FEDERAL COURT OF AUSTRALIA

Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 78

ORDERS

THE COURT ORDERS THAT:

1.    Appeal allowed.

2.    Set aside Orders 1 and 2 made by Shariff J on 20 June 2024 and in lieu thereof order that:

(a)    A writ of certiorari issue to quash the decision of the Second Respondent dated 3 November 2023.

(b)    A writ of mandamus issue directed to the Administrative Review Tribunal that it determine the Applicant’s Application for Review of Decision dated 16 August 2023 according to law.

(c)    The First Respondent pay the Applicant’s costs of the proceeding.

3.    The First Respondent pay the Appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1    The question on this appeal is whether there is a realistic possibility that an admitted denial of procedural fairness affected the outcome of proceedings brought by the appellant in the Administrative Appeals Tribunal. Absent such potential, the Tribunal’s error will not have been jurisdictional, and the appellant will have failed to make out the fundamental basis upon which the relief he seeks may be granted.

2    Discerning the materiality of the error in this case is complicated by the fact that the denial of procedural fairness could have made no difference to the determination of the issue in relation to which it occurred. The appellant, instead, relies upon the potential for the error to have affected the determination of another issue in the case.

3    For the reasons that follow, the appellant’s submission that the denial of procedural fairness to him in relation to one issue denied him a realistic possibility of a different outcome in relation to another issue, and thereby the case as a whole, should be accepted.

THE ISSUES FOR DETERMINATION BEFORE THE TRIBUNAL

4    The appellant had applied to the Tribunal for merits review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs, refusing to revoke the mandatory cancellation of his visa. His visa had been cancelled because he was sentenced to prison for a term of 14 months. One consequence of that (and passing over some presently irrelevant complications arising out of the decision in Pearson v Minister for Home Affairs (2022) 295 FCR 177, and its subsequent legislative overruling) was that he failed the “character test” prescribed by s 501(6)(a) of the Migration Act 1958 (Cth) because he had a “substantial criminal record”, as defined in s 501(7). The ultimate result was that s 501(3A) obliged the Minister to cancel his visa.

5    The power to revoke such a mandatory cancellation is found in s 501CA(4). The discretion it confers is enlivened, relevantly, upon the Minister (or his or her delegate) being satisfied of at least one of two matters:

(a)    that the person passes the character test as defined by s 501; or

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

6    Like the Ministerial delegate in whose shoes it stood, therefore, it was those two issues that the Tribunal was required to determine.

7    In relation to the first (whether or not a person passes the character test), a person may fail the character test for a number of different reasons, each of which is set out in s 501(6) of the Migration Act. One, to which reference has already been made, is that set out in sub-s (a); namely, that the person has a “substantial criminal record” as defined in s 501(7). The others that are relevant to this appeal are those set out in sub-s (c) (that, having regard to a person’s past and present criminal and general conduct, the person is not of good character), sub-s (d)(i) (that there is a risk that the person would engage in criminal conduct in Australia), and sub-s (d)(ii) (that there is a risk that the person would harass, molest, intimidate or stalk another person in Australia).

8    In determining whether a person passes the character test, both a Ministerial delegate and the Tribunal are required to comply with any applicable direction issued by the Minister under s 499 of the Act. There was such a direction applicable to the decision required to be made in this case: “Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.

9    Section 2 of Direction No. 99 is entitled “Application of the character test”. Clause 5 of Section 2 deals with that aspect of the character test set out in s 501(6)(c), and includes the following:

5. Not of good character on account of past and present criminal or general conduct (section 501(6)(c)(i) and (ii))

(1)    A person does not pass the character test if the person is not of good character, having regard to their past and present criminal and/or their past and present general conduct.

(2)    The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct: Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 at [33].

(3)    In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person’s character.

…

(4)    In order to fail this limb of the character test, a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of “good character”. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.

…

5.1 Past and present criminal conduct

(1)    In considering whether a person is not of good character on the basis of past or present criminal conduct, the following factors are to be considered:

(a) the nature and severity of the criminal conduct;

(b) the frequency of the person’s offending and whether there is any trend of increasing seriousness;

(c) the cumulative effect of repeated offending;

(d) the circumstances surrounding the criminal conduct which may explain the conduct such as may be evident from judges’ comments, parole reports and similar authoritative documents; and

(e) the conduct of the person since their most recent offence, including:

(i) the length of time since the person last engaged in criminal conduct;

(ii) any evidence of recidivism or continuing association with criminals;

(iii) any pattern of similar criminal conduct;

(iv) any pattern of continued or blatant disregard or contempt for the law; and

(v) any conduct which may indicate character reform.

5.2 Past and present general conduct

(1) The past and present general conduct provision allows a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not have constituted a criminal offence.

(a) in considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.

10    Clause 6 of Section 2 provides, in relation to that aspect of the character test set out in s 501(6)(d):

6 Risk in regards to future conduct (section 501(6)(d))

(1)    A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.

(2)    The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

(3)    It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))

(1)    A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.

…

6.2 Risk of harassing, molesting, intimidating or stalking another person in Australia (section 501(6)(d)(ii))

(1)    A person will not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will harass, molest, intimidate or stalk another person in Australia.

(2)    “Harassment”, “molestation”, “intimidation”, and “stalking” are to be given their ordinary meaning. Section 501(11) of the Act clarifies the scope of conduct amounting to harassment or molestation. Conduct and behaviours that may fall under this category include, but are not limited to, the following:

(a) conduct that could be construed as harassment or intimidation (whether or not it breaches the terms of an Apprehended or Domestic Violence (or similar) Order);

(b) conduct that potentially places children in danger, such as unwelcome and/or inappropriate approaches, including, but not limited to, approaches made through electronic media; or

(c) conduct that would reasonably cause an individual to be severely apprehensive, fearful, alarmed or distressed regarding the person’s behaviour or alleged behaviour towards the individual, any other individual, or in relation to their property or that of any other individual.

11    In relation to the second issue (whether there is another reason why the original decision should be revoked), Direction No. 99 once more applied and identified a range of primary and other considerations required to be taken into account. In Part 2 of Section 1, one of the “primary considerations” specified was the “protection of the Australian community from criminal or other serious conduct” (cl. 8(1)) and, relatedly, “whether the conduct engaged in constituted family violence” (cl. 8(2)). In connection with those considerations, it was said:

8.1 Protection of the Australian community

…

(2)    Decision-makers should also give consideration to:

(a) the nature and seriousness of the non-citizen’s conduct to date; and

(b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

8.1.1    The nature and seriousness of the conduct

(1)    In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:

(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

(i) violent and/or sexual crimes;

(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

…

(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c);

…

(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

(e) the cumulative effect of repeated offending;

…

8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

…

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

(i) information and evidence on the risk of the non-citizen re-offending; and

(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

…

8.2 Family violence committed by the non-citizen

(1)    The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

…

(3)    In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:

(a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

(b) the cumulative effect of repeated acts of family violence;

(c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

(i) the extent to which the person accepts responsibility for their family violence related conduct;

(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse (particularly children);

(iii) efforts to address factors which contributed to their conduct;

…

12    Other primary considerations included the “strength, nature and duration of ties to Australia” (cl. 8.3), in connection with which a decision-maker is obliged to consider:

(3)    The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(4)    Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. …

13    It may be observed from the preceding summary that there is considerable overlap between the matters relevant to the two broad issues that were required to be decided by the Tribunal. To take but the most obvious examples:

(a)    if conduct forms the basis for a finding that a person fails the character test on grounds including those set out in s 501(6)(c), then it will also be conduct that the Australian Government and the Australian community consider to be “serious” for the purposes of the primary consideration concerning the protection of the Australian community from criminal or other serious conduct (see Section 1, Part, 2, cl. 8.1.1(1)(b)(iii));

(b)    there is a significant overlap between the factors identified as relevant to whether a person’s past and present criminal conduct means they are not of good character, and those relevant to an assessment of the nature and seriousness of a person’s criminal conduct in connection with consideration of the need to protect the Australian community (compare Section 1, Part 2, cl. 8.1.1 with Section 2, cll. 5 and 5.1);

(c)    similarly, there is a substantial overlap between the factors identified as relevant to whether a person’s past and present general conduct means they are not of good character, and those relevant to an assessment of the nature and seriousness of a person’s other conduct in connection with consideration of the need to protect the Australian community (compare Section 1, Part 2, cl. 8.1.1 with Section 2, cll. 5 and 5.2);

(d)    there is a significant overlap between the factors identified as relevant to whether a person fails the character test because of a risk that they will engage in criminal conduct in Australia, or harass etc a person in Australia, and those relevant to an assessment of the risk to the Australian community should the person commit further offences or engage in other serious conduct in Australia in connection with the consideration of the need to protect the Australian community (compare Section 1, Part 2, cl. 8.1.2 with Part 2, cll. 6, 6.1 and 6.2);

(e)    there is a strong potential for overlap between factors relevant to the assessment of whether a person is of bad character by reason of their criminal and general conduct, and those relevant to a person’s “strength, nature and duration of ties to Australia”. For the former, “all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person’s character” (Section 2, cl. 5(4)), including “any conduct which may indicate character reform” (Section 2, cl. 5.1(e)(v)), and “evidence of rehabilitation and any relevant periods of good conduct” (Section 2, cl. 5.2(1)(a)). Those matters are likely also to be relevant to the latter consideration, which looks to the “strength, nature and duration” of “family or social links” (Section 1, Part 2, cl. 8.3(3)) and “other ties that the non-citizen has to the Australian community” (Section 1, Part 2, cl. 8.3(4)).

14    Overall, it is sufficient to note that there is an obvious potential for evidence and submissions to be relevant to both the “character test” issue, and the “another reason” issue, and the Minister did not contend otherwise.

THE TRIBUNAL’S DECISION

15    In relation to the “character test” issue, the Tribunal said this (at [44]):

The first question that I must address is whether Mr Smith passes the “character test”, which, I note, is a wider question than whether he failed the character test for having been sentenced to a term of imprisonment of 12 months or more. As of today, Mr Smith does not pass the character test given the aggregate sentence of imprisonment of 14 months, but he also fails that test on other grounds in my opinion; e.g., that he is not “of good character” as of my decision today, and that there is a risk that he would commit a criminal offence or harass, molest, intimidate or stalk another person if he were allowed to remain in Australia.

16    The final sentence was accompanied by a footnote that read:

See section 501(6)(c), (d)(i) and (d)(ii) respectively. On Mr Smith’s future risk, see below at [58]ff.

17    In relation to the “another reason” issue, the Tribunal proceeded to identify and consider each applicable consideration specified in Direction No. 99 (the reasoning was summarised by the primary judge at [96]). The appellant makes no criticism of this part of the Tribunal’s reasoning on appeal. Indeed the Tribunal’s reasons may fairly be described as a detailed and careful consideration of all relevant factors, both favourable and unfavourable to the appellant.

18    The Minister emphasises the fact, which the appellant does not deny, that at no point in the Tribunal’s reasons is there any suggestion that findings, reasoning or conclusions in relation to the fact that, or the basis on which, the appellant was found to fail the character test were taken into account or relied upon in deciding the “another reason” issue. That is to say, the reasoning in relation to the “another reason” issue was independent of the reasoning in relation to the “character test” issue.

19    It may also be noted that the Tribunal stated explicitly that the decision was finely balanced. The reasons record that weighing the countervailing considerations had “not been an easy task” (at [82]), and that overall it was “not … an easy decision to make” (at [86]). It may be inferred that some additional material on the “another reason” issue that was favourable to the appellant may have persuaded the Tribunal to a different outcome.

THE DECISION OF THE PRIMARY JUDGE

20    The primary judge held that the Tribunal denied the appellant procedural fairness (at [72], [83]). It did so by finding that the appellant failed the character test on the grounds in ss 501(6)(c), (d)(i) and (d)(ii) of the Migration Act, without giving him any notice that it might do so. The Minister does not challenge that conclusion on this appeal.

21    The primary judge also held, however, that the denial of procedural fairness was not material, because the ultimate outcome would inevitably have been the same (at [91], [99]). That was because, his Honour found:

(a)    In relation to the determination of the “character test” issue, the Tribunal also found that the appellant failed the character test on the basis of the ground in s 501(6)(a), namely that he had a “substantial criminal record” within the meaning of s 501(7). That was an independent and sufficient basis for finding that the appellant failed the character test (see at [92]-[94]).

(b)    In relation to the determination of the “another reason” issue, the Tribunal’s findings in relation to the appellant failing the character test on the grounds in ss 501(6)(c), (d)(i) and (d)(ii) did not have any impact on its decision making in relation to that issue (see at [95]-[98]). More precisely, the critical aspects of his Honour’s reasoning were as follows:

(i)    The focus of the materiality inquiry is the “outcome of the decision” (at [88]). That is to say, by reference to LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16], per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, his Honour identified the relevant question as being whether “there exists a realistic possibility that the outcome of the decision could have been different had [the] error not been made” (or, approached from the other direction, whether “there is a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made”).

(ii)    In assessing whether a realistic possibility of a different outcome existed, “the inquiry that is posited is ‘backward-looking’ by reference to ‘the decision that was made and, depending on the nature of the error, how that decision was made’” (at [90], quoting from LPDT at [10]).

(iii)    When his Honour examined “how the Tribunal in fact made its decision” he did “not see any indication that the Tribunal’s conclusions about the applicant having failed the character test, or having failed the character test on particular grounds, were brought to bear in the Tribunal’s decision making in relation to” the “another reason” issue (at [95]). As his Honour said (at [97]):

This analysis of the actual reasons of the decision made by the Tribunal does not disclose that it brought to bear upon its determination of the various issues arising under Direction 99 any of its findings as to the applicant having failed to pass the character test, or the grounds upon which he had failed the character test. The latter findings were independent of the former. As is evident from the above, the Tribunal turned its attention to each of the considerations arising from Direction 99 in a way that was independent to its findings about the applicant having failed the character test.

(iv)    The independence of the Tribunal’s consideration of the two issues was not undermined by the footnote quoted above at [16], and the cross-reference it supplied. The primary judge held that this footnote merely indicated that “the Tribunal’s conclusions about the primary and other considerations subsequently led it to find that there were additional reasons why the applicant failed the character test” (at [98]).

(v)    In light of that analysis of the way in which the Tribunal actually reasoned to its decision, the primary judge said that he was “affirmatively satisfied that, although the Tribunal erred in denying the applicant procedural fairness … the ultimate outcome would inevitably have been the same” in that “the Tribunal’s consideration of whether there was ‘any other reason’ why the applicant’s visa should not have been cancelled would have been unchanged” (at [99], original emphasis). That was because his Honour’s “examination of the reasons of the Tribunal” disclosed that “the considerations arising from Direction 99 were independently found to have not given rise to another reason why” the original decision should be revoked (at [100]).

22    There was no challenge on appeal to the first of those reasons. That is to say, it was accepted that the appellant had a “substantial criminal record”, and that it was thus inevitable that he would have been found to fail the character test, regardless of what other evidence he might have adduced, or submissions he might have made, in relation to the alternative bases upon which he was found to have failed the character test. The appellant’s submissions on appeal focussed on the second aspect of the primary judge’s reasoning.

CONSIDERATION

23    The outcome of the primary judge’s analysis of the materiality question in this case was significantly influenced by his Honour’s understanding of the requirement that the inquiry be “backward looking” (and the related need that it be answered by reference to the decision that was made and, depending on the nature of the error, how it was made). In particular, the primary judge appears to have regarded himself as constrained to consider whether there was a realistic possibility that the outcome of the decision might have been different on the assumption that a key feature of the Tribunal’s actual reasons (the independence of the consideration of the two issues) would have remained unchanged in the face of additional evidence or submissions in relation to one of those issues.

24    To say that the inquiry is backward-looking is to contrast it with the prospective inquiry required in connection with the exercise of the Court’s residual discretion to deny prerogative relief: see, e.g., Hossain v Minister for Immigration and Border Protection (2016) 264 CLR 123; [2018] HCA 34 at [74], per Edelman J. Fundamentally, the difference between the two approaches is that the former is directed to ascertaining whether the error could have made any difference to the result, whereas the latter asks whether there would be utility in another hearing: see PQSM v Minister for Home Affairs [2019] FCA 1540 at [65], per Colvin J.

25    Thus, while “a court called upon to determine whether jurisdictional error has occurred must be careful not to assume the function of the decision-maker”, nevertheless “the court is … charged with the responsibility of determining for itself whether the result in fact arrived at by the decision-maker in the decision-making process could realistically have been different had that procedural irregularity not occurred”: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [51], per Kiefel CJ, Gageler, Keane and Gleeson JJ.

26    The inherent nature of that inquiry reveals why it would be inappropriate to treat any aspect of the Tribunal’s actual reasons, or reasoning process, as necessarily fixed for the purpose of the counterfactual analysis. To be open to the possibility that some feature of the decision might have changed does not involve any impermissible “reconstruction” of the decision-making process, or “rewriting” of the reasons for decision: see LDPT at [29], per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ. Nor does it deny that the question of materiality is to be “answered by reference to the decision that was made and, depending on the nature of the error, how it was made”: LPDT at [10], per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ. The actual decision (including how it was made, and the reasons given) remain indispensable to defining the subject matter and scope of the counterfactual inquiry (see, e.g., Minister for Home Affairs v BRO18 (2024) 302 FCR 259; [2024] FCAFC 27 at [33], per Bromwich, Derrington and Snaden JJ). As was observed in MZAPC at [38], per Kiefel CJ, Gageler, Keane and Gleeson JJ:

… whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

27    The way in which the actual decision under review, and the way in which it was made, is relevant to the counterfactual analysis is illustrated clearly by the following discussion of Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 in MZAPC at [49], per Kiefel CJ, Gageler, Keane and Gleeson JJ:

[W]hat was being acknowledged in Stead was that there might have been other facts disclosed by the appellate record that undermined the realistic possibility of the trial judge having found a causal link between the accident and the appellant’s condition had counsel been permitted to complete his submission. Within the forensic contest of the appeal, it was open to the respondent in argument to seek to identify those facts and to persuade the appellate court that the possibility was not realistic. That might have been a tall order given the centrality of the issue on which counsel had not been permitted to complete his submission, but not an inherently impossible one. Whether the appellate court was or was not satisfied that the appellant had been deprived of the realistic possibility of the trial judge having found a causal link would then fall to be determined at the end of the whole of the argument on the appeal having regard to inferences available to be drawn from the whole of the appellate record.

28    Whether the absence of error might have affected the forensic choices of the parties, the course of the hearing, the mode of reasoning adopted by the decision-maker, or any other aspect of the proceedings that might have altered the outcome must therefore be determined by reference to all of the relevant circumstances (see too Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [32], per Kiefel CJ, Keane and Gleeson JJ). There is no justification for assuming (as opposed to concluding on the basis of the evidence) that any particular feature of the decision or decision-making process would be unaffected by the error: to do so would undermine the very purpose of the inquiry. The backward-looking nature of the inquiry thus does not permit, much less require, an aspect of the decision that might have been affected by compliance with the obligation to provide procedural fairness to be held constant in any counterfactual analysis.

29    Where, as here, the alleged jurisdictional error is a denial of procedural fairness, care must be taken in reaching conclusions as to whether the decision could realistically have been different based upon the reasoning of a decision-maker. In such cases, “the court may be readily able to infer that, if fairly put on notice of that fact or issue, the applicant may have addressed it by further evidence or submissions” and, consequently, “it is ‘no easy task’ for the court to be satisfied that the loss of such an opportunity did not deprive the person of a successful outcome”: see LDPT at [15], per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ. In short, a defect in procedure, if remedied, is likely to have altered what the decision-maker was required to consider. Consequently, the reasoning would be required to engage with different circumstances. Further, conjecture as to what may have been reasoned if the procedure had been fair is prone to draw a court, on review, into undertaking the decision-maker’s task.

30    It follows that the primary judge’s finding that the “actual reasons of the decision made by the Tribunal [do] not disclose that it brought to bear upon its determination of the various issues arising under Direction 99 any of its findings as to the applicant having failed to pass the character test, or the grounds upon which he had failed the character test” (at [97]) could only ever have been the beginning of the analysis (see to similar effect at [95] and [100]). The counterfactual inquiry necessarily involved asking whether, as a matter of reasonable conjecture there was a realistic possibility that the Tribunal might have reasoned differently if the appellant had been afforded procedural fairness. In undertaking that inquiry, the court must be astute to view the parameters of the way the Tribunal had reasoned as being amenable to influence if the defect in the process had been remedied.

31    The Minister accepted that there was nothing in the historical facts, whether the Tribunal’s reasons for decision or otherwise, that would cast doubt on the reasonableness of the conjecture that the appellant would have responded, by way of both evidence and submissions, to an invitation by the Tribunal to address whether he failed the character test on the grounds specified in sub-ss 501(6)(c), (d)(i) and (d)(ii). Nor did the Minister dispute the possibility that the further evidence the appellant may have adduced, or submissions he may have made, could have been relevant to the “another reason” issue in addition to the “character test” issue. The Minister submitted, however, that the ultimate result on the counterfactual would have been unchanged, because:

… looking backwards, one takes the historical facts as they are, one can’t reconstruct the Tribunal’s reasons for decision. So one can’t say, “Well, had submission X been made about the section 501(6)(c) character test limb, then these factual findings made by the Tribunal in respect of protection of the Australian community might have been different.” But that wouldn’t be a permissible approach to take in analysing the materiality question, in part because, as I submitted earlier, the Tribunal did not take its additional adverse character test findings and deploy them in a manner adverse to the applicant in assessing whether or not there was another reason to revoke the cancellation decision.

32    Unconstrained, however, by any a priori assumption that the Tribunal’s consideration of the two issues would inevitably have remained entirely independent, with the decision in relation to the “another reason” issue accordingly unaffected by any new evidence or submissions in relation to the “character test” issue, there existed a realistic possibility that the outcome of the decision might have been different had there been no denial of procedural fairness. That is because:

(a)    additional evidence adduced in relation to the “character test” issue, may also have been relevant to the “another reason” issue. If it was, then the body of evidence relevant to the “another reason” issue for the purposes of the counterfactual would also have been different, notwithstanding that there was no denial of procedural fairness in relation to that issue. It would be presumed that the Tribunal would have approached the entirety of the evidence relevant to each issue with an open mind. In circumstances where the Tribunal’s decision was on its face extremely finely balanced, it thus simply cannot be said that additional evidence relevant to the “another reason” issue could not have made a difference to the outcome. See, by way of example, Bachelard v Australian Federal Police [2025] FCAFC 5 at [208]-[211], per McDonald J (Wigney and Thawley JJ agreeing);

(b)    additional submissions made in relation to the “character test” issue may have given rise to a realistic possibility that the outcome in relation to the “another reason” issue might have been different. As the summary of the issues before the Tribunal above demonstrates, there was considerable overlap between the matters relevant to the “character test” and “another reason” issues. The materiality inquiry must accommodate the possibility of submissions having a dual relevance, and, regardless of whether the Tribunal would or would not have used its findings in relation to the “character issue” in its determination of the “another reason” issue, the realistic possibility of a different outcome in relation to the latter is established; and

(c)    additional submissions in relation to the “another reason” issue may have been made, either consequential upon the augmentation of the body of evidence relevant to that issue (see (a) above), or simply by reason of different forensic decisions in relation to the “another reason” issue having been made as a result of an overall assessment of the altered issues in the proceeding. The possibility of such submissions gives rise to a realistic possibility of a different outcome in relation to the “another reason” issue.

33    Whether or not as a matter of historical fact the Tribunal reasoned independently in relation to both issues thus cannot provide a basis upon which to deny the materiality of the failure to provide procedural fairness in this case.

34    In any event, it may be doubted that the fundamental premise of the primary judge’s reasons (that the Tribunal’s findings and reasons in relation to the two issues were entirely independent of one another) is secure. It is not possible to infer from the terms of the footnote (quoted above at [16]) anything about the temporal sequence in which the Tribunal reached its conclusions. Draft reasons are not necessarily composed from start to finish, and there can be any number of reasons why a decision-maker may choose to include findings and reasoning relevant to two issues under one or the other, with a cross-reference either backwards or forwards as appropriate. If nothing else, until the point at which the reasons are published, the entire draft remains just that: a draft. In those circumstances, it cannot be assumed that the decision-makers’ thinking in relation to any one aspect becomes fixed before any other. The better inference to be drawn from the cross-reference contained in the relevant footnote is that the Tribunal did take into account findings relating to both issues in deciding each of them.

35    Moreover, to say that the Tribunal did not rely on findings made in relation to the “character test” issue in its determination of the “another reason” issue, does not mean that its decision-making in relation to the two issues was independent. To say, as the primary judge did at [97], that the “Tribunal turned its attention to each of the considerations arising from Direction 99 in a way that was independent to its findings about the applicant having failed the character test”, can mean no more than that the Tribunal did not rely in connection with the “another reason” issue on the fact that the appellant failed the character test on the specified grounds. On any view, however, and as the cross-reference in the footnote demonstrates, there was a significant amount of evidence and submissions before the Tribunal relevant to both issues. In circumstances where there was a common substratum of facts (and thus factual findings) which were relevant to both issues, and submissions concerning matters relevant to one issue must have been also relevant to the other, there was an inevitable and necessary connection between the determination of the two. It must be assumed that the Tribunal would proceed on the basis of consistent findings of fact for the purposes of determining each issue, and in those circumstances it is not possible to exclude the realistic possibility that additional evidence or submissions in relation to the “character test” issue could have affected the outcome of the “another reason” issue.

36    The conclusion that the denial of procedural fairness was material is not undermined by the fact that the inherent nature and scope of the “another reason” issue would remain unchanged in the counterfactual. In other words, the fact that the appellant did not adduce some piece of evidence, or make some submission, in relation to the “another reason” issue could never be justified by reference to the denial of procedural fairness. But so to observe is really just to make the uncontroversial point that there was no denial of procedural fairness in relation to the “another reason” issue. Once the focus of the analysis is returned to an assessment of the materiality of the denial of procedural fairness in relation to the “character test” issue, the irrelevance of the question whether the appellant can explain why he did not bring forward his best case in relation to the “another reason” issue when it was plainly in his interests to do so becomes clear.

37    In some cases, the fact that a party had every opportunity to present their best case despite a denial of procedural fairness may provide a proper basis for concluding that the error did not deny them a “realistic possibility” of a different result. In others, a party will be able to point to reasons why the contrary conclusion should be reached, including the potential for different forensic choices to have been made in light of the changed complexion of the case as a whole. In this case, it was not in dispute that, had the appellant known that the Tribunal was considering finding he failed the character test on other grounds, he might have adduced further evidence relevant, in particular, to his community involvement (and thus his character). That means that, even though that evidence would always have been helpful to his case in relation to the “another reason” issue, in the altered framework of the case as a whole, the denial of procedural fairness in relation to the “character test” issue did deprive him of a realistic possibility of a different outcome in relation to the decision as a whole.

CONCLUSION

38    For the foregoing reasons, the appeal should be allowed with costs, and appropriate consequential orders made to facilitate the determination of the appellant’s application for review of the delegate’s decision according to law.

Associate:

Dated:    11 June 2025