Australian Immigration Daily News

How can you tell whether your client has been denied a fair hearing before the Administrative Appeals Tribunal?

For example, suppose, on the day before the hearing, the Minister’s lawyers “dump” a large volume of documents on you?

Or suppose that your clients is being questioned by the Tribunal, or cross-examined by a lawyer for the Minister. If your client is not advised by the Tribunal of her/his right to decline to answer because of the privilege  against self-incrimination, does that mean that your client has been denied a proper hearing, that jurisdictional error has occurred, and that the case needs to be sent back to the Tribunal for re-determination?

These types of questions would normally come up in an unusual kind of Tribunal proceeding, where the Tribunal is functioning more like a “normal court” and the proceedings are “adversarial”, rather than “inquisitorial” (as would normally be the case in an application for merits review of the refusal of a visa application). For example, these issues would be most likely to be presented in a case where the client is challenging a decision of a delegate to cancel a visa on character grounds, or where a citizenship application has been refused on character grounds.

In fact, these issues were at the heart of a case that was decided yesterday by Justice Flick of the Federal Court, Kohli v Minister for immigration and Border Protection (2018) FCA 540 (19 April 2018).

The Kohli case involved an application for review of a decision by a delegate of the Minister not to revoke a visa cancellation.  As far as can be discerned from the Federal Court’s decision, it appears that the visa was cancelled on the basis of convictions that has been recorded against the visa holder/applicant for “traffic offences” – driving while intoxicated and driving while disqualified.  It appears that the driving offences must have been quite serious, because the cancellation was made under the mandatory cancellation provisions of section 501(3A) of the Migration Act.

What occurred in this case was that on the day before the hearing, the Minister’s lawyers had served on the visa holder/applicant a bundle of 200 documents relating to his “criminal record and dealings with the police”.  

At the hearing, the visa holder/applicant was “unrepresented”.  The Tribunal did not ask the visa holder/applicant whether he had had an adequate opportunity to consider the material.

Justice Flick found that such a failure may well amount to a denial or procedural fairness, especially in view of the requirements of section 39 of the Administrative Appeals Tribunal Act 1975 that impose on the Tribunal an obligation to ensure that every party to a proceedings is given a reasonable opportunity to present her or his case.

However, in the specific circumstances of the Kohli  case, the “last-minute” document dump, and the Tribunal’s failure to ask the visa holder/applicant whether he had had an adequate opportunity to review the materials  did not amount to a denial of procedural fairness.

The reason that the Justice Flick arrived at this conclusion was that the visa holder/applicant had already seen most of the material that was served on him the day before the hearing; the only material that he had not previously seen consisted of a few (apparently) short reports.

 It also did not help the visa holder/applicant that no direction had been made by the Tribunal which had required the Minister to serve the documents in advance of the hearing, and that the visa holder/applicant had apparently not been prejudiced by the late service of the documents (on the basis that he was “a well-educated and articulate person with a keen appreciation for what was of relevance to his case” and that he had been able to answer questions put to him on cross-examination concerning the documents.

Likewise, while Justice Flick observed that it may, in some circumstances, be a denial of a meaningful opportunity for a hearing if the Tribunal does not inform an applicant of the right to refuse to answer questions on the basis of the privilege against self-incrimination, the failure of the Tribunal to so advise the visa holder/applicant of the privilege in this particular case.

In Justice Flick’s view, this was because the questions that were put to the visa holder/applicant did not actually put him at risk of further charges, and because, when asked about possible offences, the visa holder/applicant actually denied that he committed those offences.

In other words, the visa holder did not actually admit wrongdoing.   So it appears that Justice Flick concluded that the Tribunal’s failure to inform the visa holder/applicant of his right not to answer questions had not resulted in any practical injustice in this case.

So what does this case teach us? That it is important to be alert to the possibility that an applicant may have been denied procedural fairness by the Tribunal, and that a failure by the Tribunal to afford a person a meaningful hearing may be the basis for getting a decision of the Tribunal set aside.

But whether this will actually be possible will depend on the specific circumstances of the case and the hearing, and whether the person has suffered actual prejudice as a consequence of being denied a procedural right.