FEDERAL COURT OF AUSTRALIA

Mordechai v Minister for Immigration and Citizenship [2011] FCA 986

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    There be no order as to costs.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1    This is an appeal against a decision of the Administrative Appeals Tribunal (the Tribunal) to uphold the refusal by the first respondent (the Minister) to grant a spouse visa to the applicant on the grounds of failure to pass the character test in s 501(6)(a) of the Migration Act 1958 (Cth) (the Act).

2    The applicant lodged his application to the Tribunal in the name of Jimmy Mostafa. Correspondence from his former solicitor (who appeared before the Tribunal but not before the Court, and whom I will refer to as the solicitor) to the Tribunal stated that he is also known as Moshe Yair Mordechai. The Tribunal’s reasons refer to the applicant as Jimmy Martin Mostafa. The Tribunal notes at [1] of its reasons that the applicant “goes by” the name Moshe Yair Mordechai. As this application was brought in the name of Moshe Yair Mordechai, I will refer to the applicant as Mr Mordechai.

PROCEDURAL PROBLEMS

3    The hearing of this matter has been plagued by procedural problems, caused in large part by the inadequacy of the preparation and submissions of the Minister’s legal representatives, as well as their general approach to this litigation. Mr Mordechai appears unrepresented. That is not unusual; the Minister should be used to responding to unrepresented litigants. Further, Mr Mordechai is in detention, without access to the resources available to the Minister. In such circumstances, it is common for the Court to look to the Minister, acting as a model litigant, to assist the Court in the determination of the issues presented. In such circumstances it is most surprising that the Minister’s legal representatives chose not to have available in Court on the original hearing date of 29 June 2011 (the original hearing) the file of the proceedings in the Tribunal. It is even more surprising that, after the matter had been adjourned to enable the Minister’s solicitors to consult the file and the Minister had filed a notice of motion seeking leave to re-open, when the hearing resumed on 12 July 2011 (the resumed hearing) the Minister’s legal representatives still did not bother to bring either the file or the full transcript of the Tribunal hearing to Court. This has resulted in numerous rounds of submitted evidence and written submissions from both parties and has caused Mr Mordechai unnecessary anxiety. It has also resulted in procedural difficulties and unnecessary utilisation of Court time.

THE TRIBUNAL DECISION

4    Mr Mordechai first arrived in Australia on 9 April 1981 on a visitor visa and stayed for 19 days. He returned on 2 January 1999 on an Electronic Travel Authority. He later applied for a family residence visa and then a spouse visa, having married an Australian citizen in January 2001. Between 2002 and 2008 Mr Mordechai was charged with and then convicted of a range of offences that attracted sentences of up to 20 months imprisonment. These sentences were dealt with by way of a treatment plan under the Mental Health (Forensic Provisions) Act 1990 (NSW).

5    On 10 September 2010, a delegate of the Minister (the Delegate) decided to refuse Mr Mordechai’s application for a spouse visa on the ground that he did not pass the character test in s 501(6)(a) of the Act on the basis of his past convictions. In that decision, the Delegate said, under the heading “Risk that the conduct may be repeated”:

I made specific note of [the solicitor’s] comments regarding Mr [Mordechai’s] risk of recidivism being linked to his ‘treatment regime and predicted trajectory of his medical condition’. I also note that no information has been provided indicating an ongoing treatment regime or progress in relation to his medical condition.

[emphasis added]

6    Mr Mordechai appealed the Delegate’s decision to the Tribunal on 19 November 2010. The proceedings were listed for hearing on 18 January 2011, a Tuesday, and continued on 19 January. Mr Mordechai gave evidence to the Tribunal by telephone.

7    There was no dispute before the Tribunal that Mr Mordechai did not pass the character test within the meaning of s 501 of the Act as Mr Mordechai has a ‘substantial criminal record’, having been sentenced (though apparently not incarcerated) for a term greater than 12 months. As the Tribunal stated at [5], the discretion of the Minister to refuse the visa application was thus enlivened. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. In exercising that discretion, the decision maker must apply Ministerial Direction No 41 on Visa Refusal and Cancellation under s 501, which came into effect on 15 June 2009 (the Direction). The Direction contains a number of primary considerations and “other” considerations.

8    The Tribunal upheld the Delegate’s decision. The Tribunal considered for itself each of the primary considerations and the other considerations in detail and then concluded by turning to the balance of the considerations at [51]-[53]:

Of the primary considerations, the protection of the Australian community weighs heavily against grant of a visa, while the best interests of Mr [Mordechai’s] child, weighs moderately in favour of a grant. The paucity of evidence of Mr [Mordechai’s] relationship with his son and the lack of corroboration of Mr [Mordechai’s] claims prevent me from giving more weight to this consideration. In the result the protection of the Australian community, which I consider would be at an unacceptably high risk were Mr [Mordechai] to remain here, tips the balance decidedly.

Of the other considerations, Mr [Mordechai’s] family ties in Australia, his health and the hardship that may be suffered by him, his wife and his son should he be returned to the United States each weighs moderately or minimally in favour of grant of visa. All of these considerations rest on evidence that was often inconsistent and generally not corroborated. Nevertheless, at their highest these other considerations do not outweigh the unacceptably high risk to the Australian community were the visa to be granted.

On balance, I consider that the weight of considerations, particularly the primary consideration of protection of the community, is against the grant of a visa.

The APPLICATION BEFORE THE COURT

9    Mr Mordechai’s original application did not include any detail of the grounds relied on other than an assertion of ‘error of law in the decision itself and in the manner in which [the Tribunal] conducted the case’.

10    Mr Mordechai subsequently filed an amended application which does not refer to questions of law but contains the following grounds:

1.    Failing to take into account very relevant facts in the case.

2.    The scheme for dealing with applications for review under section 500(6H) is designed to disadvantage an applicant for review without any consideration of circumstance beyond the applicant control.

3.    Error of law in the decision itself and the manner in which the Administrative Appeals Tribunal conducted the case.

4.    Failing to take into account Australia’s obligation under the International Covenant on Civil Rights and Protections of Child.

5.    Failing to take into account Australia’s obligation under the International Covenant on Protection of Family Unit.

6.    Failing to take into account Australia’s obligation under the International Covenant on Political Rights.

7.    Failing to take into account the Commonwealth obligation under the International Covenant on Human Rights.

FURTHER PROCEDURAL PROBlems

11    As stated earlier, Mr Mordechai appears in person in this application. When the matter was first before the Court for a directions hearing on 1 April 2011, the parties proposed and I made short minutes of order which included an order that Mr Mordechai could file and serve any additional evidence on which he wished to rely. Prior to the original hearing, Mr Mordechai filed 3 cm thick documentation entitled “Applicant submission” (said to be 278 pages) which includes:

    a document with different grounds for asserted error on the part of the Tribunal to those in the amended application;

    some material that may be in the nature of submissions;

    documents which form part of the Court book;

    documents which are not in the Court book and which may or may not have been before the Tribunal; and

    documents not in English.

There is no index, the pages are not numbered and there is no affidavit or affirmation. There is no explanation of the relevance or provenance of the documents. The Minister objected to these documents on the grounds of relevance. Mr Mordechai did not press the tender and, with the exception of the first 12 pages which are in the nature of submission, I rejected them. Mr Mordechai also handed up additional written submissions at the original hearing.

12    It is necessary at this point to revisit the circumstances surrounding the resumed hearing. As stated earlier, the Minister filed a notice of motion seeking leave to re-open following the original hearing in order to tender further evidence and make submissions. This was opposed by Mr Mordechai.

13    The Minister’s submission that he should be permitted to re-open was based on the principles outlined by Kenny J in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], which are, in summary: fresh evidence, inadvertent error, mistaken apprehension of the facts and mistaken apprehension of the law. In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open.

14    I do not accept that the Minister’s additional evidence could not have been discovered before the original hearing. It was available in the Minister’s file. I do not accept that there has been inadvertence, for the same reason. Accordingly, I do not accept the Minister’s submission that he has established that the evidence should be admitted by application of the principles in Murray v Figge (1974) 4 ALR 612.

15    However, Mr Mordechai had submitted at the original hearing that the Tribunal erred in failing to have regard to a separate protection visa application that he had made prior to the Tribunal hearing (the protection visa application), which is an issue in these proceedings. The application to re-open concerned that issue. Further and importantly, the application to re-open also related to the provision of extra evidence on the question of the Tribunal’s application of ss 500(6H) and (6J) of the Act to reject proposed evidence from Mr Mordechai, which is also in issue in these proceedings. In my view, it is important that where an applicant seeks to establish jurisdictional error by the Tribunal the integrity of the Tribunal decision should not be called into question on a false basis.

16    I therefore determined that leave to re-open should be granted.

17    Prior to the resumed hearing, Mr Mordechai filed further submissions and further evidence by way of submissions. At the resumed hearing, the Minister made no submission that Mr Mordechai’s further evidence should be rejected. Part of the evidence and submissions referred to an allegation that there were telephone calls between the solicitor and the Minister’s legal representatives, whereby the Minister specifically accepted an unsigned statement, which, as I will explain below, is a contested fact in these proceedings. At the resumed hearing, Mr Mordechai levelled certain accusations against the solicitor. Again, the Minister did not object. That gave rise to further inquiries which the Minister could not answer at the resumed hearing because, once again, the file had not been brought to Court.

18    Following the resumed hearing, Mr Mordechai submitted further affidavit evidence in response to questions raised by the Court during the resumed hearing. This included emails allegedly between Mr Mordechai and the solicitor, which referred to conversations between the solicitor and the Minister’s legal representatives (the Mordechai emails). The solicitor then filed an affidavit, ostensibly on behalf of Mr Mordechai. The solicitor annexed email correspondence between the solicitor and Mr Mordechai which was inconsistent with the Mordechai emails. Again, the Minister did not object to this evidence. Mr Mordechai, in writing, asserted that the solicitor’s affidavit was not filed on his behalf.

19    Following the resumed hearing, the Minister also filed further submissions, responding to questions raised by the Court during the resumed hearing. Answers to those questions were provided by the Minister in accordance with his role as a model litigant. In addition, the Minister filed affidavits from his own solicitors, including Ms Bush and Ms Linacre, responding to assertions made in the Mordechai emails. In summary, this evidence explained that the Minister’s solicitors had searched their records, including file notes and records of calls, and had found no record or reference in the transcript of the Tribunal hearing which assisted Mr Mordechai.

20    Following receipt of this material, I asked the parties, in correspondence, if either wished to rely on the solicitor’s affidavit. Mr Mordechai opposed its admission into evidence and repeated that it had not been filed by him or on his behalf. The Minister’s solicitors responded that their view was that it ‘should be received into evidence’. No basis for this course was proffered. The Minister’s solicitors did not suggest that the Minister wished to read the affidavit.

21    As a result of both the further affidavit evidence forwarded to the Court without leave after the resumed hearing and the further matters raised in additional submissions filed by the parties, I relisted the matter for 2 August 2011 (the further resumed hearing).

22    At the further resumed hearing, the Minister made no objection to the various factual matters raised by Mr Mordechai in further submissions, other than as to relevance. The Minister challenged the authenticity of the Mordechai emails and relied on the solicitor’s affidavit as well as the affidavits of Ms Bush and Ms Linacre. Mr Mordechai did not object to that further evidence.

The grounds of the application

23    The grounds of the amended application, as pressed by Mr Mordechai, can be categorised as follows:

1.    Failure on the part of the Tribunal properly to apply ss 500(6H) and (6J) of the Act in rejecting certain evidence.

2.    Refusal by the Tribunal to admit evidence tendered at the hearing, which amounted to a constructive failure to consider Mr Mordechai’s claims and amounted to a breach of procedural fairness.

3.    Failure on the part of the Tribunal to take into account Australia’s international obligations, as required by the Direction.

In addition, Mr Mordechai submits that the Tribunal failed to consider the relevance of his then current application for a protection visa.

24    Mr Mordechai’s application is brought pursuant to s 476A(2) of the Act. Accordingly, Mr Mordechai must show jurisdictional error on the part of the Tribunal (Milne v Minister for Immigration and Citizenship (2010) 52 AAR 1 at [7] per Gray J).

Application of ss 500(6H) and 500(6J) of the Act Evidence relating to written statements

Background

25    At 8.30 a.m. on 17 January 2011, the day before the Tribunal hearing, Mr Mordechai faxed two documents to the Minister’s solicitors. The first was a statement from the mother of Mr Mordechai’s child (not his wife) (the mother’s statement). This version of the mother’s statement was signed. The mother’s statement was relevant to the Tribunal’s consideration of Mr Mordechai’s relationship with his eight-year-old Australian-born son and the best interests of that child and Australia’s obligations under the Convention on the Rights of the Child. The second was a signed joint statement from the residents of Walkervale Lodge (the Walkervale statement), which provided accommodation for elderly persons and was owned and operated by Mr Mordechai and his wife. This was relevant to the Tribunal’s consideration of the interests of the Australian community.

26    The Tribunal rejected the mother’s statement by reason of ss 500(6H) and 500(6J) of the Act, although its reasons only refer to s 500(6H). The solicitor did not press reliance on the Walkervale statement at the Tribunal hearing.

27    Section 500(6H) provides:

If:

(a)     an application is made to the Tribunal for a review of a decision under section 501; and

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

the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement 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.

[emphasis added]

28    Section 500(6J) of the Act relevantly provides:

If:

(a)    an application is made to the Tribunal for a review of a decision under section 501; 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…

[emphasis added]

29    The Tribunal’s ruling ostensibly prevented the Tribunal from considering the mother’s statement, as well as any information orally in support of the contents of the mother’s statement.

30    It is not in dispute before the Court that ss 500(6H) and (6J) applied to Mr Mordechai’s application for review of the Minister’s decision. The issue is whether the Tribunal erred in its application of these provisions.

31    At the resumed hearing the Minister clarified his position concerning the receipt of the mother’s statement and the Walkervale statement from Mr Mordechai prior to the Tribunal hearing. That clarification changed the position advanced by the Minister during the original hearing. It apparently resulted from a check of the file, only after I asked questions at the original hearing. It now seems that an unsigned copy of the mother’s statement was served on 14 January 2011. The signed version, identical in content, was served on 17 January 2011, together with a signed version of the Walkervale statement.

32    Mr Mordechai referred to the Mordechai emails, which contained details of conversations that he said took place between the Minister’s solicitor, Ms Caroline Bush, and the solicitor on 13 January 2011 in relation to the mother’s statement and the Walkervale statement to the effect that Ms Bush was content to receive the unsigned copies subject to signed statements being made available at the hearing. According to the Mordechai emails:

    the solicitor informed Mr Mordechai on 14 January 2011 that he had spoken to “Caroline” who had ‘received and accepted the unsigned [version of the mother’s statement]… and the [Walkervale statement] yesterday and she have no issue with it’; and

    a representative of the solicitor told Mr Mordechai on 14 January 2011 that ‘yes, the unsigned statement is acceptable by the lawyers of [the Minister], Caroline did speak to [the solicitor] yesterday at 3.30 and we will be faxing document today to her’.

As stated earlier, the content of these emails is inconsistent with the emails annexed to the affidavit of the solicitor.

33    Ms Bush has sworn an affidavit in which she states that she was on annual leave from 25 December 2010 until 17 January 2011. She was travelling from Indonesia to Australia on 12 January and only arrived in Sydney on the morning of 13 January. She only returned to work from leave on 17 January. She also states that, to the best of her recollection, she did not talk to the solicitor on either 13 or 14 January or at any other time in relation to Mr Mordechai’s matter.

34    The Minister has prepared a chronology from his records and the transcript of the Tribunal hearing as follows:

(a)    Upon receiving material from Mr Mordechai on 11 January 2011 which first mentioned the existence of the child, the Minister’s solicitors immediately wrote to the solicitor confirming that any further material relating to the child would need to comply with the “two day rule” in ss 500(6H) and (6J).

(b)    There was no record of any telephone call by the solicitor on 13 January 2011 advising that he intended to serve the mother’s statement. The Minister’s solicitor has no recollection of receiving any such call.

(c)    An unsigned version of the mother’s statement was served on 14 January 2011. This contained information that she was the mother of a child by Mr Mordechai.

(d)    Upon receiving this unsworn version of the mother’s statement, Ms Linacre telephoned the solicitor and informed him that the Minister considered that the mother’s statement fell outside the “two day rule” and that the Minister would be opposing production.

(e)    The signed versions of the mother’s statement and the Walkervale statement were served on 17 January 2011.

(f)    At the tribunal hearing on 18 January 2011, the solicitor informed the Tribunal that he had served the unsigned version of the mother’s statement on Friday 14 January 2011.

(g)    The solicitor did not press reliance on the Walkervale statement.

(h)    Both parties made submissions on the application of ss 500(6H) and (6J) to the mother’s statement.

(i)    The Minister’s solicitor did not put in contention that the mother’s statement had been served on 14 January 2011.

(j)    The Tribunal’s decision upon the application of ss 500(6H) and (6J) to the mother’s statement was made on the basis that it had been served on 14 January 2011.

(k)    The Tribunal gave reasons for finding that the statement of the mother was excluded by ss 500(6H) and (6J).

(l)    After considering the relevant authorities the Tribunal determined that ss 500(6H) and (6J) meant that the witness statements which had been served within time would be adopted by the witness as their evidence in chief. The evidence in cross-examination was unaffected by ss 500(6H) and (6J).

Consideration

35    Mr Mordechai submits that as the fax of the mother’s statement was sent more than 48 hours prior to the commencement of the hearing, it was thereby served on the Minister within the time specified by ss 500(6H) and (6J). He also seems to contend that these subsections should not have been applied to the Walkervale statement.

36    I accept that the unsigned version of the mother’s statement was served on the Minister on 14 January 2011. It was not served, as some of the Mordechai emails seem to suggest, on 13 January 2011. I do not accept that any version of the Walkervale statement was served on the Minister on 14 January 2011. It was served on 17 January 2011. In any event, the solicitor clearly stated at the Tribunal hearing that Mr Mordechai would not be pressing reliance on the Walkervale statement. Accordingly, it is only necessary to consider the application of ss 500(6H) and 500(6J) to the mother’s statement.

37    The Minister makes several alternative submissions in this regard and it is convenient to deal with these separately.

38    First, the Minister submits that an unsigned statement does not meet the description of a “statement” for the purposes of s 500(6H) as it has not been adopted by the witness. He submits that, until it is signed, it remains an “unverified assertion”. The Minister relies on Australian Competition & Consumer Commission v FFE Building Services Ltd (2003) ATPR 41-967 at [60], where Wilcox J made reference to the utility of an unacknowledged document for a forensic purpose in adversarial proceedings. His Honour referred to the ability to put such a statement to a witness in cross-examination, the ability to rely on it for purposes of credit and the decision whether or not to call a witness. I note that his Honour was dealing with discovery of documents and did not limit his remarks to signed statements but made reference to statements that have been signed or otherwise acknowledged as correct by the relevant person. His Honour’s observations are not directly relevant to the service of an unsigned statement in advance of reliance on that statement, when signed or otherwise acknowledged, at a subsequent hearing.

39    I do not accept that the considerations in FFE are apposite to the reference in s 500(6H) to a written statement that needs to be served on the Minister prior to a hearing. That section does not refer to the admissibility of such a statement and, in the context of the Act, which applies to cases concerning, inter alia, unrepresented, legally unsophisticated applicants, there is no requirement that the written statement be a signed statement. Had it been intended to do so, such a reference could have been included in the subsection.

40    The Minister also submits that, in any event, service on 14 January 2011 does not comply with the requirement for service “at least 2 business days before” the Tribunal hearing. To this extent, the Minister changed his position taken at the original hearing, which was that service on 14 January 2011 would have been sufficient under the Act.

41    It is to be borne in mind that the hearing commenced on the morning of Tuesday 18 January 2011. Accordingly, the Minister contends that the mother’s statement would need to have been served on Thursday 13 January 2011 to comply with ss 500(6H) and (6J).

42    The Minister relies on s 36(1) of the Acts Interpretation Act 1901 (Cth), which provides:

Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.

43    The Minister also relies on the judgment of Gibbs J in Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421, in which his Honour concluded, having reviewed the authorities, that:

Whatever doubts may have originally existed, and however nicely balanced the arguments may have originally been, it is now… “better… to adhere to settled rules”. Where an instrument prescribes that a period of time must elapse between one event and another, the words “at least” or “not less than” should, unless the context or the subject matter reveals a contrary intention, be regarded as indicating that a clear or full period of time must expire between the two events…

Justices Walsh (at 428-429), Stephen (at 448) and Mason (at 451-452) all reached similar conclusions on this aspect of Forster.

44    As the date of the hearing, 18 January 2011, is the date from which compliance is measured, it is thereby not included as a “business day” pursuant to s 36(1) of the Acts Interpretation Act. The requirement for two clear business days before Tuesday 18 January 2011 means that service had to be effected no later than Thursday 13 January 2011. It follows that the minimum time was not complied with. The Tribunal was thus obliged pursuant to s 500(6H) to reject oral evidence concerning the mother’s statement. Pursuant to s 500(6J), the Tribunal was also obliged to reject the mother’s statement. There was no error of law in the Tribunal’s rejection of the mother’s statement under these provisions.

45    Mr Mordechai submits that the rejection of the mother’s statement amounted to a denial of procedural fairness by the Tribunal. To the extent that the Tribunal was obliged by the Act not to have regard to the mother’s statement, there was no such denial.

Construction of ss 500(6H) and (6J)

46    A further question arises whether the evidence relating to the mother’s statement may have been admissible, if:

(a)    the expression “the Tribunal holds a hearing” could refer to the second day of the Tribunal hearing;

(b)    the Tribunal could have adjourned the hearing even for a few days to allow the 2 day time requirement to be fulfilled; or

(c)    the Minister had waived Mr Mordechai’s need to comply with ss 500(6H) and (6J).

47    All three of these questions are answered by consideration of Goldie v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 378 and Milne. In Goldie, Gray J (with whom RD Nicholson and Stone JJ agreed) noted at [26] that the scheme of which ss 500(6H) and (6J) form part is designed to disadvantage an applicant for review. An appellant is not able to rely on that disadvantage as a ground for contending that the Tribunal made an error of law (at [32]). Justice Gray made it clear at [31] that once a Tribunal began a hearing, the entitlement of an applicant to rely on information and documents ‘crystallised’ and was limited to reliance on information contained in statements/documents given to the Minister at least 2 business days before the hearing began. Further, as Gray J pointed out at [31], the resumption of an adjourned hearing is not a new hearing. In Milne, Gray J said at [39] that based on the operation of the Act there would have been no point in the Tribunal adjourning the hearing of the case. As his Honour said at [40]:

These provisions are binding on the Tribunal. The Tribunal cannot put them to one side, whether it wishes to do so to meet what it perceives to be the justice of a particular case, or for any other reason. A person seeking review of a decision to cancel a visa in the application of the character test needs to prepare his or her case carefully, to ensure that all the information on which he or she wishes to rely is given to the Minister at least two business days before the Tribunal’s hearing. The Tribunal cannot allow such a person to rely on additional information, produced afterwards. A failure to comply with s 500(6H) or (6J) would arguably amount to jurisdictional error on the part of the Tribunal.

48    In regard to c), the Minister submits that there is no material to suggest that he in any way contributed to Mr Mordechai’s inability to meet the constraints of ss 500(6H) and (6J) or that he in any way resiled from reliance on that provision, even if that were relevant to the application of ss 500(6H) and (6J), which he also disputes. As the Minister points out, the Tribunal is obliged to make the correct and preferable decision on the material before it and the Minister could not, even by making a concession or by conduct, waive compliance with a statutory provision which was otherwise binding on the Tribunal (Milne at [40]; Goldie at [25]–[32]).

Mr Mordechai’s health

49    At the Tribunal hearing, the Tribunal member raised what she described as an “evidentiary gap”, namely the lack of expert evidence about Mr Mordechai’s current mental health. The only medical report available was from 2007. The solicitor referred to the absence of such evidence and submitted that no adverse inference should be drawn.

50    Mr Mordechai submits that he sought at the Tribunal hearing to call oral evidence from a psychiatrist as to his current mental state. The Minister points to the force of Gray J’s observations in Goldie and Milne as applied to the obligation of Mr Mordechai to prepare his or her case in the context of the psychiatric evidence that he apparently sought to adduce on the day of the hearing without the requisite notice, when the absence of such evidence was specifically pointed out in the Delegate’s decision. In any event, there is no reference in the transcript to any medical practitioner being present to give evidence to the Tribunal, contrary to the assertion by Mr Mordechai in these proceedings that such a person had been present. To the extent that Mr Mordechai complains that he should have been given a further opportunity to adduce medical evidence, the desirability of doing so was specifically referred to in the Delegate’s decision as referred to at [5] above, yet Mr Mordechai did not present such evidence in the Tribunal.

51    Mr Mordechai submits that the Tribunal failed to take account of his current mental state. It is apparent from the Tribunal’s reasons that his current mental state was an important factor in the balancing considerations taken into account by the Tribunal in coming to its conclusion. The Tribunal did not fail to take this matter into account.

Conclusion

52    The above analysis deals with grounds 1 and 2 as set out above. As previously noted, and despite the opportunistic and late analysis of the correct date for compliance with ss 500(6H) and (6J) by the Minister, there is no discretion afforded in the Act to this Court or to the Tribunal to waive the statutory requirement. The Tribunal was obliged not to take account of the evidence sought to be adduced and there was no denial of procedural fairness in doing so or in continuing with the hearing. It also follows that there was no constructive failure to consider Mr Mordechai’s claims and no jurisdictional error.

Australia’s international obligations

53    Mr Mordechai refers to several different treaties under which he says Australia has international obligations which the Tribunal was obliged to consider. They are, as stated in his written submissions:

the Commonwealth International Human Rights Obligations

the international covenant on civil rights and protection of the child

the United Nations Committee protocol on the rights of indigenous children 2010

the international covenant on civil and political rights

International Convention on the Protection of the Family Unit Tie

The UN Protocol on the rights of the Child on the Rights of Indigenous Children

Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment

54    The Minister submits that there is no evidence that the “United Nations Committee protocol on the rights of indigenous children 2010” or such an international instrument exists. Counsel for the Minister informed the Court that his searches have not found such a protocol which Australia has signed and ratified. Mr Mordechai seems to accept this and, in any event, cannot establish to the contrary. There is no evidence that several of the other international conventions referred to by Mr Mordechai including an “International Convention on the Protection of the Family Unit Tie” exist, binding or otherwise.

55    Nonetheless, it can be accepted that Mr Mordechai relies upon three conventions which the Minister accepts have been signed and ratified. They are the:

    Convention on the Rights of the Child (CROC);

    International Covenant on Civil and Political Rights (ICCPR); and

    Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT).

56    Mr Mordechai submits that the Tribunal failed to consider Australia’s obligations under these conventions. That is not correct.

57    The Tribunal considered Australia’s obligations under the CROC at [26]–[32] and concluded that the best interests of Mr Mordechai’s son ‘weigh only moderately in favour of granting a visa’. Mr Mordechai has not established that the Tribunal failed to take account of matters raised in this regard, other than material that the Tribunal was precluded from taking into account by reason of ss 500(6H) and (6J) of the Act.

58    Mr Mordechai does not identify any particular obligation under the ICCPR which might have applied to him. To the extent that Mr Mordechai’s submission refers to Article 23.1, which states that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’, the Tribunal considered his family ties at [33]–[38].

59    Mr Mordechai also refers to the CAT without reference to any particular obligation under that Convention. The Minister contends, and Mr Mordechai does not rebut the contention, that the CAT was not referred to by Mr Mordechai in his facts and contentions to the Tribunal.

60    There was no error of law by the Tribunal on this ground.

The protection visa application

61    Before the Tribunal was the fact that Mr Mordechai had made an application for a protection visa. That application and a submission on the subject matter of that application were annexed to Mr Mordechai’s witness statement in the Tribunal. The Tribunal decision makes no reference to the protection visa application.

62    Mr Mordechai’s submissions on the Minister’s application to re-open the proceedings before the Court referred to and relied on some of the evidence sought to be adduced at the resumed hearing by the Minister. As stated earlier, Mr Mordechai offered new evidence by his submissions. Mr Mordechai specifically did not object to some of the Minister’s evidence, namely, in his words:

A.    relating to dates and facts of the document been served on the [Minister]

B.    Statement of [Mr Mordechai] expressly disclaiming any reliance on the protection visa application

However, he did object to the remainder of the Minister’s submissions purportedly on the basis that they represented tactical manoeuvring by the Minister. In the circumstances, it was appropriate to grant the Minister leave to re-open to adduce additional evidence which included those parts of the transcript before the Tribunal that related to the matters not objected to.

63    There is some mention of the protection visa application in the transcript. The Tribunal queried whether Mr Mordechai relied on it. The following exchange took place:

The solicitor:    No, to this extent: the fact of there being on foot an unresolved application doesn’t give rise to non-refoulement obligations. It can’t. It can only be upon a finding that he was a person to whom Australia owed protection that that ground would be enlivened.

…

Tribunal member:    So just to be clear… you don’t say that the international refugee instrument gives rise to an international obligation to which I need to have regard ---

The solicitor:        No.

Tribunal member:     --- in this application.

The solicitor:        No, I don’t make that submission.

Tribunal member:    Thank you.

64    Mr Mordechai submits that the solicitor acted contrary to his instructions in disclaiming reliance on the protection visa application. Mr Mordechai points to an email allegedly sent to the solicitor on 4 January 2011, which states ‘under NO circumstances what so ever… should [the protection visa application] be ignored at the [Tribunal]’ as indicating that he instructed the solicitor to ensure that the protection visa application was brought to the attention of the Tribunal.

65    Nevertheless, through the solicitor Mr Mordechai expressly abandoned reliance on the protection visa application. The solicitor clearly conceded that Mr Mordechai’s claims to protection under the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention) were not relevant as they had not given rise to any “non-refoulement obligations”.

66     In any event, at the time of the Tribunal decision, the protection visa application had been neither granted nor refused. It remained extant. It was not for the Tribunal to evaluate that application. The obligations that Australia may owe to Mr Mordechai as a refugee within the meaning of the Refugees Convention will be determined in the context of the protection visa application. Based on the considerations of the Direction, the Tribunal was not obliged to take the protection visa application into account for the purposes of exercising the discretion to refuse Mr Mordechai’s application for a spouse visa. The Tribunal was required to consider under clause 10 of the Direction:

(d)    relevant international obligations, including but not limited to:

(i)    the best interests of the child, as described in the CROC; and

(ii)    the non-refoulement obligations contained in the Refugees Convention, the ICCPR and the CAT.

67    As previously identified, the Tribunal considered the obligations that it was obliged to consider in determining Mr Mordechai’s application and found that they had not arisen.

Other matters

68    Mr Mordechai makes reference to the time he has been present in the Australian community and his level of integration with the Australian community. Consideration of ties to the Australian community is incorporated in the primary consideration in clause 10(1)(c) of the Direction, which is ‘the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct’. This was addressed by the Tribunal at [25] of its reasons. This Court cannot disturb the merits of the facts raised in the Tribunal’s decision.

69    In addition, Mr Mordechai emphasises a number of factual matters in his submissions, including:

(a)    his political circumstances;

(b)    his mental status and any rehabilitation received, or the availability of such rehabilitation;

(c)    the relationships he has with his family, particularly his son, including his love for his son and the amount of time he does and wishes to spend with him;

(d)    his contribution to the community;

(e)    his personal character and any risks he poses to the community; and

(f)    his financial contributions, both to his son’s upkeep and to others.

70    I understand the emotions involved and Mr Mordechai’s statements concerning the importance of his relationship with his son. However, these factors are either:

    factual matters put to the Tribunal that relate to the merits of the Tribunal decision and the balancing of considerations undertaken by the Tribunal in accordance with the Direction;

    evidence of facts that could not be considered by the Tribunal by reason of ss 500(6H) and (6J) of the Act; or

    new evidence that was not before the Tribunal.

Conclusion

71    Mr Mordechai has not established jurisdictional error on the part of the Tribunal or, indeed, an error of law. He has not established that there was otherwise a denial of procedural fairness.

72    It follows that the application should be dismissed.

73    The Minister seeks costs up to and including the first day of the original hearing but not the costs thereafter of and incidental to the application to re-open or of the resumed hearing or of the further resumed hearing.

74    In the ordinary course, I would consider awarding those further costs to Mr Mordechai by reason of the matters I have referred to earlier in these reasons. However, Mr Mordechai has not incurred costs.

75    Mr Mordechai has, however, been obliged to attend Court on three occasions, to prepare additional material and to undergo unnecessary anxiety and inconvenience.

76    In the circumstances, I make no order as to costs.

Associate:

Dated:    30 August 2011