REASONS FOR JUDGMENT
GRAY J:
1 The essential question raised by these two appeals is whether, in each case, s 425(1) of the Migration Act 1958 (Cth) ("the Migration Act") required the particular member of the Refugee Review Tribunal ("the Tribunal") who made the Tribunal's decision, affirming a decision to refuse to grant the relevant appellant a protection visa, to invite that appellant to attend a hearing. In each case, another member of the Tribunal had previously made a decision, affirming the decision to refuse the appellant a protection visa, after giving an invitation to the appellant pursuant to s 425(1) and conducting a hearing. In each case, the Tribunal's first decision had been set aside by court order, and the matter had been remitted to the Tribunal. In each case, the member who made the second decision relied on the record of the earlier Tribunal hearing, without issuing a fresh invitation pursuant to s 425(1) and constituting a fresh hearing.
2 The detailed facts and circumstances of each case are set out in the reasons for judgment of Besanko J, which I have read in draft form. It is unnecessary for me to repeat them. I agree that the orders Besanko J proposes should be made in each case. If the appeals fall to be determined on the question whether, in the absence of a general entitlement to a further hearing, the circumstances of each case nonetheless required that there be a second hearing, I agree with his Honour's reasons for concluding that in each case a second hearing was required. On the question whether there is a general requirement that the Tribunal member who actually makes the decision should do so only after an invitation has been given to an applicant to participate in a further hearing by that member, I have reached a view different from that of Besanko J. Accordingly, it is necessary for me to set out my reasons for reaching that view.
3 Section 425 of the Migration Act provides:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
4 Section 424C(1) permits the Tribunal to make a decision on a review without taking further action to obtain additional information, if an applicant has been invited under s 424 to give additional information and has not given the information before the time for giving it has passed. Section 424C(2) permits the Tribunal to make a decision on a review without taking further action to obtain an applicant's views on information it has, if it has invited the applicant under s 424A to comment on information and the applicant has not given comments before the time for giving them has passed. It is important to note that, in the terms of s 425, the only exceptions to the right to be invited to attend a hearing involve the Tribunal reaching a decision favourable to the applicant without a hearing, the applicant consenting to a decision without a hearing, or the applicant failing to respond to a written request from the Tribunal for further information, or to an opportunity to comment in writing on information. In other words, apart from a decision in which the applicant is successful, the invitation required by s 425(1) must go to the applicant unless the applicant has signified, expressly or impliedly, a lack of interest in participating further in the review process.
5 Section 425, like other provisions found in Div 4 of Pt VII, represents Parliament's expression, in terms appropriate for the task of reviewing decisions refusing to grant protection visas, of an aspect of the requirements of procedural fairness. If this proposition were ever doubted, it is now confirmed by the presence of s 422B, enacted subsequently to most of the other provisions in Div 4. Like the rules of procedural fairness in other contexts, the rights given to an applicant by Div 4 are rights relating to the process by which decisions are made, rather than to the substantive content of those decisions. To say this, however, is not to diminish the importance of those rights. It has long been recognised that a statutory power, the exercise of which may affect adversely a person's interests, is impliedly subject to a requirement that the decision-maker afford procedural fairness to that person. The fact that, in the context of the Tribunal's task of reviewing decisions to refuse protection visas, Parliament has chosen to make the exercise of the Tribunal's substantive powers depend expressly upon the process rights contained in Div 4, and to spell out for that purpose what constitutes procedural fairness, does not diminish the importance of those process rights. Thus, it is recognised that the requirement of an invitation to a hearing, found in s 425(1), will not be met if what is actually afforded to the applicant is not a hearing at which the applicant is able to give evidence and present arguments relating to the issues arising in relation to the decision under review. See, for instance, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [37].
6 Section 425(1) has two particular features that are important in the determination of the larger issue in the present cases. The first is that the hearing to which an applicant must be invited is for two purposes, for him or her to give evidence and for him or her to present arguments. Although the word "evidence" in relation to the material placed before an administrative decision-maker may not be entirely appropriate, the obvious intent of s 425(1) is that the applicant should have an opportunity to provide information particularly within his or her personal knowledge to the person who will make the decision. This is an important right. No less important is the opportunity to present arguments. It is this opportunity that gives an applicant the chance to persuade the decision-maker to accept the accuracy of the information provided by the applicant, to reach the conclusion that that information should be regarded as more reliable, or as having more weight, than conflicting information that the Tribunal may have, or that apparent conflict between information supplied by the applicant and that gathered by the Tribunal is not real or substantial. It is clear from the express inclusion of the right to present arguments that Parliament regarded the right to attend a hearing for this purpose, as well as for the purpose of providing information, as of great importance to an applicant.
7 The second important aspect of s 425(1) is that the evidence and arguments are to relate to "the issues arising in relation to the decision under review." The focus on this element of the subsection was the basis for what the High Court of Australia decided in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (2006) 228 CLR 152. For present purposes, it is not necessary to quote the whole of what the High Court said in [33]-[40], but certain points emerge clearly from that passage. First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal's conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal's specific reservations about the applicant's case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person's thought processes. This is not to say that the Tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL at[38]-[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.
8 If these propositions are accepted, it becomes difficult to see how a Tribunal member who takes up a review after an earlier Tribunal decision has been quashed can avoid the need to conduct a hearing. Simply to regard the rights given by s 425(1) as an item on a procedural check list, that the member can regard as having already been ticked off, would be for the Tribunal to abdicate its responsibility to conduct a review. Similarly, for the member to regard his or her task as being no more than to repeat the views and conclusions of the member responsible for the earlier Tribunal decision, without the jurisdictional error identified in the proceeding in which that decision was quashed, would be a failure to perform the function of reviewing the primary decision to refuse a protection visa. Once the member embarks on the process of considering the material before the Tribunal, including both the material provided originally by the applicant and the material emerging from the earlier hearing, the Tribunal member's mind will begin to focus on reasons why he or she is not persuaded by the case that the applicant put. If this were not so, and the member was persuaded as to the applicant's case, then a visa would be granted and no further hearing would be required. The process of focussing on reasons for being unpersuaded will give rise to issues of the kind that the High Court identified in SZBEL as being issues arising in relation to the decision under review. It is these issues on which the applicant is entitled by s 425(1) to be invited to provide information by giving evidence and to persuade by presenting arguments.
9 The view that the issues to be decided are those perceived to be issues at the time of the making of the ultimate Tribunal decision is also consistent with what the High Court has said in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 (2006) 231 CLR 1 and NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54 (2006) 231 CLR 52,inrelation to those applicants who come before the Tribunal seeking permanent protection visas after earlier having been granted temporary protection visas, which have expired.
10 There is a further reason why it is difficult to see that a member in the situation of each of the members in the present case can take the view that no further hearing is necessary. That is that it is impossible to guarantee that the issues of the kinds to which the High Court referred in SZBEL will not have changed in the time that has elapsed since the Tribunal's earlier hearing and its first decision. In Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 (2000) 105 FCR 548, the Full Court determined that the Tribunal had made an error of law, by asking itself the wrong question. The Full Court took the view that the case should be returned to Ms Boland, the same Tribunal member who had made the decision that was set aside. If the case were to be heard again by another Tribunal member, the result might have been that the applicant would have been deprived of findings of fact made by the original member, favourable to the applicant's case. Wilcox J at [11]-[12] and Merkel J at [112] both expressed the view that the same member ought to deal with the case on its return, but each declined to make an order at that stage, because of the possibility that there might be reasons why Ms Boland could not, or should not, deal with the case. At [23]-[28], I expressed the view that an order should be made having the effect that, when the case was dealt with again by the Tribunal, the Tribunal should be constituted by the member who had made the earlier decision.
11 Subsequently, further application was made to the Full Court, when it became apparent that Ms Boland was available to sit, but the case had been assigned to another Tribunal member. In Wang v Minister for Immigration & Multicultural Affairs [2001] FCA 448, reported as Wang v Minister for Immigration and Multicultural Affairs (No. 2) (2001) 108 FCR 167, the Full Court made an order that the matter be remitted to the Tribunal as originally constituted. It is clear from the Court's reasons, especially [23] in the reasons for judgment of Merkel J, that the preservation of the findings of fact favourable to the applicant was the principal reason for taking this course.
12 The statutory power under which the Full Court made that order was subsequently repealed. Despite this, the High Court heard an appeal from the Full Court's judgment and allowed that appeal: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 (2003) 215 CLR 518. One of the reasons for the High Court concluding that the Full Court lacked the power to do what it did was that the issues before the Tribunal could not be frozen at any particular point in time. At [15]-[16], Gleeson CJ said:
It is clear that the reason for the order finally made by the Full Court was a view that the interests of justice required that the respondent should be protected as far as possible from the contingency that, on the hearing of the remitted matter, the Tribunal might take a view of the facts less favourable to the respondent than had been taken by Ms Boland.
The content of the interests of justice, in the events that occurred, is to be determined in the light of the provisions of the Act, pursuant to which the respondent made his application for a protection visa, and pursuant to which the delegate of the Minister, the Tribunal, and the Federal Court were acting. Under the statutory scheme, and in consequence of the other orders made by the Full Court, the Tribunal is now obliged to undertake a further review of the delegate's decision. The Tribunal's decision upon that review is to be made on the basis of the facts as they appear in the course of that review. To what extent the information before the Tribunal will differ from the information that was originally before Ms Boland is not known. The findings made by Ms Boland will have no legal status in that further review. Neither Ms Boland, if she undertakes the further review, nor any other member of the Tribunal, if the Tribunal is differently constituted, will be bound by them. The most that can be said is that, as a practical matter, if Ms Boland undertakes the review, then, unless there is a significant change in the information before the Tribunal, she is unlikely to alter the view of the facts she took previously, whereas a fresh decision-maker might see the matter differently even if the information remains substantially the same.
13 At [38], McHugh J said:
ordinarily a direction by the Federal Court that the Tribunal must act on facts found at a previous hearing imposes a duty that the Act itself does not impose upon the Tribunal when hearing the matter. Such a direction is also likely to conflict with the Tribunal's duty to decide the applicant's claim for protection at the time that the Tribunal makes its decision. In many cases, such a direction is likely to embarrass the Tribunal by hampering its ability to determine the case as at the date of its decision.
14 At [68], Gummow and Hayne JJ said:
Whether any findings from the first review would be preserved would entirely depend upon the view formed by the Tribunal in conducting the second review. On that second review the respondent, as applicant for a visa, could be expected to appear to give evidence and present arguments (s 425), and, so far as the Court's orders were concerned, it was a review to be conducted in the ordinary way.
15 At [73]-[74], Gummow and Hayne JJ said:
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.
It follows, therefore, that to attempt to divorce the Tribunal's statement of its findings on what it considered to be a material question of fact, from the decision it made and, in particular, from its reasons, may be dangerous in cases like the present where it is accepted that the Tribunal made an error of law. There are several reasons why it may be a dangerous process. First, there is the notorious difficulty of disentangling findings of fact from conclusions about applicable legal principle. Secondly, assuming that those difficulties can be surmounted, the findings of fact which the Tribunal makes after hearing and assessing the body of material and submissions will necessarily reflect the Tribunal's conclusions about applicable legal principle and will be directed to the questions that those principles present. If, in that review, the Tribunal makes an error of law and a subsequent review is ordered, what is the Tribunal then to do if further findings are to be made about subjects with which the first Tribunal dealt? For it to take, as its starting point, findings that were made on that earlier review under a misapprehension of applicable legal principles may, indeed often would, skew the second factual inquiry by the Tribunal.
16 At [77], Gummow and Hayne JJ also said:
When the Tribunal reviews a decision to refuse a protection visa it must decide whether the applicant is, at the time of the Tribunal's decision, a person to whom Australia owes protection obligations. So much follows from the fact that the Tribunal exercises afresh the powers of the original decision-maker. Seeking to "preserve" some findings of fact made at an earlier review assumes that no circumstance relevant to those facts has changed in the intervening time. It assumes, for example, that conditions in the country of origin have not changed and, in a case like the present, that the beliefs and intentions of the person who has sought protection have not changed in any material way.
17 Kirby J dissented.
18 Wang therefore points up the difficulty of this Court attempting to constrain the Tribunal as to what the issues in a particular review are by treating those issues as fixed at a particular time. If the Court cannot constrain the Tribunal in that way, then it is clear that the Tribunal cannot constrain itself in that way. The Tribunal must determine a review by dealing with the issues as they present themselves at the time of its determination, according to the facts as the Tribunal finds them to be at that time. For all sorts of reasons, the facts as they appear to the Tribunal member making the second decision may differ significantly from the facts as they appeared to the Tribunal member who made the earlier decision. Without conducting a further hearing, at which the applicant has the right to give evidence, the Tribunal cannot be confident in making findings of fact on which to base a decision on a review.
19 In the light of this practical problem, and the part that the reasoning processes of the Tribunal play in the ascertainment of what the issues are, there is a necessary fluidity of those issues until the particular Tribunal member is in the process of grappling with the case. In those circumstances, the Tribunal member cannot regard himself or herself as limited to dealing only with the facts and issues that were perceived by an earlier Tribunal member who has made a decision that has been set aside. The role of the Tribunal's reasoning processes also means that the problem cannot be solved simply by asking the applicant whether there are any new issues, or whether he or she wishes to provide any new information. The possibility that the Tribunal member will himself or herself perceive issues that have not been thought of previously cannot be disregarded. Accordingly, it is difficult to see how a Tribunal member could dispense with the step of inviting the applicant to a hearing, simply because another Tribunal member has taken that step at an earlier time.
20 From time to time, suggestions have been made that various other provisions of Div 4 of Pt VII of the Migration Act show an intention on the part of Parliament that a hearing by the member who actually makes the decision is unnecessary, so long as a member of the Tribunal has conducted a hearing pursuant to an invitation complying with s 425(1). The foundation for these suggestions is in the judgment of the Full Court in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 (2001) 113 FCR 541. The issue arose in that case because a Tribunal member who had conducted hearings of the cases of two applicants then resigned before giving decisions. The decisions were given by another Tribunal member, without affording either of the applicants another opportunity to attend a hearing. At [47]-[50], the Full Court made reference to s 428, which confers on the Tribunal power to authorise another person to take evidence on oath or affirmation for the purpose of a review. Subsection (5) provides:
If the Tribunal receives, under subsection (4), a record of evidence given by the applicant, the Tribunal, for the purposes of section 425, is taken to have given the applicant an opportunity to appear before it to give evidence.
21 The Full Court in Liu took the view that s 428(5) amounted to an express recognition by Parliament that the Tribunal's decision-making function may be exercised in the absence of a hearing before the Tribunal. The Full Court took the view that this was an indication that the same view should be taken in relation to the exercise of the Tribunal's function in circumstances other than those in which the evidence is taken under s 428. The exception in s 428(5) is a very specific one. It is part of a scheme designed to enable the Tribunal to take evidence by another person in circumstances in which it is difficult for the Tribunal member dealing with the review to obtain evidence directly from the applicant. Even more importantly, the exception in s 428(5) is not expressed in terms that absolve the Tribunal altogether from compliance with s 425(1), if evidence is taken by an authorised person. The only exception is in relation to the invitation to a hearing to give evidence. There is no reference to an invitation to the applicant to present arguments about the issues arising in the case. Even if the Tribunal were to receive an applicant's evidence through an authorised person, it could not make a decision without inviting the applicant to a hearing, at which the applicant would have the opportunity to persuade the decision-maker, by presenting arguments, as required by s 425(1).
22 The same may be said of any reliance on ss 422 and 422A, which are found in Div 3 of Pt VII of the Migration Act. Both deal with the reconstitution of the Tribunal, ie the substitution of one member for another, in different circumstances. By s 422(2) and s 422A(3) the member who comes to constitute the Tribunal after its reconstitution may have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. The first thing to note about these provisions is that they confer on the Tribunal member concerned a discretion. In modern Commonwealth enactments, s 33(2A) of the Acts Interpretation Act 1901 (Cth) makes it clear that the word "may" signifies the conferring of a discretion. The member who comes to deal with the case may choose to rely on the record, but is not compelled to do so. The second thing is that neither s 422 nor s 422A says anything about the exclusion of the Tribunal's obligation under s 425(1). Having regard to the record of what a previous Tribunal member has done is a sensible step, and may assist in eliminating repetition of a number of steps. In no sense could it be said to be a substitute for the opportunity given to an applicant pursuant to s 425(1) to give evidence and present arguments about the issues.
23 What I have said leads to the conclusion that it is difficult to imagine a case in which a Tribunal member could be satisfied that the facts remained as they had been when another member made a purported decision, and that the issues were such that no further oral evidence or argument on the part of the applicant could possibly have any effect in relation to them. It follows that, when a Tribunal member is called upon to exercise the Tribunal's decision-making function, that member can only do so following an invitation to the relevant applicant to a hearing that complies with s 425(1) before that member, unless the case falls within one of the exceptions in s 425 itself.
24 Since preparing the first draft of these reasons for judgment, I have read the draft reasons for judgment of Gyles J. I agree with what his Honour has said in his reasons for judgment.
25 For all of these reasons, I agree that each of the appeals presently before the Court must be allowed and the orders made by the Federal Magistrates Court that are the subject of each appeal must be set aside. In lieu of those orders, the orders proposed by Besanko J at the conclusion of his reasons for judgment should be made.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.