Federal Court of Australia

Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12

ORDERS

THE COURT ORDERS THAT:

1.    The appellant has leave to advance the ground as argued limited to the claim of legal unreasonableness.

2.    The appeal is dismissed.

3.    On or before 3 March 2023 the parties are to file and serve written submissions not exceeding 5 pages on the question of costs.

4.    The question of costs be determined on the papers.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    The appellant, Mr Tomasi Mailau, is a citizen of Tonga. He first arrived in Australia in 1981 as a six year old. He has spent most of his life here, recently as the holder of a Class BB (subclass 155) Resident Return visa issued to him under the Migration Act 1958 (Cth).

2    Whilst in Australia, Mr Mailau has committed several criminal offences. As a consequence of that offending and the sentences imposed, he has a substantial criminal record within the meaning of s 501(7)(c) of the Act and he cannot pass the “character test” prescribed in s 501(6).

3    On 18 December 2018, a delegate of the then-named Minister for Home Affairs cancelled Mr Mailau’s visa under s 501(3A) of the Act (cancellation decision). Section 501(3A) relevantly provides:

The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

…

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

4    In response to an invitation given under s 501CA(3)(b) of the Act, Mr Mailau made representations to the Minister about the revocation of the cancellation decision. Section 501CA(4) relevantly provides:

The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

5    On 13 February 2020, a second delegate of the Minister refused to revoke the cancellation decision under s 501CA(4) (non-revocation decision).

6    The non-revocation decision has been reviewed and affirmed twice by the Administrative Appeals Tribunal in the exercise of its powers under s 500(ba) of the Act.

7    The Tribunal first affirmed the non-revocation decision on 7 May 2020:  Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1506 (AAT1). On 29 July 2020, this Court made orders (by consent) quashing the decision of AAT1 and remitting Mr Mailau’s review application to the Tribunal to be determined according to law.

8    On 14 April 2021, the Tribunal again affirmed the non-revocation decision:  Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1224 (AAT2). Mr Mailau’s application for judicial review of the decision in AAT2 was dismissed by the primary judge:  Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 610. This is an appeal from that judgment.

Decisions of the Tribunal and primary judge

9    In exercising its powers on review, the Tribunal was bound to comply with a direction issued by the Minister under s 499(1) of the Act titled “Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (Direction 79): Act, s 499(2A). Direction 79 required that in determining whether there was “another reason” to revoke the non-revocation decision, the Tribunal was to have regard to “primary considerations” and “other considerations”. The “other considerations” relevantly included the extent of impediments Mr Mailau would face if he were to be removed from Australia and returned to Tonga: Direction 79, [14(1)(e)]. That clause relevantly provided:

14. Other considerations – revocation requests

(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a) International non-refoulement obligations;

b) Strength, nature and duration of ties;

c) Impact on Australian business interests;

d) Impact on victims;

e) Extent of impediments if removed.

10    ‘The extent of impediments’ required consideration of any social, medical and/or economic support that would be available to him there:  Direction 79, [14.5(1)(c)]. That clause relevantly provided:

14.5 Extent of impediments if removed

(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a) The non-citizen’s age and health;

b) Whether there are substantial language or cultural barriers; and

c) any social, medical and/or economic support available to them in that country.

11    Among other things, the Tribunal had before it a transcript of oral evidence that had been adduced from witnesses called by Mr Mailau in the review proceedings culminating in the decision in AAT1. That included a transcript of evidence given by his mother through an interpreter (apparently her daughter). As interpreted , the mother’s evidence was relevantly as follows:

So, Mum was saying if – if Tomas return to Tonga, she’ll be a heartache. Especially, she’s 81 years old. There is no one at home, and of course the – what’s happening in Tonga, financially she’ll be heartache. Imagine if she’s 60 years old, maybe she’ll go back with Tomasi to Tonga, but because financially she better be (indistinct) in Australia but to her heart it could make her – she doesn’t know what’s going to happen after that (indistinct) she was very emotional and trying to explain something would happen to her only the Lord knows what’s in – what’s in the future but she believes that there is no support if Tomasi going back to Tonga.

12    Mr Mailau did not adduce oral evidence from his mother in the review hearing culminating in the decision in AAT2. However, he did adduce evidence from his older sister. On the basis of the sister’s evidence, the Tribunal concluded that if Mr Mailau were to be returned to Tonga his mother would also relocate to Tonga to live with him there. Its reasons on that topic are expressed as follows (at [290]):

The remaining inquiry relates to the extent of the Applicant’s social, medical and/or economic supports available to him in Tonga. While it can be accepted that the Applicant would suffer emotional hardship upon a return to Tonga, the evidence suggests that such hardship is likely to be ameliorated in three ways. First, in her oral evidence, the Applicant’s older sister made a clear reference to the Applicant’s mother re-locating to Tonga to live with the Applicant were he to be removed there:

Witness:  My mum is 81 years old and she is sitting – like in the last two and a half years it’s like she’s sitting on, I can’t explain, like on needles. She can’t sleep properly, she can’t – she’s lost weight and maybe it’s due to age as well but, you know, like she’s just – like she would be – she says to us that if Tommy gets sent back to Tonga she would have to go back to Tonga because he wouldn’t be able to cope there with the language barrier and just the way Tonga is. He’s been once or twice as an adult and as a young adult but Tom has no idea what Tonga is about. And so she has sworn to us that regardless how old she is and that there’s no medical facilities, proper medical facility in Tonga, that if Tom is to be sent back then she will have to try and go back to Tonga with him because she doesn’t feel he will cope or survive in Tonga.

[Emphasis added]

13    In the proceedings before the primary judge, the onus was on Mr Mailau to show that the decision of the Tribunal was affected by jurisdictional error:  Act, s 474; Craig v South Australia (1995) 184 CLR 163, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. Mr Mailau’s third ground of review alleged jurisdictional error affecting the finding that his mother would relocate to Tonga should he be deported. It was expressed as follows:

3.    The Tribunal erred by making an adverse finding against the Applicant on the basis of hearsay evidence. Alternatively, it was legally unreasonable for the Tribunal to use hearsay evidence to make an adverse finding against the Applicant.

Particulars

3.1.    At paragraph [290] of its decision record, the Tribunal found that the Applicant’s ‘emotional hardship upon a return to Tonga’ would be ‘ameliorated’ due to his mother moving to Tonga with him.

3.2.    This was an adverse finding that favoured not revoking the cancellation of the Applicant’s visa.

3.3.    However, the Applicant’s mother did not give evidence before the Tribunal. The evidence referred to above was hearsay evidence given by the Applicant’s sister.

3.4.    The Tribunal erred in making an adverse finding against the Applicant on the basis of hearsay evidence.

3.5.    Alternatively, it was legally unreasonable for the Tribunal to take into account and make an adverse finding based on this hearsay evidence.

14    The scope of the argument advanced by Mr Mailau in support of that ground is a matter in dispute in this appeal.

15    The primary judge summarised the argument in terms that fairly reflect the language used in the originating application. His Honour observed (correctly) that s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) makes plain that the Tribunal is not bound by the rules of evidence. His Honour said that the hearsay evidence complained of in the ground of review was given in evidence-in-chief by Mr Mailau’s sister, whom he had called as a witness, that the evidence was given without objection and that the transcript revealed her evidence to be clear and credible. It was, his Honour said, a matter for the Tribunal to give the sister’s evidence such weight as it considered appropriate and it was not legally unreasonable for the Tribunal to rely upon it.

16    The primary judge noted that in written reply submissions Mr Mailau had indicated that he would seek leave during the hearing to rely on an affidavit of his mother in support of the third ground for judicial review. No such application was made.

Grounds of appeal

17    An amended notice of appeal (ANOA) was filed on 11 November 2022. The grounds that are pressed are as follows:

1.    The learned judge erred by failing to decide, or at least give due and proper consideration to, the substance of the argument before it in respect of Ground 3 of the appellant’s application for judicial review, namely that the Tribunal had fallen into jurisdictional error in making an adverse finding against the appellant on the basis of hearsay assertions about whether his mother would return to Tonga with him, reliance upon which was, in all of the circumstances, unreasonable.

Particulars

1.1.    At [290] of its decision, the Tribunal found that the appellant’s mother (Ms Situati) would return to Tonga with him based on oral evidence of the appellant’s sister. This was a factor upon which the Tribunal made adverse findings against the appellant.

1.2.    The appellant’s complaint about this finding of the Tribunal arose on Ground 3 of the judicial review application and the substance of the appellant’s argument was set out in his written submissions before the Honourable Court below dated 27 September 2021.

1.3.    The learned judge considered Ground 3 in only a cursory way at [54] – [58] of the reasons for judgment and dismissed it purely as a complaint about the Tribunal’s consideration of ‘hearsay evidence’ at [56].

1.4.    In doing so, the learned judge failed to grapple with the true nature of the argument before this Honourable Court, namely that:

a)    The Tribunal impermissibly, illogically and unreasonably relied upon:

i.    Vague and tenuous factual assertions from the appellant’s sister, which is not reasonably to be regarded as a permissible use of hearsay evidence of Ms Situati’s actual intention to return to Tonga at all.

ii.    Material that was not permitted within the provisions of s 33(1) Administrative Appeals Tribunal Act 1975.

iii.    Assertions that were contrary to known facts that had been established by direct evidence from Ms Situati of her intentions regarding the hypothetical that the appellant might be returned to Tonga;

iv.    Assertions that were contrary to the only reasonable inference, namely, that Ms Situati would not accompany the appellant to Tonga given uncontested facts regarding her age and health.

b)    The Tribunal ignored, failed to have regard to and unreasonably rejected the evidence of Ms Situati herself, which was before the Tribunal in transcript form,that she would not return to Tonga with the appellant.

c)    Given the seriousness of the outcome for the appellant in these proceedings, including that he would be returned to Tonga for the remainder of his life, the Tribunal should not have relied solely on such vague and tenuous evidentiary assertions in making an adverse finding against him:  Briginshaw v Briginshaw (1938) 60 CLR 336.

d)    The Tribunal did not put the appellant on notice that it would rely solely on the evidence of his sister, to the exclusion of Ms Situati’s evidence, and proceeded to make a finding adverse to the Appellant without providing the appellant with a meaningful opportunity to respond or provide further evidence.

18    The opening words in [1] of the ANOA allege that the primary judge erred by failing to find that the Tribunal’s decision was affected by legal unreasonableness by virtue of its finding that Mr Mailau’s mother would relocate to Tonga to be with him should he be deported. All of the grounds relate to the Tribunal’s alleged jurisdictional error affecting the reasoning at [290] of AAT2. However, the arguments concerning that alleged error do not wholly correspond with the relevant ground for judicial review relied upon at first instance. At first instance, the allegation of legal unreasonableness in the third ground of review was, on its terms, confined to an allegation of legal unreasonableness based on the hearsay nature of the sister’s evidence.

19    The argument that the assertions of Mr Mailau’s sister were “contrary to known facts that had been established by direct evidence” from Mr Mailau’s mother (as now alleged at [1.4(a)(iii)] of the ANOA) was not squarely put to the primary judge as an aspect of Mr Mailau’s primary case on the third ground of judicial review or any other ground. The primary written submissions relied upon at first instance state that the mother did not give evidence before the Tribunal but otherwise make no reference to the transcript of the evidence she gave in AAT1. The mother’s evidence was first referred to in the Minister’s written submissions where it was asserted that her evidence was consistent with that of the sister. Mr Mailau’s submissions in reply were responsive on that point, taking issue with the interpretation of the mother’s evidence but not otherwise asserting that the Tribunal committed jurisdictional error by failing to act on it. No such assertion was otherwise raised in oral submissions on behalf of Mr Mailau.

20    Accordingly, I do not accept that the primary judge was in error by failing to grapple with an argument that the Tribunal committed jurisdictional error by failing to recognise that there was direct evidence before it as to the mother’s intentions (said to be contained in the transcript of the proceedings in AAT1) that was inconsistent with that given by the sister. The issue now sought to be raised as to the Tribunal’s asserted error was not enlivened by the existence of a dispute raised in reply as to how the mother’s evidence might be interpreted.

21    Similarly, by his written and oral primary submissions at first instance, Mr Mailau’s representative did not submit that the Tribunal committed jurisdictional error by failing to analyse whether the mother’s relocation to Tonga was a realistic possibility. That argument was raised for the first time in oral submissions in reply and appears on the penultimate page of the transcript. In the absence of an application to amend the originating application, there was no obligation on the part of the primary judge to address and resolve what is properly characterised as a new argument articulated for the first time in the final minute of the hearing.

22    The allegation at [1.3] of the ANOA must therefore be rejected.

23    The argument that the Tribunal’s decision was affected by legal unreasonableness because of the existence and content of the mother’s “direct” evidence is properly regarded as new, as is the argument that the Tribunal erred by failing to assess for itself the realistic possibility of her relocation. Leave is required to raise the arguments on appeal. The Court should grant leave only if it is in the interests of justice to do so:  O’Brien v Komesaroff (1982) 150 CLR 310 (at 319); Coulton v Holcombe (1986) 162 CLR 1 (at 7 – 8).

24    I have concluded that leave should not be granted for two reasons.

25    First, Mr Mailau was legally represented before the Tribunal and in the proceedings before the primary judge. It is said that the new arguments are now advanced because Mr Mailau has changed legal representatives. Of itself, that is not an adequate explanation for the failure of the former representatives to raise the arguments at first instance as clearly articulated grounds for review requiring judicial consideration and adjudication. In the absence of evidence on the topic, an inference might be drawn that the former lawyers gave careful consideration to the arguments that could and should be advanced and made forensic decisions about them:  Raibevu v Minister for Home Affairs [2020] FCAFC 35 at [95]. It does not advance the interests of the administration of justice to permit new arguments on appeal in such circumstances.

26    Second, I consider that the arguments are lacking in sufficient merit to justify the grant of leave. That is principally because the assertion that the sister’s evidence was “contrary to known facts that had been established” was not a submission advanced before the Tribunal itself, nor is it an issue that the Tribunal was obliged to identify for itself, let alone decide in Mr Mailau’s favour. I have reached the same conclusion with respect to the asserted failure to analyse the possibility of the mother’s relocation. My conclusions with respect to the merits of that new argument are encompassed in the disposition of [1.4(a)] of the ANOA more generally.

27    I do not consider that leave is required to raise arguments based on the principles discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 to the extent that the same arguments were advanced in written and oral submissions before the primary judge. As explained below, I consider the primary judge implicitly (and correctly) disposed of those arguments when he rejected the third ground of judicial review.

28    However, in my view, the contentions founded on Briginshaw on the appeal go further than the contentions at first instance. Leave will not be granted to advance the wider argument, both because there is no explanation provided for the failure to raise it at first instance and because there is insufficient merit in the argument that the Tribunal erred in the manner contended for. I explain why that is so elsewhere in these reasons.

29    It is now convenient to approach the grounds of appeal by reference to three issues: the unreasonableness issue (ANOA [1.4(a)] and [1.4(b)]), the Briginshaw issue (ANOA [1.4(c)]) and the procedural fairness issue (ANOA [1.4(d)]).

Legal unreasonableness

30    In cases where an affected person cannot pass the character test, the power under s 501CA(4) is conditioned by a requirement that the Minister (and the Tribunal on review) be satisfied that there is another reason to revoke the original decision to cancel the person’s visa. The decision-maker’s state of satisfaction is a factual precondition to the exercise of the power. It is a state of mind that must be formed lawfully, that is, within the bounds of legal reasonableness:  Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at [122]); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12, Gummow and Hayne JJ (at [37] — [38]).

31    As Allsop CJ explained in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (at [11]), in identifying whether a decision is affected by legal unreasonableness the task of the court on judicial review is one of characterisation:

… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.  …

32    To ask whether a decision lacks “intelligible justification” necessarily involves scrutiny of the factual circumstances in which the power comes to be exercised:  Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (at [48]).

33    It is the ultimate decision that must lie within the bounds of reasonableness:  MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, 390 ALR 590, Kiefel CJ, Gageler, Keane and Gleeson JJ (at [33]); Edelman (at [181]). The identification of illogicality or unreasonableness affecting a singular finding of fact does not in all cases require a conclusion that the decision lacks an evident or intelligible justification. However, where (as here) the decision-maker has disclosed the process of his or her decision-making, there may be a discernible breach of the duty to act within the bounds of legal reasonableness if critical findings of fact upon which the decision is based are unsupported by probative material:  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at 367 — 368); TCL Airconditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361, Allsop CJ, Middleton and Foster JJ (at [97], [106]).

34    In the present case, the Tribunal’s factual finding that Mr Mailau’s mother would return to Tonga went to an important topic: the hardship that Mr Mailau would face should he be removed from Australia. It was not a peripheral issue. If it could be established that the finding was unsupported by probative material or was otherwise arrived at by a process of reasoning that was irrational or illogical, there would be a strong basis for concluding that the requisite state of satisfaction under s 501CA(4) was affected by legal unreasonableness.

35    At ANOA [1.4(b)] it is alleged that the Tribunal ignored, or failed to have regard to and unreasonably rejected the evidence of Mr Mailau’s mother that she would not return to Tonga with the appellant.

36    The present case is one in which the Tribunal had a statutory obligation to give reasons for its decision:  AAT Act, s 43(2). Having expressed its reasons, in writing, it was required to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based:  AAT Act, s 43(2B). In light of those obligations, it may be inferred that a failure to refer to a particular matter reflects a view taken by the Tribunal that it did not consider the matter to be material to its decision:  Yusuf (at [5], [69]) and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, 309 ALR 67 (at [34]). Here, the Tribunal did address the consideration of the hardship that Mr Mailau would face and made findings in respect of it. However, its reasons do not contain any reference to the mother’s evidence given in AAT1, nor do the reasons disclose any consideration by the Tribunal as to any differences between that evidence and the evidence given by Mr Mailau’s sister on the same topic in AAT2.

37    However, it does not follow that the Tribunal committed jurisdictional error. As the Full Court said in SZSRS (at [34]):

… the fact that particular evidence is not referred to in the tribunal’s reasons does not necessarily mean that the material was overlooked. The tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the tribunal’s reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight:  MZYTS at [52].

38    In my view, the absence of any reference to the mother’s evidence in the Tribunal’s reasons is explained by the manner in which Mr Mailau presented his case (through his legal representatives) at the hearing of his application for review, considered in light of all of the facts and circumstances. The salient features are as follows.

39    The appellant’s mother gave evidence before AAT1 on 6 May 2020, some eleven months before the decision in AAT2. As has been mentioned, the transcript of all of the evidence given in AAT1 was before the Tribunal in AAT2. The relevant portion of the mother’s evidence is extracted at [10] of these reasons.

40    As Counsel for Mr Mailau acknowledged, to succeed on the legal unreasonableness grounds, it is necessary for him to show that his mother gave evidence to the effect that she would not return to Tonga if he were deported and that her evidence was not open to any other interpretation. I do not consider Mr Mailau’s mother to have categorically denied any intention to go to Tonga. The evidence refers to there being financial obstacles to her taking that course and there is also reference to her age. However, the evidence of her subjective intention is otherwise open to differing interpretations. The contention at ANOA [1.4(a)(iii)] that the sister’s evidence in AAT2 was “contrary to known facts established by” the transcript of the mother’s evidence in AAT1 is rejected. At best, the mother’s evidence was ambiguous on the topic.

41    More importantly, however, the Tribunal based its finding on the evidence of Mr Mailau’s sister because that was the evidence upon which Mr Mailau expressly relied. It has not been established that the Tribunal was specifically taken to the transcript of the mother’s evidence, nor that it was submitted that the mother’s evidence was determinative of her present day intentions, nor that it was contrary to the evidence of Mr Mailau’s sister, nor that it should be preferred to the evidence of his sister because it was “direct” rather than “hearsay”. The mother’s evidence formed only a small part of the transcript of the hearing of AAT1 which itself was only part of the evidence considered in AAT2.

42    More than that, there was no suggestion during the hearing of AAT2 that the evidence of Mr Mailau’s sister should be rejected because it was hearsay in nature, nor because it was “vague and tenuous”, as asserted at ANOA [14.1(a)(i)].

43    I am not satisfied that the evidence of the sister was “vague and tenuous” in any event. It was a clear and emphatic statement of the mother’s intentions given by a family member who knew the mother well and who had been called to give oral evidence as part of Mr Mailau’s case. Mr Mailau’s representative positively invited the Tribunal to find that Mr Mailau’s sister was a reliable witness. He submitted without qualification or reservation that she was a “[v]ery clever witness and across everything better than anyone else is …” from a “family perspective”. He did not submit that the evidence was not probative and did not take the Tribunal to contrary known facts supported by other material. The representative provided the Tribunal with transcript references upon which Mr Mailau relied, which included a specific reference to the evidence that Mr Mailau’s sister had given about his mother’s intentions. In all of the circumstances, it was open to the Tribunal to have regard to the sister’s evidence and to attribute weight to it, notwithstanding that it was hearsay in nature.

44    The proposition in ANOA [14.1(ii)] that the evidence was “not permitted” by s 33(1) of the AAT Act was not advanced before the Tribunal as a basis for rejecting the sister’s evidence. It is a legally untenable proposition in any event. As the primary judge correctly held, the Tribunal is not bound by the rules of evidence:  AAT Act, s 33(1)(c).

45    The contention in ANOA [1.4(a)(iv)] that the sister’s evidence was “contrary to the only reasonable inference, namely, that [Mr Mailau’s mother] would not accompany [him] to Tonga given uncontested facts regarding her age and health” has not been established on the material before this Court. It is not disputed that Mr Mailau’s mother was in her early 80s at the time of the Tribunal’s decision. However, the evidence of her state of health is not at all conclusive. More importantly, it has not otherwise been shown that the Tribunal itself was taken to evidence capable of supporting such an inference or invited to reject the sister’s evidence by reference to it.

46    The primary judge did not err in rejecting the arguments founded on legal unreasonableness in support of the third ground of judicial review in the terms in which it was advanced at first instance.

47    To the extent that the arguments on this appeal went beyond those advanced before the learned primary judge, I have had regard to the merits of those arguments in determining whether leave to advance the arguments should be granted. In my view, the circumstance that the Tribunal was urged to embrace the sister’s evidence is a sufficient basis to refuse leave to rely on the new argument.

Briginshaw

48    In Briginshaw a trial judge of the Supreme Court of Victoria erroneously applied the criminal standard of proof in determining whether there should be an order dissolving a marriage on grounds of adultery under the Marriage Act 1928 (Vic). Section 80 of the Marriage Act provided that “it shall be the duty of the Court to satisfy itself, so far as it reasonably can, as to the facts alleged”. On appeal, the High Court concluded that phrase was apt to describe the civil standard of proof. The principle invoked in Mr Mailau’s case is that stated in the often quoted decision of Dixon J (at 361 – 362):

In the course of a discussion of the matter containing no less wisdom than learning, Professor Wigmore says:- ‘In civil cases it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain. But it is customary to go further, and here also to attempt to define in words the quality of persuasion necessary. It is said to be that state of mind in which there is felt to be a ‘preponderance of evidence’ in favour of the demandant’s proposition. Here, too, moreover, this simple and suggestive phrase has not been allowed to suffice; and in many precedents sundry other phrases- ‘satisfied,’ ‘convinced,’ and the like-have been put forward as equivalents, and their propriety as a form of words discussed and sanctioned or disapproved, with much waste of judicial effort’ (Wigmore on Evidence, 2nd ed. (1923), vol. v., sec. 2498).

It is evident that Professor Wigmore countenances as much flexibility in the statement and application of the civil requirement as did Mr. Starkie. The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.  …

49    To similar effect, McTiernan J said (at 372) that “English law adopts the reasonable rule that the strictness of the proof of an issue should be governed by the nature of the issue and its consequences”. In proceedings in which the Evidence Act 1995 (Cth) applies, the same underlying principle finds expression in s 140:

Civil proceedings: standard of proof

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject-matter of the proceeding; and

(c)    the gravity of the matters alleged.

50    There can be no doubt that affirmation of the non-revocation decision had serious consequences for Mr Mailau. Unless revoked, the cancellation decision operated to render Mr Mailau an unlawful non-citizen within the meaning of s 13 and s 14 of the Act. As such, he was therefore liable to be held in immigration detention under s 198 of the Act and deported to his home country under s 200.

51    As can be seen, the third ground of review at first instance made no reference to the Briginshaw principle. Before the primary Judge, reference to the principle appears to have first been made by Mr Mailau’s then Counsel in the following passage in written submissions in reply:

The Respondent has submitted at paragraph [24] of his submissions that the Tribunal is not bound by the rules of evidence. Briginshaw v Briginshaw (1938) HCA 34; 60 CLR 336 however, is authority that, even though a case might be a civil case, a higher standards [sic] of evidence might be expected in serious matters. In this matter, an adverse decision would result in the Applicant being removed from Australia for the rest of his life. Considering that he has lived in Australia from the age of six and has lived in Australia for 39 years, would be separated from his four living children and the grave of his daughter Grace, and would likely never see his aged mother again, the consequences of an adverse decision are indeed severe. In such a case, Briginshaw v Briginshaw would require a high standard of evidence, and it was not appropriate (or alternatively it was legally unreasonable) for the Tribunal to make an adverse finding against the Applicant based on hearsay evidence.

52    The principle was again invoked in oral submissions in a way that equated the test with the test for legal unreasonableness. So much is apparent from the following exchange between Counsel and the primary judge:

COUNSEL:    … in regards to my learned friend’s comments in regards to the Briginshaw test as far as hearsay evidence, well, firstly, we would say that evidence such as fraud actually has – probably has less serious consequences than a tribunal decision to cancel someone’s visa, and we would certainly submit that the tribunal is obligated to apply a high standard of evidence, but in any case, any decision needs to be legally reasonably, and we would submit that in this case, even if the tribunal didn’t err as far as applying hearsay evidence, that the tribunal did err in making a decision that was not legally reasonable.

HIS HONOUR:        I think another way of putting your submission might be that, really, the ground that you rely upon is that it was a legally unreasonable decision to place emphasis on the evidence of the sister.

COUNSEL:        Yes.

HIS HONOUR:        And perhaps … persuasive aspect of your submission that you’re putting forward is that if it had been court proceedings where the Evidence Act applies, then the Briginshaw test might have applied, but, insofar as there’s a Briginshaw requirement, it’s really caught up in the legally reasonable – the jurisprudence on whether or not something is legally unreasonable, which is quite a different test, frankly, but it just seems to me that that’s the way to understand your submission in the context of a case alleging jurisdictional error.

COUNSEL:    Yes, thank you, your Honour. …

53    In light of that exchange it is unsurprising that the reasons of the primary judge do not give separate consideration to the principle in Briginshaw:  it had not been suggested by Mr Mailau’s then Counsel that it added anything to the contention that it was legally unreasonable for the Tribunal to act on the hearsay evidence of Mr Mailau’s sister. The brief reasons of the trial judge in disposing of the third ground of review reflect the manner in which Mr Mailau’s arguments had been presented. His Honour did not fail to grapple with the argument in the terms that it was put.

54    On this appeal a good deal more emphasis was placed on the Briginshaw principle than at first instance. Mr Mailau’s new Counsel submitted that it is a discrete category of jurisdictional error for a decision-maker to ignore or fail to apply the principle in cases that fall within it. In written submissions it was said that failure to apply the principle constitutes a jurisdictional error that is distinct from the principles of legal unreasonableness in their application to errant fact finding. That aspect of the argument is new. It was stated at its highest in written submissions and will be considered at that level, although in oral submissions the argument tended to resemble that advanced before the primary judge.

55    It was submitted that there was a divergence of opinion among the judges of this Court concerning the applicability of the principle in migration cases. For the purposes of this appeal, it is sufficient to give a very brief summary of the authorities:

(1)    In Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41, Deane J (as his Honour then was) appeared to suggest that a principle analogous to Briginshaw may have direct application in an administrative decision-making context (at 61 – 62) (although his Honour did not cite Briginshaw at all).

(2)    In Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, Flick and Perry JJ comprehensively rejected a submission that departure from the standard of satisfaction required under Briginshaw principles would constitute a category of jurisdictional error separate and distinct from legal unreasonableness (at [108] – [122]). Their Honours nonetheless stated that the question was strictly unnecessary to decide because the consequence of the decision there under review was not of a kind to warrant consideration of the principle in any event (at [123] – [133]).

(3)    In Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; 317 ALR 328, Rares, Yates and Griffiths JJ approved and applied the considered dicta in Sullivan, their Honours noting that the appellant in the case before them had not argued that the reasoning was plainly wrong (at [121]).

(4)    Writing separately, Logan J in Sullivan (at [8]) and Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 (at [18] – [19]) expressed the view that the principles in Briginshaw may be incorporated by an analogy in the body of principle concerning legal unreasonableness in relation to errant fact finding.

56    I accept that the occasion has not yet arisen for the dicta in Sullivan to be considered by a Full Court in a case where the correctness of the reasoning is comprehensively argued and where the question of its correctness is necessary to answer on the facts. However, I do not consider that the present appeal presents an appropriate occasion to express an opinion on the question. In my view, even if there was a proper basis to argue that the formation of the satisfaction in s 501CA(4) was subject to an inviolable restraint equivalent to the principle stated in Briginshaw (contrary to the majority reasoning in Sullivan) I do not consider that such a condition has been shown to have been breached in the present case.

57    As Counsel for Mr Mailau properly acknowledged, there can be no doubt that the decision-maker (here the Tribunal) is not bound by the rules of evidence and so is not expressly prohibited from having regard to evidence of a hearsay nature. In oral submissions Counsel for Mr Mailau further acknowledged that the argument founded in Briginshaw principles was another way of saying that the Tribunal erred by acting on the evidence of Mr Mailau’s sister having regard to the consequences for Mr Mailau of its decision, and because that evidence was inexact and unstable viewed in the context of the evidence as a whole.

58    I have already observed that the mandatory cancellation of Mr Mailau’s visa under s 501(3A) of the Act had serious consequences for Mr Mailau, which persist because of the non-revocation decision. However, the non-revocation decision in the present case was a highly evaluative one. Revocation of the cancellation decision depended upon there being satisfaction that there was “another reason” for revocation. The Tribunal’s lack of satisfaction on that broad topic was founded upon a multitude of factual findings of which the finding concerning his mother’s relocation was but one. It cannot be said that the subject matter of the granular finding is one that necessarily enlivens the principles in Briginshaw in and of itself. To the extent that the Briginshaw principle impliedly conditions the formation of the state of satisfaction to be formed under s 501CA(4), in my view compliance with such a condition must be assessed having regard to the body of evidence as a whole. Attacking the evidentiary basis for a discrete finding concerning the mother’s likelihood of relocating to Tonga does not demonstrate breach of the asserted condition.

59    More fundamentally, even if the impugned finding is to be regarded as central to the Tribunal’s reasoning process, the evidence of Mr Mailau’s sister cannot be characterised as inexact or unstable or as otherwise forming a legally impermissible basis for the Tribunal’s conclusion. Under the Briginshaw principle, the evidence is not rendered inexact or unstable merely because it is hearsay. As Counsel properly acknowledged, an implication that all hearsay evidence should be excluded from consideration in cases such as the present would be inconsistent with the express exclusion of the rules of evidence provided for by s 33(1)(c) of the AAT Act. As I have already concluded, the evidence of the sister has not otherwise been shown to be contrary to incontestable facts necessitating its rejection by the Tribunal, and the Tribunal was not invited to reject the evidence on that basis. Accordingly, the outcome of this appeal does not turn on whether the reasoning of Flick and Perry JJ in Sullivan is correct.

60    To the extent that arguments on this appeal went beyond that advanced at first instance the submissions are new. Quite apart from the matter identified at [26] above, leave to argue that Briginshaw principles form the basis of a discrete category of jurisdictional error should be refused on the additional basis that the argument cannot assist Mr Mailau having regard to the facts and circumstances of his particular case in any event.

Procedural fairness

61    By [1.4(d)] of the ANOA it is alleged that the Tribunal did not put Mr Mailau on notice that it would rely solely on the evidence of Mr Mailau’s sister to the exclusion of his mother’s evidence, and that it proceeded to make an adverse finding without providing Mr Mailau with a meaningful opportunity to respond or provide further evidence.

62    The difficulty with that contention is that the Tribunal acted on evidence adduced by Mr Mailau and upon which it was urged to rely by his representative. The particular portion of the sister’s evidence relating to Mr Mailau’s mother was among references the Tribunal was specifically invited to act on. The representative was not deprived of an opportunity to dissuade the Tribunal from acting on the evidence and to draw the Tribunal’s attention to the mother’s evidence in AAT1. The content of both sources of evidence was known to Mr Mailau at the time of the hearing in AAT2. The Tribunal was under no obligation to disclose how it might reason in respect of it.

63    It has not been overlooked that the written submissions of Mr Mailau’s legal representatives before the Tribunal proceeded from an assumption that Mr Mailau would not be unaccompanied by his mother if returned to Tonga. That only serves to reinforce my view that Mr Mailau had every opportunity to present his case on that topic. If there was a degree of confusion or lack of clarity in the presentation of the case, that is not a circumstance resulting from a breach by the Tribunal of its obligation to afford Mr Mailau procedural fairness.

Disposition

64    It follows that the appeal should be dismissed.

65    The parties should be heard as to costs.

Associate:

Dated:    17 February 2023

REASONS FOR JUDGMENT

COLVIN AND HALLEY JJ:

66    Mr Mailau's visa was cancelled by the Minister on the basis that he has a substantial criminal record. He made representations as to why the cancellation should be revoked in the exercise of the power conferred by s 501CA(4) of the Migration Act 1958 (Cth). His representations were considered by the Administrative Appeals Tribunal on an application for review. The Tribunal affirmed the decision by a delegate of the Minister not to revoke the cancellation of his visa. His application for review was dismissed and he now brings an appeal.

67    We have the considerable advantage of reading, in draft, the reasons of Charlesworth J as to why the appeal must be dismissed. With respect, we agree with her Honour that the sole ground of appeal is based upon a view of the scope of the relevant ground of review advanced before the primary judge which view does not wholly correspond with the ground for judicial review relied upon at first instance. We also agree with her Honour's description of the nature of the departure from that ground that was sought to be advanced on appeal. Therefore, leave to appeal is needed. However, we respectfully disagree that leave to appeal should be refused. We would allow leave in part to advance the ground as advanced in oral submissions. Nevertheless, for the reasons that follow, we agree that the appeal must be dismissed.

68    We gratefully adopt the terms as defined in the reasons of Charlesworth J and her Honour's explanation of the statutory context.

The subject matter of the appeal

69    The ground of review that Mr Mailau seeks to rely upon concerns a finding by the Tribunal that Mr Mailau's elderly mother would relocate to Tonga to live with him if he was removed there on the basis that his visa had been revoked. The finding had significance in the context of the requirement expressed in para 14.5(1) of Direction 79 for a decision made under s 501CA(4) to consider any 'social, medical and/or economic support available' in the country to which the person was to be relocated.

70    As has been explained by Charlesworth J, the decision of the Tribunal under review was the second hearing of the review application brought by Mr Mailau before the Tribunal. The determination in the first hearing had been set aside and a new hearing ordered. Mr Mailau's mother gave evidence at the first hearing, but not at the re-hearing. There was reference during the course of the re-hearing to the possibility that Mr Mailau's mother might put on an affidavit, but that was not done. In the result, although the material at the previous hearing was received into evidence at the re-hearing, Mr Mailau's mother did not give evidence at the second hearing. Also, at the second hearing no reference was made to the terms of the evidence given by Mr Mailau's mother at the first hearing.

The evidence of Mr Mailau's mother

71    The evidence given by Mr Mailau's mother at the first Tribunal hearing was interpreted by her daughter in the following way:

So, Mum was saying if - if [Mr Mailau] return to Tonga, she'll be a heartache. Especially, she's 81 years old. There is no one at home, and of course the - what's happening in Tonga, financially she'll be heartache. Imagine if she's 60 years old, maybe she'll go back with [Mr Mailau] to Tonga, but because financially she better be (indistinct) in Australia but to her heart it could make her - she doesn't know what's going to happen after that (indistinct) she was very emotional and trying to explain something would happen to her only the Lord knows what's in - what's in the future but she believes that there is no support if [Mr Mailau] going back to Tonga.

72    At the subsequent re-hearing the subject of the proceedings heard by the primary judge, Mr Mailau's sister gave the following evidence:

My mum is 81 years old and she is sitting - like in the last two and a half years it's like she's sitting on, I can't explain, like on needles. She can't sleep properly, she can't - she's lost weight and maybe it's due to age as well but, you know, like she's just - like she would be - she says to us that if [Mr Mailau] gets sent back to Tonga she would have to go back to Tonga because he wouldn't be able to cope there with the language barrier and just the way Tonga is. He's been once or twice as an adult and as a young adult but [Mr Mailau] has no idea what Tonga is about. And so she has sworn to us that regardless how old she is and that there's no medical facilities, proper medical facility in Tonga, that if [Mr Mailau] is to be sent back then she will have to try and go back to Tonga with him because she doesn't feel he will cope or survive in Tonga.

The nature of the case advanced for Mr Mailau in the appeal

73    Putting to one side for the moment the question of leave, the contentions advanced in the appeal as to the existence of jurisdictional error, as clarified in the course of oral submissions, were as follows:

(1)    Having regard to the evidence of the condition of Mr Mailau's mother, it was inherently improbable, if not virtually impossible, that she would relocate to Tonga.

(2)    The evidence of Mr Mailau's mother, though given at the earlier and separate hearing of the Tribunal, was received as part of the material before the Tribunal at the hearing the subject of the appeal.

(3)    Having regard to his mother's evidence given at the previous hearing, the contradictory statement of Mr Mailau's sister should not have been accepted.

(4)    There appeared to have been an oversight by counsel appearing before the Tribunal in not dealing with the apparent contradiction between the previous evidence of the mother and the evidence of the sister.

(5)    The failure to raise the contradiction did not mean that an opportunity was lost to test the evidence of the mother (only given at the earlier Tribunal hearing) because it concerned her subjective state of mind and was before the Tribunal.

(6)    Therefore, the contradiction between the evidence of the mother and the sister should have been resolved by the Tribunal.

(7)    Resolution of the contradiction required resort to the principles expressed in Briginshaw v Briginshaw (1938) 60 CLR 336 concerning findings to be made as to matters with serious consequences.

(8)    Failure to resort to such principles and conclude that reliance should not be placed upon the hearsay evidence of Mr Mailau's sister was legally unreasonable.

(9)    Part of the circumstances that made reasoning of that kind unreasonable was evidence of the age of Mr Mailau's mother, her infirm condition and that she was in quite impoverished circumstances.

74    It should be noted that the submissions were focussed upon a single finding in support of one aspect of the Tribunal's reasoning. However, unreasonableness requires an evaluation as to whether the whole exercise of the decision-making power was unreasonable. It is a conclusion reached by reference to the outcome or by reference to the whole of the reasons (where reasons are given). It is not established simply by pointing to a part of the reasons and describing that part as unreasonable. The part that is impugned must be demonstrated to have such significance that the whole decision may be described as failing to meet the reasonableness standard. Therefore, the materiality of any defect is encompassed in the overall inquiry: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [181] (Edelman J). There must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that it is not authorised: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25], [30]-[31].

75    Further, the test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11], [52], [135]. Mere strong disagreement with factual reasoning does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40].

The submissions made to the primary judge

76    Before the primary judge, the written submissions in reply advanced on behalf of Mr Mailau emphasised that the evidence given by his sister to the Tribunal at the earlier hearing included the following extract concerning their mother: 'Imagine if she's 60 years old, maybe she'll go back with [Mr Mailau] to Tonga but because financially she better be (indistinct) in Australia but to her heart it could make her … but she believes that there is no support if [Mr Mailau] going back to Tonga'.

77    It was submitted by reference to this evidence that what was being said was that she was 81 years old and that if she was 60 then maybe she would go back to Tonga but even if she did this would be financially difficult for her.

78    The above submission was followed by the following:

Even if the Applicant's mother had indicated that she would go back to Tonga with the Applicant at the first hearing (which is strongly denied), it would have been unreasonable to simply assume that that her age/health would still allow this to occur a year later without any new evidence from the Applicant's mother.

79    It was then submitted that it was unreasonable to make a finding that Mr Mailau's mother would move back to Tonga 'based upon hearsay evidence'. Reliance was also placed upon Briginshaw as authority for a requirement to the effect that the Tribunal must apply a high standard of evidence for the Tribunal to make an adverse finding against Mr Mailau based on 'hearsay evidence'. The failure by the Tribunal to apply that standard to what was said to be hearsay evidence of Mr Mailau's sister was alleged to be 'not appropriate (alternatively … legally unreasonable)'.

80    However, all of these submissions were put only in reply to a submission advanced for the Minister to the effect that the evidence given at the earlier hearing should be construed as evidence to the effect that Mr Mailau's mother may go back to Tonga with Mr Mailau. In that regard, the Minister had placed reliance upon the record of the first hearing which was said to include statements by Mr Mailau's mother that maybe she would go back with Mr Mailau (part of the passage quoted above) and that she would be worried about her son in Tonga and may feel like she needed to go back to Tonga to be with him (part of another passage of evidence).

81    Therefore, the submission in reply articulated a complaint about the manner in which the submissions for the Minister interpreted the evidence given at the first hearing. However, it did not make any claim concerning any failure to rely upon or refer to the evidence given by the mother at the previous Tribunal hearing. Rather, it contended that the conclusion drawn from the daughter's evidence at the second hearing (under review) was unreasonable and also was contrary to a requirement that a high standard of evidence must be met before making a finding based on the sister's evidence. This approach is understandable in circumstances where, at the second Tribunal hearing, in submissions for Mr Mailau no reliance had been placed upon the earlier evidence of Mr Mailau's mother given at the first hearing and an application for leave to file an affidavit of Mr Mailau's mother was foreshadowed but not pursued.

82    In the course of oral submissions for Mr Mailau before the primary judge, the claim was put on the basis that the proposition that the Tribunal 'is not bound by the rules of evidence and can receive hearsay evidence and consider that in the mix' was not disputed. Rather, the proposition put was that the more serious the result the higher the standard of evidence that the Tribunal needs to apply. The focus was upon what was described as the 'very grave' impact if the visa cancellation was not revoked. Again the proposition was put in terms that it was either not appropriate or it was legally unreasonable to act on the basis of the hearsay evidence of Mr Mailau's sister as to what their mother would do if Mr Mailau was removed to Tonga.

83    In that context, reference was made by counsel for Mr Mailau to the evidence of the mother given at the previous Tribunal hearing. The reference to that evidence prompted the primary judge to ask where the Tribunal in the decision under review was said to incorrectly refer to the mother's evidence or incorrectly characterise its terms. The answer prompted his Honour to observe that the Tribunal had only referred to the evidence given by the sister at the second hearing. Then, the following exchange occurred:

HIS HONOUR: Look, I understand that point. The main point you're making is that it was unsafe for the tribunal to rely on the hearsay evidence of Mr Mailau's older sister as being a source of information as to what her mother would do if he was deported to Tonga. I understand that. You are perhaps a little distracted by paragraph 26 of the respondent's submissions where a separate passage of the mother's evidence was referred to, and I take that point, that it may be that the respondent in paragraph 26 has overstated the gravamen of the mother's evidence, but I don't think you're in a position to say that the tribunal misunderstood the mother's evidence in the first hearing … because the tribunal doesn't refer to it, does it?

COUNSEL: No, that is correct, your Honour. There's no reference, and I only address those parts just to - I have understood my learned friend's submissions to be that the tribunal was entitled to take this into account, because it was also evidence before the tribunal in the first AAT hearing, and so - - -

HIS HONOUR: I understand the submission. Are you about to move to the next ground?

COUNSEL: Yes, I believe so, your Honour.

HIS HONOUR: Just before you do, you've made the submission that the Briginshaw test should be applied. Do you rely on any authority as to that proposition being supported where it's a decision of an administrative tribunal, or is that a more general at large submission.

COUNSEL: It is a more general application, your Honour.

84    Later, counsel appeared to accept the proposition from the primary judge that another way of putting the submission advanced for Mr Mailau was that it was legally unreasonable for the Tribunal to place emphasis on the evidence of Mr Mailau's sister. At that point there was no suggestion that the case as advanced depended upon some failure to have regard to the evidence of Mr Mailau's mother given at the first hearing and received as part of the record at the second hearing.

85    All of the above occurred in the context of a ground of appeal that relied upon particulars that included the claim that Mr Mailau's mother 'did not give evidence before the Tribunal' and made no reference at all to the evidence that she had given at the first hearing.

The reasons of the primary judge

86    As to the ground concerning the use of hearsay evidence, the primary judge summarised the case as follows (at [55]):

Mr Mailau contends that the Tribunal erred by making an adverse finding against him on the basis of hearsay evidence of his sister in circumstances where his mother had not given evidence. Alternatively, he contends that it was legally unreasonable for the Tribunal to use hearsay evidence to make such a finding.

87    Having regard to the course of the proceedings before his Honour, that summary was entirely correct.

88    His Honour then dealt with the ground in the following way (at [56]-[58]):

Section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) makes plain that the Tribunal is not bound by the rules of evidence. The hearsay evidence was given in evidence in chief by the applicant's own sister, whom he called. It was given without objection. The transcript reveals that the evidence was clear and credible. It was a matter for the Tribunal to give it such weight as it considered to be appropriate. In doing so, it did not fall into jurisdictional error. Nor can it be said to have been legally unreasonable for the Tribunal to rely upon such evidence.

In his written reply submissions, Mr Mailau indicated that he would seek leave during the hearing to file an affidavit of his mother, which he intended to rely on in support of ground 3. No formal application for leave was made during the hearing and the affidavit is not in evidence.

Ground 3 must be dismissed.

89    Again, having regard to the course of proceedings before his Honour, the correctness of that reasoning has not been impeached. To the extent that it was contended that there was some failure to have regard to the evidence of Mr Mailau's mother given at the first hearing, a claim in those terms was not put.

90    The appeal ground was put in terms that there was some failure by the primary judge to give due and proper consideration to the substance of an argument advanced before his Honour. No such failure has been demonstrated. His Honour addressed the ground as advanced.

The wider case sought to be advanced on appeal

91    As to the terms in which the case was put on appeal, the proposition advanced on appeal to the effect that the Tribunal is bound to apply the reasoning in Briginshaw must be rejected: Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 at [108]-[122]. Facts can be fairly found by administrative decision-makers without demanding adherence to the rules of evidence: Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32; (2010) 241 CLR 390 at [15]. Therefore, the merits of the contentions advanced must be evaluated on the basis that they amount to a claim of unreasonableness solely on the basis of the finding concerning the future intentions of Mr Mailau's mother. The reasonableness of the reasoning must also be evaluated having regard to the way in which the case was put to the Tribunal in the course of a procedure where Mr Mailau was legally represented and made submissions.

92    At the second Tribunal hearing, no reliance was placed upon the evidence given by Mr Mailau's mother at the first hearing. The indication that affidavit evidence of the mother might be sought to be presented to the Tribunal was not pursued. In those circumstances, the Tribunal's task included the making of factual findings as to matters that were relevant to the requirement expressed in para 14.5(1) of Direction 79. Whether Mr Mailau's mother might go to Tonga to support him if he was returned was relevant to that part of the Tribunal's task.

93    A factual question as to whether Mr Mailau's mother might return could not be said to involve some form of serious allegation of a kind that might require pause before making a factual finding. It may be accepted that the consequence for Mr Mailau of the ultimate decision is serious, especially as he has lived in Australia since he was a young child. However, the burden of the logic of the reasoning in Briginshaw concerns instances where the finding to be made would attribute serious wrongdoing to the party against whom the finding is to be made. As stated by Dixon J in Briginshaw at 363, 'the nature of the issue necessarily affects the process by which reasonable satisfaction is attained'. Evaluating whether Mr Mailau might be supported by his mother if he was removed from Australia as a result of the cancellation of his visa did not involve the Tribunal considering whether to make a finding as to a matter that was serious or inherently unlikely or was itself grave as to its consequences.

94    It may be accepted that the question whether the Tribunal met the implied standard of legal reasonableness as to its decision making may require evaluation by a Court on review for alleged jurisdictional error as to whether the Tribunal acted with due deliberation and regard to the seriousness of the consequences of the decision in making its factual findings. However, to put the matter in those terms is not to invoke a Briginshaw-like principle. Rather, it is to focus upon the nature and quality of the decision that is required to be made in order for the Tribunal to be found to be acting within the extent of its statutory authority. It reflects what was said by Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25] to the effect that the 'degree of effort' required in considering particular matters advanced as representations as to why a visa cancellation should be revoked under s 501CA(4) 'will vary, among other things, according to the length, clarity and degree of relevance of the representations' (emphasis added).

95    The deliberative task entrusted to the Tribunal in cases like the present has a number of significant attributes.

96    Firstly, the statute provides for the mandatory cancellation of a visa based upon a sentence being imposed for a term of imprisonment of more than 12 months. Therefore, other factors that might be thought to be relevant to whether cancellation was appropriate in the particular circumstances are first considered as part of the subsequent decision whether to revoke the visa cancellation. It is the mandatory terms of s 501CA that afford that opportunity.

97    Secondly, by reason of the availability of merits review, the formation of the state of satisfaction as to whether there is 'another reason' why the visa cancellation should be revoked is entrusted to the Tribunal. It is an independent statutory body with members who are to be appointed based upon decision-making expertise. The characteristics of its procedures, deliberation and reasoning must be consistent with what might reasonably be expected of a body of that character.

98    Thirdly, the subject matter of the Tribunal's deliberation has the potential to affect a person such as Mr Mailau in a fundamental way, especially having regard to how long he has been resident in Australia.

99    In considering whether the actual deliberation has been demonstrated to fall short of that which is required in undertaking a task of that kind, it will be appropriate to have in mind the importance of the subject matter given its consequences. However, there must also be due regard to the attributes of the Tribunal's decision-making that mean it does not apply the laws of evidence and it is entrusted with the authority to make the relevant factual findings. Whether, the Tribunal's reasoning process demonstrates that the Tribunal has exceeded the bounds of legal reasonableness (implied as a matter of statutory construction of the nature and extent of the power) is a matter to be evaluated by reference to the whole of the reasons and in a case where unreasonableness is said to be the consequence of a single factual finding the demonstrated significance of that finding for the overall reasoning. In that regard, it is well established that mere strong disagreement with factual reasoning does not establish jurisdictional error: Eshetu at [40].

100    In the light of the foregoing, having regard to the particulars advanced in para 1.4 of the grounds (on the assumption that the appeal is allowed to extend to include all of the contentions advanced in the appeal as to why the factual finding concerning what Mr Mailau's mother might do if his visa cancellation was not revoked), the following matters assume significance:

(1)    the relevant matter concerned the future intentions of Mr Mailau's mother;

(2)    those future intentions were not a matter of existing subjective fact, but a matter to be evaluated on all the objective evidence;

(3)    Mr Mailau's sister gave evidence as to what she had been told by her mother and the evidence was given in quite emphatic terms;

(4)    Mr Mailau was legally represented before the Tribunal and submissions were advanced by reference to the evidence given by his sister at the second hearing as to the findings that should be made;

(5)    there was no reference in submissions for Mr Mailau to the earlier evidence of Mr Mailau's mother;

(6)    the possibility of providing an affidavit from Mr Mailau's mother was raised but no such affidavit was provided;

(7)    in any event, the evidence given by Mr Mailau's mother at the first hearing was relatively unclear because it referred to competing matters bearing on what she would do, in particular it included the statement that 'her heart could make her [return to Tonga]';

(8)    there was no identified evidence as to the condition of Ms Mailau other than her age;

(9)    the Tribunal's finding was to the effect that Mr Mailau's sister referred in her evidence to Mr Mailau's mother re-locating to Tonga to live with Mr Mailau if he was to be removed there;

(10)    having regard to the above matters, it could not be said that the Tribunal addressed the issue of what Mr Mailau's mother might do without providing an opportunity for that issue to be addressed;

(11)    the seriousness of the consequences for Mr Mailau and any issue as to whether the Tribunal's decision was unreasonable by reason that findings were made without due regard to such seriousness required an evaluation of the whole of the Tribunal's reasoning and the case in support of the present appeal was not put on that basis; and

(12)    it was not otherwise explained why the making of the impugned finding meant that the decision was unreasonable or that the Tribunal's procedure was unreasonable.

101    The issue as to whether Mr Mailau's mother might relocate to Tonga was one matter affecting one consideration that the Tribunal was required by Direction 79 to consider. In the above circumstances, it has not been demonstrated that there was jurisdictional error by reason of legal unreasonableness in the making of the decision.

102    In written submissions in support of the appeal it was contended that there was error in failing to afford procedural fairness because the Tribunal had some obligation to inform Mr Mailau as to how it proposed to make factual findings concerning the future intentions of Mr Mailau's mother. It was not explained why there might be such an obligation. It is a contention that is contrary to established authority: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

103    Further, as noted by Charlesworth J, the Tribunal was urged by Mr Mailau's representative at the second hearing to rely upon the evidence of Mr Mailau's sister, including the particular portion of the evidence that is the focus of submissions in the present appeal.

Application for leave to raise new appeal

104    In the event that the Court was of the view that the ground of appeal raised new matters not advanced before the primary judge, Mr Mailau sought leave to appeal. For reasons that have been given, he did seek to raise new matters. In particular, he sought to raise a claim that there was jurisdictional error by reason of the Tribunal's failure to have regard to the evidence of Mr Mailau's mother given at the first hearing in reaching its finding to the effect that she would relocate to Tonga to support Mr Mailau if he was removed from Australia to Tonga.

105    It is generally said that leave to raise a new ground on appeal should be refused in the absence of an explanation for the ground not being raised before the primary judge and where they lack sufficient merit: see the oft quoted passages from VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48]. Expression of the position in those terms reflects the established principle that parties must present the whole of their case at first instance so as to ensure that appeals do not become an opportunity to conduct a second hearing on a different basis with obvious prejudice to other parties and to the administration of justice. As O'Callaghan and Colvin JJ observed in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152 at [90] that the principles to be applied in considering whether, in the interests of justice, leave to appeal should be given to raise a new ground on appeal were carefully summarised by Bromwich J Han v Minister for Home Affairs [2019] FCA 331 at [10]-[17]. In doing so, they also said:

It may also be noted that 'generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy': Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 (Griffiths and Perry JJ) at [20]. In addition, there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ).

106    In MBJY, Allsop CJ delivered separate reasons agreeing that leave should be given. As to the principles, the Chief Justice said at [2]:

I refer to and repeat what I said in SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 at [136] about leave to argue new points on appeal. The ultimate question is the interests of justice, which extend to the potential vindication of a just outcome, to which is relevant the seriousness of the consequences of the decision: cf Iyer v Minister for Immigration [2000] FCA 1788 at [22]. Whilst not intending to identify any error in the way Bromwich J helpfully summarised some of the cases in Han v Minister for Home Affairs [2019] FCA 331 at [10]‑[18] care is always necessary in a discretion of this kind not to over-conceptualise or over-categorise matters, which, in any particular case, may be seen to affect the interest of justice, into categories of consideration to be applied as rules or as a set of rules.

107    The present case is one where an adverse decision will have serious personal consequences for Mr Mailau who has been an Australian resident for most of his life. The point raised was a short one. It concerned whether the decision might be characterised as being legally unreasonable. It was a point of law. It sought (in the alternative to an unmeritorious claim that the Tribunal was required to give effect to the Briginshaw principle), to call in aid reasoning of a kind that informed the Briginshaw principle as a basis for contending that a decision was legally unreasonable. In my view, to that limited extent, the claim was arguable and raised a point of more general principle.

108    It was submitted for the Minister that there was no satisfactory explanation as to why the point was not raised before the primary judge and that the only real explanation was that Mr Mailau now has new representation. However, the solicitor who has acted for Mr Mailau throughout has deposed to a sequence of events that at least exposes that an informed forensic choice was not made at any time to not refer to the evidence of Mr Mailau's mother or to advance the application before the primary judge without regard to her evidence at the first hearing. With due respect, the affidavit is not entirely clear. However, it does indicate confusion as to what was required in order to demonstrate judicial review including consideration of the possibility of seeking to adduce evidence before the primary judge to establish, in effect, what was meant by the evidence that had been given by Mr Mailau's mother at the first hearing.

109    In all the circumstances, we would grant leave to raise the ground as argued but confined to the claim of legal unreasonableness.

Orders and costs

110    For the reasons we have given, we would give leave to appeal to the extent indicated but dismiss the appeal. As to costs, it appears that the written submissions for the Minister appear to have addressed matters that, by that point, were not pressed by Mr Mailau. As that may be a matter for which provision should be made in any costs order, we would make directions for short submissions as to costs and for the question of costs to be dealt with on the papers.

Associate:

Dated:    17 February 2023