s 424(3)(b) exclusion by incorporation?

The Federal Court (FCA) summarised the relevant facts as follows:

11    Relevantly for the purposes of this decision, the delegate gave “significant weight” to the fact that the Facebook information showed that the appellant, his brother and mother as “engaged in social networking” with the half-brother. In this regard, the delegate’s decision record (Delegate’s Reasons) relevantly expressed the following:

The applicant was shown a photograph obtained from a Facebook page under the profile name of [the half-brother]. The applicant identified his [half-brother] as the person in the photograph (on the left). The photograph of [half-brother] indicates that it was taken during his participation in election activities. The applicant confirmed the ownership of his own Facebook (FB) account, and also identified the accounts of his brother and mother. Screenshots of the FB accounts identified were presented to the applicant, which list his [half-brother] as a friend on the FB accounts of his mother, brother and himself. It was put to him that this information could be considered to be evidence that the relationship between his family and [half-brother] was amicable, and did not support the circumstances that he claims. Initially, the applicant could not provide a plausible explanation why his family would maintain links through a social networking profile to someone they claim to fear. After this adverse information was put to him, he stated that the family had not been contacted by [his half-brother] for many years until recently. He stated that [his half-brother] began communicating with his family again, and had been friendly and nice. [The half-brother] attempted to persuade the applicant and his brother into joining him in politics, because they had a duty to honour the previous political work of his father. The applicant stated that he was suspicious of [the half-brother’s] motives and activities, and had told [his half-brother] that he was not interested. [The half-brother] then began to harass his mother, and threatened to take both him and his brother away.

I acknowledge that information disclosed by a person on social networking websites may not accurately depict the reality of the actual circumstances of an individual. However, in light of the claims before me, I give significant weight to the fact that all three members of the same family have engaged in social networking with a person who they claim has genuine intentions to inflict serious or significant harm. The applicant could not offer any plausible reason when this adverse information was put to him at interview, other than to recant previous elements of his testimony discussed in my findings above.

(Citations omitted.)

47    According to the transcript of the Tribunal hearing, the following dialogue in respect of the additional material occurred soon after the start of the hearing:

TRIBUNAL MEMBER:     … Ok, before we start the hearing, I just want to be clear on what extra documents we have or new documents we have. I have just received documents walking into the room. I am just wondering what they are and why they were given to me when I don’t have a chance to read them?

…

[The Tribunal member and the interpreter (on behalf of the appellant) proceeded to discuss the content and origins of the additional material before continuing as follows.]

…

TRIBUNAL MEMBER:     I will have to have a good look at those after the hearing

INTERPRETER:     Yes please.

TRIBUNAL MEMBER:     So if there's anything that um concerns me about the photographs, I may either have to write to you or get you to come in again to give evidence.

(Emphasis added.)

48    Then, shortly before the end of the Tribunal hearing, the following dialogue occurred:

TRIBUNAL MEMBER:     Alright well I think um it is half past three. Is there anything else that you want to tell me that we haven’t covered?

INTERPRETER:     There are so many things but it just come with the time, sometime I get emotional. At least you give me time and you listening to me I have found it very easy and I feel relieved.

TRIBUNAL MEMBER:     Um what I am going to do is I am going to read through the material and if there is anything that I need to put to you further I will either put it in writing or invite you to another hearing.

INTERPRETER:     Whenever you ask me to come I will come definitely. These things are important for me and all these pictures I have provided please go though it and whenever you want you can call me. Whatever I have said is, these pictures and these documents they support my sayings and my evidence.

TRIBUNAL MEMBER:     Ok so until I have a look at that material I can’t really make up my mind if you need another hearing or whether I can send you a letter and the reason is that I have a legal obligation to discuss any new issues with you at the hearing or invite you to a hearing to discuss it. So without considering that material I can’t really decide whether there is a new issue or not.

INTERPRETER:     I can understand your position.

TRIBUNAL MEMBER:    I am not sure if your representative wants to put anything to me?

REPRESENTATIVE:     [The appellant’s representative explained to the Tribunal that the reason why the appellant presented new evidence on the day of the hearing was because of difficulties in obtaining appropriate translation of those materials.]

TRIBUNAL MEMBER:    Alright.

REPRESENTATIVE:     But I confirm we have covered everything that we wish to discuss today.

TRIBUNAL MEMBER:     Alright, well as I said I have to read through the material before I decide whether to invite the applicant to another hearing or if there is anything there that I need to put to him in writing.

(Emphasis added.)

49    There was no further communication from the Tribunal regarding the additional material prior to the Tribunal’s decision.

The questions to the FCA were as follows:

Question 1: Can it be said that the exception under s 424A(3)(b) of the Migration Act 1958 (Cth) did not apply because, "although the photos and screenshots ... were not themselves exhibited in the Delegate’s Reasons, those reasons clearly referred to the substance of the Facebook information, and incorporated that information by reference to the departmental file"?

Question 2: Can it be said that the fact that the Appellant presented the additional material for the first time on the day of the Tribunal hearing excused the Tribunal from addressing those materials?

Question 3: Can it be said that, although s 425 was part of Division 4 of Part 7 of the Migration Act and 422B(1) provided that that "Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with", the Tribunal's very "references to the additional material in the AAT Reasons demonstrate that the material pertained to “issues arising in relation to the decision under review” under s 425(1)" and that, as a consequence, the Tribunal should have invited the Appellant to comment on its adverse findings made based on that material?

In answering Question 3:

Question 4: Can it be said that, "although the appellant would have reasonably held a subjective expectation of being contacted by the Tribunal where relevant" and "the circumstances surrounding the creation of that expectation are relevant, the critical determination is that the circumstances in which the Tribunal made its decision were practically unjust to the appellant"?

Question 5: Is it "to the point that the Tribunal is not required to give an applicant a running commentary on its thought processes"?

The FCA answered those questions as follows: