Federal Court: This decision illustrates why it might not be in a client's best interest to provide the Tribunal with a copy of the Department's decision record. Further, was it legally reasonable for the Tribunal to refuse to make a phone call to a witness whom the Appellant claimed to work at the Iranian Embassy on the basis that it was impossible for it to determine the identity of the witness or that the phone call "could lead to the Iranian government being informed of the [Appellant's] asylum claims"?
A delegate granted the Appellant a protection visa and provided a decision record (the First Delegate's decision record).
That visa was subsequently cancelled by another delegate under s 109 (incorrect information) of the Migration Act 1958 (Cth), who also provided a decision record (the Second Delegate's decision record).
The Second Delegate's decision record referred to information contained in the First Delegate's decision record (the Relevant Information).
The Appellant then applied to the AAT for merits review of the Second Delegate's decision.
The Appellant provided the Tribunal with the Second Delegate's decision record, but not with the First Delegate's.
The Tribunal affirmed the Second Delegate's decision. The Tribunal's decision record referred to the Relevant Information as comprising part of the reasons for affirming the Second Delegate's decision, but it made no express reference to the Second Delegate's decision record in that context.
The Tribunal did not put it to the Appellant, before making its decision, that the Relevant Information would comprise part of the reasons for affirming that decision.
Section 424A of the Act (part 7-reviewable decisions), which is very similar to s 359A (part 5-reviewable decisions), read as follows (underlining added):
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Further, before the Tribunal made its decision, the Appellant invited it to make a telephone call to a witness whom the Appellant claimed to work at the Iranian Embassy in Canberra.
The Tribunal refused to call the Embassy for the following reasons contained in its decision record at [20]:
... I chose not to dial the number provided by the applicant for the reasons that it would be impossible to determine who was on the other side of the line and as such any information provided would be severely undermined and secondly if the person on the other side of the line was who the applicant claims him to be then it could lead to the Iranian government being informed of the applicant’s asylum claims.
The Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision, but the FCCA dismissed that application.
The Appellant eventually appealed the FCCA's decision to the FCA, the questions to which were as follows:
Question 1: Generally speaking, if it could be established that the Appellant provided the Tribunal with a particular piece of information for the purpose of the review, was the Tribunal required to put the Appellant on notice that, before making a decision, that piece of information would comprise part of the reasons for affirming the Second Delegate's decision?
Question 2: As the Appellant never provided the Tribunal with a copy of the First Delegate's decision record and the only express reference to information that comprised part of the reasons for affirming the decision under review was a reference to that same decision record, was the Tribunal required to put the Appellant on notice that such a record would form part of its reasons?
Question 3: Was it legally reasonable for the Tribunal to refuse to make a phone call to a witness whom the Appellant claimed to work at the Iranian Embassy on the basis that it was impossible for it to determine the identity of the witness?
Question 4: Was it legally reasonable for the Tribunal to refuse to make a phone call to a witness whom the Appellant claimed to work at the Iranian Embassy on the basis that the phone call "could lead to the Iranian government being informed of the [Appellant's] asylum claims"?
The FCA answered those questions as follows: