a protection visa, and s 428(5) provides expressly that a record of evidence given by an applicant in such circumstances, if received by the Tribunal, results in the applicant being taken to have been given an opportunity to appear before it to give evidence for the purposes of s 425.
13 The gist of the Court's reasoning is reflected at 553-554, [49] as follows:
'The power under s 428 is discretionary and it may be exercised in a range of circumstances, not all of which will necessarily require the Tribunal to provide, as a matter of fairness, an applicant with a right to appear before it. It might, for example, be perfectly appropriate for the Tribunal to authorise another person to hear an applicant if the applicant was in a remote location and nothing turned on credibility. In such a case, the applicant's narrative, as set out in the record, may be all that is needed to satisfy the requirements of a fair procedure. In a different case, where credibility was centrally in issue and where, in any event, the person could reasonably attend before the Tribunal, the sound exercise of discretion might well be agreed to produce a different result. Indeed, s 420 of the Act directs the Tribunal to act according to substantial justice and the merits of the case, and to pursue the objective of providing a mechanism of review that is, among other things, fair and just. But the fact that the exercise of the discretion to authorise another person to take evidence from the applicant in a particular case may be open to criticism provides no reason to read down the express words of s 428(5). This conclusion, in our view, stands in the path of the appellants' argument that the right to a hearing is compromised if a reconstituted Tribunal does not hear an applicant personally.'
14 In Liu, an alternative argument was addressed that, if the Tribunal as reconstituted had failed to have regard to the full record of the earlier hearing, s 425 operated to oblige it to offer a further hearing. The argument was based upon s 422(2) of the Act. Section 422 obliges the Principal Member of the Tribunal to direct the reconstitution of the Tribunal in certain circumstances for the purposes of finishing a particular review. It is common ground that that is what occurred here. Section 422(2) provides:
'If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.'
The argument was that partial reference only to the record of proceedings did not satisfy s 422(2), so s 425 was again enlivened. The Court rejected that contention. It said at 554, [50], that the discretionary power to examine the record of an applicant's hearing conferred by s 422 of the Act, and the possibility that the discretion might not be properly exercised, did not govern the interpretation of s 425.
15 It was further argued in Liu that, in the particular circumstances, the Tribunal as reconstituted was bound to give the applicant a further opportunity for a hearing as the transcript of the earlier hearing appeared to be defective or incomplete. There were certain aspects of the written record of the earlier hearing which appeared to be a little inaccurate or incomplete. Reference was made to s 427(3) which empowers the Tribunal to require the production of material, so that under s 427(3) the Tribunal should have required the production or presentation of a more complete and accurate transcript of the earlier hearing. That contention also failed. It did so for the same fundamental reason, namely that the possibility of an improper exercise of a discretion under s 427(3) could not serve to expand the content of s 425 of the Act.
16 Counsel for the applicant accepted that I should follow Liu if it applied in the present circumstances. He submitted that Liu was distinguishable from the present circumstances ultimately only because the Tribunal had on 24 August 2004 given to the applicant in accordance with s 424A notice of particular information that it considered would be a reason or part of the reason, for affirming the decision under review. Section 424A(1)(c) obliges the Tribunal to invite the applicant to comment upon that information. It required any comment to be in writing. The contention was that, because the information the subject of that notice included repeated reference to evidence the applicant had given at the hearing on 2 May 2004, the Tribunal was not entitled to require the respondents to that notice to be given in writing, and so it was obliged to re-follow the procedure prescribed by s 425 of the Act. A separate ground to distinguish Liu, based upon being a decision which predated the High Court decision in Plaintiff S157/2002 was not persisted with.
17 The short answer to the contention, in my judgment, is that s 424A obliges the Tribunal to give particulars of adverse information to which it applies 'in the way that the Tribunal considers appropriate in the circumstances' and to invite the applicant to comment on it. Section 424B obliges the invitation given under s 424A to specify:
'the way in which the additional information or comments may be given, being the way the Tribunal considers is appropriate in the circumstances.'
Section 424B(2) specifically contemplates that the information may specify the means of response otherwise than at an interview. It is thus a matter for the discretion of the Tribunal as to how the response may be given. There is clearly no obligation on its part to give a further oral hearing, and no entitlement on the part of the visa applicant to a further oral hearing.
18 Once that step is taken, in my view the reasoning of the Full Court in Liu applies equally to the present contention. The fact that the discretion might be improperly exercised as to how the response must be given to a notification under s 424A cannot serve to expand the content of s 425 of the Act.
19 Nor does s 420 of the Act of itself create an entitlement to a hearing. It operates in an exhortatory manner to describe to the Tribunal generally the approach which it should adopt in conducting a review in accordance with Div 4 of Pt 7 of the Act but does not itself establish procedural rights: Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611 at [108]-[109].
20 Counsel for the applicant contended that the review had not been completed because the Tribunal as reconstituted sent to the applicant the notification and invitation under s 424A of the Act following the hearing on 2 May 2004. Reliance was placed upon the decision of the High Court in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 660; [2004] HCA 62 (NAFF). In my judgment, NAFF does not assist the applicant in this matter. There the Tribunal had indicated at the completion of the hearing under s 425 that the process of review was incomplete. The Tribunal member had indicated an intention to seek further comments from the visa applicant on matters to be identified by the Tribunal. However, without further communication, the decision on the review was then given. By way of contrast, in this matter the Tribunal as originally constituted towards the end of the hearing had identified matters of concern about the applicant's evidence and had given the applicant the choice as to how he would address those concerns. He was given a specified time to do so. He did not take up that opportunity. When the Tribunal was reconstituted, the applicant was given a further opportunity to address particular concerns of the Tribunal by the letter under s 424A, and he took up that opportunity.
21 Just as importantly, as the applicant did not contend that Liu was wrongly decided or had been qualified in its application by NAFF in any way, the issue in this case is as to the nature and extent of the obligation imposed by s 425 where there has been a completed hearing and thereafter the Tribunal has been reconstituted under s 422. For the reasons I have given, Liu applies directly to the present circumstances. I am bound to follow it. See also NADG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 893 at [21] per Branson J.
22 Counsel for the applicant made a supplementary contention that it was unclear whether the Tribunal had in fact received the record of the evidence given by the applicant at the hearing on 2 May 2004 in accordance with s 428(4) of the Act, so that s 428(5) did not deem the Tribunal as reconstituted to have given the applicant an opportunity to appear before it to give evidence for the purpose of s 425. The submission was only faintly pressed. No particular features of that record of interview were suggested to have been overlooked by the Tribunal or to have been misunderstood by it. In my judgment, from the Tribunal's recitation of the evidence before it, as well as from the content of the notification given under s 424A on 28 April 2004, it is quite clear that the Tribunal had received in evidence the record of the hearing of 2 May 2004 and had careful regard to it. The contention is rejected.