Federal Court. The Minister submitted to the Tribunal that it should give no weight to the statements by the applicant's witnesses, as they had not been made available for cross-examination. Was the applicant denied procedural fairness in circumstances where his representative: did not object to the course proposed by the Minister or indicate to the Tribunal that he was caught by surprise by that submission; was asked by the Tribunal whether he wished to respond to any points made by the Minister’s representative?
The Tribunal affirmed a decision of a delegate to refuse under s 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the applicant's visa.
The Federal Court (FCA) said as follows:
29 The second [ground of judicial review] is that the Tribunal denied the applicant procedural fairness by giving no weight to four witness statements because the authors were not made available for cross-examination in circumstances in which neither the Minister nor the Tribunal asked that they be made available for cross-examination and it is not the practice in the Tribunal that every person who makes a witness statement also gives oral evidence.
30 It follows that the application raises the following questions:
...
(3) Did the Tribunal deny the applicant procedural fairness by giving no weight to four statements submitted by him in support of his application?
68 The evidence before the Tribunal included witness statements and statutory declarations from 10 people, in addition to the applicant. The Tribunal referred to the witnesses by their initials or random letters of the alphabet. I will do the same.
69 AB and CD are daughters of the applicant, PJ a close friend. It was common ground that “MJ” should read “MD”. MD is friend of the applicant who had lived near him before he was taken into custody. Both MD and PJ have known the applicant for many years.All expressed support for his application, shock and disbelief at the charges that led to his convictions and sentence, and concern for his health and wellbeing if he were to be “deported” to the UK.
76 In closing argument the Minister submitted to the Tribunal that no weight should be given to the statements of AB, CD, MD or PJ because they were not made available for cross-examination.
85 ... the Tribunal said (at [169]):
Further, in respect of AB’s, CD’s, M[D]’s and PJ’s statements, the Tribunal can afford no weight to these where they were not made available for cross-examination as their evidence remains untested. Even if the Tribunal were to afford weight to AB’s statement, her evidence is that she has not been in contact with the Applicant for some time, she would not allow the Applicant in her home upon his release and she may seek to re-establish contact at a later time, but not immediately.
One of the questions to the FCA was as follows: Did the following factors mean that the applicant was afforded procedural fairness: at the time of the Minister’s submission, the applicant's representative did not object to the course proposed by the Minister or indicate to the Tribunal that he was caught by surprise by the submission; when the Tribunal invited the applicant's representative to respond to any points made by the Minister’s representative, he did not cavil with the Minister’s submission or indicate that, if the Tribunal were inclined to accept the submission, he should be allowed to reopen his case so as to enable the witnesses in question to be made available for cross-examination?
The FCA answered that question as follows: