Case: Le v Minister for Immigration &amp; Anor [2007] FMCA 427
Outcome: discussed
First, according to the learned Federal Magistrate, the Tribunal failed to discharge its obligations under s 360 of Act by failing to ensure Ms Le and her children were given an adequate opportunity to present their case and by proceeding in the absence of an interpreter. His Honour held that "where a hearing has not concluded in the sense that witnesses available have not given evidence ... there is a continuing obligation on the part of the Tribunal to ensure that the invitation to the hearing remains genuine and is not simply a hollow or empty gesture": see Le v Minister for Immigration &amp; Anor [2007] FMCA 427 (' Le v Minister' ) at [62]. His Honour added at [64]: "If an opportunity has been given during the hearing for a further hearing to occur then that opportunity should be conveyed through and [sic] interpreter to the Applicant. Failure to do so in my view renders the process which occurred after the interpreter left the hearing room as meaningless. There is no evidence that the Tribunal arranged for its transcript to be made available to the Applicant or that it sought any assurance that what had been said at the Tribunal hearing would be interpreted. Instead the Tribunal relies on knowledge that the agent apparently had 'Vietnamese' staff and that the agent could 'arrange to explain what we have discussed with your client when you've got use of some staff to help explain to her'." 26 The Federal Magistrate also had regarded to what he called the agent's "significant concessions", made in the absence of an interpreter and without knowledge of the content of the s 359A letter: see Le v Minister at [65]-[66]. His Honour noted that the agent was unwilling to accept responsibility for determining whether there should be a further hearing and purported to leave this matter to the Tribunal. His Honour considered the agent's failure to press for a further hearing involved an "extraordinary concession" in the circumstances of the case: see Le v Minister at [66]. His Honour described the agent's approach to the Tribunal as "obsequious". The agent was, so his Honour thought, more concerned with his personal preference than with the interests of his clients. His Honour regarded the agent as negligent in failing to press for a further hearing in order that the other witnesses could give their evidence. His Honour remarked, at [67], that: "There is simply no evidence to suggest that the clear invitation properly referred to by the Tribunal was ever passed on in detail to the Applicant. It would be wrong for the Court to assume that it occurred ... The exchange between the agent and the Tribunal was critical. Without the offer being accurately and contemporaneously interpreted the conclusion I reach is that offer of a further hearing upon receipt of the s 359A letter could not properly by interpreted as a genuine offer and the ongoing obligation of the Tribunal to ensure that its original hearing is valid." 27 Further, his Honour noted the "clear evidence of circumstances which at the very least would bring into question the voluntariness of the withdrawal of the sponsorship document", as well as the fact that the purported withdrawal had not been properly translated. He observed, at [72]-[73], that: "At the very least the other evidence of the witnesses available to the [sic] called but not called due to the absence of the interpreter may have provided the Tribunal with other evidence in the absence of the departmental officers which would have made it less likely for the Tribunal to rely upon the written document obtained on the Applicant's allegations after a five hour interview without a break and without refreshment. The obligations imposed upon a Tribunal under s.360 should not be narrowly confined to an invitation to appear but also to 'give evidence and present arguments relating to the issues arising in relation to the decision under review'. It is the invitation to give evidence and present arguments that is crucial. The giving of evidence is not confined simply to the Applicant but extends to those witnesses whom the Applicant has evinced an intention to call. It is not appropriate for the Tribunal to simply seek to transfer the obligation it has under s.360 to the Applicant's agent. In the present case it is particularly inappropriate to extend the further invitation in the absence of an interpreter when the Tribunal cannot be satisfied that the extension of that invitation has been accurately interpreted and communicated to an Applicant." 28 For these reasons, his Honour found that there had been a breach of s 360 of the Act. 29 Secondly, the Federal Magistrate found: (1) the Tribunal ought to have made additional enquiries pursuant to ss 359 and 363 of the Act to obtain evidence from or about the Minister's officers and their conduct; and (2) the Tribunal made an assessment of the facts that was not reasonably open to it. Accepting that there was no general duty on the Tribunal to make enquiries, his Honour said, at [89]-[90]: "However, in this instance the Tribunal was able to easily request the attendance of the relevant Departmental officer or officers who conducted the interview which resulted in the withdrawal of sponsorship. It was after all the interview process which was subject to significant challenge and the voluntariness of the withdrawal statement questioned. Whilst the Tribunal was able to assess the subsequent explanation from the nominator as to why the withdrawal document had been signed it should in my view following my reasoning in relation to the previous ground have permitted the Applicant to adduce further evidence in support of the application which may have given greater corroboration to the likelihood or otherwise of the withdrawal having been made voluntarily. It could then assess evidence from relevant Departmental officers. Although the decision of Wilcox J in Prasad appears to be obiter, it is obiter which I am prepared to follow to the extent that in this instance for the Tribunal to proceed to a decision without making any attempt to obtain evidence from the Departmental officers that it conducted itself in a manner which could properly be described as exercising a decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. By making a finding that it did not accept the Department's officers 'would have fabricated his admissions or pressured him into formally withdrawing his sponsorship' the Tribunal was not making an assessment of the facts reasonably open to it. Accordingly this ground succeeds." 30 His Honour found that the other grounds for judicial review were not made out. The Minister challenges his Honour's judgment.