ART required to disclose new issues even if applicant waived hearing entitlement?

The Administrative Review Tribunal affirmed a decision of a delegate to refuse to grant the First Respondent non-citizen a protection visa.

The Tribunal did so on a different basis from that of the delegate. In particular:

• the delegate either accepted that the non-citizen was a Shi’a Muslim, or this issue was not in contest before the delegate;
• the Tribunal did not accept that the non-citizen was a Shi’a Muslim.

The Tribunal had not put the non-citizen on notice before making its decision that it might not accept that she was a Shi’a Muslim.

On appeal by the Minister from the Federal Circuit and Family Court, the Full Court of the Federal Court (FCAFC) said:

9    On 7 November 2024, the Tribunal sent [the non-citizen] a “Notice of Hearing”, which stated that there was to be a hearing in person on 29 November 2024. This Notice stated further (J [25]):

What you should do on receipt of this letter

Please read and complete the enclosed ‘Response to hearing notice’ form and return it to the ART within 7 days of receipt of this letter. Please use the ‘Response to hearing notice’ form attached to this letter or attach additional information if you have any requests or any new information which you wish us to consider. ...

Things to do before the hearing

Please provide all documents you intend to rely on to support your case by 22 November 2024 if you have not already done so. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. ...

…

What will happen if you don’t appear

If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. …

What if I want the Tribunal to make a decision without holding a hearing

You can use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing. However, you may still be required to attend the hearing if the Tribunal is unable to determine the issues in your absence. If you request the Tribunal to make a decision without a hearing, and we still require you to attend, we will inform you of this before the hearing date.

Please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.

(emphasis added)

A factsheet attached to the Hearing Notice stated that the hearing “is an opportunity for you to give evidence and present arguments to us relating to the issues arising in your case”.

10    On 15 November 2024, [the non-citizen] returned the “Response to hearing notice” form to the Tribunal by email. She marked the box next to the statement “No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing” (J [26]).

11    On 19 November 2024, the Tribunal emailed [the non-citizen] requesting that she reply to that email to confirm that she was still requesting a decision on the papers, and called her on the same day. [The non-citizen] did not respond to the email or the telephone call. The Tribunal sent [the non-citizen] reminders of the 29 November hearing by text message on 22 and 28 November 2024. [The non-citizen] did not attend the hearing on 29 November 2024 (J [27]-[29]).

...

28    At the time of the Tribunal’s decision, s 55(1) of the ART Act provided that the Tribunal must ensure that each party to a proceeding in the Tribunal “is given a reasonable opportunity” to:

(a)     present the party’s case; and

(c)     make submissions and adduce evidence.

30    By s 106(1) of the ART Act, the Tribunal was empowered to make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of s 106(2) to (5) applied. Relevantly, s 106(3) applied if:

(a)     the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and

(b)     either:

(i)     the decision is wholly in favour of the applicant; or

(ii)     the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and

(c)     it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

Some of the questions to the FCAFC were as follows:

Question 1: Although the Hearing Notice warned the non-citizen that it may make an adverse decision in her absence, did it also suggest that, except for a change in circumstances, the dispositive issues before the Tribunal would be the same as those before the delegate, thereby failing to clearly put the non-citizen on notice that all matters relevant to her application were in issue, even if the Tribunal says to a review applicant in general terms that it is not bound by the findings of a delegate?

Question 2: For similar reasons, is it not significant that the general information provided years before the Hearing Notice was sent stated that the AAT would consider the matter “afresh”, in that such statement "statement conveys no more than the Tribunal’s task is not simply to look for error"?

Question 3: Must the legal effect of the non-citizen's request that the Tribunal determine the matter without a hearing take account of what was said in the Hearing Notice?

Question 4: Should SZBEL be understood as establishing only that procedural fairness requires the party affected to be given “the opportunity of ascertaining the relevant issues”? Or should it be understood as holding that procedural fairness requires a decision-maker to put an affected person “on notice” of any new issues?

Question 5: In answering Question 4, is it significant that s 5AAA(2) of the Migration Act 1958 (Cth) provides that it is the responsibility of an applicant for a protection visa to provide sufficient evidence of their claim?

Question 6: Is the new scheme for merits review introduced with the creation of the Administrative Review Tribunal on 14 October 2024 intended to afford less procedural fairness than the previous scheme?

Question 7: When interpreting and applying the ART Act (read together with Pt 5 of the Migration Act), is the question "not whether the well-established principles in Alphaone and SZBEL have been adopted, but rather whether those principles have been clearly excluded by plain words of necessary intendment"?

Question 8: If the answer to Question 7 is 'yes', can it be said that s 357A of the Migration Act does exclude the principles in Alphaone and SZBEL, in that it is only an exhaustive statement of procedural fairness in relation to the matters dealt with by the relevant provisions, which do not deal with the requirement to identify the issues arising for decision?

Question 9: Is the requirement to notify a review applicant of any new issues arising in the review removed if the review applicant has requested that the Tribunal determine the matter without a hearing?

Question 10: Was the Tribunal required to inform the non-citizen before making its decision of its different basis from that of the delegate?

The FCAFC answered those questions as follows: