Case: Rivera v Minister for Home Affairs [2008] FCA 1
Outcome: applied
That may have been the " impression " of the now Appellant at the time. But there was no obligation imposed upon the Tribunal to raise with him whatever reservations may have been experienced at the time as to the explanations being provided by the now Appellant, let alone any obligation to raise whatever reservations may subsequently have emerged when the evidence in its entirety was being considered and the reasons being drafted. As was recognised by Lord Diplock in F Hoffman-La Roche &amp; Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369: ... the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished. And, after having cited these observations, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152 at 166 Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ further observed: [48] ... Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. See also: SZHBP v Minister for Immigration and Citizenship [2008] FCA 1299 at [11] , 103 ALD 595 at 597. 21 An application made by the now Appellant during the course of his oral submissions was for the provision of legal assistance. That application was construed as an application for a referral pursuant to O 80 of the Federal Court Rules . Rule 4(1) and (2) provide as follows: Referral to a legal practitioner (1) The Court or a Judge may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to a proceeding before the Court. (2) For subrule (1), the Court or Judge may take into account: (a) the means of the litigant; and (b) the capacity of the litigant to obtain legal assistance outside the scheme; and (c) the nature and complexity of the proceeding; and (d) any other matter that the Court, or Judge, considers appropriate. Left to one side is whether or not a referral should or could be made after the commencement of the hearing of the proceeding in which the referral is sought. Even if such a referral could then be made, in the circumstances of the present appeal it is not considered to be " in the interests of the administration of justice " to make such a referral. Although the phrase " the interests of justice " is " wide " ( Taylor v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 319 at [10] per French J), the " nature and complexity of the proceeding " does not warrant the making of any such referral. And it is not considered that either the application for review as made to the Federal Magistrates Court or to this Court on appeal exposes any argument which has any real prospects of success. An assessment as to prospects of success is relevant to the exercise of the " broad discretion " conferred by O 80 r 4: Rivera v Minister for Home Affairs [2008] FCA 1 at [6] [8] per Tamberlin J. Moreover, the now Appellant had the benefit of legal assistance prior to the hearing before the Federal Magistrates Court. Such assistance as may otherwise have been warranted was most appropriately received at the hearing before the Federal Magistrates Court rather than on appeal.