FEDERAL COURT OF AUSTRALIA

SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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    On 15 January 2013, the appellant applied for a Bridging E (Class WE) visa. A delegate of the Minister was not satisfied that the appellant satisfied the character test as defined in s 501(6) of the Migration Act 1958 (Cth) and exercised the power contained in s 501(1) to refuse the grant of a visa. The Administrative Appeals Tribunal (AAT) affirmed that decision on review under s 500 of the Migration Act and a Judge of this Court dismissed the appellant’s application under s 476A of the Migration Act for judicial review of the AAT decision: SZRTN v Minister for Immigration and Border Protection [2014] FCA 303.

2    The appellant now appeals against that dismissal.

3    By s 501 of the Migration Act, the Minister may refuse the grant of a visa if the applicant does not satisfy the Minister (or the Minister’s delegate as the case may be) that he or she passes “the character test”. A person does not satisfy that test if, amongst other things, the person has “a substantial criminal record” as defined in s 501(7). The appellant has a substantial criminal record as defined because he has previously been sentenced to a term of imprisonment of 12 months or more (subs (7)(c)), and because he has been sentenced to two or more terms of imprisonment totalling two years or more (subs (7)(d)). Thus, the appellant could be granted a visa only if the Minister or the Minister’s delegate exercised the s 501(1) discretion in his favour despite the circumstance that he did not pass the character test.

4    The discretion in s 501(1) of the Migration Act must be exercised in accordance with Direction No 55 – Visa Refusal and Cancellation (Direction 55) which came into effect on 1 September 2012. Direction 55 was made by the Minister pursuant to s 499 of the Migration Act and was binding on the AAT: s 499(2A). The AAT was alert to its obligation to give effect to Direction 55. We will refer to particular aspects of Direction 55 later in these reasons.

5    In the proceedings at first instance, the appellant had legal representation. On the appeal to this Court, he was unrepresented, although it is apparent that he had had some legal assistance in the drafting of the notice of appeal and in the preparation of his written submission.

Background

6    The appellant is 32 years old and a national of Samoa. He arrived in Australia at age 5 in the company of his father, after his parents’ marriage had broken down. The visa on which he entered Australia expired one month after his arrival, but no application for a further visa was made until 2008. Evidence in the AAT indicated that the appellant had been abandoned by his father a few months after the arrival in Australia and that thereafter he lived for a time with an uncle and an aunt and their children. The evidence also indicated that his childhood had been difficult, being marked by circumstances of abuse, deprivation and isolation. His formal education has been very limited. From about the age of 13, the appellant had lived on the streets, sleeping rough, or at the homes of friends or acquaintances. These circumstances attract sympathy.

7    Regrettably, the appellant has a significant offending history as an adult. This includes several offences involving violence. He has now been sentenced to imprisonment on three separate occasions.

8    The appellant married in February 2013 while in detention at Villawood. He first met his wife in 2010, and from June 2012, developed a serious relationship with her. The appellant’s wife gave birth to their daughter in October 2013.

9    In May 2012, the appellant applied for a Protection (Class XA) visa, but this was refused by a delegate of the Minister. The Refugee Review Tribunal affirmed the decision of the delegate, the Federal Circuit Court dismissed his application for judicial review; and he has now exhausted the avenues of appeal from that decision.

10    The present notice of appeal against the decision of the primary Judge contains five grounds. All allege error by the Judge in failing to find that the AAT’s decision involved, in various ways, a denial of procedural fairness, but two grounds raised complaints of jurisdictional error of other forms.

Ground One: Denial of procedural fairness

11    The appellant contends that the primary Judge should have found that there had been a denial of procedural fairness because the AAT “failed to give me an opportunity to deal and respond by way of submissions or comments [on] matters adverse to my rights and interests before making its decision”.

12    The ground does not particularise the matters adverse to the appellant’s rights and interests to which the alleged denial of procedural fairness relates. However, it may be inferred that this ground relates to the same alleged denial of procedural fairness which the appellant agitated before the primary Judge. This concerned the AAT’s treatment of the evidence from the appellant’s extended family and friends.

13    The AAT said in respect of this evidence at [50]:

    Statements from members of the Applicant’s extended family and several friends are before the Tribunal. They speak of his difficult upbringing, his remorse about his past conduct and the distress the writer would suffer at his removal from Australia. Other than [the Applicant’s wife], her mother, and Mr WZ, none gave oral evidence and we place no weight on their statements. In particular, given his largely itinerant history, questions arise as to what, if any, support the writers have given to the Applicant in the past and the strength of their relationships with him now.

14    In the proceedings before the primary Judge, the appellant contended that he should have been forewarned that the AAT would not place any weight on the statements of his extended family and friends by reason of them not having attended to give oral evidence, given that their statements had been tendered without objection, and counsel for the Minister had indicated that she did not require them for cross-examination.

15    The appellant gave evidence himself in the AAT and led evidence from his wife, her mother and his friend WZ. The evidence in chief of each was by way of written witness statement. There was no cross examination of the appellant’s mother-in-law by counsel for the Minister, and she was asked only two questions by an AAT member. In addition, the appellant tendered nine statements from his extended family and friends, being the statements to which the AAT gave no weight.

16    During the course of his opening in the AAT, counsel for the appellant identified the witnesses from whom oral evidence was to be led. The following exchange then occurred:

Senior Member Toohey:     None of the other people who provided statements are to be called as witnesses?

Mr Donnelly:     No, Senior Member.

Senior Member Toohey:    Alright. Alright. And, Ms Stone, I take it, do you require each of those persons for cross-examination?

Ms Stone:     Yes, I do.

17    The inference that we draw from that exchange is that, although counsel for the Minster had indicated that she required each of the appellant, his wife, his mother-in-law and WZ to attend for cross-examination, she did not require any of the remaining nine witnesses to attend for that purpose. That meant that the information in those witnesses’ statements would be in evidence before the AAT and not challenged in cross-examination.

18    Immediately before the appellant’s mother-in-law was called, counsel for the Minister indicated that she no longer required her for cross-examination. That had the consequence that her oral evidence comprised only the tender of her original witness statement and her answers to two questions asked by one of the AAT members.

19    At the end of the oral evidence, counsel for the appellant tendered, without any objection or comment, the nine statements from members of his family and friends.

20    The primary Judge rejected the complaint that the AAT’s treatment of the statements from the appellant’s family members and friends involved a denial of procedural fairness. Her Honour referred to F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369, Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-1, and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, (2006) 228 CLR 152 at [48]. The Judge noted at [55] that procedural fairness does not require decision-makers to disclose their thinking or their provisional views so as to give those affected further opportunity to comment before the decision is made and, accordingly, that the AAT was not required to give the appellant “a running commentary” upon its thinking about the evidence adduced before it: SZBEL at [48].

21    Similarly, in Alphaone at 591, the Full Court said:

A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it … Within the bounds of rationality, a decision-maker is generally not obliged to invite comment on the evaluation of the subject’s case …

(Citations omitted)

The Full Court went on (at 591) to note that these general propositions may be subject to qualification, such as by:

•    The right of persons affected by decisions to have their minds directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with them; and

•    The right to respond to any adverse conclusion drawn by the decision-maker on materials supplied by or known to the subject of the decision “which is not an obvious and natural evaluation of that material”.

22    The primary Judge referred to these passages in Alphaone and concluded at [58]-[59] that the qualifications to the general principles stated in Alphaone were not applicable to the statements from the appellant’s extended family and friends. The Judge said:

[T]he applicant should be taken to have been aware of the deficiencies in the statements. The opportunity to present his case was not impeded or curtailed either by the attitude of the Minister or the silence of the Tribunal. The Tribunal’s treatment of these exhibits does not amount to a denial of procedural fairness. The Tribunal did not find that the witnesses were dishonest. The mere fact that the documents went into evidence without objection or without the authors being required for cross-examination said nothing about the strength of the evidence.

23    We respectfully agree with this reasoning. It is for parties and their counsel to decide whether or not to call evidence and, subject to the law and practice governing the presentation of evidence in the AAT, to decide the manner in which their evidence is presented. Although the AAT may do so, it is not necessary for it to indicate that it is not prepared to act upon evidence presented in documentary form so that counsel may decide whether to call that evidence orally. There may of course be exceptions to this general proposition. If, for example, an applicant were to inform the Tribunal that he or she has refrained from calling evidence orally because of the Minister’s acceptance of the circumstance to be established by the written evidence, it may be incumbent upon the AAT to alert the applicant to its unwillingness, if that be the case, to determine the matter on that basis. However, the general principle is that there is no denial of procedural fairness involved in the AAT not attaching weight to evidence presented in documentary form when it has not previously alerted an applicant that that may be so.

24    We agree with the primary Judge’s statement at [79] that there is no principle of law requiring a Court to accept unchallenged or untested evidence, at least in the absence of circumstances indicating unreasonableness to the point of perversity: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587-8; Spencer v Bamber [2012] NSWCA 274 at [134], (Campbell JA, Basten and Macfarlan JJA agreeing). Ordinarily, the same principle applies to an administrative decision-maker such as the AAT. However, as Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ explained in SZBEL at [47], if administrative proceedings have an inquisitorial, rather than adversarial, nature and the decision-maker considers that a specific aspect of an applicant’s case may be important to the decision and open to doubt, particularly when that aspect had not appeared previously to be an issue, the decision-maker must at least ask the applicant to expand on it and to explain why his, her or its account on that aspect ought be accepted.

25    The primary Judge also considered that the AAT’s conclusion as to the weight to be attached to their evidence was “an obvious and natural evaluation of that material”: at [60]. We respectfully agree with her Honour’s analysis at [61] to [66] in this respect, which referred to the high level of generality of the evidence, obvious omissions (such as details of contact with the appellant) and apparent inconsistencies with the appellant’s own evidence.

26    In addition to these considerations, the determination of whether the AAT’s decision involved a denial of procedural fairness has to take account of the legislative framework governing the proceedings in the AAT. Two aspects of that framework are pertinent presently. By s 500(6H) of the Migration Act, the AAT is precluded from having regard to any information provided orally in support of an applicant’s case unless that information is set out in a written statement given to the Minister at least two business days before the hearing. By s 500(6J), the AAT is similarly precluded from having regard to any document submitted in support of an applicant’s case unless a copy of the document is given to the Minister at least two business days before the hearing. No doubt the nine written statements had been marshalled and presented with these provisions in mind.

27    Sections 500(6H) and (6J) had the effect in this case that, had the nine witnesses attended at the hearing and given oral evidence, the evidence which the appellant’s counsel could have led from them could not have departed in a substantive way from the content of the written statements. Even if counsel had attempted to elaborate the written statements in a significant way by oral evidence, the AAT would have been limited in the regard which it could have given to that elaboration. This means that the claimed denial of procedural fairness is not to be determined on the basis that the appellant’s counsel would have been able, if the nine witnesses had been called, to have led whatever relevant and probative evidence he wished, in addition to that contained in the statements. Further still, neither the appellant nor his counsel could have had any reasonable expectation that, if the nine witnesses did attend, counsel for the Minister or the AAT itself would have sought to elicit further information from them.

28    Those circumstances militate against a conclusion that the circumstance that the AAT did not forewarn the appellant and his counsel that it would not attach weight to the written documents constituted a denial of procedural fairness.

29    Finally, we add that we do not accept the proposition implicit in this ground of complaint, namely, that the AAT placed no weight on the statements of the extended family and friends because they had not given oral evidence. Properly understood, the AAT’s concern related not to the manner in which this evidence was given, but to its content. The sentence immediately following that upon which the appellant relies in the quoted passage indicates the particular matters which caused the AAT concern about the witness statements. These related to the strength of the relationships of the extended family and friends with the appellant and the support, if any, which they had given to him, given his largely itinerant history. As we have said, s 500(6H) of the Act precluded the appellant from being able to supplement any of those statements in a material way by leading oral evidence from their makers. The AAT’s reference to none of these witnesses having given evidence was by way of explanation of these issues not having been explored with them in questions of the AAT itself or in cross-examination.

30    For all these reasons, this ground of appeal fails.

Ground Two: The interests of the appellant’s child

31    By Ground Two, the appellant contends that the primary Judge should have found that the AAT denied him procedural fairness by failing “to deal [with] and consider the best interests of [his] daughter as a primary consideration”. However, some of the submissions in support of this ground were to the effect that the AAT had failed to address itself to the proper question for its determination.

32    The appellant contends that the AAT should have had regard to Article 9(1) of the United Nations Convention on the Rights of the Child which provides (relevantly):

State parties shall ensure that a party shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

33    In his written submission, the appellant referred to a passage in the judgment of Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291-2 concerning the legitimate expectation to which Australia’s ratification of the Convention, and Article 9(1) in particular, may give rise:

[R]atification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absence statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as “a primary consideration”. …

[I]f a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.

(Citations omitted)

The appellant referred in addition to the observation of Mason CJ and Deane J at 292 that “[a] decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the child as a primary consideration, asking whether the force of any other consideration outweighed it.”

34    The appellant referred to the decision of a Full Court of this Court of Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133 in which it was held that, by failing to act on the basis that the best interests of the applicant’s children were a primary consideration in the exercise of the discretion to grant or refuse a visa, and by not putting the applicant on notice that it was considering proceeding on a basis that the best interests of his children were not a primary consideration, the AAT had denied him procedural fairness.

35    The appellant submits that the AAT in his case had dealt with the best interests of his child at the level of “mere hypothesis”. This meant, he submits, the AAT had never confronted “the central question” of the best interests of his child with the consequence that its balancing of those interests with the interest of the Australian community in being protected from him had miscarried.

36    These submissions of the appellant made no reference to Direction 55 and no reference to the way in which the AAT did in fact address the best interests of his daughter.

37    Clause 11(1)(b) in Direction 55 identifies the best interests of minor children in Australia as one of the primary considerations for decision-makers considering whether a visa should be granted. Paragraph 11.2(1) specifies:

Decision-makers must make a determination about whether [visa] refusal is, or is not, in the best interests of the child.

38    Clause 11.2(4) identifies some particular matters which, when relevant, must be considered in relation to the best interests of children.

39    These parts of the Direction may be reflective of Australia’s obligations under the Convention and of the legitimate expectation to which Teoh referred. Nevertheless, the AAT was bound to comply with Direction 55 and, to the extent that there is any inconsistency between the direction and Teoh, the direction necessarily prevailed: Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [55]. Further, and in any event, Teoh does not have the effect that a decision-maker must always accord primacy to the interests of a relevant child: Baker at [56] citing Tracey J in Basile v Minister for Immigration and Citizenship [2011] FCA 237; (2011) 193 FCR 329 at [46].

40    The AAT considered the best interests of the applicant’s daughter as follows:

[43] In considering the best interests of the child, the factors set out in clause 11.2(4) must be considered where relevant.

[44] We accept that it is in the best interests of the applicant’s daughter that he remain in Australia. It cannot be said there is no existing relationship between them, even if she is only a few weeks old, although the effect of his removal on her will almost certainly be less than if she were older and their relationship of longer standing.

41    The first sentence in [44] was an express determination as required by cl 11.2(1) of Direction 55. Contrary to the appellant’s submission, the AAT did not deal with his daughter’s interests as a matter of hypothesis, as it found as a fact that the best interests of his daughter required that he remain in Australia.

42    The AAT referred again to the best interests of the applicant’s daughter in its conclusion at [53]:

As set out above, we accept that it is in the best interests of the Applicant’s daughter that he remain in Australia. However, we are not satisfied that her best interests outweigh the real risk that he will commit further serious offences and serious harm to the Australian community if he is granted the visa. In our view, that risk is unacceptable.

43    In effect, the AAT decided that, despite the best interests of the appellant’s daughter, the grant of a visa to him should nevertheless be refused because of the real risk of his committing further offences and thereby causing serious harm to the Australian community. This was a conclusion which was open to the AAT having regard to cl 8 of Direction 55. Clause 8(5) provides that one or more primary considerations may outweigh other primary considerations. It was for the AAT to make that evaluation. In resolving this issue adversely to the appellant, the AAT did not make the errors which his submission imputes to it.

44    We observe that the present ground of appeal was not agitated before the primary Judge. However, given that we consider that the ground fails in any event, it is not necessary to address the consequences of that circumstance.

45    This ground of appeal fails.

Ground Three: Procedural fairness and the appellant’s relationship with his wife

46    By Ground Three, the appellant complains that the primary Judge should have found that the AAT erred in failing to give weight to the statements of his extended family and friends and in finding that his relationship with his wife was not genuine.

47    This ground of appeal has no merit.

48    First, it was for the AAT to determine the weight, if any, which it was prepared to attach to the statements from the appellant’s extended family and friends. It was open to it to conclude that no weight should be attached to those statements, particularly given the appellant’s own evidence about his deprived childhood.

49    The primary Judge concluded at [79] that the AAT’s decision not to place any weight on the nine statements was not irrational or illogical in the sense discussed in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135]. See also Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [63]-[76]. The appellant did not complain on appeal that the Judge’s conclusion in this respect was wrong.

50    Secondly, contrary to the submission of the appellant, neither the AAT nor the primary Judge found that his relationship with his wife was not genuine. The AAT said:

[49]    The applicant denies marrying [his wife] in order to remain in Australia. He describes the day they married as the happiest day of his life. We accept his evidence. We accept that [his wife will] be distressed if he is refused a BVE which would enable them to be together for at least some time. We also accept that her mother would be distressed by such decision.

51    The primary Judge noted this finding at [35]. The appellant did not point to any passage in the reasons in which the Judge had purported to make a finding that his relationship with his wife was not genuine.

52    It is true that AAT did note that there may be some doubts about whether the appellant’s relationship with his wife will endure. The AAT said at [31]:

By [the appellant’s] own evidence, he only became “romantically involved in a serious way” with his wife in June 2012, although he had known her since 2010. He has been in gaol and immigration detention for most of that time and the depth and future stability of the relationship must be open to serious question.

53    In our opinion, this was not an observation about the genuineness of appellant’s relationship with his wife, but about the potential longevity of that relationship.

Ground Four: Alleged misconstruction of the Ministerial direction

54    In Ground Four, the appellant contends that the primary Judge should have found that AAT denied him procedural fairness and made a jurisdictional error by misconstruing cl 9.2(1)(a)(i) of Direction 55.

55    We note that a complaint of this kind was not made in the proceedings before the Judge and, accordingly, that it had not been necessary for her Honour to address it. However, that point may be put to one side for the present purposes.

56    Clause 6.3 of Direction 55 contains a statement of principles pertinent to the exercise of the discretion under s 501 and, in particular, of principles relating to the manner in which a history of criminal conduct is to be regarded.

57    Clause 9.2(1)(a)(i) provides:

Reflecting the principles at 6.3, decision-makers must have regard to:

(a)    How long the person has resided in Australia, including whether the person arrived as a young child, noting that:

(i)    Less weight should be given where the person began offending soon after arriving in Australia; and

        …

58    However, cl 9.2(1)(a) was not applicable in the appellant’s case, as it concerns decisions regarding cancellation of a visa. As already noted, the appellant’s application was for the grant of a new visa, and did not concern the cancellation of an existing visa.

59    Accordingly, this ground of appeal fails.

Ground Five: Alleged misconstruction of the Ministerial direction

60    By Ground Five, the appellant complains that the primary Judge should have found that the AAT denied him procedural fairness and fell into jurisdictional error by not determining whether he began offending soon after arriving in Australia as part of its assessment of the strength, duration and nature of his ties to Australia.

61    The appellant relied upon cl 9.2(a)(i) of Direction 55 for this Ground.

62    As cl 9.2 relates to the cancellation of existing visas and not to the grant of new visas, it has no application in the appellant’s case. Accordingly, this ground fails for the same reasons as given in relation to Ground Four.

Conclusion

63    For the reasons given above, the appeal must be dismissed with costs. This makes it unnecessary to consider the parties’ submissions on the issues raised by the Minister’s Notice of Contention.

Associate:

Dated:    3 October 2014