CONSIDERATION
21 It is convenient to begin by analysing the purposes of, and processes required by, the four provisions of the Act that directly affect the outcome of this appeal. They are, in order, ss 359, 359AA, 359A and 360. All of those sections fall into Division 5 of Part 5. That Division is described in s 357A to "be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". Those provisions, and others within Part 5 of the Act relating to Part 5 reviewable decisions, are substantially similar in terms to the provisions in Part 7 of the Act relating to Part 7 reviewable decisions. In Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 (NAFF), the High Court described the manner in which the latter provisions operated in the following terms (at [23]):
Once an applicant had made a valid application for review of a delegate's decision, the Act imposed on the Tribunal a duty to review that decision: s 414(1). It provided that the Tribunal might exercise all the powers and discretions conferred by the Act on the delegate: s 415(1). It obliged the Tribunal to "pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick": s 420(1). The Secretary of the Department was obliged to give the Tribunal a statement about the decision under review setting out the findings of fact made by the delegate, referring to the evidence on which the findings were based, and giving the reasons for the decision: s 418(2). The Secretary was also obliged to give the Tribunal all other documentary material in the Secretary's possession or control, which the Secretary considered to be relevant to the review: s 418(3). There were provisions by which the applicant for review might supply, and the Tribunal might seek, information: ss 423 and 424. The Act also imposed duties on the Tribunal to supply the applicant with certain information for comment: ss 424A-424C. Section 425(1) compelled the Tribunal to invite the applicant to appear before it and detailed provision was made about the terms of that invitation: ss 425A and 426.
22 The first three of the four provisions mentioned above (ss 359, 359AA and 359A - which I will, for convenience, refer to jointly as the "359 provisions") are directed to particular information and to the view the Tribunal takes of that information. The word "information" has been held to mean "knowledge communicated or received concerning some fact or circumstance" (see Minister for Home Affairs v Ogawa [2019] FCAFC 98 at [10] and see also SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18]).
23 Section 359 concerns information that the Tribunal considers is relevant to the review. Sections 359AA and 359A concern information that the Tribunal considers would be "the reason, or a part of the reason, for affirming the decision that is under review".
24 Each of these 359 provisions serves a different purpose. Section 359 permits the Tribunal to seek information from "a person" for the purposes of the review (s 359(2)). It is implicit from ss 359(3) and (4) that the word "person" includes the Secretary. Since the text of that section does not contain any other extensions or any restrictions, it can therefore be concluded that it includes an applicant.
25 While s 359 permits the Tribunal to obtain information, ss 359AA and 359A permit the opposite, namely for the Tribunal to give information. Both provide that the information is to be given only to the applicant and for the purpose of him or her making comment on it. There are, however, at least two points of distinction between ss 359AA and 359A. First, while s 359AA applies within a hearing context, s 359A does not. Secondly, the exceptions prescribed in s 359A(4) are not expressed to apply to s 359AA. Those exceptions are:
This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
26 Turning lastly to s 360(1), it is in substantially identical terms to s 425. Both require the Tribunal to invite an applicant "to appear before [it] to give evidence and present arguments relating to the issues arising in relation to the decision under review". In NAFF, this requirement (in s 425(1)) was characterised as a part of the Tribunal's duty of review (see NAFF at [6] and [27]). The Court described the content of that duty in the following terms:
One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.
27 As Perram J explained in Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 (SZNVW) at [83], it is not so much that s 360 (or, in that case, s 425) requires the Tribunal to afford a fair hearing, but rather whether the process contemplated by Part 7 (in this matter Part 5) has been duly administered or carried into effect. If the Tribunal has failed to follow that process, it will have failed to properly discharge its statutory functions with respect to the conduct of the review (see SZNVW at [83] per Perram J; SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [51] per the Court).
28 The duty to review mentioned above is premised on there being "issues arising in relation to the decision under review". In any particular visa application, those issues fall to be identified by the Tribunal itself (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [27] and [35] per the Court).
29 There are, however, three exceptions to the abovementioned duty prescribed by s 360(2). They are:
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 359C(1) or (2) applies to the applicant.
30 In this matter, s 360(2)(a) and (b) did not apply because the Tribunal plainly had not decided the review in Ms Vo's favour and she had not consented to it deciding the review without a hearing. However, the exception in s 360(2)(c) is worth noting. It arises if the Tribunal issues an invitation to a person under s 359, or an applicant under s 359A, and he or she does not respond within the required time (see s 359C(1) and (2) respectively).
31 Given the chronology of events in this matter, namely that the Tribunal's letter of 4 July 2018 post-dated the invitation contained in its letter of 27 June 2018, the exceptions under s 360(2)(c) could not have arisen.
32 When issuing an invitation under s 360(1), the Tribunal is not required to give advance notice to an applicant of the issues to which that hearing relates. All the more so where those issues concern the applicant's credibility (see AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494; [2010] FCAFC 156 at [39] per Besanko J). This undoubtedly explains why the Tribunal's letter of 27 June 2018 does not provide any indication as to what issue or issues it was that caused the Tribunal to believe it was obligated to issue that invitation to Ms Vo in the first place. Hence, only the Tribunal knew what those issues were.
33 If an applicant receives an invitation under s 360(1), he or she is afforded a number of procedural rights connected with the ensuing hearing. They include to request the Tribunal to call witnesses (s 361), to have access to certain written materials before the Tribunal (s 362A), to request to have the assistance of another person at the hearing (s 366A) and to request to have the assistance of an interpreter at the hearing (s 366C). The leaflet enclosed with the Tribunal's letter of 27 June 2018 adverted to all of these matters and a number of others. Hence, there is a number of procedural advantages to a hearing under s 360.
34 But the most important advantage of such a hearing is the opportunity it affords to an applicant to persuade the decision-maker in person of the merits of his or her application. All the more so where, as is often the case, issues of credibility loom large. In SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; [2008] FCAFC 138, Gyles J described this advantage in the following terms (at [28]):
… Usually, failure by an applicant to succeed will be because the truth of what the applicant has said has not been accepted by the Tribunal in some critical respect. It is, no doubt, for this reason that the Parliament has provided for a compulsory opportunity for an applicant to persuade the Tribunal face to face. That opportunity is only of real value if the face to face meeting is with the person making the decision. The face to face meeting is not just an opportunity for the applicant to put his or her best foot forward. It is the opportunity for the Tribunal member to explore issues that concern that member with the applicant.
35 An invitation to comment on information under s 359A does not offer these advantages. It does not offer the opportunity for a personal interaction with the decision-maker where the applicant can attempt to persuade that person that his or her version of the relevant events is true. It also does not provide the advantages of being assisted by another person or by an interpreter, assuming the Tribunal grants such requests. In short, it does not, in the words of s 360(1), allow an applicant to "give evidence and present arguments" at a face-to-face hearing before the decision-maker.
36 It is clear from the terms of the third paragraph of the Tribunal's letter of 27 June 2018 that it thought it had a continuing duty under s 360(1) to invite Ms Vo to a further hearing at which she would be able to "give evidence and present arguments relating to the issues arising in [her] case" (see at [6] above). One must assume that the Tribunal was well aware of its obligations under Part 5 of the Act with respect to the conduct of its review of the delegate's decision. It must therefore be assumed that it did not issue this invitation gratuitously.
37 For these reasons, I do not accept the Minister's contentions that the Tribunal was acting out of an "abundance of caution" or trying to meet a concern for "fairness". These sentiments can be rejected as otiose because, in this context, s 357A makes it clear that the Act contains the exhaustive provisions relating to fairness.
38 The Tribunal expressed its justification for this invitation differently in its reasons. It characterised it as "an extended opportunity" (see at [27] set out at [4] above). If this is read in context as defining the invitation to be an extension of its continuing duty to review the delegate's decision until due completion, then it accurately describes that duty as outlined in NAFF above. If, instead, it is to be read as defining an attempt to provide something more than is required by the exhaustive provisions in Part 5 of the Act, it is as similarly otiose as the sentiments above.
39 In NAFF, the High Court concluded that the Tribunal member's statement in her closing remarks at a hearing conducted under s 425 of the Act, that she would send the applicant a further set of questions after the hearing, provided a clear indication that the Tribunal considered that the review process was incomplete (see at [31]). In that circumstance, in the absence of an explanation such as a change of mind after due reflection about the issues concerned "by a letter to the [applicant] or in her detailed reasons for decision", the Court concluded that the Tribunal member's "original impression that the review process was incomplete had not altered on reflection, and was soundly based" (see at [32]). That conclusion led, in turn, to the Court's ultimate conclusion that the Tribunal had failed to comply with its duty to conduct the review under the apposite provisions of Part 7 of the Act, including s 425(1) (see at [32]). The Court added that the power being exercised by the Tribunal was "a serious matter" and that the course contemplated by its exercise, once embarked upon, "was not lightly to be departed from" (see at [33]). It also held that, in such circumstances, the applicant was not required to provide evidence to explain what he would have done had the Tribunal sent the promised set of questions to him after the hearing (see at [34]).
40 In my view, all of these conclusions apply with equal force in this matter. The Tribunal's letter of 27 June 2018 provided a clear indication that it considered the review process in respect of the delegate's decision concerning Ms Vo's application was incomplete.
41 The Tribunal's letter of 28 June 2018 (see at [7] above) provided no explanation as to why that decision no longer applied. Indeed, in its second paragraph it reiterated the terms of its letter of invitation of the previous day: "to attend a second hearing … to give evidence and present arguments relating to the issues arising in [her] case". If, notwithstanding the March 2018 hearing, the Tribunal thought, on 27 June, that it was obligated to have a further hearing to complete the review, one would have expected some clear and distinct explanation as to why that position had changed by 28 June 2018.
42 Neither of the reasons given in that letter for abandoning the further hearing shed any light on that subject, namely Ms Tieu's unavailability and the fact there had already been a hearing under s 360. The Tribunal's decision to adopt a different course, namely to send a letter under s 359A, also does not explain why the original course had been abandoned.
43 The Tribunal's letter of 4 July 2018 and its decision record are similarly bereft of any explanation. The latter has already been addressed above (at [38]).
44 In short, the Tribunal has not provided any explanation as to why it did not conduct the hearing it had invited Ms Vo to attend and thereby complete the review process as required by Part 5 of the Act. That being so, I consider the Tribunal failed to comply with its duty to complete that review process and thereby committed jurisdictional error.
45 It necessarily follows that I also consider the primary judge fell into error by failing to identify and correct this jurisdictional error on the part of the Tribunal. In fairness to the primary judge, I would add that I consider he was led astray by Ms Vo's original argument as expressed in her written submissions before him.
46 For these reasons, I consider that the primary judge's decision and the Tribunal's decision must both be set aside and the Tribunal must be ordered to determine Ms Vo's application afresh according to law. The orders will be:
- The appeal is allowed.
- The orders made by the Federal Circuit Court of Australia on 18 March 2019 are set aside.
- The decision of the Administrative Appeals Tribunal made on 9 August 2018 is set aside.
- The appellant's application is remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
- The first respondent is to pay the appellant's costs of and incidental to this appeal to be taxed failing agreement.
47 I will hear from the parties on the costs of the judicial review application before the Federal Circuit Court of Australia.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.