Federal Court of Australia

Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 102

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’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 appellant appeals from the judgment of a single judge of the Court in Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 791.

2    By that judgment, the primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal’s decision affirmed a decision of a delegate of the first respondent (the Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke a decision to cancel the appellant’s visa.

3    The sole ground of appeal alleges that the primary judge erred in failing to find that the Tribunal denied the appellant procedural fairness. The ground is concerned with a finding by the Tribunal that two witnesses called by the appellant, his mother and sister, “were not completely honest”. The appellant argues the Tribunal failed to provide him with any indication during the hearing that the credibility of the witnesses was in issue and, although such an indication was given after the hearing, it came too late to allow the appellant a reasonable opportunity to respond.

4    Before considering the parties’ submissions, we will summarise the factual background, the legislative scheme, the Tribunal’s decision and the primary judge’s reasons for judgment.

Factual Background

5    The appellant is a citizen of Fiji who has resided in Australia since 1997. On 25 August 2022, the appellant was sentenced in the District Court of Queensland to:

    three years’ imprisonment for one count of Choking Suffocation Strangulation Domestic Relationship – Domestic Violence Offence;

    twelve months’ imprisonment for one count of Assault Occasioning Bodily Harm – Domestic Violence Offence; and

    twelve months’ imprisonment for two counts of Contravention of a Domestic Violence Order.

6    The terms of imprisonment were to be served concurrently and suspended for a period of three years after serving 12 months’ imprisonment.

7    On 20 October 2022, the Minister (by a delegate) cancelled the appellant’s Permanent Resident Class AY Subclass 104 Preferential Family visa under s 501(3A) of the Act (the Cancellation Decision).

8    On about 7 November 2022, the appellant made written representations to the Minister seeking the revocation of the Cancellation Decision. On 17 July 2023, the appellant was notified that the Minister had decided to refuse to revoke the Cancellation Decision pursuant to s 501CA(4) of the Act (the Non-Revocation Decision).

9    On 21 July 2023, the appellant made an application to the Tribunal for review of the Non-Revocation Decision pursuant to s 500(1)(ba) of the Act. The hearing of the appellant’s application before the Tribunal took place on 28 and 29 September 2023 and the decision was reserved.

10    The Tribunal gave its decision on 9 October 2023 affirming the Non-Revocation Decision. The date of that decision was, under s 500L of the Act, the last day on which the Tribunal’s decision could be made. The Tribunal published its reasons on 25 October 2023: Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3438.

11    On 11 November 2023, the appellant filed an originating application in this Court seeking judicial review of the Tribunal’s decision. That application was dismissed by the primary judge on 19 July 2024. The appellant subsequently lodged a Notice of Appeal on 7 August 2024.

The legislative provisions

12    Section 501(3A) of the Act provides that the Minister must cancel a visa if satisfied, relevantly, that the visa holder does not pass the character test by operation of subparagraph (6)(a), which provides that a person does not pass the character test if the person has a “substantial criminal record”. Section 501(7)(c) provides that a person has a “substantial criminal record” if, relevantly, the person has been sentenced to a term of imprisonment of 12 months or more.

13    Section 501CA(3)(b) requires the Minister to invite the person to make representations about the revocation of the Minister’s original decision. The appellant made such representations.

14    The Non-Revocation Decision was made pursuant to s 501CA(4) which provides that:

(4)    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.

15    The provision confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if they are satisfied there is “another reason” why the original decision should be revoked: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [22].

16    At the time of the Tribunal’s decision, the jurisdiction, powers and procedures of the Tribunal in conducting a review under s 501CA(4) were affected by s 500 of the Act.

17    Relevantly, s 500(6J) of the Act provided:

If:

(a)    an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

(b)    the decision relates to a person in the migration zone;

the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review…

18    Section 500(6L) provided:

If:

(a)    an application is made to the Tribunal for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and

(b)    the decision relates to a person in the migration zone; and

(c)    the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.

The Tribunal’s reasons for decision

19    Both the appellant and the Minister were legally represented before the Tribunal.

20    The Tribunal determined it was satisfied that the appellant did not pass the character test, so the remaining issue was whether there was “another reason” to revoke the Cancellation Decision under s 501CA(4)(b)(ii) of the Act. The Tribunal then discussed the evidence before methodically working through Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99) and reaching its conclusion.

21    When considering the first primary consideration of, “protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens”, the Tribunal noted that the appellant had committed over 100 offences over a 23 year period; he had been physically violent on four separate occasions, including attacks on women that were “brutal and sustained”; and some of his offences constituted family violence. The Tribunal found, “His violent offending is, by its nature, very serious”.

22    The Tribunal considered a risk assessment performed by a clinical psychologist, Matt Visser, dated 24 May 2023, which determined there was a moderate to high risk of the appellant reoffending, depending on the support he received if released. Mr Visser noted that family relationships have a role in reducing the likelihood of reoffending.

23    In his submissions to the Tribunal, the appellant identified his mother and sister as “prosocial factors”. The Tribunal observed there was “mixed” evidence as to the closeness of the appellant to his mother and sister. The Tribunal found:

[169]    The Applicant’s mother and sister said they were unaware of the Applicant [sic] drug use and offending until very recently when a copy of his criminal history was provided for the purpose of this application. His mother described herself as “amazed” and “just stunned”. His sister was asked if she knew the details of the more recent assaults, and she said “I know the details that Dr Donnelly sent me, what he sent me, yes”.

[170]    This evidence does not sit comfortably with the evidence in District Court sentencing remarks that the Applicant’s mother and sister were in court when the Applicant was sentenced for his attack on Ms K and the threatening messages he sent to Ms N. The irresistible inference is that they were in court, not by coincidence, but because the Applicant was being sentenced. The learned Judge described the offending. They each have a good command of English. I find it extremely unlikely that they were unaware of what he was being sentenced for in August 2022. Therefore I find that they were not completely honest in their evidence, which undermines the credibility of their evidence in general.

[171]    I am satisfied that the Applicant’s mother and sister were ignorant of the Applicant’s criminal activity for the vast majority of the period of offending, which is consistent with evidence that he gave. I accept that none of the Applicant’s other family members knew about his offending and drug use until they were told in the course of these proceedings.

(Underlining added.)

24    The Tribunal noted the appellant’s mother and sister were in reasonably frequent contact with the appellant in the last three years of his offending before incarceration, yet for many years did not know about his drug-using lifestyle and offending. The Tribunal saw no reason why he could not hide drug taking and offending from them again, or why they could exert any real influence on his behaviour.

25    The Tribunal found that the primary consideration of protection of the Australian community weighed “very heavily against” the revocation of the Cancellation Decision.

26    The Tribunal returned to the evidence of the appellant’s mother and sister under the primary consideration of the strength, nature and duration of ties to Australia. The Tribunal particularly focused on evidence given by family members of a perceived risk the appellant would commit suicide if removed to Fiji.

27    The appellant’s sister’s evidence was that she and her mother had not done more to manage the risk of suicide while the appellant was in immigration detention because they did not fully understand the detention system, including who to ring or who to speak to. The Tribunal found that evidence to be disingenuous. The Tribunal concluded that the behaviour of the appellant’s mother and sister was, “not indicative of serious concern that [the appellant] would take his life now or if deported to Fiji” and the Tribunal did not accept that they held such concerns.

28    Ultimately, the Tribunal concluded that considerations which might favour the revocation of the Cancellation Decision, being the appellant’s ties to Australia and the significant impediments he may face if removed to Fiji, were outweighed by the appellant’s extremely serious criminal history, engagement in family violence and the expectations of the Australian community.

29    Importantly, the Tribunal, under the heading “Procedural Fairness” recounted events that had occurred between reserving its decision on Friday, 29 September 2023 and making its decision on Monday, 9 October 2023.

30    The Tribunal was required, under s 500(6L) of the Act, to decide the application before midnight on Monday, 9 October 2023. The Tribunal stated that it received the 206-page transcript of the hearing on the afternoon of Wednesday, 4 October 2023.

31    On the morning of Friday 6 October 2023, the Tribunal sent an email to the parties offering the appellant, “an opportunity to file addendum statements from his mother and/or sister to address the apparent anomalies in their evidence set out below”. One of the “anomalies” identified was that the District Court sentencing remarks of 25 August 2022 stated the appellant’s mother and sister were present in court, whereas in their evidence to the Tribunal, they each said they did not know about the appellant’s offending until recently when the sister had been given a copy of his criminal history. The email noted that the “current state of the evidence” may lead the Tribunal to make adverse findings about the credibility of the appellant’s mother and/or sister. The Tribunal asked that any material be filed and provided to the Minister by 8.00 am on Monday, 9 October 2023.

32    The appellant’s legal representative responded by email that afternoon, saying that the appellant was now prohibited from adducing any further witness statements by s 500(6J) of the Act. The representative went on to make submissions about why the Tribunal should not make findings adverse to the credibility of the appellant’s mother and sister. The email stated that, as a matter of procedural fairness, before the Tribunal could make adverse findings in relation to the impugned issues, the allegations would need to be put to the appellant, the appellant’s mother and the appellant’s sister.

33    On the same afternoon, the Tribunal responded saying that as the Tribunal had invited the appellant to adduce further evidence, the two-day rule under s 500(6J) of the Act did not apply. On the morning of Monday, 9 October 2023, the Minister’s legal representatives emailed the Tribunal and the appellant expressing the same view.

34    In its reasons, the Tribunal stated, with respect to the appellant’s complaint that matters were not put to the witnesses during the hearing that, “it is not reasonable to expect the Respondent, or the Tribunal for that matter, to alert the Applicant to every weakness in his case”. The Tribunal considered that the, “invitation from the Tribunal following the hearing was made over and above the requirements of procedural fairness”.

35    The appellant did not provide any further statements from his mother or sister and the Tribunal proceeded to make its decision.

The reasons of the primary judge

36    The appellant relied on five grounds of review. The primary judge rejected each ground. The appeal does not challenge the primary judge’s reasons in respect of four of the grounds. Accordingly, it is unnecessary to summarise his Honour’s reasons for rejecting those grounds.

37    The appellant’s third ground of review asserted the appellant was denied procedural fairness in respect of the Tribunal’s finding that the evidence of the appellant’s mother and sister was not “completely honest”. The appellant submitted he had not been advised of this adverse conclusion during the hearing, which was not obviously open on the material and which was critical to the Tribunal’s decision. The appellant further submitted that the Tribunal’s invitation to make further submissions on 6 October 2023 did not cure the Tribunal’s breach of procedural fairness obligations, as the effect of s 500(6J) of the Act was that the appellant was not permitted to adduce further written evidence in support of his case. The appellant contended, in the alternative, that the Tribunal’s delayed notification of the proposed adverse conclusion afforded him insufficient time to adequately respond.

38    The primary judge held that the obligation of the Tribunal to identify to the appellant an issue critical to its decision is limited to adverse conclusions that would not be “open on the known material”, referring to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) and Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone).

39    After considering exchanges between the Tribunal and the appellant’s mother and sister during the hearing, the primary judge held:

[62]    The position therefore was that there was evidence before the Tribunal that the applicant’s mother and sister were present in the District Court when the sentencing judge observed and remarked upon the applicant’s “lengthy and relevant criminal history”. The Tribunal also had evidence that the applicant’s mother and sister were unaware of that criminal history until more recently as part of the proceedings before the Tribunal. Both the applicant’s mother and sister were asked questions about their prior knowledge of the applicant’s criminal history and its extent. The Tribunal, having heard evidence from the applicant’s mother and sister, concluded that they had a “good command of English” and, as a result, concluded that it was “extremely unlikely” that they were unaware of the applicant’s prior criminal offending in circumstances where they were both present in Court at the time the applicant was sentenced. In short, the Tribunal engaged in an exercise of evaluating the evidence before it and made a decision not to accept it in this respect. The acceptance or rejection of that evidence was a matter for the Tribunal and was part of its process of reasoning.

[63]    In the circumstances, it is my view that the Tribunal was not required to expose to the applicant, or the applicant’s mother or sister, that the Tribunal would not be accepting their evidence that they had only learned about the applicant’s prior criminal history in recent times. Whether the Tribunal would accept or reject their evidence in this regard was a matter that was obvious on the known material.

(Citation omitted.)

40    The primary judge continued:

[65]    The question as to whether the Tribunal could afford procedural fairness by inviting further comment after the conclusion of the Tribunal hearing does not need to be decided in view of the conclusions I have reached that the Tribunal did not deny the applicant procedural fairness. In any event and for completeness, I do not regard s 500(6J) of the Act as having prevented the Tribunal from affording the applicant an opportunity to comment on particular matters or giving the applicant an opportunity to provide further materials following the conclusion of the Tribunal hearing. As the Minister submitted, s 500(6J) does not apply to information which is sought from the applicant by the Tribunal of its own initiative, and, instead, it applies only in respect of information provided by the applicant in support of his case in chief. The Minister further submitted that s 500(6H) did not preclude such steps as it operated in respect of witness testimony or oral testimony in chief given by the applicant. In my view, the Minister’s submissions should be accepted. As the Full Court held in DOM19 at [17], s 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to review beyond what is required by its terms. Nor do these provisions of the Act affect or operate inconsistently with the Tribunal’s obligations under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to afford procedural fairness to the applicant including, where necessary, to adjourn proceedings. In my view, ss 500(6H) and (6J) do not restrict the operation of the AAT Act in respect of the obligations imposed on the Tribunal to ensure that every party to a proceeding is given a reasonable opportunity to present their case, to adjourn proceedings, or to require any party to provide further information in relation to a proceeding.

[66]    It may be accepted that, here, to the extent that the Tribunal sought to give the applicant an opportunity to comment, it was, in practical terms, a short period of time. The Tribunal wrote to the applicant’s representatives at 11.48am on Friday 6 October 2023 and invited a response by 8.00am on Monday 9 October 2023. Although in the ordinary course, the period of time afforded for a response may be regarded as extremely short, that period has to be considered in light of the statutory framework within which the Tribunal was obliged to make a decision and, as the Tribunal observed, the availability of a transcript and its review.

(Citations omitted.)

41    Consequently, the primary judge rejected the third ground of review. The primary judge dismissed the application with costs.

The ground of appeal

42    The appellant’s Notice of Appeal contains a single ground of appeal, as follows:

1.    The primary judge erred in failing to find that the Tribunal denied the appellant procedural fairness.

43    The appellant seeks orders that the orders of the primary judge be set aside, that the decision of the Tribunal be set aside, and that the appellant’s application for review of the Non-Revocation Decision be remitted to the Administrative Review Tribunal to be determined according to law.

The submissions

44    The appellant submits the primary judge ought to have found that the Tribunal denied him procedural fairness by making adverse findings about the credibility of key witnesses — the appellant’s mother and sister — without adequate notice and opportunity to be heard.

45    The appellant takes issue with the finding of the primary judge that the Tribunal’s obligation to notify the appellant is limited to adverse conclusions which would not be “open on the known material”, rather than applying the formulation “would not obviously be open on the known material” (emphasis added) used in Alphaone at 592.

46    The appellant argues that the Tribunal’s conclusion, that the evidence of his mother and sister was not credible, was not obviously open on the known material. The appellant submits that they were not given a realistic opportunity to respond to the serious concerns the Tribunal had about their credibility, clarify their evidence or expand upon those aspects of their evidence that may have given rise to the perceived inconsistencies. The appellant submits that, as in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516, neither the Minister nor the Tribunal made any suggestion during the witnesses’ oral evidence that they may have been dishonest.

47    The second error asserted by the appellant concerns the primary judge’s conclusion that any procedural fairness obligations were satisfied by the Tribunal’s invitation after the hearing for the appellant to comment on the proposed adverse credibility findings against his witnesses.

48    The appellant argues that the invitation to comment only one business day before the Tribunal handed down its decision was inadequate and did not give the appellant a genuine opportunity to be heard. The appellant submits that the five business hours the appellant had to read the email, obtain instructions, prepare evidence, consider the invitation for an additional hearing and respond to the Tribunal was insufficient time, especially given the serious concerns raised by the Tribunal about the dishonesty of the appellant’s witnesses and the possibility they had conspired with the appellant in preparing their evidence.

49    The Minister submits that the primary judge was correct to conclude that the Tribunal was not required to disclose its proposed adverse credibility findings and that, in any event, it had afforded the appellant procedural fairness. The Minister identifies a number of aspects of the evidence which they contend demonstrate that the Tribunal’s conclusion was a natural and obvious evaluation of the material. The Minister points to, amongst other things, the Tribunal having put to the appellant’s mother that her evidence the appellant had, “made some very bad choices and drugs” made it “soun[d] like [she] d[id] know a bit about what he was doing”. The Minister also submits that the Tribunal engaged in questioning of the sister’s awareness of the appellant’s criminal history. The Minister submits that the appellant’s characterisation of what was not “obvious” is unsustainable.

50    The Minister submits that even if the Tribunal was required to inform the appellant of the possible adverse findings, such notification was provided after the hearing. The Minister accepts that the one business day to respond to proposed adverse findings was a short period of time, but submits that the Tribunal was required to act with urgency, given the deadline mandated by s 500(6L) of the Act. The Minister submits a refusal to provide further evidence is not a denial of an opportunity to be heard.

51    Finally, the Minister submits that even if the Tribunal’s adverse credibility finding was in error, it was not material to the final decision. The Minister argues that the loss of a better opportunity to respond to the Tribunal’s proposed adverse credibility findings did not deprive the appellant of any realistic possibility of a better outcome.

Consideration

52    The Tribunal found that the appellant’s mother and sister, “were not completely honest in their evidence, which undermines the credibility of their evidence in general”. That finding stemmed from the Tribunal’s opinion that there was inconsistency between the appellant’s mother’s and sister’s evidence that they were unaware of the appellant’s drug use and offending until “very recently” and their presence during the appellant’s sentencing in the District Court on 25 August 2022. That finding then influenced the Tribunal’s rejection of their evidence that they held serious concerns the appellant would take his own life if removed to Fiji.

53    The Tribunal expressly notified the appellant after the hearing, but before making its decision, that the Tribunal may make adverse findings about the credibility of his mother’s and sister’s evidence. The appellant argues that he was nevertheless denied procedural fairness because the notification came too late to allow him a reasonable opportunity to obtain and present further evidence from his mother and sister. The appellant also argues that the Tribunal failed to adequately place him on notice during the hearing that the credibility of those witnesses could be in issue and that amounted to a denial of procedural fairness.

54    It is necessary for the appellant to demonstrate that the primary judge erred in rejecting each of these arguments in order to succeed in the appeal. If the appellant was accorded procedural fairness by the Tribunal’s express notification after the hearing that the credibility of the appellant’s mother and sister was in issue, it will not matter whether the Tribunal failed to notify him of that issue during the hearing. It is therefore appropriate to begin by considering whether the Tribunal’s notification after the hearing was adequate to discharge any obligation of procedural fairness.

55    Procedural fairness requires that each party be given a reasonable opportunity to present their case and answer the case made against them: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ); Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J). What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 552-553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26].

56    The appellant was notified of the Minister’s Non-Revocation Decision on 17 July 2023. At that time, s 500(6L) of the Act provided that if the Tribunal had not made a decision within a period of 84 days after the day on which the person was notified of the decision under review, then the Tribunal was taken to have made a decision to affirm the decision under review. The Tribunal was accordingly required to make its decision no later than midnight on 9 October 2023.

57    The Tribunal conducted the hearing on 28 and 29 September 2023 and reserved its decision. The Tribunal’s reasons record that it received the 206-page transcript of the hearing on the afternoon of Wednesday, 4 October 2023.

58    At 11.48 am on Friday, 6 October 2023, the Tribunal sent the following email to the parties:

The Tribunal is offering the applicant an opportunity to file addendum statements from his mother and/or sister to address the apparent anomalies in their evidence set out below. If addendum statements are filed, it may be appropriate to recall the witnesses for some questioning. The Tribunal is able to hold a very short resumed hearing on Monday 9 October 2023. As the parties are aware the Tribunal has until 11.59pm on 9 October 2023 to decide the application to avoid the reviewable decision being automatically affirmed.

1.    The District Court sentencing remarks dated 25 August 2022 state that the Applicant’s mother and sister were present in court. In their evidence, they each said they did not know about the Applicant’s offending until Dr Donnelly recently gave the Applicant’s sister a copy of his criminal history.

2.    The statements made by the applicant’s mother and sister, respectively (the most recent dated 20 August 2023), do not men tion [sic] any concern about a suicide risk. The topic of suicide was raised by the Tribunal on the first hearing day when asking his uncle about a comment in his written statement that he was concerned that the applicant “could” commit suicide if returned to Fiji. In the Applicant’s mother’s and sister’s oral evidence on the second hearing day, they each volunteered that the Applicant was suicidal and would commit suicide if returned to Fiji.

The relevant extracts of the transcript are contained in the attached document.

The current state of the evidence may lead the Tribunal to make adverse findings about the credibility of the Applicant’s mother and/or sister due to the above apparent anomalies in their evidence. Further, the Tribunal may infer that the applicant’s mother, sister or both were told by the Applicant to tell the Tribunal that he was suicidal at the prospect of being returned to Fiji to enhance his prospects of getting his visa back.

[The appellant’s legal representative], are you able to indicate by close of business today whether your client wishes to file addendum statements in relation to these specific issues? If he does, could that material please be filed and provided to the Respondent by 8am on Monday 9 October 2023.

59    It may be seen that the Tribunal expressed doubts about the credibility of the appellant’s mother’s and sister’s evidence that they did not know about his offending until recently. The appellant was offered the opportunity to provide statements from his mother and sister to address these matters by 8.00 am on Monday, 9 October 2023.

60    In its email to the parties, the Tribunal also raised a concern that the appellant may have persuaded his mother and sister to concoct evidence that they were concerned the appellant was suicidal at the prospect of being returned to Fiji. It can be accepted that the issue raised by the Tribunal was a serious one which must have caused the appellant and his legal representative considerable consternation. However, in subsequent correspondence, the Minister declined to contend that there was any such conspiracy and the Tribunal ultimately proceeded on the basis that there was no such conspiracy. It is unnecessary to refer to the parts of the subsequent correspondence which deal with that issue.

61    The appellant’s legal representative responded to the Tribunal by email at 4.46 pm on Friday, 6 October 2023, as follows:

In preparing this correspondence, I have consulted with the applicant.

I note as follows.

First, the applicant understands that he is prohibited from adducing any witness statement now: see Migration Act 1958 (Cth), s 500(6J).

Even if the hearing were to be reconvened on Monday, 9 October 2023, the applicant would not have given the additional witness statements to the Minister two business days before the reconvened hearing. It follows that the Tribunal does not have the power to receive further written material in support of the applicant’s case, even if it wished to do so.

Second, as to the matters raised by the Tribunal, the following can be said.

Criminal Record Issue

Even if it be accepted that the applicant’s mother and sister were present in Court on the relevant occasion, it does not necessarily follow that they were present in Court for the entirety of the sentencing proceedings. Nor does it necessarily follow that the applicant’s sister and mother followed all that was said in the sentencing proceedings.

As the writer can best recall the oral evidence of the applicant’s sister and mother, they said they only received a copy of the applicant’s formal criminal record from the writer recently. As such, they recently had an opportunity to review that record.

The fact that the applicant’s sister and mother were present at the applicant’s sentencing hearing does not mean that their presence at those proceedings meant that they received full knowledge of the applicant’s criminal history, including the full nature and sentences the applicant had received.

…

Procedural Fairness Issues

As a matter of procedural fairness, before the Tribunal could make adverse findings in relation to the impugned issues raised, the allegations would need to be put to the applicant, the applicant’s mother and the applicant’s sister.

The writer is engaged in another hearing in the Tribunal in Adelaide on Monday and Tuesday next week. As such, the writer does not have capacity to appear on Monday in any event. Regardless, as stated above, s 500(6J) prohibits the applicant from adducing further written evidence at this time.

The applicant is also concerned that these issues have been raised, in effect, at the 11th hour by the Tribunal. They were not, of course, raised during the trial by either the Tribunal or the Minister. These raise serious procedural fairness concerns for the applicant.

62    The legal representative’s reference to having “consulted” with the appellant indicates that his response was provided on instructions. The appellant’s position was, in effect, that s 500(6J) of the Act would prevent the Tribunal’s use of any further statements as they could not be provided to the Minister two business days before any reconvened hearing, and it would therefore be pointless to provide any further statements. The response did not suggest that further statements from the appellant’s mother and sister could not be obtained within the required time. It may be noted that the appellant took the opportunity to make substantive submissions about why the evidence of his mother and sister should not be disbelieved.

63    At 5.13 pm on Friday, 6 October 2023, the Tribunal responded as follows:

Thank you for your reply. To clarify, the Tribunal has invited your client to file and/or adduce further evidence on specific issues so the two day rule does not apply.

If this changes your client’s position, please advise the Tribunal as soon as possible.

64    At 5.59 pm on Friday, 6 October 2023, the applicant’s legal representative replied, saying:

The applicant indicates that he maintains the position indicated in my previous email sent today. Section 500(6J) of the Migration Act 1958 (Cth) applies and the applicant is prohibited from adducing further written evidence in his case now.

65    At 11.16 am on Monday, 9 October 2023, the Minister’s legal representatives sent an email to the Tribunal and the appellant, saying, relevantly:

The Minister considers that evidence requested by the Tribunal to address serious concerns with the applicant’s evidence cannot sensibly be described as being in support of the applicant’s case, such that the Tribunal’s proposed approach does not offend the 2 day rule. In any event, given the applicant does not propose to provide further evidence today, there is no breach of the 2 day rule. See Uelese v Minister for Immigration and Border Protection [2015] HCA 15 at [43]-[53] and [97]-[104].

66    At 11.54 am on Monday, 9 October 2023, the applicant’s legal representative responded to the Minister’s submission that the two-day rule would not be offended, saying:

That submission should be respectfully rejected. The applicant would be adducing evidence to bolster credibility of various witnesses and explain purported inconsistencies as proposed by the Tribunal. Such evidence would be adduced in support of the applicant’s case. The whole point of the applicant adducing evidence is, as a general proposition, is to support his case. The question is not about the fact that the Tribunal has ‘requested’ the evidence. The question is whether the applicant would be adducing evidence in support of his case. He would be, so to avoid adverse credibility findings.

67    It is a matter of some curiosity that even though the Tribunal and the Minister (referring to authority) accepted the appellant should, in his own interests, have the opportunity to adduce evidence from his mother and sister to assuage the Tribunal’s concerns about their credibility, the appellant adamantly argued that he could not be given that opportunity.

68    Section 500(6J) of the Act prohibited the Tribunal from having regard to “any document submitted in support of the person’s case” unless a copy was given to the Minister at least two business days before the Tribunal held a hearing. The primary judge held that the provision did not prevent the Tribunal from affording the appellant an opportunity to comment on particular matters or to provide further materials following the conclusion of the hearing, citing Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [5], [44], [57], [70], [77] and [97]-[104] and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 (2022) 289 FCR 499 at [17] and [32]. That aspect of the primary judgment has not been challenged in the appeal.

69    There was no further correspondence after the email of 11.54 am on Monday, 9 October 2023, from the appellant’s legal representative. The appellant did not provide any further statements from his mother or sister and the Tribunal proceeded to make its decision later that day.

70    The appellant argues the invitation to comment only one business day before the Tribunal handed down its decision was inadequate and did not give the appellant a genuine opportunity to be heard. The appellant submits:

The five business hours the appellant had to read the email, obtain instructions, prepare evidence, consider the invitation for an additional hearing and respond to the Tribunal were unfairly inadequate, especially given the serious concerns raised by the Tribunal in its Friday email about the dishonesty of the appellant’s witnesses and the possibility that they had conspired with the appellant in preparing their evidence. And any evidence that might have been capable of being provided to the Tribunal by Monday morning would not have had any realistic chance of meaningfully changing the substance of the Tribunal’s reasons or its adverse credibility findings against the appellant’s witnesses, where the decision had to be made that same day.

71    We will deal first with the appellant’s submission that further evidence from his mother and sister, “would not have had any realistic chance of meaningfully changing the substance of the Tribunal’s reasons or its adverse credibility findings against the appellant’s witnesses, where the decision had to be made that same day”. The appellant’s senior counsel conceded in oral argument that the Tribunal had formed a view concerning the credibility of the appellant’s mother and sister “on a preliminary basis”, and that senior counsel was not submitting that the Tribunal's view was fixed and could not be affected by further statements provided by the appellant’s mother and sister. Those concessions mean it cannot be established that the provision of further statements on the morning of the decision providing a satisfactory explanation for the discrepancy identified by the Tribunal could not realistically have affected the Tribunal’s preliminary view. In any event, the fact that the Tribunal resiled from the view it had expressed about a possible conspiracy to give false evidence about the risk of suicide demonstrates that if further (persuasive) statements had been provided, the Tribunal may also have departed from its preliminary view about when the appellant’s mother and sister became aware of the appellant’s drug use and offending.

72    The Tribunal received the transcript of the hearing on the afternoon of Wednesday, 4 October 2023. The Tribunal evidently read the transcript before deciding to send its email of Friday, 6 October 2023. The appellant has not suggested there was any relevant delay on the part of the Tribunal between the hearing and the email being sent.

73    The Tribunal was required under s 500(6L) of the Act to make its decision before midnight on Monday, 9 October 2023, at least if its decision would uphold the appellant’s application for review. The Tribunal’s requirement that the appellant provide any further statements by 8.00 am on Monday, 9 October 2023 was designed to allow time for the Minister to consider the further statements, for any further short hearing that may be required and for the Tribunal to make its decision on the same day. It can be accepted that the time allowed by the Tribunal for the provision of further statements was very short, but it was, in the circumstances, as much time as was available.

74    The appellant submits that the seriousness of the concerns raised by the Tribunal affected the time the appellant ought reasonably to have been allowed to provide responding statements. It can be accepted that the concerns were serious. However, the two issues raised by the Tribunal were discrete and confined. The Tribunal provided the appellant with the relevant extracts of the transcript. The appellant’s senior counsel accepted in the appeal hearing that the statements could have taken the form of emails from the appellant’s mother and sister. It cannot be inferred that obtaining the necessary statements would have been an onerous or particularly time-consuming task. The appellant’s legal representative did not suggest in his correspondence to the Tribunal that statements could not be obtained from the appellant’s mother and sister within the required time frame.

75    There were two days over the weekend before Monday, 9 October 2023 during which the appellant’s legal representative might have sought statements from the appellant’s mother and sister. The appellant’s senior counsel urged the Court not to make any finding which contemplates lawyers having to work outside business hours or over the weekend. The submission seemed to be that the possibility of statements being obtained over the weekend should be ignored and the Court should treat the appellant’s legal representative as only having had five business hours on Friday 8 October 2023 to obtain the statements.

76    The submission has an air of unreality. There was a strict time limit imposed by s 500(6L) of the Act for the Tribunal to make any decision favourable to the appellant. Accordingly, the Tribunal was required to consider the application for review with urgency and the appellant’s legal representative took the brief knowing that he might be required to act with urgency to advance the appellant’s interests, particularly bearing in mind the grave consequences of an adverse outcome for the appellant, including his permanent removal to Fiji after having lived in Australia for 28 years. The fact that the appellant’s legal representative had two days over the weekend during which he could have obtained further statements cannot be ignored. We should, as a matter of fairness, observe that the suggestion the appellant’s legal representative before the Tribunal could not be expected to work on the case over the weekend did not come from the representative himself.

77    The correspondence makes it apparent that the appellant’s legal representative, on instructions, made a forensic choice not to provide further statements from the appellant’s mother or sister on the assumption (which was incorrect) that s 500(6J) of the Act would prohibit the Tribunal from considering any such statements. That no further statements were provided was a deliberate choice and was not, on the evidence, because of any lack of opportunity to do so.

78    The appellant has not demonstrated any error in the primary judge’s conclusion that the appellant was not denied a reasonable opportunity to provide further statements to the Tribunal from his mother and sister in response to concerns expressed by the Tribunal after the hearing about their credibility.

79    This conclusion makes it unnecessary to address the appellant’s submission that he was denied procedural fairness by the Tribunal’s failure to draw his attention to concerns about the credibility of his mother and sister during the hearing. Even if it is assumed that the Tribunal ought to have raised its concerns during the hearing, they were expressly raised after the hearing and the appellant was given a reasonable opportunity to address those concerns.

80    The appeal must be dismissed with costs.

Associate:    

Dated:    8 August 2025