FEDERAL COURT OF AUSTRALIA

Teuila v Minister for Immigration and Citizenship [2012] FCAFC 171

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The Court:

1    The Appellant was born in New Zealand in January 1991 and first came to Australia in December 2004. She returned to New Zealand in 2005 but came back to Australia in 2006 and has since remained.

2    In October 2010 she gave birth to her son, Ezekiel. The father is apparently an Australian citizen.

3    The Appellant has accumulated a significant criminal record, commencing with a fine imposed for “unauthorised dealing with shop goods” in February 2008 and thereafter a variety of convictions – including convictions for assault, failure to comply with bail conditions and breach of probation orders. One of the assault convictions attracted a term of imprisonment of 2 years.

4    In March 2012 a delegate of the Respondent Minister cancelled her visa pursuant to s 501(2) of the Migration Act 1958 (Cth). An appeal against that decision was lodged with the Administrative Appeals Tribunal and in June 2012 that Tribunal affirmed the delegate’s decision: Re Teuila and Minister for Immigration and Citizenship [2012] AATA 351. That decision was appealed to a single judge of this Court and in September 2012 that appeal was dismissed: Teuila v Minister for Immigration and Citizenship [2012] FCA 1056.

5    The Appellant now appeals to a Full Court of this Court. Her Notice of Appeal sets forth her two Grounds of Appeal as follows (without alteration):

Grounds of appeal

1.    HIS HONOUR YATES J ERRED IN LAW FOR FAILING TO FIND AND RULE THAT THE TRIBUNAL DENIED ME PROCEDURAL FAIRNESS FOR ITS FAILURE TO CONSIDER THE BEST INTERESTS OF MY CHILD AS A PRIMARY CONSIDERATION

2.    HIS HONOUR ERRED IN LAW FOR FAILURE TO FIND THAT THE TRIBUNAL CONSTRUCTIVELY FAILED TO EXERCISE JURISDICTION

The Appellant appeared unrepresented, as she did before the primary Judge.

6    The appeal is to be dismissed with costs.

The Statutory and Administrative Context

7    The statutory and administrative provisions of relevance to the present appeal are within a limited compass. They give rise to no difficulty in interpretation or their application to the facts now presented.

8    Section 501 of the Migration Act relevantly provides as follows:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate–natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7));     

    …

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; …

…

9    The Migration Act also confers power upon the Minister to “give written directions to a person or body having functions or powers under this Act …”: s 499(1). If such a direction has been given, a “person or body must comply” with the direction.

10    On 3 June 2009 a “written direction” was given by the then Minister for Immigration and Citizenship: Direction [no.41]–Visa refusal and cancellation under s501. Paragraph [10] of that Direction provides in part as follows:

The primary considerations

(1)    In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a)    the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)    whether the person was a minor when they began living in Australia;

(c)    the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)    relevant international obligations, including but not limited to:

(i)    the best interests of the child, as described in the Convention on the Rights of the Child (CROC); …

…

A Denial of Procedural Fairness

11    The first Ground of Appeal is expressed differently to the manner in which the Appellant sought to advance her denial of procedural fairness argument before the primary Judge.

12    Before the primary Judge, the Appellant argued that the denial of procedural fairness arose by reason of the Tribunal’s failure to inform her that it would rely upon the offences committed whilst she was a minor.

13    The argument now seems to have shifted to an argument that the primary Judge erred in not concluding that the Tribunal denied her procedural fairness by failing to consider the best interests of her child, Ezekiel. If the manner in which the first Ground of Appeal is expressed raises an argument different to that resolved by the primary Judge, Senior Counsel on behalf of the Minister did not oppose leave being given to raise the argument as it is now expressed. The Ground, it is considered, does in fact raise a new argument and, accordingly, leave is necessary and should be given. It is an argument which can be addressed by reference to the same material that was before the primary Judge (cf. Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36 at [30]-[33], 290 ALR 750 at 760 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) and it is “expedient in the interests of justice” to permit the argument to be now resolved (VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48] per Kiefel, Weinberg and Stone JJ).

14    A ground alleging a denial of procedural fairness by the Tribunal is ultimately to be founded upon the obligation set forth in s 39 of the Administrative Appeals Tribunal Act 1975 (Cth). That section expresses the requirement as a duty to “… ensure that every party is given a reasonable opportunity to present his or her case …”. The section, it has been said, “reflects the common law requirement of procedural fairness”: Daw v Minister for Immigration & Citizenship [2012] FCA 705 at [3] per Edmonds J. Whether the requirement imposed upon the Tribunal by s 39 is co-extensive with the common law requirements is a question which may presently be left to one side. The section, it has long been recognised, does not require the Tribunal to ensure that a party takes the “best advantage” of the opportunity: Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], 60 ALD 737 at 748. See also: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 where Deane J (with whom Fisher J agreed) observed that “[n]either the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”. Appl’d: De Simone v Federal Commissioner of Taxation [2009] FCAFC 181 at [15], 51 AAR 161 at 167 per Sundberg, Stone and Edmonds JJ; Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26 at [45] per Keane CJ, Downes and Gordon JJ.

15    However the obligation or duty is expressed, there has been no denial of procedural fairness in the decision-making process that resulted in the Tribunal affirming the delegate’s decision.

16    When making his decision, the delegate had the benefit of a Departmental issues paper dated 14 March 2012. The delegate made his decision and provided a Statement of Reasons, also dated 14 March 2012. Of particular relevance is the fact that copies of both the Departmental issues paper and the delegate’s Statement of Reasons were available to the Appellant in advance of the hearing before the Tribunal. A copy of the Minister’s Statement of Facts and Contentions was also available to the Appellant.

17    Senior Counsel for the Minister contended that the fact that these documents were available to the Appellant was sufficient notice that the best interests of Ezekiel would be a relevant issue to be taken into account by the Tribunal. Such notice, it was contended, was initially provided by:

    the Notice of Intention to Consider Cancellation of the Appellant’s visa dated 20 January 2012 and the enclosed copy of Direction No  41.

Thereafter, it was contended that notice of the significance of Ezekiel’s best interests to the decision was given to the Appellant by providing her with a copy of:

    the Departmental issues paper, particularly at paras [46] to [50];

    the delegate’s Statement of Reasons, particularly at paras [19] to [22]; and

    the Minister’s Statement of Facts and Contentions at paras [66] to [70].

Senior Counsel for the Minister also relied upon:

    the Notice of Cancellation hand-delivered to the Appellant, which referred to the right to seek review by the Tribunal.

Considerable reservation is expressed as to whether an unrepresented party is adequately put on notice of the potential importance of a “primary consideration” by simply being provided with such documents. The provision of standard form letters which generically refer to the need to “read the enclosed Ministerial Direction carefully”, with respect, may provide little assistance to an unrepresented person. Such a person may well lack the skills and training of a lawyer to distil the relevant from the irrelevant and the ability to make an informed judgment as to how to best present a submission opposing an impending decision affecting both her own interests and those of her child. Perhaps it is difficult in an area of high volume decision-making to do more than inform a person potentially affected by an adverse decision of the general framework within which a decision is to be made. Any greater focus upon one relevant consideration over another may have the potential to distract the attention of a party with an issue that should be given less – rather than more – prominence. It is nevertheless regrettable that an unrepresented party should be left to trawl through extensive and detailed documentary material with a view to discerning how an application for review by the Tribunal may best be presented.

18    Any such reservation, however, was understood to be answered – at least in the Minister’s submissions – by reason of the fact that the Appellant had made submissions regarding the best interests of Ezekiel in both a handwritten submission she had made to the delegate and repeated in a further handwritten letter to the Minister’s solicitor. The submission to the delegate thus stated in part (without alteration):

Im only young and still learning this has been a lesson well learnt being incarcerated im not willing to put myself in this position again from now on im about making better life choices and furthering myself to become the best me i can be. Im a single mother and my future is about me and my son. The father is not in picture whom is an australian citizen/resident.

The handwritten letter to the Minister’s solicitor, which was provided to the Tribunal, stated in part (again without alteration):

Sending me back to New-Zealand would be detrimental to myself and my son if we were to be separated from such a great distance. If I were to be sent back to New-Zealand I would not get the support I needed to not re-offend.

Such references to the interests of her child, however, can hardly be characterised as anything but “passing references”. The handwritten documents fail to disclose any real appreciation on the Appellant’s part as to the importance that may be attributed to the best interests of Ezekiel in the decision to cancel or not cancel her visa.

19    Not to be deterred, Senior Counsel for the Minister also placed reliance upon the evidence given by the Appellant during the course of the Tribunal hearing. That evidence emerged as follows in the cross-examination of the Appellant by the solicitor representing the Minister before the Tribunal (without alteration):

If I can ask you about your son. I understand that you’ve got one son, Ezekiel?---Yes.

Is that correct? And how old is he presenntly?---19 months.

And who is Ezekiel’s father?---….. Ender.

And do you have any ongoing relationship with him?---No.

When was the last time you spoke with him?---Two nights before my son was born, so that would be 6 October 2010.

And so I can take it from that that he has played absolutely no role in your son’s upbringing?---No.

Before your son was born did he express any desire to have any role in your son’s life?---He did but then he wasn’t sure at the time.

He wasn’t sure?---He wasn’t sure after a while.

And who is Ezekiel presently living with?---My parents.

And where do they live?---Mt Isa.

And do you think your parents have a good relationship with your son?---Yes.

And they do a good job of looking after him?---Yes.

And do you think Ezekiel has any close relationships with other people in Australia or other family members or friend?---No, just me and my parents.

And, again, if you assume that the Tribunal doesn’t find in your favour today so you had to go back to New Zealand, would you take your son back to New Zealand with you?---Yes.

You would? And would you expect that your parents would be keen to maintain contact with your son through, for example, telephone or things like that?---Yes.

The best interests of Ezekiel were again referred to in the closing submissions before the Tribunal. Whatever reservations may be expressed in respect to the difficulties that may be encountered when a claimant is informed in generic terms of an intention to make an adverse decision or advised of a right to seek review, less reservation may be expressed in respect to that stage of the decision-making process when an application for review has in fact been made to the Tribunal. By that stage the factual issues to be addressed have been identified. In an appropriate case, it may not be sufficient for the Tribunal to simply leave to the advocate for the Minister the responsibility of adducing such evidence as the advocate may consider of relevance.

20    In an appropriate case, a “reasonable opportunity” to make submissions may well involve the Tribunal itself asking questions of relevance to any particular concern it may have: cf. Sullivan v Department of Transport (1978) 20 ALR 323. Deane J there made the following observations concerning the duty placed upon the Tribunal with reference to an unrepresented applicant:

Section 33(1)(b) of the Act requires that the proceedings of the Tribunal shall be conducted with as little formality and technicality, and with as much expedition as the requirements of the Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit. It is apparent that the objectives of expedition and of lack of formality or technicality and the requirements of fairness will ordinarily be best achieved by a ready identification of the issues which are, in truth, in dispute between the parties in a particular application for review. In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case. Ordinarily, however, in the absence of a request for assistance or guidance by a party who is appearing in person, a tribunal under a duty to act judicially should be conscious of the fact that undue interference in the manner in which a party conducts his case may, no matter how well intentioned, be counter-productive and, indeed, even overawe and distract a party appearing in person to the extent that it leads to a failure to extend to him an adequate opportunity of presenting his case: (1978) 20 ALR at 342-343.

Not to be ignored is the obligation now imposed upon the person who made the decision to “use his or her best endeavours to assist the tribunal to make its decision in relation to the proceeding”: Administrative Appeals Tribunal Act s 33(1AA). The less important the available evidence or submission may be, the less need there may be for the Tribunal or a respondent to address the issue. But the more important and the more centrally relevant such available evidence or submissions may be to the decision to be made, the greater may be the need for the issue to be addressed and resolved — even if not otherwise addressed by an unrepresented party: Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609 at [19], 49 AAR 77 at 83 per Flick J.

21    Notwithstanding the fact that the Appellant’s attention was not expressly directed to the need to address the best interests of Ezekiel in either her submissions or her evidence, it cannot be concluded in the present case that she has been denied a “reasonable opportunity” to present her case. Whatever reservation may be expressed regarding the desirability or otherwise of leaving the task of distilling the issues that need to be addressed (especially the task of distilling those issues from a mass of other factual issues) to an unrepresented party, it cannot be concluded that the Appellant was not on notice of the need to give consideration to the best interests of Ezekiel from the materials available to her. The issue was raised and she was given a “reasonable opportunity” to respond.

22    The first Ground of Appeal is thus rejected.

A Constructive Failure to Exercise Jurisdiction

23    It is difficult to give content to the second Ground of Appeal.

24    Before the primary Judge, the comparable challenge was perhaps expressed in two or three grounds – one alleging that the Tribunal had made a finding “contrary to the provisions of the Act”; another alleging a failure “to make inquiries”; and the third alleging that the Tribunal had “constructively failed to exercise jurisdiction”.

25    The first ground alleged a failure to exercise jurisdiction by reason of the Tribunal making a finding contrary “to the provisions of the Act and Directions (sic) 41 regarding the best interest (sic) of my son Ezekiel as a primary consideration”.

26    Expressed as it was as the making of a finding contrary “to the provisions of the Act and Directions (sic) 41 …”, the Ground was without merit. The primary Judge found that the finding of fact supposedly made “contrary to the provision of the Act and Directions (sic) 41” was not one in fact made on a fair reading of the Tribunal’s reasons: [2012] FCA 1056 at [35]. The primary Judge was correct in so concluding. Even if the Tribunal had made such a finding, the primary Judge correctly observed that a such an allegation did not give rise to jurisdictional error: [2012] FCA at [37]. See: Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 77 per Brennan J. If the second Ground of Appeal is directed to this conclusion of the primary Judge, no error is discernible.

27    The next argument before the primary Judge to which the second Ground of Appeal may be directed was expressed in the following terms (without alteration):

THE TRIBUNAL WAS IN ERROR FOR FAILING TO MAKE INQUIRY INTO CRITICAL MATERS OF RELEVANCE THE EXISTENCE OF WHICH WAS EASILY ASCERTAINED THROUGH MEDICAL EXPERT EXAMINATIONS.

28    The primary Judge noted in his reasons for decision that this argument was not particularised: [2012] FCA 1056 at [39]. When asked to identify the “critical maters (sic) of relevance”, the Appellant’s response was that the Tribunal did not take into account the fact that she had not re-offended. The primary Judge rejected the argument, concluding that “that response did not engage the balance of ground 3, which was that these matters were easily ascertained through ‘medical expert examination’”.

29    It may, however, do an unrepresented Appellant less than justice to construe her second Ground of Appeal in such a confined manner. Before the primary Judge there was also an argument that the Tribunal had failed to inquire into “critical maters (sic) of relevance”.

30    For present purposes it may be accepted that there are circumstances in which an administrative decision-maker may be required to undertake inquiries: cf. Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 50-51 per Davies, Wilcox and Pincus JJ. A “failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained”, it has been accepted, “… could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25], 259 ALR 429 at 436 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. But it is no part of a decision-maker’s function to make out a case for an applicant: Commissioner of Taxation v Glennan [1999] FCA 297 at [82], 90 FCR 538 at 558 per Hill, Sackville and Hely JJ.

31    Even if the second Ground of Appeal now relied upon before this Court is to be construed as embracing an argument that the Tribunal “constructively failed to exercise jurisdiction” by reason of a failure to make inquiries, any such argument would not have prevailed. Had there been no evidence whatsoever before the Tribunal addressing Ezekiel’s circumstances, an argument may have had some substance that the Tribunal had erred in not making inquiries directed to a “primary consideration” relevant to it reaching the “correct or preferable” decision. But the fact is that the Tribunal did have evidence, albeit limited.

32    Finally, the second Ground of Appeal is probably best construed as intended to pick up the ground previously relied upon before the primary Judge and expressed as follows (without alteration):

THE TRIBUNAL CONSTRUCTIVELY FAILED TO EXERCISE JURISDICTION IN THAT IT HAD FAILED TO ACT ACCORDING TO THE PROVISIONS OF ACT. BUT RATHER HAD ATTENDED MY REVIEW WITH A CLOSED MIND AND NOT IN GOOD FAITH.

The primary Judge rejected this argument as follows:

[46]    Under this ground the applicant contends that the Tribunal constructively failed to exercise its jurisdiction by failing to act in accordance with the provisions of the Act. She also contends that the Tribunal acted “with a closed mind and not in good faith”. Once again, no particulars of this ground have been provided by the applicant.

[47]    I am unable to see how the Tribunal failed to act according to the provisions of the Act. I am equally unable to see how the Tribunal acted with a “closed mind and not in good faith”. Indeed, as to the latter contention, I should record that a fair reading of the Tribunal’s reasons shows that it gave careful and detailed consideration to the applicant’s circumstances without any apparent predisposition to whether or not the applicant’s visa should be cancelled. There is nothing in the Tribunal’s reasons, and no other matter to which my attention has been drawn, from which it could reasonably be contended that the Tribunal did not bring an impartial mind to the task before it. Thus, in my view, no reviewable error has been established under this ground.

33    The Appellant did not seek to give greater content to this argument at the hearing before the Court as presently constituted than she did before the primary Judge. Further, any allegation that an administrative decision has not been made “in good faith” is a “serious matter” which must be “clearly pleaded and proved”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 361 at [43], 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ. There was no such proof in the present proceeding.

34    However the second Ground of Appeal is to be construed, it is without merit.

35    The second Ground of Appeal is also to be rejected.

Conclusions

36    Neither of the Grounds of Appeal has been made out. Although only “passing reference” may have been made to the best interests of Ezekiel in the Appellant’s handwritten submission, the material before the Tribunal and in her response to questions asked of her during the Tribunal hearing, there was no suggestion in the present proceeding that any more could have been said.

37    The appeal is to be dismissed with costs.

The Orders of the Court Are:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    28 November 2012