Federal Court. Is the Tribunal required under Direction 99 to "consider whether the decision is in the best interests of a particular child if the facts known to the Tribunal are such as to raise a realistic question as to whether the decision will affect that child"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Does the fact that cl 8.1(4)(a) of Direction 99 state that “less weight” should ordinarily be given to the best interests of a child where (among other things) the relationship between the child and the non-citizen is “non-parental” confirm that the class of children who may be “affected by the decision” is not limited to children for whom the non-citizen is in a “parental” relationship?
Question 2: Is the Tribunal "required to consider whether the decision is in the best interests of a particular child if the facts known to the Tribunal are such as to raise a realistic question as to whether the decision will affect that child"?
Question 3: Ia personal circumstances form, the Applicant answered "2" to the question “Number of nieces/nephews”. Also, he did not list his niece or nephew under the question "List below all other minor children in your life (including grandchildren, nieces/nephews, foster children, etc)” (underlining in original). Had the personal circumstances form been the only information before the Tribunal regarding the Applicant's niece and nephew, would the most obvious interpretation of it have been that, although he had two nieces or nephews, they were not minor children “in his life” who would be “affected” by a decision not to revoke the cancellation of his visa?
Question 4: Can it be said that "the fact that an applicant has not identified a particular child as one who will be “affected by the decision” may, in some cases, suggest that that child could not be so affected; or it may contribute to a finding by the Tribunal that the child’s interests would not be adversely affected"?
Question 5: If the answer to Question 4 is 'yes', can it nevertheless be said that "the failure of an applicant for review – especially an unrepresented applicant – to advance the interests of a particular child as part of their “case” is not conclusive of whether the Tribunal has an obligation to consider the best interests of that child"?
Question 6: Would a mere reference in the material to the bare existence of two minor children and the fact that they were the nephew and niece of the Applicant have been a sufficient basis to infer that they were children who would be “affected by the decision”?
Question 7: In the context of s 500(6H) of the Migration Act 1958 (Cth) (the 2-day rule in relation to oral evidence), does the concept of “information presented orally in support of a person’s case” include responsive answers given by a witness under cross-examination by counsel for the Minister?
Question 8: In the context of s 500(6H) of the Migration Act 1958 (Cth), does the concept of “information presented orally in support of a person’s case” include responsive answers given by a witness to questions posed by the Tribunal?
Question 9: Is the privilege against self-incrimination a “basic and substantive common law right”?
Question 10: Does the privilege against self-incrimination apply not only to evidence that amounts to a complete and clear confession to a particular offence but to evidence that “may tend to incriminate the person asked” or may tend to prove that a person has committed an offence?
Question 11: Can it be said that "jurisdictional error (a breach of procedural fairness) may be established where a Tribunal, or a cross-examiner, asks a question in circumstances which give rise to a right to refuse to answer on the basis of the privilege against self-incrimination and a sufficient explanation of the existence of the right to refuse to answer is not given"?
Question 12: Was the questioning of the Applicant about the provision of false and misleading information on his incoming passenger cards "apt to lead him to provide answers that would tend to incriminate him in connection with the commission, on two separate occasions, of criminal offences against s 234 of the Migration Act"?
Question 13: Does the existence of the privilege against self-incrimination depend upon a prediction about the likelihood that the person in question would in fact be charged with an offence?
Question 14: In circumstances where the Applicant was unrepresented and where it is not apparent that the Tribunal had any basis to believe that he was aware of or understood the privilege against self-incrimination, should the Tribunal have ensured that it was explained to him "that he had the right to decline to answer questions on the ground that the answers would tend to incriminate him and that, if he did answer the questions, any admissions against his interests could potentially be used against him"?
Question 15: Given that, in each jurisdiction of Australia, the possession of cannabis and the possession of methylamphetamine are criminal offences, is evidence of a person’s history of addiction to or use of those drugs therefore evidence of a kind that has a tendency to incriminate the person in the commission of one or more criminal offences?
Question 16: In the context of whether the Tribunal should have informed the Applicant about his privilege against self-incrimination, is the question whether it was appropriate for the Tribunal or the Minister's counsel to ask questions of the Applicant on the topics in relation to which the privilege could be invoked?
Question 17: Does the issue of whether the Tribunal should have informed the Applicant about his privilege against self-incrimination "depend on whether the answers given by him were, or were likely to be, particularly damaging to him"?
Question 18: Can it be said that "it may well be that the failure of the Tribunal to inform an unrepresented party about their privilege against self-incrimination will only amount to a denial of procedural fairness (or a material denial of procedural fairness) if the person did not, in fact, have an adequate awareness or understanding of the privilege at the time when they were questioned"?
Question 19: Can it be said that, "even if a person has a general awareness that a privilege against self-incrimination exists under the law of Australia, it does not follow that they will necessarily call that general awareness to mind in context of a tribunal hearing, or appreciate that they are entitled to decline to answer questions about specific topics under oath"?
Question 20: Can it be said that "the other decisions which have considered the privilege against self-incrimination in this context seem to have proceeded on the basis that it may at least be assumed that any failure to explain the privilege to a self-represented litigant will generally mean that the litigant has lost an opportunity to choose to invoke the privilege, of which they might have availed themselves had it been explained to them", with the result that a judicial review applicant seeking to establish a denial of procedural fairness for lack of warning about the privilege does not have to adduce evidence about their unawareness of their entitlement to the privilege?
Question 21: If the FCA remits the matter to the Tribunal, will it "be necessary to ensure that the Tribunal, as newly constituted, does not have before it, and does not take into account, any of the evidence given by [the Applicant] at the first hearing in respect of which the privilege against self-incrimination applied – unless of course [the Applicant] consents to that evidence being put before the Tribunal"?
The FCA answered those questions as follows: