Case: WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30 ; (2003) 134 FCR 271
Outcome: considered
When the appellant applied to the Federal Magistrates Court for review of the second decision he again asserted that the decision was based upon Mrs Sun's evidence and that he had not been allowed to cross-examine her. It is true that the matter was raised in a rather unorthodox way, but nonetheless it was raised. Concerning this complaint the Federal Magistrate said at [27] and [28]: 27 At particular (f) to ground one and at ground five the [appellant] complains that the Tribunal did not allow him to cross-examine Ms Sun. The drafter of this document plainly understood that the Tribunal is not a court of law (see ground five) and that the Tribunal did not have an obligation to allow him to cross-examine Ms Sun. As Ms Wong submits, the [appellant] does not have such an entitlement to cross-examine persons appearing before the Tribunal to give evidence. Section 427(6)(b) of the Act plainly provides that the applicant has no such entitlement (see Algama v Minister for Immigration and Multicultural Affairs (2001) ..., cited with approval in WABZ v Minister for Immigration and Multicultural and Indigenous Affairs ... . 28. The Tribunal's analysis reveals that it considered the evidence provided by Ms Sun, discussed her evidence at the hearing with the [appellant] and put to the [appellant] that it was "difficult to accept" the [appellant's] evidence in light of Ms Sun's evidence, and gave him the opportunity, by way of its s 424A letter, to further comment. That the Tribunal chose to give greater weight to the evidence of Ms Sun, as opposed to the evidence of the [appellant], is within the Tribunal's discharge of its duty as the finder of fact. I cannot see that the [appellant's] complaint that the Tribunal's preference for the evidence of Ms Sun to his evidence was made without "any substantial and objective evidence to support". On what was before it, it was open to the Tribunal to reject the [appellant's] evidence and to prefer that to prefer that of Ms Sun. The Tribunal gave clear reasons for this. This aspect of the complaint also does not succeed. 14 Ground 5 in the notice of appeal to this Court, is: The Federal Magistrate erred in law because the Tribunal's decision has obviously included apprehension of bias. Significantly, regarding my requirements to cross-examine Mrs Sun, I may understand that the Tribunal may not be a court of law, and thus the Tribunal may not have to do so. But, the key issue is that the Tribunal has given particular weight to Mrs Sun's allegation against me without any substantial and objective evidences! [sic]. In other words, the Tribunal preferred the evidence of Mrs Sun to my evidence and rejected my claims without any substantial and objective evidences to support! [sic]. 15 Again, the language may be inelegant and the attribution of bias to the Tribunal may be misconceived. Nonetheless, the claim is sufficient to raise an assertion of lack of procedural fairness and should be understood as such. In any event, the notice of appeal was amended on 10 April 2008, pursuant to order made on 7 April 2008, to include a further ground of appeal as follows: The learned Federal Magistrate erred in upholding the Tribunal's error in treating s 427(6) of the Migration Act 1958 ("the Act ") as being determinative of the Appellant's application to cross-examine Mrs Sun and as a consequence: &#8226; failing to consider the merits of the Appellant's application to cross-examine Ms Sun; &#8226; failing to permit the Appellant to cross-examine Mrs Sun (the "Alleged Errors"). The learned Federal Magistrate erred in failing to hold that the Alleged Errors amounted to a failure by the Tribunal to accord the Appellant procedural fairness. The learned Federal Magistrate erred in failing to hold that the failure by the Tribunal to accord the Appellant procedural fairness precluded the Tribunal's decision from being a "... decision under this Act ..." within the meaning of s 474 of the Act . 25 Of some significance in construing s 427(6) is the decision of the Full Court in WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30 ; (2003) 134 FCR 271. That case concerned the entitlement to legal representation and the discretion to permit such representation. At [67]-[69] French and Lee JJ held that: 67. The effect of the cases referred to is that s 427(6)(a) applies to applicants for review who appear before the Tribunal to give evidence. An applicant so appearing is "not entitled ... to be represented before the Tribunal by any other person". But that is a statement about entitlements. It does not exclude the rules of procedural fairness insofar as they may require representation in the circumstances of a particular case. ... To displace the common law agency rule is not to displace procedural fairness, although it could no doubt place a considerable obstacle in the way of any suggestion that procedural fairness requires in every case that an applicant be represented by a lawyer or other agent. ... 68. ... 69. The Tribunal clearly has a discretion to allow a person to be represented before it. The question that arises is whether there may be circumstances in which a decision to disallow representation of an applicant before the Tribunal amounts to a denial of procedural fairness. 26 Their Honours went on to conclude that in the circumstances of that case the Tribunal's refusal to permit legal representation constituted a denial of procedural fairness. Hill J reached the same conclusion. It may reasonably be inferred from that decision that had the law remained unchanged, there was, in the present case, a discretion to permit cross-examination. Further, a decision not to permit cross-examination might, in certain circumstances, have amounted to a failure to accord procedural fairness to the relevant applicant. There is a further question which was not addressed in WABZ . It is whether an applicant who, pursuant to s 425 , is invited to appear to give evidence and present arguments is a person invited to give evidence for the purposes of s 427(6). Given the strict limitations upon the content of the rules of procedural fairness imposed by the enactment of s 422B , there may well be justification for a strict reading of s 427(6) so as to exclude from its operation applicants who appear both to give evidence and make submissions. Such enactment occurred after the decision in WABZ . 30 The decision in Lat is consistent with the more recent decision of the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 at [48] . It follows that to the extent that WABZ established that a failure to permit cross-examination may constitute a denial of procedural fairness amounting to jurisdictional error, it is no longer good law. However, to the extent that the case establishes that the Tribunal has a discretion to permit cross-examination, I see no reason to doubt its correctness. It also follows that neither a person attending to give evidence, nor an applicant attending to make submissions, has a right to cross-examine witnesses.