Federal Court of Australia

Nathanson v Minister for Home Affairs [2020] FCAFC 172

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent’s costs of the appeal.

3.    On or before 4.00 pm on 23 October 2020, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The appellant, Mr Narada Nathanson, is a citizen of New Zealand who resided in Australia. In August 2018, a delegate of the Minister for Home Affairs cancelled Mr Nathanson’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) because the delegate was not satisfied that he passed the “character test”. Mr Nathanson was invited to and made representations to the Minister about the revocation of the cancellation of his visa, but a delegate of the Minister declined to revoke the cancellation. Mr Nathanson then exercised his right to apply to the Administrative Appeals Tribunal for a review of that decision. The Tribunal’s conduct of Mr Nathanson’s unsuccessful review application is the focus of this appeal.

2    The Tribunal was required to afford Mr Nathanson procedural fairness. That included giving him a fair hearing. In that regard, Mr Nathanson was entitled, amongst other things, to have his mind directed to the critical issues or facts on which the Tribunal’s decision was likely to turn, unless those issues or facts were, or should have been, obvious to him. That did not occur in Mr Nathanson’s case. Indeed, quite to the contrary. Mr Nathanson, who was not legally represented before the Tribunal, was not given fair notice of an issue that turned out to be material to the Tribunal’s decision. He was accordingly not given a fair opportunity to address that issue in either his evidence or submissions.

3    So much so was accepted by the primary judge who heard Mr Nathanson’s application for judicial review application in this Court. The primary judge found, however, that the Tribunal’s failure to afford Mr Nathanson procedural fairness did not amount to a jurisdictional error because it was not a material breach. That was said to be because Mr Nathanson had not demonstrated that “compliance” could have resulted in a different decision.

4    The proposition that an applicant who is not given a fair hearing by the Tribunal is not entitled to relief because he or she is unable to prove that a fair hearing could have made a difference is not an attractive one, particularly where, as in Mr Nathanson’s case, the Tribunal’s failure to provide a fair hearing was anything but minor or technical. The proposition is even less appealing where the relevant unfairness is that the applicant was not given a fair opportunity to address, in either evidence or submissions, a material issue.

5    For the reasons that follow, I am unable to accept that Mr Nathanson could not have received a different decision from the Tribunal if he had been given a fair hearing. There was at least a realistic chance that, had he not been effectively denied the opportunity to adduce evidence or make submissions concerning a material issue that formed part of the Tribunal’s reasons for refusing his review application, he may have been able to persuade the Tribunal to make a decision in his favour. The Tribunal’s failure to give Mr Nathanson a fair hearing denied him the realistic possibility of a successful outcome.

MR NATHANSON WAS DENIED A FAIR HEARING

6    The relevant factual background is comprehensively addressed in the reasons of Steward and Jackson JJ. I will endeavour to avoid unnecessary repetition. It is, however, necessary to examine, in some detail, exactly what occurred, both prior to and at the Tribunal hearing, in order to understand and appreciate the nature of the denial of procedural fairness that occurred in Mr Nathanson’s case and why that denial was material in the relevant sense.

The cancellation of Mr Nathanson’s visa

7    Mr Nathanson’s visa was cancelled pursuant to s 501(3A) of the Act because the Minister was satisfied that he did not meet the character test. Mr Nathanson was also serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of, relevantly, a Territory.

8    There was no doubt and no dispute that Mr Nathanson failed to meet the character test in s 501(6)(a) of the Act because he had a “substantial criminal record” as defined in s 501(7) of the Act. Relevantly, he had been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Act. The immediate “trigger” for the cancellation of Mr Nathanson’s visa was his conviction in the Supreme Court of the Northern Territory of the following offences: deprive a person of personal liberty; drive a vehicle in a dangerous manner; aggravated assault; and stealing. It is unnecessary to rehearse the facts that gave rise to those offences. There could be no doubt that they were relatively serious offences. That was demonstrated by the fact that he was sentenced to a total effective period of imprisonment of two years and six months.

9    Mr Nathanson also had a lengthy criminal record at the time that he was dealt with by the Supreme Court of the Northern Territory. He was plainly not a man of good character. Most of his previous offences, however, had been relatively minor offences, including relatively minor assaults, drug possession, possession of a weapon, property and dishonesty offences and driving offences.

Direction 65

10    Mr Nathanson was invited to, and subsequently made, representations to the Minister, pursuant to s 501CA of the Act, as to why the cancellation of his visa should be revoked.

11    At the time that Mr Nathanson made those representations, the Minister had given written directions, pursuant to s 499 of the Act, to persons or bodies who had functions or powers under the Act, including functions or powers under s 501CA of the Act, about the performance of those functions or the exercise of those powers. That written direction, Direction 65, listed a number of primary considerations that decision makers were required to take into account in considering whether to revoke a visa cancellation under s 501CA of the Act. One of the primary considerations was the protection of the Australian community from criminal or other serious conduct. In that context, decision makers were required to consider the “nature and seriousness of the non-citizen’s conduct to date”. Paragraph 9.1.1 listed a number of “factors” which decision makers were directed to consider in that regard, including the “principle that … violent and/or sexual crimes are viewed very seriously” and that “crimes committed against vulnerable members of the community … are serious”.

The delegate’s decision

12    A delegate of the Minister declined to revoke the cancellation of Mr Nathanson’s visa.

13    The delegate who made that decision found that Mr Nathanson had “committed violent offences in Australia that have resulted in significant harm to the Australian community” for which he had “received substantial sentences of imprisonment”. The delegate concluded that his offending had been “very serious”. That finding in turn led the delegate to conclude that, given the serious offending, Mr Nathanson “should expect to forfeit the right to remain in Australia”, that “the Australian community could be exposed to harm should Mr Nathanson offend in a similar fashion” and that “the Australian community would expect that Mr Nathanson’s visa would remain cancelled”.

14    It is critical to emphasise at this point, however, that the delegate’s lengthy and detailed reasons for declining to revoke the visa cancellation made no reference whatsoever, in any context, to any domestic violence that Mr Nathanson was alleged to have committed against his wife. In fact, such references as were made to Mr Nathanson’s wife and children in the delegate’s reasons were essentially positive. The delegate found that it was in the best interests of Mr Nathanson’s children for the visa cancellation to be revoked and noted, amongst other things, that Mr Nathanson’s wife had submitted that “the visa cancellation has broken her heart and she is lost without him”, that it had been very difficult to cope “both emotionally and physically” without him and that she was “looking forward to them restoring their marriage”.

Direction 79

15    On 20 December 2018, the Minister revoked Direction 65 and issued a new written direction pursuant to s 499 of the Act, Direction 79. Like Direction 65, Direction 79 stated that the protection of the Australian community was a primary consideration that decision makers under s 501CA were required to have regard to. Like Direction 65, Direction 79 stated that decision makers should, in that context, have regard to the nature and seriousness of the non-citizen’s conduct to date. And, like Direction 65, Direction 79 included a paragraph – paragraph 13.1.1 – which listed a series of factors that decision makers should have regard to in considering the “nature and seriousness of the non-citizen’s criminal offending or other conduct to date”. Many of those factors were similar to those which were included in the corresponding paragraph of the previous direction. Relevantly, however, it included the following additional factor:

The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed…

The Minister’s statement of facts, issues and contentions

16    The Minister, who was legally represented in the review proceedings in the Tribunal, filed a Statement of Facts, Issues and Contentions in advance of the hearing in the Tribunal. That Statement referred to Direction 79. Critically, however, in the section of the Statement that dealt with the Minister’s contentions concerning the protection of the Australian community and the nature and seriousness of Mr Nathanson’s criminal offending and other conduct, no reference whatsoever was made to the new paragraph in 13.1.1 which included, as a relevant factor, the principle that crimes of a violent nature against women or children are viewed very seriously. Nor was there any inkling in the statement of any contention by the Minister that the Tribunal should have regard to that factor, or any allegations or incidents of domestic violence said to have been perpetrated by Mr Nathanson, in assessing the nature and seriousness of his past offending or other conduct.

17    The only hint – and it was no more than that – of any contention relating to domestic violence appeared in the section of the statement that dealt with the best interests of Mr Nathanson’s children. It was stated, in that context, that the best interests of Mr Nathanson’s children “should be given limited weight in circumstances where the children have suffered or experienced emotional trauma arising from [Mr Nathanson’s] conduct, specifically as a result of incidents of domestic violence resulting in the issuing of violence restraining orders”. That was the extent of it.

The letter from Mr Nathanson’s wife

18    Mr Nathanson was not legally represented in the Tribunal. It is perhaps not surprising, in those circumstances, that he did not himself file a statement setting out his contentions. He did, however, submit a letter from his wife to the Tribunal. Before setting out an extract from that letter, it is critical to emphasise the date of that letter. The letter was dated 5 March 2019. That was three days before the date of the Minister’s Statement. As discussed in more detail later, the fact that the letter from Mr Nathanson’s wife pre-dated the Minister’s Statement is important. It puts paid to any suggestion that the letter was somehow responsive to the fleeting reference to domestic violence which was included in the Statement.

19    The letter from Mr Nathanson’s wife was broadly supportive of Mr Nathanson. Given the prominence that has been given to this letter in considering the issue of materiality, it should be set out in full:

The purpose of this letter is to state that Narada William Nathanson and I Sandra Maria Oliveira Nathanson have been married for nine years now. We have three children together Tiago aged 9, Leandro aged 7 and Gihana aged 3.

We were separated for a while, during that time we realised that we made the wrong choice. We were and are continually remorseful of both our choices we made in the past. During the separation we have rebuilt and allowed restoration to lead us.

This letter is also to state that I admit my faults in the past of not thinking beforehand how I handled our arguments and disagreements. On two occasions I proceeded to report my husband to the police and making statements against him. Those statements were made out of selfishness, fear, out of anger, frustration and, maybe, even despair. I didn’t realise that my thoughtless actions would affect not only our relationship further it even affected our children as well as my husband’s character in the future. Unfortunately, it’s taken this brokenness to make me realise how damaging that was and still is.

I am so remorseful. He too was a victim to my choices I needed help emotionally and mentally at that timme [sic] but was too proud to admit it and in total denial. I am really sorry, I realise how damaging that was in our partnership and how it did not help solve the problems we found we were facing. We both regret the things we have done that have led to the dissolution of our marriage and as well regret the things we did not do to try to solve it and save our marriage.

We have reunited during the separation. Narada and I are more than willing to begin the process of changing further to better our marriage. We already have, but to successfully do so, I would like to ask for your help and support something that you have control over in allowing us to be a family we were created to be, united with our three children.

When we got married nine years ago, I knew I wanted to spend the rest of my life with my husband. That’s [sic] hasn’t changed despite the fact that the government is separating us right now. What God put together no man can separate.

Please give our children, Narada and I another chance in this beautiful country we have made our home. We have no one in New Zealand. Our children will be separated from their main support person and leader who is their dad, regardless of his past. He is a changed man. Everyone deserves a second chance. I too will be left having to pick up government’s pieces, Children will be fatherless and wife without her support, her husband and father and husband without his family. Therefore another broken family with further problems emotionally, mentally, spiritually and physically. What a mess.

I plead and beg that our family would not be separated from my husband. Please take this letter to heart and see fit where you can help reunite our family

20    It can be seen that Mr Nathanson’s wife appeared to acknowledge, in her letter, that there had been difficulties in the marriage and that she had reported Mr Nathanson’s actions to the police on two occasions. The reference to any incidents of domestic violence was, however, at most fairly oblique. That is perhaps not surprising given that, as noted earlier, the letter pre-dated the Minister’s Statement. At the time it was written, neither Mr Nathanson nor his wife had any reason to believe or suppose that any past incidents of domestic violence would be relevant to the Tribunal’s review of the delegate’s decision.

21    The only other evidence relied on by Mr Nathanson in the Tribunal was a letter from his mother. It is unnecessary to consider the contents of that letter. Mr Nathanson did not swear or affirm an affidavit or provide a statement setting out any evidence that he wanted to give. It appears that he essentially relied on the representations he had previously made to the Minister.

The state of affairs prior to the Tribunal hearing

22    The conclusion that can clearly be drawn from the sequence of events prior to the Tribunal hearing is that Mr Nathanson was given no notice whatsoever that the Minister would contend that the Tribunal should – indeed, must – take into account incidents of domestic violence that he was said to have been involved in when considering the nature and seriousness of his offending or other conduct to date. The decision of the delegate, which was the subject of the review application, was based on the previous direction, Direction 65, and the delegate’s reasons made no reference at all to any incidents of domestic violence.

23    Despite that, Mr Nathanson was not told, by either the Minister or the Tribunal, about the new paragraph in Direction 79 which referred to the principle that crimes of a violent nature against women or children are viewed very seriously. Perhaps more significantly, he was not told that the incidents of domestic violence that he was said to have been involved in, but which had not resulted in charges, let alone convictions, would or even might be taken into account in assessing the nature and seriousness of his past offending and conduct. That was certainly not adverted to in the Minister’s Statement.

24    That situation was not remedied during the Tribunal’s hearing. Indeed, if anything, the situation was made worse.

The hearing in the Tribunal

25    Towards the commencement of the hearing, the Tribunal gave Mr Nathanson the following outline of the issues for determination:

MEMBER: When the [T]ribunal is looking at whether to exercise its discretion to revoke the cancellation, there are certain things it needs to take into account, and these include directions that are made by the Minister. There’s a particular direction called Direction 79, which sets out a policy the [T]ribunal must apply in exercising its discretion. That includes looking at primary and other considerations and those include the protection of the Australian community, the best interests of minor children, the expectation of the Australian community, international non-refoulement obligations, the strength, nature and duration of ties to Australia, the impact on Australian business and victims and the extent of the impediments to you if removed.

For your benefit as a preliminary issue, I’d like to highlight that I’m considering the application under Direction 79, the delegate when they made their decision was operating under a different direction because one came into effect in February of this year. That was Direction 65. So I’m going to give you a copy of Direction 79 that marks up in red where the direction is different, so that you’re aware. There are only minor changes to the direction but it’s important, I think, that you know that I’m making the decision with a slightly different direction in front of me. Mr Burgess [Minister’s counsel].

MR BURGESS: Yes.

MEMBER: Could you give a copy to [Mr Nathanson] and one to Mr Burgess. Thank you. The parts of the direction that I’ll be looking at in this case are the preliminary parts of the direction and then part C which applies to cancellations such as the one you have before me. Or that I have before me in your case. Most of those changes relate to how we treat crimes where women and children are involved, and with respect to the conviction history I have for you in front of me, I think they’re of minor relevance, those changes. That is, mostly relevance to where the applicant has been charges [sic] in relation to convictions and offences in relation to women and children.

Do you have any questions for me before we start?

MR NATHANSON: No, Ma’am.

(Emphasis added.)

26    It is perhaps not surprising that Mr Nathanson had no questions about Direction 79 given that he was effectively told that the changes resulting from it, which were said to relate to “crimes where women and children are involved” or “charges in relation to convictions and offences in relation to women and children”, were of “minor relevance” given Mr Nathanson’s “conviction history”. That was no doubt a reference to the fact that Mr Nathanson had not been charged, let alone convicted, of any such offences.

27    After the Tribunal gave Mr Nathanson that brief explanation concerning Direction 79, he was asked if there was anything he wanted to say in opening about why the Tribunal should revoke the cancellation of his visa. It was noted by the Tribunal, in that context, that Mr Nathanson would be given the opportunity later to “give evidence in that regard”. Mr Nathanson made some very brief opening remarks, which were to the effect that he was remorseful for what he had done in the past, that everything that he had “committed” in the past was “under the influence of drugs” and that since then he had completely turned his life around.

28    The Minister’s counsel then gave a brief opening address. He said the following about the primary consideration of the protection of the Australian community:

With respect to the first primary consideration, the protection of the Australian Community, the Minister contents [sic] that [Mr Nathanson] has been convicted of many serious crimes. And also, in addition to the convictions there’s also evidence of serious behaviours that should be of concern to the Australian community.

The second part of that being the risk to the Australian community. The Minister will contend that [Mr Nathanson] is an unacceptable risk to the Australian community and if he were to reoffend in the manner that he has in the past that would cause unacceptable harm to the Australian community. [Mr Nathanson’s] provided very little evidence of rehabilitation in respect of his addiction problems, but also in respect of violence. And he’s provided no evidence in relation to any violence programs that have been undertaken.

With respect to the expectations of the Australian community, again we would contend that given the seriousness of [Mr Nathanson’s] crimes that the Australian community would expect that [Mr Nathanson’s] visa would not be reinstated by the tribunals.

29    Needless to say, the Minister’s counsel said nothing to counter or correct the Tribunal’s statement that the changes resulting from Direction 79 were of only “minor relevance” to Mr Nathanson’s case. Nor did counsel give any hint that it would later be contended that the changes resulting from Direction 79 were in fact engaged, in Mr Nathanson’s case, because he had been involved in incidents of domestic violence. Mr Nathanson was given no inkling that those incidents might be important to his review application.

30    While Mr Nathanson was asked to take an affirmation, he was not invited to give evidence in chief. The Tribunal effectively asked him only one question, which was whether the “things” that he had referred to in the representations he made to the Minister still applied, to which he answered “yes”. The Minister’s counsel was then invited to cross-examine Mr Nathanson.

31    Counsel for the Minister proceeded to cross-examine Mr Nathanson about, amongst other things, incidents of domestic violence which he was said to have been involved in some seven years earlier. That cross-examination was permitted despite what the Tribunal had told Mr Nathanson about Direction 79 at the outset and despite the fact that no real explanation had been provided to him about the relevance of those incidents.

32    The cross-examination of Mr Nathanson by the Minister’s counsel appeared to be based on documents which the Minister had obtained by subpoena from the Western Australian police. Those documents were tendered by the Minister at the beginning of the hearing. No explanation appears to have been given to Mr Nathanson about the relevance of those documents when they were tendered. Indeed, there is no indication that he was asked whether he objected to their tender. There is nothing to suggest that Mr Nathanson was given any advance notice that the documents would be tendered.

33    The fairness of permitting Mr Nathanson to be cross-examined about these incidents in all the circumstances was, to say the very least, highly questionable. That is all the more so given that he was not legally represented. There was nobody present who could object to the course that had been taken, or to the line of questioning that was being pursued, on the grounds of relevance or otherwise. Mr Nathanson was scarcely in a position to raise those objections himself.

34    Given the absence of any real notice having been given to Mr Nathanson about the relevance of those incidents of domestic violence, and that the fact that they were said to have occurred about seven years earlier, it is hardly surprising that he appeared to have little recollection about the alleged incidents. He also made it clear that the main incident occurred early in the morning and in circumstances where he was intoxicated. The fact that Mr Nathanson did not deny what was recorded in the police documents about the incidents, which was essentially what Mr Nathanson’s wife had told the police when they arrived at the scene, should be understood in that context. In any event, Mr Nathanson made it fairly clear that he had no real recollection of the incidents and that what he was agreeing to was that his wife had made those statements to the police. As he pointed out, not unreasonably in the circumstances, in answer to one question that was put to him about what was said in the police documents: “I’m not here to argue with what she’s put against me”.

35    None of what has just been said is intended to detract from the seriousness of the allegations of domestic violence that had been recorded. The point is that the admissions that the Minister claimed were made by Mr Nathanson about those incidents were not as unequivocal or clear as the Minister would have it. And, as has already been noted, Mr Nathanson was never charged, let alone convicted, in respect of any of the incidents that he was cross-examined about.

36    The Tribunal member asked Mr Nathanson a series of questions at the conclusion of his cross-examination. Only one question appeared to address an incident involving domestic violence. That question and Mr Nathanson’s answer to it was as follows:

Were you taking drugs in 2012 when the incident occurred that Mr Burgess took you to in the material?---On all the statements that my wife lodged against me, that was alcohol – I was under the influence of alcohol.

37    It should also be noted, in this context, that it is readily apparent from the transcript that Mr Nathanson’s wife was present at the hearing, though it is not clear whether she was in the hearing room at the time that Mr Nathanson was cross-examined. While Mr Nathanson had previously indicated that he did not intend to call any witnesses, he was not asked whether, in light of the cross-examination, he wanted to call his wife to give evidence.

38    The first indication given to Mr Nathanson that the domestic violence incidents in 2012 might be relevant to the assessment of the primary consideration of the protection of the Australian community was in the Minister’s oral closing submissions. The Minister’s counsel referred to paragraph 13.1.1 of Direction 79 and submitted that the offences that had been committed by Mr Nathanson were serious offences under that paragraph. Counsel then made the following submission:

In addition, [Mr Nathanson] has been convicted of assaults going back to 2010; the first assault being assault occasioning bodily harm occurred less than three weeks after [Mr Nathanson] first arrived in Australia. [Mr Nathanson] has also, in my submission, been involved in other violent conduct against his wife and, notwithstanding the fact that [Mr Nathanson’s] wife chose not to press charges against [Mr Nathanson], we would submit, that that conduct is extremely serious conduct, especially having regard to the new directions in Directions 79 that any violent conduct against a female is serious, regardless of the sentence imposed.

39    The reference to the “new directions in Directions 79” was plainly a reference to the new subparagraph in paragraph 13.1.1 concerning the “principle that crimes of a violent nature against women or children are viewed very seriously”. Counsel then made a submission summarising the effect of Mr Nathanson’s evidence concerning one of the instances of domestic violence. It was submitted again, in that context, that the conduct was “extremely serious conduct”. What was not clearly explained, however, was exactly how the incidents of domestic violence were said to fall within the new subparagraph in paragraph 13.1.1 of Direction 79 given that Mr Nathanson had not been charged or convicted of any “crimes of a violent nature against women or children”. All that was said was:

Having regard to [Mr Nathanson’s] offences, we submit, that they were extremely serious offences and that if [Mr Nathanson] were to reoffend in that manner, he would present an unacceptable risk to the Australian community. The second part of the risk to the Australian community looks at the chance that [Mr Nathanson] will reoffend.

40    At the conclusion of the Minister’s submissions, Mr Nathanson was asked if he wanted to make any submissions. It is important to note, however, that the Tribunal did not specifically invite Mr Nathanson to address the Minister’s submission concerning Direction 79 and the relevance of the incidents of domestic violence to the primary consideration of the protection of the Australian community. Nor did the Tribunal ask Mr Nathanson if he wanted to adduce any evidence in response to that submission. That was, in all the circumstances, plainly unfair given that Mr Nathanson had been given no reasonable notice that the domestic violence incidents may be used against him in that way and particularly given that the Tribunal had, at the commencement of the hearing, effectively told Mr Nathanson that the changes effected by Direction 79 had little relevance to his case.

The Tribunal’s decision

41    As events transpired, the Tribunal accepted the submission made on the Minister’s behalf that the incidents of domestic violence should be considered as falling within subparagraph 13.1.1(1)(b) of Direction 79 and that it should therefore conclude that Mr Nathanson’s conduct should be viewed seriously.

42    Consistently with what is recorded in the transcript, the Tribunal noted at paragraph [31] of its Statement of Reasons and Decision:

The Tribunal highlighted the sections of [Direction 79] relevant to consideration in such an application (introduction Sections 1 and 2 and Part C) and noted that the changes made in Direction no. 79 related primarily to the treatment of offences against women and children. The Tribunal noted that having regard to the conviction history of [Mr Nathanson] these charges would be less relevant in his case.

(Emphasis added.)

43    The Tribunal reasoned as follows at paragraphs [57]-[59] of its Reasons:

The Tribunal notes that paragraph 13.1.1(1)(b) of Direction no. 79 refers specifically to ‘crimes’ against women or children. This reference would appear to limit the prescriptive application of the provision to offences in relation to which a finding of criminal liability has been made against an applicant. However, paragraph 13.1 requires decision-makers to give consideration to a non-citizen’s ‘conduct’. Paragraph 13.1.1(1) differentiates ‘criminal offending’ from ‘other conduct to date’. The requirement that decision-makers must have regard to certain factors listed in 13.1.1(1) does not limit the Tribunal’s consideration of ‘other conduct’. Indeed the fact that it is highlighted in 13.1.1 with respect to the treatment of particular crimes including those specified in 13.1.1(1)(b) may inform consideration of how seriously ‘other conduct’, which has not resulted in criminal conviction including when a victim has chosen not to press charges, should be regarded.

The Tribunal notes that [Mr Nathanson’s] wife, Sandra Nathanson, provided a statement that includes the following:

… I admit my faults in the past of not thinking before how I handled our arguments and disagreements. On two occasions I proceeded to report my husband to the police and making statements against him. Those statements were made out of selfishness, fear, out of anger, frustration and, maybe, even despair. I didn’t realise that my thoughtless actions would affect not only our relationship further it even affected our children as well as my husband’s character in the future. Unfortunately, it’s taken this brokenness to make me realise how damaging that was and still is.

This statement would suggest that Mrs Nathanson seeks to accept responsibility for the impact her reports to police have had on [Mr Nathanson]. The Tribunal notes that Mrs Nathanson’s statement does not indicate that she falsified these reports or that the events did not occur. [Mr Nathanson] accepts that the events did occur. The reports made to police at the time and the events observed and recorded by the police indicate circumstances of family violence within the home. Based on the evidence available, the Tribunal finds that there is evidence that [Mr Nathanson] engaged in violent behaviour towards his wife on two occasions in 2012 and 2016. The Tribunal also finds that [Mr Nathanson’s] eldest son witnessed one of the incidents. Having regard to the general principles expressed in Direction no. 79, the Tribunal regards such conduct seriously.

44    The Tribunal’s reasoning concerning the applicability of subparagraph 13.1.1(1)(b) appears to be somewhat suspect or questionable. The incidents of domestic violence about which Mr Nathanson was questioned and gave evidence did not fall within subparagraph 13.1.1(1)(b) because they were not “crimes”. He was not charged or convicted over those incidents. The “principle” referred to in that paragraph was accordingly irrelevant to Mr Nathanson’s case and the Tribunal was therefore not compelled, by paragraph 13 of Direction 79, to have regard to it in considering the nature and seriousness of Mr Nathanson’s criminal offending or other conduct.

45    That said, Mr Nathanson did not relevantly challenge the Tribunal’s decision on the basis of this finding or reasoning. Whether it is correct or not is therefore not a matter that need be finally determined in this appeal. Mr Nathanson’s case on appeal was limited to the primary judge’s finding concerning the immateriality of the denial of procedural fairness arising from the Tribunal’s failure to afford him a fair opportunity to address this issue and this finding by the Tribunal.

The primary judge’s finding that Mr Nathanson was not afforded procedural fairness

46    There is now no dispute that Mr Nathanson was not given a fair hearing and that the Tribunal did not afford him procedural fairness. That is because the primary judge found as such and the Minister did not seek to challenge that finding in this appeal. In any event, the primary judge was, with respect, plainly correct to find that there had been a denial of procedural fairness. The primary judge’s conclusion was expressed in the following terms (Nathanson v Minister for Home Affairs [2019] FCA 1709 (Judgment) at [56]):

In this case, by reason of the change made by Direction No 79, there was the possibility of a new issue, namely whether the terms in which it was expressed meant that evidence of domestic violence that had not been proven to be a crime might be viewed as very serious conduct by reason of the changes introduced by the new terms of the direction. It appears that the nature of that issue was not a matter adverted to by the Tribunal or the Minister until it was raised in closing submissions by the Minister. By that time, the Tribunal proceedings had been conducted on the basis that the issue was ‘of minor relevance’. When the submission was advanced by the Minister in closing, the Tribunal did not know what [Mr Nathanson] might be able to present on that issue by way of evidence or submission. Fairness required the Tribunal, at least, to afford [Mr Nathanson] an opportunity to present further evidence and submissions on that aspect before making a decision, in effect, upholding the Minister’s submission. Instead, the Tribunal took no procedural step to address the unfairness and invite [Mr Nathanson] to present further material even though there was ample time to do so.

47    It should also be noted that the primary judge rejected the Minister’s submission that the Tribunal would have reached the same conclusion it did in relation to the seriousness of Mr Nathanson’s past offending and other conduct even without regard to the incidents of domestic violence. His Honour concluded that the “characterisation of the conduct as very serious derives from the consideration of that conduct [the domestic violence]”: Judgment at [28]. The Minister did not challenge that finding on appeal. It is, in any event, plainly correct. It is also relevant to a consideration of whether the denial of procedural fairness was material.

THE DENIAL OF PROCEDURAL FAIRNESS WAS MATERIAL

48    The primary judge concluded that the Tribunal’s failure to afford Mr Nathanson procedural fairness had not been shown by Mr Nathanson to be material. His Honour reasoned as follows in that regard (Judgment at [60]-[62]):

[Mr Nathanson] did not point to any particular evidence that might have been presented if an opportunity had been afforded to present that evidence. The submission advanced was in general terms and was to the effect that [Mr Nathanson’s] wife had provided supportive evidence and the opportunity to present further evidence was taken away from [Mr Nathanson] by the process. It was not suggested that there was any particular submission that might have been advanced that might have caused the Tribunal to reach a different view when considering the evidence of domestic violence in forming a view as to the seriousness of [Mr Nathanson’s] conduct. It was not suggested that the Tribunal itself might have taken some different procedural course other than affording [Mr Nathanson] an opportunity to present further material and submissions in order to redress the unfairness that had arisen.

Therefore, this was not a case where there was some additional identified matter which the Court could evaluate whether, if presented, might have persuaded the Tribunal to a different outcome. There was no evidence or argument identified that might have been advanced that could have caused the Tribunal to reach a different outcome. For example, there was no indication of the different perspective that might have been presented to the Tribunal concerning the evidence of domestic violence.

The onus is upon [Mr Nathanson] to demonstrate the factual basis upon which the alleged breach of procedural fairness is said to have been material. It is not necessary for [Mr Nathanson] in all cases to identify precisely what the evidence may have been or the arguments that may have been made. However, it is necessary to point to a sufficient factual basis upon which the Court can conclude that the breach was material. In circumstances where [Mr Nathanson] was on notice that the factual material concerning the domestic violence was in issue and the conduct was accepted by [Mr Nathanson] as having occurred, the deployment by the Tribunal of that evidence in reaching a conclusion that the conduct of [Mr Nathanson] was very serious without affording [Mr Nathanson] an opportunity to address that point was only material if there was something that could have been put to the Tribunal that might have resulted in a different outcome on that aspect. The application falls short of demonstrating that to be the case.

49    I respectfully disagree.

Relevant principles – Procedural fairness, jurisdictional error and materiality

50    It must, of course, be accepted, in light of the decision of the majority of the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, that a “breach” of procedural fairness will not constitute a jurisdictional error if the breach was not “material” and that a “breach is material to a decision only if compliance could realistically have resulted in a different decision”: SZMTA at [45]. Moreover, where, as here, materiality is an issue in an application for judicial review, “the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof” and “[l]ike any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application”: SZMTA at [46].

51    The following additional observations should, however, be made in relation to the issue of materiality, particularly in the case of a denial of procedural fairness.

52    First, the issue involves a consideration of whether there could, not would, realistically have been a different decision if there had been no denial of procedural fairness: EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299 at [42] citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31].

53    Second, the adjective “realistic” is “used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable”, no more than that: Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 at [66]; DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72 at [60].

54    Third, it will not always be incumbent on a person who seeks to establish jurisdictional error on the basis of a denial of procedural fairness to demonstrate, by evidence, what would have, or may have, occurred had the denial of procedural fairness not occurred: Nguyen v Minister for Home Affairs (2019) 270 FCR 555 at [54]; Degning v Minister for Home Affairs (2019) 270 FCR 451 at [39]; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [58]. Where, for example, the denial of procedural fairness arose from the failure to put the applicant on notice of a material fact or issue in a visa cancellation case, the court may readily be able to draw an inference that the applicant would, if fairly put on notice of that issue or fact, have addressed it. The “gravity of the consequences of the decision” together with “[h]uman experience and plain common sense” would support such an inference: Degning at [39].

55    Fourth, where the denial of procedural fairness involved a failure to afford a person a fair opportunity to be heard in relation to a material issue, and it may be inferred that the person, if given that opportunity, would most likely have addressed it, the court should assume that the decision maker would have approached the further evidence or submissions which may have been advanced with an open mind, capable of persuasion, not a pre-existing view based on the decision maker’s existing reasoning and conclusions which, of course, were reached in the absence of that further material: DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [115]; see also Chamoun at [70] and the consideration of this issue by Mortimer J (albeit in dissent) in PQSM v Minister for Home Affairs [2020] FCAFC 125 at [77]-[87].

56    Fifth, much will depend on the facts of the case, the decision-making process and the particular denial of procedural fairness in question: Nguyen at [54]. The assessment of materiality will always be highly context dependent: PQSM at [141]. What must be shown will depend upon the precise defect alleged to have occurred in the decision making process: WZARH at [58]. In some cases, particularly those where the decision maker failed to afford a person a fair opportunity to be heard in respect of a critical fact or issue, an inference of materiality may readily be available from the nature of the breach itself. Relief, in those circumstances, will ordinarily follow. That is because the loss of a potentially valuable opportunity to be heard may itself support an inference of materiality, particularly given that it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome: cf Stead v State Government Insurance Office (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [104]; see also WZARH at [60]; Nguyen at [54].

57    Sixth, it may be the case, as Mortimer J observed in PQSM at [10], that there are challenges in understanding the application of the “concept” of materiality where there has been an express finding of denial of procedural fairness. It is somewhat difficult to reconcile the unequivocal and unqualified statements made by the majority in SZMTA concerning the requirement of materiality with what is said in earlier High Court cases, in particular in Ex parte Aala where the following was said (at [59]-[60]):

However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for “trivial” breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v).

Cases said to turn upon “trivial” breaches are often better understood on other grounds. In particular, it is trite that, where the obligation to afford procedural fairness exists, its precise or practical content is controlled by any relevant statutory provisions and, within the relevant legislative framework, this will vary according to the circumstances of the particular case. The point is developed in particular in the judgments of Deane J in Kioa v West [(1985) 159 CLR 550] and Haoucher v Minister for Immigration and Ethnic Affairs [(1990) 169 CLR 648].

(Footnotes omitted.)

58    One possible way of reconciling these statements is to accept that there may be some cases involving a denial of procedural fairness where the nature of the breach or denial itself is such that materiality is demonstrated without the need to examine, or closely examine, the specific bearing that the breach may have had on the ultimate decision. In such cases, the failure on the part of the decision maker to observe fair decision making procedures may be such that it can be concluded, without more, that the applicant was denied the possibility of a successful outcome. A demonstrative failure by a decision maker to give an applicant an opportunity to be heard may be such a case: see WZARH at [59]-[60] (per Gageler and Gordon JJ after referring to Aala at [59]); DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at [97]-[103]. There may also be cases involving “extreme” denials of procedural fairness where jurisdictional error may be found without the need to show that the applicant was deprived of the possibility of a successful outcome: Hossain at [72] (per Edelman J).

The materiality of the breach in Mr Nathanson’s case

59    The circumstances of this case are not materially different from the circumstances considered by the Full Court in Degning. Mr Degning’s visa was cancelled by the Minister. The Minister, however, had not put Mr Degning on notice that apparently false answers that he had given on incoming passenger cards may be material to the Minister’s decision. The Full Court, by majority, found that Mr Degning had been denied procedural fairness because he was “entitled to have his mind directed to the critical issues or facts on which the decision was likely to turn”: Degning at [12]. Allsop CJ, with whom Collier J agreed, said as follows (at [38]-[39]) concerning the denial of procedural fairness and question of materiality:

There was in my view a failure to afford Mr Degning procedural fairness. It was, in my view, unfair not to direct Mr Degning to this issue. The common law requirement of procedural fairness or natural justice is rooted in the common law’s inhering demand for fairness in the way power is exercised. Relief will ordinarily follow a denial of procedural fairness: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [5] (Gleeson CJ), [41] (Gaudron and Gummow JJ), [171] (Hayne J), [135]–[144] (Kirby J), [218] (Callinan J). That does not mean that relief is not discretionary: Aala. But the relief is usual because a finding of an absence of procedural fairness is based on the procedure being unfair. An “arid and technical” approach to unfairness and approach to unfairness not based on the practical nature of fairness is to be disapproved: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [25] and [34] (Gleeson CJ).

Whilst it is necessary for the applicant to show that the process has fallen short of a standard of fairness in all the circumstances, it is not necessarily the case that evidence must be led about what the applicant would have done had the procedure been fair. Here for instance, I see no justification for concluding that Mr Degning had to prove that he did not understand that the passenger cards were related to a proposition that he had a disregard for the law and that that was relevant to the question whether he posed a risk of re-offending for sexual offences. Given the gravity of the consequence of the decision for him, and the nature of the representations that he did make, I would infer that he would have said whatever he could have said about the cards, even, if it be the case, accepting some dishonesty. Human experience and plain common sense tells one that he would have addressed it. There is no basis to think that it could have been some tactical decision. Being prepared to draw the inference that Mr Degning did not understand the issue for which the passenger cards were to be or were used, I am persuaded that the failure to afford him procedural fairness denied him an opportunity to put submissions on a topic of relevance to the Minister’s consideration. There is no reason to think that this could not have made a difference to such a difficult decision, and one where there was accepted to be a low risk of re-offending. I do not consider that Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 requires any different conclusion.

60    The same could be said in relation to Mr Nathanson’s case.

61    The denial of procedural fairness in this case was serious. Mr Nathanson did not fairly have his mind directed to an issue which turned out to be material, if not significant, to the Tribunal’s decision. Indeed, he was initially misled about that issue. He was not given a fair opportunity either to adduce evidence or to make meaningful submissions in relation to that issue. By the time he was given notice that the incidents of domestic violence about which he had been questioned might, supposedly by reason of a new subparagraph in paragraph 13.1.1 of Direction 79, be a “factor” that the Tribunal was required to take into account in considering the nature and seriousness of his past offending and other conduct, it was effectively too late. To unscramble that situation, the Tribunal would have had to, at the very least: explain to Mr Nathanson that what he had been told about Direction 79 at the beginning of the hearing was wrong; explain the potential relevance of the incidents of domestic violence to subparagraph 13.1.1(1)(b) of Direction 79; and then give Mr Nathanson a fair opportunity to consider whether he wanted to give or adduce further evidence or make any submissions in relation to that issue. It may also have been necessary to adjourn the hearing to enable Mr Nathanson to consider his position in that regard. None of that was done.

62    Given the gravity of the consequences of the Tribunal’s decision for Mr Nathanson, I would readily infer that if he had been given fair and reasonable notice of the potential relevance of subparagraph 13.1.1(1)(b) of Direction 79 and the incidents of domestic violence which occurred many years before, he would have addressed that issue. He may have addressed that issue in a number of ways.

63    First, he may have given further evidence himself, not only about the incidents themselves, but also evidence about the context and circumstances in which those incidents occurred so as to provide some explanation about how and why they occurred. As noted earlier, it may be accepted that it appeared that, for various reasons, Mr Nathanson did not have a particularly good recollection of the incidents in question. Nevertheless, it may equally be accepted that it was possible, if not likely, that he would have been able to provide some relevant and material context or explanation concerning the incidents, particularly if he had been given some notice of the potential relevance of the incidents and if he was not subject to the strict confines of cross-examination. He would also have been able to adduce further evidence about his subsequent reconciliation with his wife so as to provide support for the submission that those sorts of incidents would not be repeated in the future.

64    Second, he may also have called his wife to give evidence about those same sorts of matters. There is no reason to doubt that Mr Nathanson’s wife would not have been able to provide further material evidence about the context and circumstances in which the incidents occurred, as well as evidence concerning her subsequent reconciliation with Mr Nathanson.

65    Third, he may also have made submissions as to why, in all the circumstances, those incidents did not relevantly engage subparagraph 13.1.1(1)(b) of Direction 79 and should not otherwise be used against him in respect of the revocation of the cancellation of his visa. That may not have been easy given that Mr Nathanson was neither legally represented nor legally trained. It cannot, however, be totally excluded that he could have made some relevant submissions on this topic. That is particularly the case given that, as noted earlier, the Tribunal’s reasoning in relation to the applicability of subparagraph 13.1.1(1)(b) of Direction 79 was, at best, fairly dubious in the circumstances.

66    Had Mr Nathanson done one or more of those things, there is no sound basis to think that it could not have made a difference and could not realistically have resulted in a different decision.

67    As has already been discussed, it is no answer to say that Mr Nathanson had already given evidence about the incidents. It is true that he had given some evidence about the incidents, but he did so within the strict confines of cross-examination and at a time when he was unaware of the potential relevance of the incidents of domestic violence to his review application. His evidence was confined to answering the questions that were put to him in cross-examination. He was not able to expand on all the circumstances in which those incidents occurred, or to explain exactly how they came about or to explain that he had since reconciled with his wife. Nor, in the circumstances, did he have any reason to expand on his evidence in relation to the incidents because he had not, at that point in time, been given fair or reasonable notice of the potential relevance of those incidents to subparagraph 13.1.1(b) of Direction 79. Had he been given fair or reasonable notice that the Tribunal might, by reason of Direction 79, take those incidents into account in considering the seriousness of his offending and other conduct to date, he may have given evidence in chief that put those incidents in context, unconstrained by the narrow questions put to him in cross-examination.

68    It may be accepted, as was submitted by the Minister, that Mr Nathanson accepted that the incidents occurred. A fair reading of his evidence, however, reveals that his acceptance of what occurred was not as clear or unequivocal as the Minister would have it. In any event, the fact that Mr Nathanson accepted that the incidents occurred is essentially beside the point. The point is that he may have been able to give further evidence about them, unconstrained by the narrow questions put to him in cross-examination, which may have put the incidents in context and fully explained the circumstances in which they occurred.

69    I would also reject the contention, advanced by the Minister, that Mr Nathanson was aware, or should have been aware, of the importance of the incidents of domestic violence to the decision. The incidents were not referred to in the delegate’s reasons and were only referred to fairly fleetingly, in the context of the best interests of his children, in the Minister’s Statement. It was not suggested in the Statement that the incidents were relevant to, or potentially relevant to, the protection of the Australian community, or the Tribunal’s consideration of the seriousness of his offending or other conduct to date in that context. Indeed, the Tribunal’s opening remarks would have suggested to Mr Nathanson that the incidents were not relevant to that issue. It is also not immaterial that Mr Nathanson was not legally represented before the Tribunal.

70    I would equally reject the suggestion that, had Mr Nathanson been given reasonable notice that the incidents of domestic violence might be used against him by reason of paragraph 13 of Direction 79, there was nothing that Mr Nathanson could have said in evidence, or submissions, which would have assisted him, particularly given his apparent acceptance that the incidents of domestic violence had occurred. I do not accept that it was necessary for Mr Nathanson to identify to the primary judge, or on appeal, exactly what he would have said in evidence or submissions had he been given a fair opportunity to address the issue concerning paragraph 13 of Direction 79. In the same way that the Chief Justice was prepared in Degning to infer that Mr Degning would have “said whatever he could have said about the cards, even, if it be the case, accepting some dishonesty”, I would infer that Mr Nathanson would have said whatever he could have said about the incidents of domestic violence, even if it meant accepting that they had occurred. And, just as the Chief Justice concluded in Degning, I would conclude that there is no reason to think that what Mr Nathanson could have said could have made no difference to the result.

71    It is also no answer that Mr Nathanson provided the Tribunal with a letter from his wife which was said to address the incidents of domestic violence. The fact that Mr Nathanson’s wife had already provided a letter provides no basis whatsoever for inferring that she could not have said more in answer to the suggestion, ultimately accepted by the Tribunal, that the incidents of domestic violence required the Tribunal to consider Mr Nathanson’s offending and other conduct to date as being very serious. That is so for a number of reasons.

72    First, as has already been noted, the letter pre-dated the Minister’s Statement. It follows that it was prepared at a time when Mr Nathanson, and it may be inferred his wife, had no inkling whatsoever that the incidents of domestic violence might be relevant to his review application, let alone that they might result in the Tribunal considering Mr Nathanson’s conduct more seriously than it would otherwise have done so.

73    Second, the letter only referred to the incidents in a very indirect and oblique way. That is hardly surprising given that it was prepared at a time when neither Mr Nathanson nor his wife were aware how the domestic violence incidents might be deployed against him. The letter certainly did not squarely address the incidents, let alone the circumstances that led up to them, or their impact on their children or whether they were likely ever to be repeated. Had Mr Nathanson and his wife been put on notice that the Tribunal may have used the incidents against Mr Nathanson in the way it ultimately did, there is no reason to think that the letter would not have squarely addressed those sorts of issues.

74    I do not accept that Mr Nathanson, through his counsel, was effectively obliged to identify exactly what his wife may have said had he been given fair notice of the potential relevance of the incidents of domestic violence, and had he decided to call evidence from her to address that issue. In all the circumstances, I would be prepared to infer, particularly in light of the supportive nature of the brief letter that had been submitted, that the wife’s evidence would have been supportive of Mr Nathanson and may have put the incidents of domestic violence in a somewhat different light. There is no reason to suppose otherwise and no reason to think that such evidence could not have made a difference.

75    Third, as events transpired, the Tribunal appeared to be sceptical about the contents of the letter, noting that Mr Nathanson’s wife “seeks to accept responsibility for the impact her reports to police have had on” Mr Nathanson. Had Mr Nathanson and his wife been on notice of the potential significance of the incidents, Mr Nathanson’s wife could no doubt have given a more detailed and possibly more cogent and nuanced explanation about what she had intended to be conveyed in her letter. Perhaps more significantly, had proper notice been given of the potential significance of the incidents, and had Mr Nathanson’s wife given evidence to address the issue, it would have been open to the Tribunal to question her if it remained sceptical about what she was endeavouring to convey. There is no reason to infer, or speculate, that any evidence that Mr Nathanson’s wife could have given could or would have made matters worse for him. That is so even accepting that, if she gave evidence, she would most likely have been cross-examined by the Minister’s counsel.

76    In all the circumstances, I do not accept that any evidence that Mr Nathanson’s wife could have given could not have made a difference and could not realistically have led to a different result. Indeed, I would infer that evidence from Mr Nathanson’s wife which directly addressed the incidents of domestic violence and their potential relevance to paragraph 13 of Direction 79 could realistically have led to a different result.

77    In all the circumstances, this is a case where the materiality of the relevant denial of procedural fairness can readily be inferred. Mr Nathanson was effectively denied the opportunity to address, in evidence or submissions, a matter which turned out to be important, if not critical, to the Tribunal’s adverse decision against him. It may readily be inferred, from all the circumstances, that the denial of that opportunity deprived Mr Nathanson of the possibility of a successful outcome. It may be inferred that, had he been given the fair and reasonable opportunity to do so, Mr Nathanson would have addressed that issue and that could have made a difference to the outcome.

78    It follows that, unlike Steward and Jackson JJ, I would conclude that the primary judge erred in concluding that the Tribunal’s failure to afford Mr Nathanson procedural fairness was material in the relevant sense. I would have allowed the appeal, set aside the orders made by the primary judge and order, in lieu thereof, that the Tribunal’s decision be set aside and that Mr Nathanson’s review application be remitted to the Tribunal to be determined according to law. As I am in the minority, however, the orders should be those proposed by Steward and Jackson JJ.

Associate:

Dated:    9 October 2020

REASONS FOR JUDGMENT

STEWARD AND JACKSON JJ:

79    The appellant, Narada Nathanson, sought review of a decision of the Administrative Appeals Tribunal. He established before the primary judge that the Tribunal did not comply with its obligation to give him procedural fairness. But he did not persuade the primary judge that the non-compliance was material to the Tribunal's decision, so his Honour found that the error was not a jurisdictional error. The question in this appeal is whether Mr Nathanson discharged his onus of establishing that, if the Tribunal had complied with its obligation to give him procedural fairness, that could realistically have resulted in a different decision.

80    The question arises in the following way. Mr Nathanson is a national of New Zealand. He has been in Australia since 2010. From at least 2013 he held a visa entitling him to stay in Australia indefinitely. But almost from the moment of his arrival in Australia, he committed a large number of criminal offences, some violent or otherwise serious, and so was sentenced to terms of imprisonment of more than 12 months.

81    That meant that Mr Nathanson did not pass the 'character test' within the meaning of s 501 of the Migration Act 1958 (Cth). The first respondent (Minister) was required to cancel Mr Nathanson's visa under s 501(3A) of the Act, and a delegate of the Minister did so. Under s 501CA(3) of the Act, Mr Nathanson was then entitled to make representations to the Minister about revocation of the cancellation decision, which he did. Under s 501CA(4), the Minister was empowered to revoke the cancellation if he was satisfied that Mr Nathanson passed the character test or that there was another reason why the cancellation should be revoked. There being no issue that Mr Nathanson did not pass the character test, the question became whether the Minister should revoke the cancellation on the basis of another reason.

82    A delegate of the Minister declined to revoke the cancellation, and on 15 January 2019 Mr Nathanson applied for review before the Tribunal. On 4 April 2019 the Tribunal affirmed the delegate's decision.

83    There was material before the Tribunal indicating that Mr Nathanson had assaulted his wife in the past, although he had never been convicted of doing so. That material weighed against Mr Nathanson in the Tribunal's reasons for decision. As is explained in more detail below, the primary judge held that the Tribunal had not accorded procedural fairness to Mr Nathanson, due to a combination of the way the Tribunal described the significance of a change to a Ministerial direction (or lack of significance) to Mr Nathanson, the way the Minister articulated the relevance of the evidence of domestic violence in opening and then, differently, in closing, and the way the Tribunal dealt with that evidence in its reasons for decision. In that context, Mr Nathanson was denied the opportunity to adduce evidence or make submissions in relation to the domestic violence allegations on the basis of the way the Minister articulated the issue in closing and how the Tribunal dealt with it in its reasons.

84    The primary judge's conclusion that there was a denial of procedural fairness is not challenged in this appeal. But his Honour went on to find that Mr Nathanson had not discharged his onus of establishing that, had the hearing been conducted and the decision made in compliance with the requirements of procedural fairness, there could realistically have been a different outcome. The sole ground of appeal raises the question of whether his Honour was correct to find that materiality, and thus jurisdictional error, had not been established.

85    For the reasons that follow, we would dismiss the appeal.

The course of the review before the Tribunal

86    The following summary of the proceedings in the Tribunal is largely drawn from the primary judge's reasons, which the parties accepted correctly set out the background to the issues before his Honour.

87    The Minister has made a number of successive directions under s 499 of the Act about how decision-makers including the Tribunal are to exercise certain discretions, including the discretion under s 501CA(4). Shortly before Mr Nathanson made his application, the Minister introduced the latest of those directions, Direction No. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No 79). That direction became effective on 28 February 2019, after the application was lodged but before it was heard or determined. The new direction introduced a new paragraph (para 13.1.1(1)(b)) which required the Tribunal, in considering the nature and seriousness of the non-citizen's criminal offending or other conduct, to have regard to the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.

88    Direction No 79 refers to three considerations which the Tribunal is required to take into account as primary considerations: the protection of the Australian community, including the nature and seriousness of the non-citizen's conduct; the best interests of minor children in Australia; and the expectations of the Australian community. The Minister's statement of facts, issues and contentions filed in the Tribunal before the hearing (SOFIC) did not refer to the domestic violence allegations against Mr Nathanson in the context of the protection of the Australian community. But the SOFIC said that the best interests of Mr and Mrs Nathanson's minor children should be given limited weight in circumstances where the children had suffered or experienced emotional trauma arising from Mr Nathanson's conduct, specifically as a result of incidents of domestic violence against Mrs Nathanson that had resulted in the issuing of violence restraining orders.

89    The primary judge held that there was no other form of disclosure of the issues that might be raised before the Tribunal. Domestic violence had not been addressed by the delegate. The parties do not seem to have drawn his Honour's attention to the fact that the Minister's SOFIC did refer, in connection with the third primary consideration of the expectations of the Australian community, to Mr Nathanson having committed 'assaults against his partner'.

90    The Tribunal held a hearing on 21 March 2019. Mr Nathanson was unrepresented throughout the review. At the outset, the Tribunal explained to Mr Nathanson that Direction No 79 set out the policy that it was required to apply and listed the considerations set out in the direction. Among the other considerations, the Tribunal referred to the nature and seriousness of the non-citizen's conduct and the best interests of minor children. After mentioning that the predecessor direction applied to the decision of the delegate, the Tribunal referred to the change made by Direction No 79 by saying, 'There are only minor changes to the direction but it's important, I think, that you know that I'm making the decision with a slightly different direction in front of me'. The Tribunal gave Mr Nathanson a copy of Direction No 79 marked up to show changes from the previous direction and said:

Most of those changes relate to how we treat crimes where women and children are involved, and with respect to the conviction history I have for you in front of me, I think they're of minor relevance, those changes. That is, mostly relevant to where the applicant has been [charged] in relation to convictions and offences in relation to women and children.

91    The Tribunal member asked Mr Nathanson whether he had any questions and he said he did not, so the hearing proceeded.

92    In brief oral opening submissions, counsel representing the Minister said that with respect to the first primary consideration in Direction No 79, the protection of the Australian community, the Minister contended that Mr Nathanson had been convicted of many serious crimes, but also 'in addition to the convictions there's also evidence of serious behaviours that should be of concern to the Australian community'. Counsel did not expand on what those behaviours were. In relation to the best interests of minor children, he said: 'We've made submissions and evidence in relation the likelihood that the applicant will play a positive role in the children's lives in the future, given the evidence of domestic violence that's in the documents before the tribunal'. He did not say in his opening that by reason of the new paragraph in Direction No 79, any domestic violence was to be viewed very seriously for the purposes of the Tribunal's review.

93    After some brief evidence-in-chief, Mr Nathanson was cross-examined by counsel for the Minister. In the course of that he was questioned in some detail about previous domestic violence incidents and a restraining order that had been obtained by his wife. There were two police incident reports before the Tribunal. Initially, Mr Nathanson did not expressly accept that he had assaulted his wife, although he accepted that she had called the police who attended his house on one occasion. He did not dispute that the assault referred to in the first police report took place, but said that he was intoxicated at the time and did not recall what took place. He then appeared to concede that 'it's as stated in there', referring to the police report, which included claims by Mrs Nathanson that her husband grabbed her by the throat and repeatedly banged her head against a wall. A little later in the cross-examination, Mr Nathanson said he accepted that he had done those things although he repeated that he did not recall it happening. He also accepted that he had grabbed her by the throat hard enough to leave bruising on her neck. The primary judge described the previous domestic violence incidents and the restraining order as comprising one of the main issues explored in questioning Mr Nathanson.

94    Mr Nathanson was then asked questions by the Tribunal member. He said he received visits from his wife and children every weekend in the detention centre. He said he had discussed the restraining order with his wife and that she said that she sought it because she feared that he was 'getting influenced by drugs a fair bit'.

95    There were materials before the Tribunal from Mrs Nathanson supporting revocation of the visa cancellation and describing the positive role he played in the lives of his children. Those materials were comprised of a statement to the delegate and a statement to the Tribunal. The first of these did not refer to the domestic violence allegations. The second said this (errors in original):

This letter is also to state that I admit my faults in the past of not thinking beforehand how I handled our arguments and disagreements. On two occasions I proceeded to report my husband to the police and making statements against him. Those statements were made out of selfishness, fear, out of anger, frustration and, maybe, even despair. I didn't realise that my thoughtless actions would affect not only our relationship further it even affected our children as well as my husband's character in the future. Unfortunately, it's taken this brokenness to make me realise how damaging that was and still is.

I am so remorseful. He too was a victim to my choices I needed help emotionally and mentally at that timme but was too proud to admit it and in total denial. I am really sorry, I realise how damaging that was in our partnership and how it did not help solve the problems we found we were facing. We both regret the things we have done that have led to the dissolution of our marriage and as well regret the things we did not do to try to solve it and save our marriage.

96    Mr Nathanson did not call Mrs Nathanson to give evidence at the hearing. A reference to her in the transcript of the Tribunal hearing suggests that she may have been in the vicinity of the hearing, albeit not in the hearing room itself. The Minister did not seek to cross-examine her on her statements.

97    In oral closing submissions, counsel for the Minister started by addressing the primary consideration of the protection of the Australian community. After referring to the seriousness of certain offences of which Mr Nathanson had been convicted, counsel said:

The applicant has also, in my submission, been involved in other violent conduct against his wife and, notwithstanding the fact that the applicant's wife chose not to press charges against the applicant, we would submit, that that conduct is extremely serious conduct, especially having regard to the new directions in Direction 79 that any violent conduct against a female is serious, regardless of the sentence imposed.

In that respect, the applicant accepted that his conduct involved grabbing his wife by the throat in 2012 and smashing her head against a wall and that the children - or his eldest child - witnessed that offending as well. The applicant was taken to another incident in 2016 in which he, again, grabbed his wife by the throat; this time causing visible bruising to her neck.

98    His Honour found that this was the first time during the process of the review when it was indicated that the new paragraph in Direction No 79 meant that the evidence of domestic violence should be viewed very seriously for the purposes of assessing the nature and seriousness of Mr Nathanson's conduct in the context of the protection of the Australian community.

99    Counsel for the Minister submitted to the Tribunal that this was extremely serious conduct and said he would return to the subject when he came to the best interests of minor children. When he did come to that subject, he submitted:

The Direction also directs the tribunal to place less weight on the consideration of the best interest[s] of the child where an applicant is unlikely to play a positive parenting role in the future … With respect, the delegate's findings failed to adequately [address] the harm suffered by children whose parents are the subject of violence at the hands of their partners. The victims of domestic violence are obviously those who are assaulted and threatened, however, they also include the children who witness threatening behaviour from one parent to another. The destructive long term psychological impact on these children cannot be overstated. This is insidious behaviour and threatens the opportunities traumatised children have for long term safety and a sense of normality. Now that's particularly relevant in this case where the applicant's children were present during the applicant's assault on their mother and, in the case of [their eldest child], witnessed the assault. In light of that, we would submit, that that consideration also weighs against the applicant.

100    Mr Nathanson made brief oral closing submissions after the Minister's submissions. He expressed remorse for the consequences of his actions for his family and the Australian community. He said that sending him back to New Zealand would cause a broken family to 'erupt'. He said he had found religion and was now a changed man. He did not refer specifically to the issue of domestic violence.

The Tribunal's reasons

101    It is only necessary to describe selected aspects of the Tribunal's reasons. The Tribunal accurately described how it had given a marked up version of Direction No 79 to the parties and had said that the changes in relation to the treatment of offences against women and children would be 'less relevant in his case' in view of his history of convictions (paras 30-31). Under the headings of the protection of the Australian community and the nature and seriousness of Mr Nathanson's conduct, after considering his history of offending, the Tribunal turned to the new paragraph of Direction No 79 concerning violent crimes against women or children. It noted that Mr Nathanson had not been convicted of any offence of that kind. However, the Tribunal noted that the Minister had submitted that the history of complaints to the police concerning family violence and the issuing of a violence restraining order should be regarded as extremely serious conduct having regard to the new paragraph in the direction.

102    The Tribunal described the evidence before it about domestic violence, including Mr Nathanson's acceptance that he had grabbed his wife by the neck and banged her head against the wall, although he could not recall doing so. The Tribunal considered the effect of the new paragraph in Direction 79, concluding that while it appears to be limited to offences where the non-citizen had been convicted, it could inform consideration of how seriously other conduct should be regarded. The Tribunal quoted part of Mrs Nathanson's statement which is referred to above (at [17]). It noted that Mrs Nathanson's statement did not indicate that she falsified the reports or that the events did not occur, and that Mr Nathanson had accepted that they did occur. The Tribunal found that Mr Nathanson did engage in violent behaviour towards his wife on two occasions in 2012 and 2016 and that, 'having regard to the general principles expressed in Direction no. 79, the Tribunal regards such conduct seriously' (para 59).

103    After further consideration of Mr Nathanson's criminal history and its causes, the Tribunal concluded (para 74):

Having regard to all the evidence including of the circumstances of the Applicant's conduct and offending, the Tribunal finds that the Applicant has a history of repeated violent offences. While some of these offences were relatively minor, on balance, the Tribunal finds that the nature of the Applicant's offending is very serious and strongly weighs against exercising the discretion to revoke the cancellation of the visa.

104    The primary judge found that the Tribunal's characterisation of the conduct as 'very serious' rested to a considerable degree upon reasoning by reference to the terms of Direction No 79. His Honour did not accept the Minister's submission that the same characterisation would been reached without regard to the evidence of domestic violence, and held that the characterisation of the conduct as very serious derives from the consideration of that evidence: at [28]. The Minister does not challenge those findings in this appeal.

105    Later, under the heading of the risk to the Australian community, the Tribunal found that 'were the Applicant to continue to engage in violent conduct within the family home, the potential physical and psychological damage to his spouse and children would also be serious' (para 84).

106    The Tribunal also addressed the subject of domestic violence in relation to the primary consideration of the best interests of minor children. It found that if Mr Nathanson were to continue to engage in violent conduct within the family home, it would 'likely have a significant negative impact on the children' (para 115). However after considering other relevant matters, the Tribunal concluded that on balance the best interests of the children would likely be served by revocation of the cancellation of Mr Nathanson's visa. The primary judge accepted that this part of the Tribunal's reasoning depended on its conclusions reached earlier when evaluating Mr Nathanson's conduct.

107    The Tribunal did not refer specifically to the domestic violence in relation to the expectations of the Australian community or elsewhere in its reasons. Its ultimate conclusion was that the primary considerations of protection of the Australian community and the expectations of that community outweighed the other considerations, including the best interests of the children. Hence it affirmed the delegate's decision.

The primary judge's reasoning

108    The primary judge observed (at [43]), relying on Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [38], that the obligation to accord procedural fairness is only breached if there is practical injustice. His Honour also referred to the threshold of materiality which majorities of the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 and SZMTA have confirmed must be met before the consequence of an error is invalidity, that is, before it is a jurisdictional error. His Honour considered High Court authorities which suggest that the two requirements, practical injustice and materiality, may be distinct although his Honour acknowledged that the majority in SZMTA seemed to equate the two.

109    His Honour expressed the view that there were two aspects to the inquiry, first whether there has been a breach of the rules of procedural fairness and second whether that breach was material and therefore invalidating, although the inquiries merge to some degree. He observed that procedural fairness was focussed in a practical way on what fairness requires in a particular situation, without foresight of the outcome. But there is a backward looking aspect to materiality which requires consideration of the decision made and the reasons for it. His Honour concluded in that regard that even if Mr Nathanson demonstrated a failure to afford procedural fairness, he must also 'demonstrate on the facts and taking account of the Tribunal's reasoning that there is a realistic possibility that the Tribunal's decision could have been different if the breach of procedural fairness had not occurred': at [55].

110    In the case before him, the primary judge found that a possible new issue had arisen because of the changes made by Direction No 79, namely that evidence of domestic violence which had not been proven to be a crime might be viewed as very serious conduct. His Honour found that the nature of that issue was not averted to until the Minister's closing submissions and that until that time the proceeding had been conducted on the basis that the issue was of 'minor relevance'. His Honour found (at [56]):

When the submission was advanced by the Minister in closing, the Tribunal did not know what the applicant might be able to present on that issue by way of evidence or submission. Fairness required the Tribunal, at least, to afford the applicant an opportunity to present further evidence and submissions on that aspect before making a decision, in effect, upholding the Minister's submission. Instead, the Tribunal took no procedural step to address the unfairness and invite the applicant to present further material even though there was ample time to do so.

111    Further (at [58]):

The Minister's [SOFIC] raised the factual issue of the domestic violence, but only insofar as it might bear upon the interests of the applicant's children. The prospect of the evidence being used by the Tribunal to reach a conclusion that the applicant's conduct was very serious was not raised with the applicant. As a result he was not invited to present any material or argument as to why that conduct should not lead to such a conclusion.

112    As a result, the primary judge found that the course taken by the Tribunal was procedurally unfair. But on the question of materiality his Honour reasoned as follows:

[60]    The applicant did not point to any particular evidence that might have been presented if an opportunity had been afforded to present that evidence. The submission advanced was in general terms and was to the effect that the applicant's wife had provided supportive evidence and the opportunity to present further evidence was taken away from the applicant by the process. It was not suggested that there was any particular submission that might have been advanced that might have caused the Tribunal to reach a different view when considering the evidence of domestic violence in forming a view as to the seriousness of the applicant's conduct. It was not suggested that the Tribunal itself might have taken some different procedural course other than affording the applicant an opportunity to present further material and submissions in order to redress the unfairness that had arisen.

[61]    Therefore, this was not a case where there was some additional identified matter which the Court could evaluate whether, if presented, might have persuaded the Tribunal to a different outcome. There was no evidence or argument identified that might have been advanced that could have caused the Tribunal to reach a different outcome. For example, there was no indication of the different perspective that might have been presented to the Tribunal concerning the evidence of domestic violence.

[62]    The onus is upon the applicant to demonstrate the factual basis upon which the alleged breach of procedural fairness is said to have been material. It is not necessary for the applicant in all cases to identify precisely what the evidence may have been or the arguments that may have been made. However, it is necessary to point to a sufficient factual basis upon which the Court can conclude that the breach was material. In circumstances where the applicant was on notice that the factual material concerning the domestic violence was in issue and the conduct was accepted by the applicant as having occurred, the deployment by the Tribunal of that evidence in reaching a conclusion that the conduct of the applicant was very serious without affording the applicant an opportunity to address that point was only material if there was something that could have been put to the Tribunal that might have resulted in a different outcome on that aspect. The application falls short of demonstrating that to be the case.

113    As a result, the primary judge dismissed Mr Nathanson's application for judicial review of the Tribunal's decision.

The parties' cases on appeal

114    There were two grounds of appeal but one has been abandoned. The sole remaining ground asserts that the primary judge erred in finding that the procedural unfairness was not invalidating because, contrary to his Honour's finding, the procedure that the Tribunal followed deprived Mr Nathanson of the possibility of a successful outcome.

115    In written and oral submissions, counsel for Mr Nathanson argued that his client was denied the opportunity to present further material and submissions in relation to an issue that was critical in the review. He contended, relying on Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 and on Degning v Minister for Home Affairs [2019] FCAFC 67; (2019) 270 FCR 451 that proof that a valuable opportunity was lost was proof of materiality. He relied on Degning to submit that the primary judge ought to have inferred that Mr Nathanson might have said or done anything that could realistically be said or done in his favour. That may have included calling his wife to give evidence, when it can be inferred she would have been supportive. It may have included making submissions that the domestic violence should not have been viewed as 'very serious', and that it should not diminish the weight to be given to the best interests of his children. Counsel submitted that evidence of what Mr Nathanson might have done had he been given the opportunity was not necessary because the opportunity lost was obviously valuable.

116    In her statement to the Tribunal, Mrs Nathanson expressed remorse for having reported the incidents to the police but did not give any detailed account of the incidents or whether the claims were true. Since the precise sequences of events involved in the domestic violence episodes were vague, counsel further submitted that if his client had appreciated the issue earlier, he could have taken a step to counter the adverse weight of the domestic violence insofar as it related to the primary consideration of the protection of the community.

117    The Minister submitted that Mr Nathanson's history of domestic violence was obviously relevant to the review from the start. The Minister had raised it before the Tribunal in the context of Mr Nathanson's ability to play a positive parenting role. Its importance became more apparent during the cross-examination of Mr Nathanson. He was aware that it was an issue, and put material in support of his case before the Tribunal, including evidence from the alleged victim. What he was not on notice of until closing submissions was that the Tribunal might treat the domestic violence as 'extremely serious conduct' by reason of the application of Direction No 79. But that does not displace the inference that, already knowing it was important, Mr Nathanson did what he could to support his case in that regard. The fact that the Tribunal treated the domestic violence as relevant in a different way does not alter that.

118    The Minister also submitted that Mr Nathanson admitted to two instances of domestic violence in cross-examination, and pointed out that the Tribunal had found that the incidents had occurred. All that factual context, the Minister submitted, distinguishes this case from Degning. It meant that in this case, at least, Mr Nathanson needed to identify with some specificity what he might have done differently that could have changed the outcome. But he had not identified what Mrs Nathanson might have said that she had not already said, and it was difficult to see what further submissions he might have made to reduce the seriousness with which the Tribunal viewed the domestic violence or to increase the positive weight which the Tribunal gave to the interests of the children.

119    There is one further matter which should be mentioned to make it clear that it was not an issue in this appeal. Counsel for the Minister did refer to the Tribunal's findings in general about Mr Nathanson's long and concerning history of offending, involving serious violent crimes. However the primary judge did not place any reliance on those findings in relation to materiality, for example to support a conclusion that even if the significance of the domestic violence was somehow neutralised, the seriousness of the offences of which Mr Nathanson had been convicted would inevitably have led the Tribunal to affirm the delegate's decision anyway. The Minister did not file a notice of contention in relation to that (or at all), and counsel for the Minister disavowed any reliance on such an argument in the appeal.

Principles

120    In the first set of written submissions filed on behalf of Mr Nathanson it was argued that, having found that there was 'practical injustice', it was incorrect for the primary judge to require Mr Nathanson to show more in order for the injustice to be material. However, although the responsive submissions filed on behalf of the Minister took issue with that, counsel for Mr Nathanson did not repeat that submission in written reply or orally. Instead, he put his client's position on the basis that he needed to (and had) demonstrated that there was a realistic possibility of a different outcome. That is, he put it in terms of the threshold for materiality explained in SZMTA. He did not seek to equate that with 'practical injustice', even after counsel for the respondent suggested that his opponent had accepted that loss of opportunity to put on evidence or submissions was not by itself enough to establish jurisdictional error. Rather, counsel for Mr Nathanson said that while 'loss of a bare opportunity would not lead to success, the loss of a valuable opportunity would'.

121    In those circumstances, it is not necessary to determine the correctness of the primary judge's reasoning that 'practical injustice' (a term often traced to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [38]) and materiality (in the sense explained in Hossain and SZMTA) are different aspects of the inquiry. On appeal it was effectively common ground that the standard of materiality articulated in SZMTA applies. Mr Nathanson's counsel did, however, submit that SZMTA represented no change in the law, and also that the principle of statutory interpretation on which it was based 'excludes merely technical errors, perhaps in relation to only peripheral material'.

122    In SZMTA, Bell, Gageler and Keane JJ held that a breach of an obligation of procedural fairness on the part of the Tribunal constitutes jurisdictional error if, and only if, the breach is material: at [2] (Nettle and Gordon JJ dissented on that point). The breach will be material if it operates to deny the applicant an opportunity to give evidence or make arguments, and that denies the applicant the possibility of a successful outcome (at [2], [38]), in the sense that compliance with the obligation could realistically have resulted in a different decision (at [45], [49]). To the extent that Mr Nathanson's counsel submitted that the concept of materiality explained in SZMTA pertains only to technical errors in relation to peripheral material, that is a gloss on the majority's comments which we do not accept: see PQSM v Minister for Home Affairs [2020] FCAFC 125 at [143].

123    Where materiality is in issue, it is an ordinary question of fact, except where the decision made was the only one legally available to be made: SZMTA at [4], [46]. The applicant bears the onus of proof in relation to that question of fact: at [4], [46]. The question is to be determined by inferences drawn from evidence adduced on the application for judicial review: at [46]. Evidence of the content of information that was omitted from the Tribunal's review, relevantly as a result of any denial of procedural fairness, can be relevant to the determination: at [4], [50]. However the court must be careful not to intrude into the fact-finding function of the Tribunal: at [48].

124    In assessing materiality, much will turn on the facts of the case, the decision-making process and the kind of error alleged: see Nguyen v Minister for Home Affairs [2019] FCAFC 128; (2019) 270 FCR 555 at [54]. In that decision, Jagot, Robertson and Farrell JJ observed (at [54]) that 'it will not always be incumbent on a person who seeks to establish a jurisdictional error to demonstrate by evidence what would have, or may have, occurred had the relevant legal error not been made' (emphasis in original). As SZMTA indicates, the court may draw relevant inferences in the absence of such evidence.

Consideration

125    There was no real dispute in this court about those principles; as is often the case, the dispute was about how they are to be applied in the particular circumstances. In the present matter, the procedural unfairness arose because Mr Nathanson was not apprised, before closing submissions in the Tribunal, of the possibility that the Tribunal would conclude that he had engaged in acts of domestic violence which under Direction No 79 should be 'viewed very seriously' in the context of the primary consideration of the protection of the Australian community. The counterfactual assumptions to be made in order to determine the materiality of that unfairness - that is, describing how the Tribunal hearing would have proceeded differently if procedural fairness had been afforded - are that he had been apprised before the hearing or, having been informed only during closing submissions, he had been given the opportunity to adduce evidence or make submissions relevant to the point. Mr Nathanson adduced no evidence before the primary judge of what he would have done on either of those assumptions. The question is whether it can nevertheless be inferred, based on the materials before the Tribunal and the evidence about the course of its hearing and its reasons, that there was a realistic possibility of a different outcome.

126    The primary judge's findings at [60] and [61] (quoted at [111] above) are important to the determination of that question. His Honour found that not only was there no evidence about what Mr Nathanson would have said, there was no identification before his Honour of anything specific that would or could have been put to the Tribunal by way of evidence or submissions that might have led to a different result. Mr Nathanson's position was only put in general terms before the primary judge, that Mrs Nathanson had provided supportive evidence and could have provided more evidence, if given the opportunity. So no matter was identified before his Honour which could be evaluated to determine whether it might realistically have led to a different result. While it may have been that further evidence would have put the material about domestic violence in a different perspective, there was no indication of what that perspective would have been.

127    Counsel for Mr Nathanson on appeal took issue with the correctness of these findings, but they are not specifically challenged in the notice of appeal and, having reviewed the written submissions and transcript of the proceeding before the primary judge, we consider that they are correct. In our view, there are three particular features of the review proceeding before the Tribunal which mean that, in this particular case, it was incumbent on Mr Nathanson to identify before the primary judge a matter or matters that could have been put before the Tribunal, from which the court could infer that there was a realistic possibility of a different outcome.

128    The first of those features is that this was a case where the importance of the allegations of domestic violence were, or should have been, apparent to Mr Nathanson from before the commencement of the Tribunal's hearing. The allegations were raised in the Minister's SOFIC, albeit in the context of the best interests of the children. And, more broadly, it must have been apparent to Mr Nathanson that the question of his character and propensity to engage in violence was going to be important, and that the allegations of domestic violence would be relevant to that question.

129    The second relevant feature, which to some extent confirms the first, is that Mr Nathanson did give the Tribunal a statement from Mrs Nathanson which dealt with the domestic violence allegations. It is true that the statement did not address the allegations directly and it did not indicate whether Mrs Nathanson accepted they occurred. But they did present apparent bases on which the Tribunal might have found that the allegations were of lesser importance than might otherwise appear, namely that Mrs Nathanson regretted involving the police, that she and her husband had reunited after being separated, and that he was a changed man.

130    The third relevant feature is that Mr Nathanson accepted that the incidents had occurred in the way set out in the police reports. It is true that his acceptance was qualified by saying that he could not remember the incidents, apparently because he was intoxicated at the time, but that qualification could hardly be any basis for the Tribunal to conclude that they did not occur. The Tribunal found that they had occurred. That fact was always going to be viewed by the Tribunal as serious.

131    So, in summary, Mr Nathanson knew that the allegations of domestic violence were important, in that context he produced a statement by the alleged victim which did not say that the incidents did not occur, and he accepted that they had occurred. In those circumstances, the scope for the court to infer that he could have produced further evidence, or said something more which could possibly have changed the outcome, is substantially curtailed. Contrary to his counsel's submissions, the valuable nature of the opportunity he lost was not obvious. He knew that the domestic violence allegations were relevant, just not in the precise way in which they proved to be relevant. It may or may not have been necessary for him to adduce evidence before the primary judge of what he would have done had he known, but he did at least need to articulate (through his legal representatives) a specific course of action which could realistically have changed the result. He did not.

132    On appeal, Mr Nathanson submitted that what he could realistically have done included three things. The first was to call Mrs Nathanson to give evidence. But since she had already provided a statement to the Tribunal, there was no basis to infer that she may have said anything different which might have cast the allegations in a different light. It cannot be said here that the hypothetical new evidence could not have put the Tribunal applicant in a worse position: cf. WZARH at [44]. Mrs Nathanson had already given evidence of limited value in circumstances where neither she nor Mr Nathanson contended that the domestic violence had not occurred. It can readily be inferred that if she had said more, she may have been cross-examined in a way that made matters worse for her husband. In those circumstances, and without any evidence or even description of what she would have said, the court cannot infer that further evidence from her could realistically have led to a different result. Certainly, in view of Mr Nathanson's acceptance of the allegations, evidence would have been required to support the submission that his counsel made on appeal, that Mr Nathanson might realistically have shown that there had been no domestic violence. In light of the material that was before the Tribunal, that submission does not rise above speculation.

133    The second thing it is said Mr Nathanson might have done would be to submit that his domestic violence should not be viewed as being 'very seriously' adverse to his interests in the review because he had not been charged with or convicted of any crime in respect of that conduct. But the Tribunal was already aware of that point: see [100]-[101] above. In view of that, and in view of the fact that Mr Nathanson had accepted that the domestic violence had occurred, it is difficult to see how a submission of that kind would have helped. In those circumstances it is not necessary to determine the further question, which might arise, of whether it is realistic to infer than an unrepresented lay person could have made a submission addressing the nuanced legal reasoning which the Tribunal adopted (see the converse situation in Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 at [53], where the court proceeded on the basis that the appellant might have secured legal representation, and there were submissions which realistically could have been made).

134    The third thing it is said Mr Nathanson might have done is to submit that even if his domestic violence conduct was to be viewed very seriously in relation to the need for protection of the community, that conduct should not diminish the weight to be given to the best interests of his children. But that possibility was not articulated before the primary judge. And since Mr Nathanson was on notice from before the commencement of the hearing that his history of domestic violence would be put against him in relation to the best interests of his children, it is difficult to see what more he would have said to change the conclusion the Tribunal drew in relation to that issue. For example, it must have been obvious that if Mr Nathanson could show that his eldest child did not witness either of the incidents (cf. [98] above), that would have helped. Yet he did not deny that the eldest child witnessed the first assault when it was put to him in cross-examination before the Tribunal.

135    Counsel for Mr Nathanson relied heavily on Degning, but the features of this case described above distinguish it from that decision. The Minister had cancelled Mr Degning's visa on the basis that he reasonably suspected that Mr Degning did not pass the character test. Mr Degning's criminal history included a serious sexual offence. Enclosed with the letter notifying Mr Degning of the Minister's intention to cancel the visa were Incoming Passenger Cards, signed by Mr Degning on three different occasions when he entered Australia, which declared that he did not have any criminal convictions. At each of those times, he in fact had numerous criminal convictions. But the letter enclosed the cards with no explanation beyond saying that the decision-maker may rely on the cards, and a range of other enclosed material, to decide whether Mr Degning passed the character test and if not, whether the visa should be cancelled. The Minister's reasons for decision indicated that he had concluded that there was a risk, albeit low, of Mr Degning reoffending and in reaching that conclusion he had taken into account, among other things, Mr Degning's failure to declare his criminal convictions on the passenger cards, which was 'indicative of a further disregard for the law'.

136    In the Full Court, Allsop CJ (Collier J agreeing, Thawley J dissenting), held (at [38]) that it was unfair not to direct Mr Degning to the issue that the Minister considered was raised by the passenger cards. The Chief Justice found that the relevance of the cards and the circumstances in which they had been filled out was 'somewhat opaque': at [35]. It was neither obvious nor clear how that would go to the central issue of the protection of the Australian community from re-offending in relation to a sexual offence. So there was a failure to afford Mr Degning procedural fairness: at [38]. The Chief Justice went on to hold (at [39]):

Whilst it is necessary for the applicant to show that the process has fallen short of a standard of fairness in all the circumstances, it is not necessarily the case that evidence must be led about what the applicant would have done had the procedure been fair. Here for instance, I see no justification for concluding that Mr Degning had to prove that he did not understand that the passenger cards were related to a proposition that he had a disregard for the law and that that was relevant to the question whether he posed a risk of re-offending for sexual offences. Given the gravity of the consequence of the decision for him, and the nature of the representations that he did make, I would infer that he would have said whatever he could have said about the cards, even, if it be the case, accepting some dishonesty. Human experience and plain common sense tells one that he would have addressed it. There is no basis to think that it could have been some tactical decision. Being prepared to draw the inference that Mr Degning did not understand the issue for which the passenger cards were to be or were used, I am persuaded that the failure to afford him procedural fairness denied him an opportunity to put submissions on a topic of relevance to the Minister's consideration. There is no reason to think that this could not have made a difference to such a difficult decision, and one where there was accepted to be a low risk of re-offending. I do not consider that Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252 requires any different conclusion.

137    Read as they must be in the context of the particular circumstances of the case, these observations do not assist Mr Nathanson. Mr Degning did not know that the passenger cards would be important, so he had no opportunity to put on material to put them in context or otherwise explain them. Also, the inferences Allsop CJ made were based partly on the representations that Mr Degning did make, and in a context where the Minister had found the risk of reoffending to be low. Here, in contrast, Mr Nathanson knew that the domestic violence allegations were important, he put on material addressing them, and the nature of that material does not support an inference that he could have or would have said anything more which realistically might have improved his position.

Disposition of the appeal

138    In the circumstances of this case we do not consider that Mr Nathanson has discharged the onus of establishing that compliance with the obligations of procedural fairness in the proceeding before the Tribunal could realistically have resulted in a different decision. The primary judge's orders were correct for the reasons his Honour gave. The appeal should be dismissed with costs.

Associate:

Dated:    9 October 2020