STRANG & Anor v. D.I.E.A.

(1994) 36 ALD 449

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(Decision by: Mrs J R Dwyer, Senior Member )

Strang & Another v
Department of Immigration & Ethnic Affairs

Tribunal:

Member:
Mrs J R Dwyer, Senior Member

Decision date: 21 December 1995

Melbourne

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Decision by:
Mrs J R Dwyer, Senior Member

REASONS FOR DECISION

1. This matter came on for a Directions Hearing on 19 December 1995. Mr Baker, a solicitor, appeared for Ms Strang. Mr Batskos, a solicitor, appeared for the Siddha Yoga Foundation. Ms Skultety, a Departmental officer, represented the Department of Immigration and Ethnic Affairs by telephone from Canberra. During the hearing Mr Batskos made an application that the Tribunal not be constituted for the further hearing of the matter remitted by the Federal Court by the same member as made the decision to which the Federal Court appeal related. Mr Baker opposed the application made by Mr Batskos. At the conclusion of the hearing the Tribunal gave oral reasons refusing the application. The Tribunal now provides written reasons for the decision delivered on 19 December 1995.

2. On 27 October 1995, Jenkinson J ordered:

(1)

The decision of the Administrative Appeals Tribunal made on 14 December 1994 that the document to which reference is made in the said decision as T24 is not an exempt document within the meaning of that expression in the Freedom of Information Act 1982 by virtue of s.45 of the said Act be set aside.

(2)

The decision of the Administrative Appeals Tribunal made on 14 December 1994 that the document to which reference is made in the said decision as T37 and as part of T36 is not an "exempt document" within the meaning of that expression in the Freedom of Information Act 1982 by virtue of s.45 of the said Act be set aside.

(3)

The matter of the review by the Administrative Appeals Tribunal insofar as it concerns the questions whether each of the documents aforesaid is an exempt document by virtue of s.45 of the said Act be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

(4)

The Administrative Appeals Tribunal be at liberty to receive further evidence on the further hearing of the matter remitted.

(5)

The matter be otherwise dismissed.

3. The Tribunal has been constituted by the President for the determination of the question remitted to it, namely, whether documents T24 and T37 are exempt documents by virtue of section 45 of the Freedom of Information Act, in the same way as for the original decision to which the appeal related. At a directions hearing today in relation to the further hearing, Mr Batskos, the solicitor for the Siddha Yoga Foundation, as foreshadowed by him in a letter, dated 17 November 1995, applied to have the Tribunal reconstituted. In his letter he wrote:

For the purposes of the further hearing of the case remitted to the Tribunal, we request that the Tribunal be reconstituted and that, based on natural justice considerations, the remaining issues including the question of costs not be heard by Ms Dwyer. See, for example, Northern New South Wales v Australian Broadcasting Tribunal (1990) 26 FCR 39 .

4. At the directions hearing this morning, on hearing that the Tribunal was to be constituted for this further hearing by the member who made the decision to which the appeal relates, Mr Batskos submitted, first, that the Tribunal which previously heard the matter was functus officio. If, by the use of that term, he intended to submit that the matter could not be remitted to the same Tribunal as heard the matter when it first came before the Tribunal, that submission cannot be correct. Section 44(6) of the Administrative Appeals Tribunal Act 1975 provides:

If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates.

The clear implication of that provision is that the Tribunal can but need not be constituted for a further hearing by the person or persons who made the decision to which the appeal relates.

5. Mr Batskos secondly submitted that as Jenkinson J had not directed under section 44(5), which gives him power to remit a matter to be heard and decided again in accordance with the directions of the Court, that the matter be remitted to the same Tribunal as previously heard it, it should be re- heard by a differently constituted Tribunal. However, the argument can equally be put the other way. As His Honour did not direct, as the Court may do, that the Tribunal be differently constituted it should be remitted to the same Tribunal as heard it before. There are examples of cases where a Court has used that power. Some examples are Australian Postal Corporation v Lucas (1991) 14 AAR 487 , to which Mr Batskos referred, where a Tribunal had failed to make its reasoning process understood, Roderick v Australian and Overseas Telecommunications Corporation Limited (1992) 111 ALR 355 at 367 where natural justice not having been afforded to Mr Roderick, the matter was set aside and remitted to a Tribunal differently constituted, Kalwey v Secretary, Department of Social Security No 2 (1993) 32 ALD 451 , where the matter was remitted to a different Tribunal, the Court saying that there was a risk that the Senior Member who had twice dealt with the matter could be perceived to have a pre- conceived idea.

6. Mr Batskos' third submission was that the re-hearing was a fresh matter and therefore should be heard by a differently constituted Tribunal. He relied on Re Trimboli and Secretary, Department of Social Security (1990) 21 ALD 554 . That decision, however, deals with the reconstitution of the Tribunal where the member who heard the matter originally, was no longer a member of the Tribunal. It correctly states that there is nothing in the Act which expressly requires that a matter which has been remitted be heard by the member who made the decision the subject of the appeal, and that the President is empowered to direct who is to hear a matter which has been remitted for review. It says nothing as to whether or not the original member, if still a member of the Tribunal, should or may constitute the Tribunal for the re-hearing.

7. The second authority to which Mr Batskos drew the Tribunal's attention was Northern New South Wales FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 . That matter is also distinguishable, as, in that matter, as the head note makes clear, the original decision was set aside "in toto" and the matter remitted for a full hearing. That is not the case here. Jenkinson J remitted one issue only for re- hearing and dismissed the appeal in other respects. Further, in Northern New South Wales v Australian Broadcasting Tribunal, Davies and Foster JJ said, at page 42, that:

The reason why a matter remitted for hearing should generally be heard and decided again by a differently constituted Tribunal was because the member constituting the Tribunal in the original inquiry will already have expressed a view upon facts which will have to be determined in the re-hearing. That is the case where the decision is set aside and the whole of the matter is to be heard again.

That is not the case here. Jenkinson J said:

Although there was uncontradicted evidence that the author of the letter intended that its contents be used only for the limited purpose which the letter states, there was no evidence that that intention had been separately communicated to the recipient or his officers, nor does the letter express the intention. The question was whether the relevant circumstances would suffice to impose on the Commonwealth an equitable obligation of confidence of such a character that its disclosure under the Act would found an action by the applicant for breach of confidence. . . .

Plainly the use of the document, and the information it contained, for that purpose might require that the document be disclosed to Mr. Nityananda and to representatives of his and to the public in the course of any public administrative or judicial review of a decision concerning his application to enter this country. The scope of the obligation of confidence for which the applicant contended could not extend to inhibit disclosure of the document in those circumstances. . . . And the question for the Tribunal's consideration therefore was what, if any, obligation of confidence the circumstances had imported which interdicted disclosure for a purpose unconnected with the administration of the law governing entry by Mr. Nityananda into this country.

His Honour summarised his views as follows:

I have stated my opinion that the evidence before the Tribunal did not compel the conclusion that [any of the matters at issue] . . . had the necessary quality of confidentiality, but I cannot say that the evidence compelled the conclusion that each of those assertions did not have that quality. That is a question for determination by the Tribunal. The error of law I have held to have affected the Tribunal's consideration of the element of the cause of action numbered (iii) by Gummow J may have influenced also the Tribunal's consideration of the element numbered (ii). The matter of the review in relation to the applicability of section 45 to each of the letters must be remitted to the Tribunal for further consideration. I will order that the Tribunal be at liberty to receive further evidence.

Thus, the issue to be determined on remittal is an issue which was not fully argued and as to which there was no evidence as to one aspect at the hearing. The Tribunal will not, on the further hearing, be called on to determine facts on which it has already expressed a concluded view.

8. Mr Batskos also referred the Tribunal to Repatriation Commission v Bushell (1991) 23 ALD 13 , where Davies J approved Northern New South Wales v Australian Broadcasting Tribunal, but once again in the context of a matter being set aside "in toto". Another case where a matter has been directed by the Court to be remitted to a Tribunal differently constituted is the case of Ma v Commissioner for Taxation (1992) 37 FCR 225 at 229-230, to which Mr Batskos drew the Tribunal's attention. However, in that matter the Court said:

If there was to be no allegation of earnings from drugs the irrelevant and emotive fact of the nature of the unsustained charge should not have been adduced. The circumstance that it was and that Dr Gerber was then prepared to apply to the applicant by way of a Shakespearian cliche, the term "idiot", and elsewhere in the addendum to say that the oral evidence of Mr Ma isn't worth the paper it is written on and to describe him as an unmitigated liar whose evidence I cannot accept, should sufficiently indicate why I do not think this case could, in any event, be referred back to the Tribunal except upon the footing stated in Northern New South Wales v Australian Broadcasting Tribunal.

9. Mr Batskos said this was not a matter where he claimed that the Tribunal was biased, but he said there could be a reasonable apprehension of bias on the part of the applicant and so for reasons of natural justice he was asking that the Tribunal be reconstituted. He referred to Blackman v Commissioner of Taxation (1993) 43 FCR 449 . In that matter a problem arose as to whether there should be a full re-hearing. The Federal Court concluded that if a matter is remitted to be heard and decided again the Tribunal on the re-hearing retains responsibility for finding all the facts but that is not the case here. The judgment of Jenkinson J indicates that only one matter has been remitted. He has not remitted all the issues for a full hearing.

10. Mr Baker, in opposing the application, submitted that on appeal Jenkinson J had remitted only one part of the matter for further hearing. He submitted that it would be like "reinventing the wheel" to constitute the Tribunal with a new member for the re-hearing. The decision has been made by the President that I should hear the matter as remitted. Davies and Foster JJ, as already quoted, stated in Northern New South Wales v Australian Broadcasting Tribunal:

If a decision has been set aside for error and remitted for re-hearing it generally seems fairer to the - perhaps that is it - will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted Tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the re-hearing.

As I have already pointed out, the issue which has to be determined is not one on which I have already expressed a view but it is relevant to look at what their Honours went on to say. They continued:

The trial Judge was not informed what was the error which brought about the remittal of the matter and he was unable to determine from that information that it would be fair to the parties to have the matter re-heard by the Tribunal as originally constituted. Moreover, there was no evidence before his Honour that there would be substantially greater costs or delay incurred should the Tribunal be reconstituted. The trial Judge would have assumed that use could be made of the transcript of the first proceedings and of the documents tendered in those proceedings. The Australian Broadcasting Tribunal did not express a view that a re-hearing by a differently constituted Tribunal would be inconvenient or unsuitable. In these circumstances there was nothing before his Honour to show that the ordinary practice should not apply.

11. In this matter there was a submission that it would "reinvent the wheel" to reconstitute the Tribunal. That seems to me to be correct when one issue only has been remitted to the Tribunal, and I see no reason to disqualify myself or to ask the President to reconstitute the Tribunal in a different way.

12. In expressing that conclusion, I have noted that Mr Batskos himself in a letter to the Tribunal, dated 12 December 1995, acknowledged, as Mr Baker submitted, that the further hearing is not a separate hearing, but simply a hearing as to a further issue which was not dealt with at the hearing in October 1994. Mr Batskos wrote:

This remitter is not a question of two separate hearings. It is in effect a continuation of the hearing which commenced in October 1994. The issue of the applicability of section 45 has been remitted to the Tribunal for further consideration and the Tribunal may receive further evidence. This is not a separate proceeding.

Mr Batskos submitted that that analysis was appropriate in considering whether or not the applicant had been substantially successful for a costs order, but not in deciding questions of the constitution of the Tribunal for the re-hearing.

13. I have some difficulty with that submission. I consider that Mr Batskos was correct in his assertion that the further hearing will be a continuation of the October 1994 hearing. His Honour has explained that the Tribunal will need to further consider the possible exemption under section 45 taking into account one matter which was not previously addressed. It seems practical that the further consideration be given by the Tribunal which has already considered the matter.

14. I have dealt with this matter as I am presently the Member constituted to hear the hearing and the Member with the delegation to decide matters about the hearing. I have to consider whether in view of Mr Batskos' submission I should disqualify myself for a reasonable apprehension of bias. In that regard I have looked at Re Polites and Another ex parte Hoyts (1991) 173 CLR 78 , where the Full Court of the High Court said at pages 88 and 89:

To decide on which side of the line this case falls the Court must examine the circumstances for itself. The question whether in the circumstances of a particular case a Tribunal member should disqualify or refuse to disqualify himself or herself cannot be finally determined by the Tribunal member.

15. The High Court then referred to Sankey v Whitlam [1977] 1 NSWLR 333 at 346-347. The High Court quoted:

The conclusion I reach, therefore, is that a superior court under its prerogative powers can and should itself examine the question whether in fact bias or possible bias exists in an inferior tribunal bound to act judicially and can intervene and order the tribunal to continue or not continue to exercise jurisdiction.

The High Court continued:

His Honour observed there were some factors which lead a reviewing court not to place too much weight upon the views of the tribunal as to the existence of bias or possible bias. His Honour said when the inferior tribunal makes the tentative decision concerning its own bias or possible bias or knowing the facts declines to raise it, the tribunal is faced with a decision which by its very nature touches the tribunal itself so that its decision upon it is prone to be deprived of the objectivity necessary in any judicial decision.

Further, the superior court does not suffer the subjective involvement such as the inferior tribunal does and is in a position to give, what is, and will appear to be, an objective decision. Indeed, its decision that it is proper for the tribunal to continue relieves the tribunal of the burden of suggestions of bias not soundly based.

The High Court then concluded:

Though those observations are correct the views expressed by the tribunal may be of assistance to the reviewing court not only in understanding the issues that are alive in the case but in appreciating the connection between those issues and what is advanced as the disqualifying factor.

16. So far as I understand it, the disqualifying factor advanced in this matter is that I was the member who made the decision to which the appeal to Jenkinson J related. I do not, for the reasons already given, consider that as a factor disqualifying me from continuing to sit, or a factor why I should disqualify myself from continuing to sit in this matter.

17. The application is refused.

I CERTIFY THAT THIS AND THE NINE PRECEDING PAGES ARE A TRUE COPY OF THE DECISION AND REASONS FOR DECISION HEREIN OF

MRS J R DWYER, SENIOR MEMBER

SIGNED:

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Clerk

DATE: 21 December 1995