Case: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1
Outcome: referred to
The appellants submitted that s 360 imposed obligations to consider arguments in a way that accorded procedural fairness and to identify the critical issues in the review. They argued that what had happened in this case was similar to Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 (' NAFF '). They submitted that the second appellant had not been questioned at the hearing or in subsequent correspondence about a number of matters the inadequacies of his schooling, previous unsuccessful attempts to enrol in his current course, and the relevance of his post-secondary studies to his current course although the Tribunal treated these as factors militating against him. Furthermore, according to the appellants, the Tribunal had identified the documents that it said would be critical to its decision but it did not decide the case by reference to them. 26 The appellants also argued that the second appellant's evidence was that he had undertaken three part-time courses of study after finishing what the Tribunal found was the equivalent of year 12. They submitted that the Tribunal erred in holding that these courses, though undertaken contemporaneously, could not qualify as a "full-time course of study". They also argued that the Tribunal mistakenly focussed on the question whether the delay of two years between finishing the equivalent of year 12 and enrolling at the ITM was justified, instead of considering whether in the context of this class of visa the delay was reasonable. 27 Finally, the appellants contended there were further errors in the Tribunal's alternative finding that the second appellant was not undertaking a full-time course of study. They argued that this finding was tainted by the Tribunal's failure to comply with its obligations under the Act as to procedural fairness. They also said that "undertaking" meant "participating" and not " actively participating", as the Tribunal maintained. They argued that the finding that the second appellant's "progression from associate degree to bachelor degree was consistent with him having actually participated in and completed each year of the program" could only admit of the conclusion that he was undertaking the course. They noted that the Tribunal had accepted that the second appellant was enrolled in an associate degree course at the ITM in 2002/2003; that he converted to a bachelor degree course in 2003/2004 or 2004/2005; and that he was currently enrolled at the ITM. 30 The first respondent contended that the Tribunal's conduct of the review fell to be considered in the context of the surrounding circumstances. These were distinguishable from NAFF . The first respondent also argued that the transcript showed that neither the appellants' representatives nor the second appellant indicated at the hearing that they wanted a further opportunity to give oral evidence. The first respondent submitted that, in asking questions of the second appellant at the hearing, "the Tribunal conveyed its impressions about the existing documentary evidence in support of his oral evidence". Further, according to the first respondent, the Tribunal "clearly indicated that it required further documentary evidence of the applicant's educational history". 31 The first respondent acknowledged that the Tribunal's post-hearing request for further material did not refer to information about the ITM, but submitted that "the Tribunal's comments at the hearing had made it clear that the documentation about all of [the second appellant's] studies was deficient" and that, in consequence, the appellants' representatives "were or should have been aware that the Tribunal had concerns about the adequacy of documentary evidence about all of [his] academic activities". The first respondent pointed out that the appellants' representatives' conduct was consistent with this, since they subsequently provided documentation about the ITM. Hence, the first respondent argued: It is therefore apparent that the appellants' representatives understood that, whatever the details of the Tribunal's written request for further documentary evidence, the Tribunal wanted additional documentary evidence in respect of all of [his] studies, including his studies at ITM. [Emphasis in original] The first respondent submitted that the appellants' representatives' reference, in their letter of 6 February 2006, to "adverse issues" "could only relate to matters about which the appellants and their representatives were not and could not reasonably have been expected to be aware". There was no need for a further hearing, so the first respondent said, because the Tribunal had already raised its concerns about credibility and the documentary evidence. 32 Finally, the first respondent contended that the Tribunal did not misconstrue clause 101.213 of the Regulations and that, in their submissions to this effect, the appellants asked the Court to review the merits of the Tribunal's findings. The first respondent submitted that the Tribunal's construction of the word "undertaking" was "consonant with the word's dictionary meaning" and, in effect, that the Tribunal made a finding of fact adverse to the appellants, which it was open to it to do on the evidence before it. 37 The decision in NAFF is central to the appellants' case. In that case, the High Court held that the Refugee Review Tribunal denied a visa applicant procedural fairness when it failed to act on its own statement at the end of a hearing that it would write to the applicant about inconsistencies in his evidence and allow him time to respond. In their joint judgment at 10, McHugh, Gummow, Callinan and Heydon JJ commented that: 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. 38 Their Honours drew certain inferences from the Tribunal's decision to adjourn: see NAFF at 11. These inferences were that the Tribunal considered that: (1) the visa applicant's evidence had potential significance in the review; (2) the visa applicant had not done himself justice in the circumstances of the hearing; (3) the procedure had not been entirely satisfactory because it had not been wholly fair to him; (4) the process of review should not be brought to an end so far as the visa applicant's participation in it was concerned until he had been given a further opportunity; and (5) a fair technique by which to take the matter forward was for the visa applicant to be asked to explain the inconsistencies in less stressful conditions. They continued, at 11-12: It is possible that the reason why the Tribunal member failed to send the promised questions was that, on reflection, she thought that everything she required had in fact already been put before her, or that a resolution of the perceived inconsistencies in the appellant's statements was not crucial in deciding the review against him. If either of these explanations, or any other explanation, existed, it is to be expected that the Tribunal member would have advanced it, either by a letter to the appellant or in her detailed reasons for decision. She did not do so. It is probable, when the workload under which the Tribunal labours is borne in mind, that the Tribunal member did not send the promised questions because she had forgotten or overlooked the promise to send them. Her failure to give any indication otherwise suggested that her original impression that the review process was incomplete had not altered on reflection, and was soundly based. It would not be complete until the steps which she had thought could remedy its defects had been carried out. The failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant. 39 The joint judgment held that the appellant in NAFF did not lose his entitlement to relief because he did not tender evidence that he had been misled or prejudiced by the Tribunal's failure to act as promised. It also rejected the respondent Minister's submission that there had been no material breach because the suggested internal inconsistencies were not crucial to the Tribunal's reasoning. This was because the Tribunal's "scepticism about particular parts of the appellant's evidence existed to some extent because of [its] scepticism about other parts of [the evidence]": see NAFF at 14. 40 Section 422B (which is equivalent to s 357A in connection with the Tribunal in this case) did not apply in NAFF , although it would in the present case. The reasoning in the joint judgment in NAFF (though not perhaps in Kirby J's judgment) did not, however, depend on the residual operation of the common law requirements of procedural fairness. On the contrary, the reasoning in the joint judgment turns on the operation of s 425 (as well as s 414). Section 348, which applies to the Tribunal here, is equivalent to s 414. 51 As the High Court held in NAFF , it is undisputed that the duty to review involves the duty under s 360 to invite the applicant to a hearing to give evidence and present arguments. On the one hand, as Full Courts of this Court have said, the invitation must afford a real, in the sense of fair, opportunity to the applicant to present evidence and arguments. On the other, as the High Court also said in NAFF , the Tribunal must consider that evidence and arguments. If it concludes that it cannot give such consideration until other steps in the review process are taken, then it cannot complete that review without taking those steps (or indicating that it has, for some reason, changed its mind). 52 I would infer from the Tribunal's statements at the adjourned hearing that there would be a further opportunity to present evidence and arguments that the Tribunal considered that: (1) the adjourned hearing had not afforded the appellants an adequate and fair opportunity to present evidence and arguments in support of their case; (2) further documentary and oral evidence from the appellants might be significant on the review; (3) a fair and proper way to advance the process of review was to identify the missing documentary evidence that the Tribunal considered important, by means of a letter seeking additional information under s 359; (4) the process of review should not be completed until the appellants had had an opportunity to provide the Tribunal with that documentary evidence; and (5) the appellants should be afforded a further opportunity to present evidence and arguments at a resumed hearing if the Tribunal were not satisfied that it should make a decision in the appellants' favour. 53 As we have seen, the Tribunal did indeed send a letter (dated 24 October 2005) under s 359, as it had said it would, and, presumably, after it had perused the "mountain of files" it held for the appellants. In this respect, the case is distinguishable from NAFF where the promised letter was never sent. Having regard to the Tribunal's ultimate reasons for decision, however, it is apparent that the letter did not identify for the appellants the missing documentary evidence that the Tribunal considered important. The letter specifically sought the second appellant's year 12 results, as well as statements from the ELTI and the Liang Ly School (also referred to in the Tribunal's reasons as the "Leang You School"). The letter did not request any further documentation relating to the second appellant's course at the ITM. In particular, contrary to the Tribunal's belief (as stated in its reasons), the letter did not request "results for the visa applicant's associate degree or bachelor degree courses" or "verifiable documentary evidence of his studies at the ITM". 54 In sending its letter of 24 October 2005, the Tribunal purported to give effect to its view that a fair and proper way to progress this case was to send a s 359 letter identifying the missing documentary evidence that it regarded as important for the appellants' case. This letter was not the letter described by the Tribunal in its reasons for judgment as being sent after the adjourned hearing. The letter described in the Tribunal's reasons invited the appellants to provide much more than the letter they actually received. Thus, for example, the Tribunal's reasons refer to a letter inviting the appellants to provide a "[s]tatement from the ITM indicating whether the visa applicant enrolled in an Associate Diploma, Associate Degree or Bachelor Degree course in 2002 and the estimated date of completion of that course. Statement of the visa applicant's academic results in 2002/2003 and 2003/2004, as well as confirmation of his current enrolment". The letter that the Tribunal actually sent contained no such request. The letter referred to by the Tribunal in its reasons was said to have requested details of the Duon Hoa Chinese School and the Atlanta Centre, whereas the letter that the Tribunal actually sent contained no such specific request. 55 As already noted, when the Tribunal adjourned the hearing on 21 October 2005, the Tribunal member apparently believed that a fair and proper way to progress the case was for her to send the appellants a s 359 letter identifying for them what she saw as the important missing documentary evidence for their case. She did not send such a letter. That is, the letter of 24 October 2005 did not identify for the appellants what she saw as the important missing documentary evidence. This much is clear from the Tribunal's reasons. First, as noted above, the Tribunal twice referred to the fact that the appellants had not provided the documentation regarding the ITM, which she mistakenly thought she had specifically sought from them. It drew strong adverse inferences from their failure to provide these documents and the lack of explanation for the perceived deficiency. These failures weighed heavily against the appellants, in the Tribunal's consideration, because of the visa applicant's "bogus claim" regarding Norton University. Secondly, the Tribunal, in its reasons, referred to the fact that it had invited the appellants to provide detailed documentary evidence of studies at various other institutions, including the Atlanta Centre and the Doun Hoa Chinese School. The Tribunal was mistaken if it thought it had specifically requested documentation about these institutions in its letter of 24 October 2005. Thirdly, had the Tribunal sent the letter described in its reasons instead of the letter it actually sent, it appears that it would in fact have identified what it perceived to be the important missing documentary evidence in the appellants' case. 56 There is nothing in the Tribunal's reasons to indicate that the Tribunal member was aware of the fact that the letter actually sent to the appellants sought much less than the letter she described in her reasons as being sent. On the contrary, the Tribunal's clear mistake about the ITM documents strongly indicates that the Tribunal member did not realise that the appellants had not received a letter in the terms she described. It would follow that the Tribunal member was unaware that the appellants had not in fact received a letter identifying for them the documents that she regarded as missing and important for their case. There is nothing in her reasons or in the attendant circumstances that would indicate that she had changed her view that the review process should not be completed until a letter identifying these documents had been sent to the appellants in order that they might direct their attention to providing them (or explaining their absence). As in NAFF , the failure to complete the review process was a failure to comply with the duty, imposed by s 348, to conduct the review and the duty, under s 360(1), to hear from the appellants. 57 It is not sufficient to say, as the first respondent does, that there was discussion at the adjourned hearing about the need for further documentation and some indication from the Tribunal that it did not regard enrolment receipts as sufficient. The whole point of the s 359 letter, as the transcript of the discussion between the Tribunal and appellants' representative shows, was that it would identify for the appellants what the Tribunal saw as the important missing documentation after the Tribunal had gone through the relevant files. Since the Tribunal was to complete this task before sending the s 359 letter, and the files were apparently voluminous, the appellants' representatives were reasonably entitled to rely on the s 359 letter sent to them as stating what the Tribunal perceived to be the documentary deficiencies in the appellants' case. There was nothing in this letter to indicate that the Tribunal considered that the appellants needed to provide further ITM documentation, such as transcripts of ITM results, in order to fill a gap in their case. 58 The fact that the appellant's representatives later provided the Tribunal with additional unsolicited documentation, including some receipts from the ITM, does not alter the significance of the s 359 letter. It is scarcely surprising that the representatives would send additional supportive material, though not specifically sought by the Tribunal, on the straightforward basis that such material was confirmatory of the appellants' position. It does not, however, follow from the fact that this additional material was sent that the appellants' representatives were on notice that the Tribunal considered that documentation beyond that sought in the s 359 letter was, in the Tribunal's view, necessary (or important) to complete the documentary aspects of the appellants' case.