THE SIGNIFICANCE OF THE FAILURE TO PROVIDE THE TRIBUNAL WITH THE STARTTS REPORT
79 It may be accepted that none of the Minister, the Secretary and the Department turned his or its mind to the relevance of the STARTTS report after its receipt by them for the purposes of the review that the Tribunal was undertaking. The question here is what consequence, if any, follows from that omission or error in administration so far as it affected the Tribunal according the appellant procedural fairness. The Minister's omission occasioned apparent injustice to the appellant because the Tribunal could not assess his claims and evidence with the benefit of the STARTTS report. But, I am unable to discern that, on the authorities, this administrative lapse caused the Tribunal to make a jurisdictional error.
80 In SZFDE v Minister for Immigration (2007) 232 CLR 189 at 201 [31]-[32] the High Court held that it was essential that the Tribunal be able to accord procedural fairness to an applicant for review. It held that if the processes of the Tribunal were subverted by fraud of a migration agent, practised on an applicant so that he or she was not able to appear before it, the Tribunal constructively failed to exercise its jurisdiction, even though it was unaware of the agent's fraud: SZFDE 232 CLR at 201 [32], 206 [51]-[52]. In this context, fraud is not confined to what the Court described as the "red blooded" species known to the common law: SZFDE 232 CLR at 195 [13].
81 In public law, the legal concept of fraud is, like that involved with bad faith, concerned with an act beyond the power of the decision-maker, however honestly he or she may have acted. That is to say, the decision-maker's exercise of power will be capable of attack if it is relevantly affected by an improper purpose whether or not he or she is aware of that purpose. So, in SZFDE 232 CLR at 195 [14] the Tribunal acted blamelessly in proceeding on what appeared to it to be an ordinary situation in which it had invited an applicant to appear at a hearing but he had not attended. Aickin J explained this concept in The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 232-233 in a passage approved by the Court in SZFDE 232 CLR at 195 [13]. He said (151 CLR at 233):
"Where some act is authorized to be done for a purpose, the doing of that act 'falsely avowing a legitimate purpose to cover the actual pursuit of an object outside the scope of the power' is better classified as 'improper' rather than 'corrupt' in the absence of an endeavour to obtain personal gain, though the ultimate result of invalidity would follow on either view.
I use the term 'improper purpose' to mean one for which the relevant power or authority was not conferred. It makes no difference whether or not that purpose was known to, or believed or suspected to be necessary by, the person exercising the power. Generally speaking executive or administrative powers are conferred for a purpose ascertainable, with greater or lesser difficulty, from the terms of the instrument conferring the power." (emphasis added)
82 In Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 448 [22], Gaudron, Gummow and Hayne JJ reaffirmed that procedural unfairness can occur without any personal fault on the part of the decision-maker.
83 In Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 614 [45]-[46] Gaudron J said that it was conceivable that a failure by the Secretary to comply with the requirements of s 418(3) might, in some cases, result in or contribute to jurisdictional error on the part of the Tribunal. She cautioned that mere non-compliance by the Secretary, would not necessarily result in jurisdictional error on the part of the Tribunal. But her Honour also said that s 418(3) imposed an administrative duty on the Secretary which had the evident purpose of enabling the effective and effectual exercise by the Tribunal of its review functions. Gleeson CJ and McHugh J each observed that the object of s 418(2) and (3) was to ensure that the Tribunal obtained all information in the Department's possession that is relevant to the review, namely, the same material that had been before the delegate: Muin 190 ALR at 608-609 [18]-[19], 628 [108].
84 The Minister argued that, first, neither he nor the Secretary had any duty to provide the Tribunal with the STARTTS report and, secondly, the Tribunal had performed its function of review of the delegate's decision without its decision being affected by jurisdictional error. There is an incongruity in these submissions. The Tribunal, for the purpose of the review, may exercise all the powers and discretions of the Minister and his delegate in respect of the appellant's application for a protection visa by force of s 415(1). Had the delegate not made the decision under review before the Minister received the STARTTS report, then he or she would have been obliged to consider it as material of which the Minister (and thus his delegate) had constructive, if not actual, notice. That is because a decision-maker must make his decision on the basis of the most current material available to him or her. As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 45; (cf: SZJTQ v Minister for Immigration (2008) 172 FCR 563):
"It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker."
85 Here, acceptance of the Minister's argument would lead to a strange result. The Tribunal stands in the Minister's shoes. After a review of his decision has been initiated, the Minister can receive knowledge of material personal to the visa applicant, actually or constructively, that may have a direct bearing on the assessment of his or her claims. While the Minister would be bound to consider that material were he the decision-maker, his argument entailed that he need not make this new, relevant material available to the Tribunal. And, here the Minister contended that, if he did not pass this material onto the Tribunal, its decision could not be impugned merely because it was made in ignorance of the material in the STARTTS report.
86 There is no suggestion that, here, the Minister, the Secretary or the Department failed to act in good faith. Rather, the likelihood is that the potential significance of the STARTTS report to the appellant's case in the Tribunal was overlooked. Nonetheless, the Minister, whose exercise of power was the subject of review in the Tribunal, now held material that had he still been the decision-maker, was credible, relevant and significant to the decision. His failure to convey it to the Tribunal, allowed it to make its decision on the review in ignorance of material the primary decision-maker had come to hold and had not passed on to the reviewing decision-maker.
87 The question here is whether the Minister's or the Secretary's failure to give the STARTTS report to the Tribunal after the Minister had received it, had the effect of creating procedural unfairness in the Tribunal's processes so as to cause it constructively to have failed to exercise its jurisdiction. The Minister argued that by reason of the decisions in WAGP v Minister for Immigration (2006) 151 FCR 413 and Muin 190 ALR 601 this Court could not so find. Neither decision has that effect as a binding precedent, although each contain dicta in support of the Minister's position.
88 First, in Muin 190 ALR at 677 the orders of the High Court declined to answer question 2 as to whether there had been a failure to comply with s 418(3). Thus, what was said about that section in the context of the then significantly different form of Pt 7 of the Act at the time of the Tribunal's decision from its current form was obiter dicta and not part of the ratio decidendi. While the opinion of Moore, North and Mansfield JJ in WAGP 151 FCR 413 as to the operation of s 418(3) in the, again, different form of Pt 7 was part of the ratio in that case, it is not a binding authority on the construction of that section as it operated in the context of Pt 7 in the form it had on 17 March 2010. That is because of what McHugh, Gummow and Heydon JJ explained in McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at 661 [40], namely:
"During the course of oral argument in this appeal, there was some debate as to whether, in order for the appellant to prevail, it was required that Wynyard Investments be overruled. However, this is a false issue. Wynyard Investments decided that a particular form of words in s 4(2) of the Division of Functions Act had a particular meaning: it is not authority that the reasoning process that commended itself to the majority when construing s 4(2) must dictate the construction of other legislation. It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions (See Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127; Brennan v Comcare (1994) 50 FCR 555 at 572.)" (emphasis added)
89 However, as their Honours emphasised, this did not result in the Court being able to ignore that reasoning or, borrowing from what Gibbs J had once said, "to arrive at [its] own judgment as though the pages of the law reports were blank": McNamara 221 CLR at 661 [42] citing from Queensland v The Commonwealth (1977) 139 CLR 585 at 599.
90 The Tribunal operates in an inquisitorial not adversarial framework under Pt 7 of the Act. Aside from s 418, the Minister, the Secretary and the Department do not owe any statutory duties to provide information or material to the Tribunal for the purposes of it exercising its function of review of an individual's application for review under Pt 7. Unlike the position in SZFDE 232 CLR at 206-207 [49]-[53], the appellant here was unable to identify a deliberate act, such as the fraud of the migration agent there, that stultified the legislative scheme to afford him natural justice or procedural fairness. Rather, the appellant's case turned on the failure or omission of the Minister or the Secretary to do something that the express words of the Act do not appear to have required be done; namely, for the Minister or the Secretary to provide the Tribunal with a document that came into existence after, and that played no part in, the decision the subject of the review.
91 Whatever may be the consequence of a failure by the Secretary fully to comply with s 418(3), that provision appears to be directed to ensuring that the Secretary provides the Tribunal with the relevant material that was before the decision-maker whose decision is being reviewed. In WAGP 151 FCR at 424-425 [62]-[65], Moore, North and Mansfield JJ held that a failure by the Secretary to provide a document to the Tribunal pursuant to s 418(3) that, in the event, would have been capable of corroborating the applicant's evidence to the Tribunal on a matter on which he was not accepted (see WAGP 151 FCR at 420-421 [38]-[40]) did not taint the Tribunal's decision with jurisdictional error: see too Applicant S1693/2003 v Refugee Review Tribunal [2004] FCA 1512 at [41] per French J.
92 Here, the immediate consequence of the omission by the Minister to provide the Tribunal with the STARTTS report was that it proceeded to hear and assess the appellant's evidence as if it were being given by a person whose mental processes were unimpaired by the circumstances and consequences of the claims he was advancing to it. Had the Tribunal been aware of the STARTTS report it may, but need not necessarily, have approached its assessment of the appellant's evidence differently; cf: Thirukkumar v Minister for Immigration [2002] FCAFC 268 at [10], [16]-[19] per Drummond J, [32]-[38] per Cooper and Finkelstein JJ; Minister for Immigration v SGLB (2004) 207 ALR 12 at 16-17 [19] per Gleeson CJ, 22 [44] per Gummow and Hayne JJ; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 64 [17] per Gleeson CJ, 70 [49], 71 [51]-[52] per McHugh and Gummow JJ, with whom Callinan J agreed.
93 The omission to forward the STARTTS report to the Tribunal was very unfortunate in the circumstances, but it did not stultify the review by the Tribunal of the appellant's application to it. Because its procedures were inquisitorial, the Tribunal was not obliged under the Act to locate or ascertain the existence of further relevant material that the Minister, the Secretary or the Department received after the original decision of the delegate was made. There may or may not be some policy reason why the Act does not require such subsequently relevant material, known to the Minister (cf: Peko-Wallsend 162 CLR at 45 per Mason J) actually or constructively, to be provided to the Tribunal so as to avoid the apparent injustice that has occurred here. But, in the end result there is no such obligation.