Case: Kopalapillai v Minister for Immigration [1998] FCA 1126 ; (1998) 86 FCR 547
Outcome: cited
In the notice of appeal filed on 9 September 2008, the appellant contended that his Honour erred by: &#8226; holding that the decision of the Third Tribunal was not affected by jurisdictional error; &#8226; failing to hold that the appellant was not provided with a real opportunity to give evidence and present arguments at the hearing before the Third Tribunal on 2 November 2007 contrary to s 425 of the Act; &#8226; refusing to receive oral evidence at the hearing below from Ms Peterson concerning the physical actions of the Third Tribunal Member at the hearing, which evidence would have been relevant to the issues before the Court and in circumstances where the absence if such evidence formed a basis for his Honour's dismissal of the application; &#8226; failing to find that the Third Tribunal's decision was affected by apprehended bias; and &#8226; failing to find that the Third Tribunal's approach to issues of credibility involved jurisdictional error. The Third Tribunal, by adopting a procedure based on the assumption that the purpose of the hearing was to discover whether the applicant was a truthful person, breached s 425 of the Act and failed to exercise jurisdiction to determine the claims before it. In this regard, it was contended that his Honour failed to apply the reasoning of this Court in Kopalapillai v Minister for Immigration [1998] FCA 1126 ; (1998) 86 FCR 547 at 555. 17 In written submissions filed on behalf of the appellant, contentions were made in support of the grounds in the notice of appeal, as well as leave being sought to raise a new ground of appeal. 18 In light of those contentions, it is necessary to say something more of the previous history of the delegate's decision and the three Tribunal hearings. 74 Finally, the appellant claims that the Federal Magistrate erred by failing to find that the Tribunal's approach to issues of credibility involved jurisdictional error (see Kopalapillai [1998] FCA 1126 ; 86 FCR 547 at 555). 75 The Federal Magistrate rejected the submission that, by entirely focusing on the appellant's credibility, the Tribunal fell into jurisdictional error. 76 His Honour correctly noted that, at the end of the Third Tribunal hearing (which is not recorded in the transcript), the Member identified that the assessment of the appellant's status turned on the appellant's credibility. 77 In Kopalapillai [1998] FCA 1126 ; 86 FCR 547 at 555, the Full Court of this Court (O'Connor, Branson and Marshall JJ) said: Were we satisfied that the RRT had reached its decision in this case by adopting a procedure which placed on the appellant an onus of establishing that he was truthful, or even a procedure based on the assumption that the purpose of the hearing before it was to discover whether the appellant was a truthful person, we would be satisfied that the procedures adopted by the RRT contravened s 420 of the Act. 78 I do not regard his Honour's approach to be at odds with the approach taken by the Full Court in Kopalapillai [1998] FCA 1126 ; 86 FCR 547. All the Tribunal was doing, at the end of the hearing, was stressing the important issue of credibility. It was not elevating such an issue to that hypothesised in Kopalapillai . I agree with the approach taken by the Federal Magistrate. 79 The appeal should be allowed. 80 The matter should be remitted to a differently constituted Federal Magistrates Court for a re-hearing and reconsideration only of the issue of bias taking into account any admissible evidence of Ms Peterson adduced by the appellant. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 10 December 2008 Counsel for the Appellant: Mr S E J Prince Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 19 November 2008 Date of Judgment: 10 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1866.html