Can a visa applicant be asked to leave the hearing room when the Tribunal takes evidence from another witness?
If so, under what circumstances?
These issues may seem “technical” and of interest only to “lawyers”.
However, as a recent case before the Federal Circuit Court, Tong v Minister for Immigration & Anor (2018) FCCA 1329 illustrates, they are very consequential questions that do have significance concerning whether an applicant’s rights under section 360 of the Migration Act to “give evidence and present evidence to the issues arising in relation to the decision under review” have been complied with during the hearing process.
And as Registered Migration Agents of course very commonly represent their clients during review proceedings before the Tribunal, it is essential that RMAs be alert to issues surrounding the hearing process, so they can be able to identify whether jurisdictional error has been committed by the Tribunal, and thus be able to determine whether the client should be advised to consider seeking judicial review at the Federal Circuit Court.
So, what happened in the Tong case, which was heard by Judge Street?
The proceedings involved an application for review of a decision by the Tribunal to affirm the refusal of a partner visa application.
At one point during the hearing before the Tribunal, the applicant was asked to leave the hearing room while a witness gave evidence concerning “the social aspects” of the relationship that was the subject of the application.
A transcript of the proceedings before the Tribunal was tendered as evidence in the proceedings before Judge Street.
There was no indication in that transcript that the Tribunal had sought the applicant’s consent that she be excluded from the hearing room while the evidence from her witness was taken.
Also, no reason was given by the Tribunal concerning why the applicant had been asked to leave the hearing room, nor was any reason given by the Tribunal concerning why the Tribunal considered that it was an appropriate step to ask the applicant to leave the hearing room.
Although Judge Street did concluded that there may be circumstances where it is appropriate to exclude an applicant from the hearing while the evidence of another witness is being given –for example, “where it is appropriate to do so because of high sensitivity or the nature of the allegations”, Judge Street held in this case that it is legally unreasonable, and thus jurisdictional error, for an applicant to be excluded without the applicant’s consent having been given and without reasons having been given to explain why the applicant is asked to leave.
It was Judge Street’s view that in circumstances where no reasonable basis has been given for excluding an applicant while the evidence of another witness is given, then the applicant must be given an opportunity to give evidence and present arguments in relation to that evidence.
In my own view, the point can and should be taken even further: I would suggest that even where reasons are given for excluding an applicant from the hearing while evidence material to the decision is being given, even so, the applicant should nonetheless still have an opportunity to present evidence and make arguments in relation to that evidence.
So, if your clients ask you whether there would be any specific benefit to them in your accompanying them to the Tribunal reason, you can point to this decision, and explain to them that your presence will help to assure that their right to a full and meaningful hearing is protected!