FEDERAL COURT OF AUSTRALIA

NZA v Minister for Immigration and Citizenship [2013] FCA 140

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    Any reference to the name of the applicant in the reasons for judgment be replaced with the pseudonym “NZA”.

3.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 22 December 2011, which affirmed a decision to cancel the applicant’s visa under s 501 of the Migration Act 1958 (Cth) (“the Migration Act”). The decision under review is a migration decision within the meaning of the Federal Court Rules 2011 (Cth) and s 5(1) of the Migration Act. The Court derives its jurisdiction with respect to this matter from s 476A(1)(b) of the Migration Act.

2    The applicant was self-represented in this Court. The first respondent (“the Minister”) was represented by counsel. The Tribunal, which is the second respondent, filed a submitting appearance, save as to costs.

3    A decision of the Tribunal made under s 500(1)(b) is a “privative clause decision”, as defined in s 474 of the Migration Act. The Tribunal’s decision can only be set aside for a jurisdictional error: see Migration Act, s 474(1); Plaintiff S157/2002 v Commonwealth (2002) 211 CLR 476. For the reasons stated below, I would dismiss the applicant’s judicial review application. When the whole of the Tribunal’s reasons are considered, it is clear that the Tribunal considered and determined the applicant’s case fairly and conscientiously. The Tribunal’s decision contained no jurisdictional error.

BACKGROUND

4    The applicant was born in New Zealand in 1966 and is a citizen of New Zealand. He first came to Australia on 4 March 2006, when he was 39 years of age. He left Australia on 13 August 2006, returning two days later on a class TY subclass 444 Special Category (Temporary) visa granted on 15 August 2006.

5    On 23 June 2010, the applicant was convicted in the Supreme Court of Queensland of one count of causing grievous bodily harm with intent under s 317 of the Criminal Code 1899 (Qld) and sentenced to five years and six months imprisonment. His conviction arose out of his conduct on 22 February 2009, when shortly after an altercation at a hotel in Southport, Queensland, the applicant drove his car deliberately to collide with another man.

6    The applicant’s appeal against his conviction was dismissed and leave to appeal against his sentence was refused by the Court of Appeal of the Supreme Court of Queensland (“the Court of Appeal”).

7    On 23 March 2011, the Department of Immigration and Citizenship (“the Department”) sent the applicant a notice of intention to consider cancellation of his visa, on the basis of his criminal record. On 28 September 2011, a delegate of the first respondent (“the delegate”) decided to cancel the applicant’s visa under s 501(2) of the Migration Act (“the visa cancellation decision”). On 6 October 2011, the applicant was notified of the visa cancellation decision. Also on 6 October 2011, the applicant applied to the Tribunal for review of that decision.

8    At the time the applicant lodged his application for Tribunal review, he was in Woodford Correctional Centre at Woodford, Queensland (“Woodford”). On 16 November 2011, the Southern Queensland Regional Parole Board (“the Parole Board”) decided to grant him his release on parole with effect from 2 December 2011. When the applicant was released from Woodford on 2 December 2011, however, he was immediately taken into immigration detention. He has been detained in the Maribyrnong Immigration Detention Centre in Melbourne since 2 December 2011.

9    It is convenient to note two further circumstances at this stage. The first is that, at the time of his conviction in the Supreme Court of Queensland, the applicant had two previous convictions in New Zealand. In 1991 and 1992, he was convicted as party to offences involving kidnapping and aggravated burglary involving the use of a firearm. The applicant was the driver of a vehicle associated with these offences and was convicted as a party to them on this basis. The longest sentence imposed was for 10 years’ imprisonment, with the applicant serving seven years of that sentence.

10    The second matter is that, on 4 February 2012, while in immigration detention, the applicant married. His wife was the mother of a fellow inmate at Woodford. The applicant met his wife and formed a relationship with her while he was serving his sentence. The applicant and his wife were engaged at the time of the Tribunal’s decision.

THE TRIBUNAL DECISION

11    In his application to the Tribunal for review of the visa cancellation decision, the applicant described his reasons for seeking the review as follows:

●    Family (engaged …) + Children … 12, … 16, … 17

●    Immediate Family Brother

●    Firm offers on employment on release

●    Whilst incarcerated engaged in programmes educational and rehabilitation

●    Prison employment schemes as overseer

●    Fully rehabilitated and will contribute to Aust Community

●    Welfare and medical issue in regard to spouse and children

●    Genuine concerns to personal safety if returned to NZ by OMC

It is unnecessary, in these reasons, to name the applicant’s fiancée (and, subsequently, wife) and the children to whom he referred. In the above quotation, “…” indicates that a name has been omitted.

12    In the Tribunal proceeding, the applicant was self-represented and the Minister was represented by his solicitor. The Tribunal conducted a substantive hearing in Brisbane on 13 December 2011 and gave its decision on 22 December 2011.

13    The Tribunal held that, by virtue of his conviction in the Supreme Court of Queensland, the applicant had a “substantial criminal record” within the meaning of s 501(6) of the Migration Act and that the Minister’s discretion to cancel the applicant’s visa on character grounds under s 501(2) was therefore enlivened: see Tribunal’s reasons, [2011] AATA 928 at [3]. The Tribunal stated that the applicant was “wrong” in arguing that the Minister had no power to deport him because New Zealand was an Australian state.

14    Having noted that the delegate and, on review, the Tribunal, were required to have regard to Direction 41: Visa Refusal and Cancellation under s 501 (“Direction 41”), being a direction issued by the Minister under s 499 of the Migration Act, the Tribunal set out its assessment of the four primary considerations that, according to Direction 41, must be addressed.

Protection of the Australian community

15    Quoting Direction 41 at [5.1(2)] and [10.1(2)], the Tribunal stated that the first primary consideration was the need to protect the Australian community from “unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens” and that this required the Tribunal to consider “the seriousness and nature of the relevant conduct” and “the risk that the conduct may be repeated”: see [2011] AATA 928 at [8]. The Tribunal found that the applicant’s offence was “very serious”: [2011] AATA 928 at [12]. With respect to the risk of re-offending, the Tribunal noted that he had a serious criminal record in New Zealand: [2011] AATA 928 at [14]. The Tribunal observed (at [15]–[16]) that:

At the hearing in this matter, the applicant sought to downplay his involvement in those crimes. He said he committed those offences after he had fallen into bad company. He invited me to conclude the sentences were exceptional given the more lenient approach to sentencing that apparently prevailed at the time. The remarks of the Court of Appeal suggest otherwise. The applicant’s evidence at the hearing did not suggest clear insight into his offending in New Zealand, or genuine remorse for what he did.

The applicant exhibited a similar reluctance to take responsibility for the offence he committed in Australia. He was asked repeatedly during the course of the hearing whether he accepted he was responsible for what he had done. He refused to answer the questions directly. When asked about the circumstances of the offences [sic], he acknowledged there was evidence that suggested he was guilty but claimed he did not remember what occurred. Yet he gave statements to the police about the incident and also told his new partner … about the offence in some detail according to her testimony. It was unclear whether he accepted responsibility for what he had done, and he did not offer a clear expression of remorse for any of his behaviour. … The verdict of the jury and the evidence referred to by the sentencing judge and the Court of Appeal raises serious doubts over whether the applicant has come to terms with what he did — which raises serious doubts over whether he might engage in that sort of conduct again.

16    In favour of the applicant, the Tribunal noted (at [17]) that there was “a significant time” between his offending in New Zealand and Australia; and that the offence in Australia was different “in important respects” from the offences in New Zealand. The Tribunal also noted that the applicant was “for the most part, a well-behaved prisoner” and “earned a number of trade qualifications” during his imprisonment. Further, the Tribunal noted (at [17]) that he had a “good employment record when he lived in New Zealand” and “regular employment in Australia”. The Tribunal concluded (at [17]) that “[t]here [was] no reason to doubt he would be able to obtain regular employment if he were permitted to stay”. Furthermore, the Tribunal commented (at [18]) that, although there was “little in the way of independent evidence from experts … [the applicant was] eligible for parole, which suggests a level of confidence that he can be released into the community, albeit subject to supervision”.

17    The Tribunal also stated (at [19]) that:

The applicant said the most important development in his life has been the emergence of a relationship with [his fiancée]. [His fiancée] was the mother of a fellow prisoner whom the applicant had befriended. The applicant began writing to [her] and she came to visit him in prison. They now have regular contact by phone and letter, and she visited the applicant in gaol on a regular basis. They have decided to marry when the applicant is released into the community. The applicant wants to move in with [her] and her family although that would not be possible in the short term as the parole authorities have not yet approved [her] home as a suitable residence for the applicant if he obtains parole and remains in Australia.

18    In this connection, the Tribunal mentioned the evidence given by one of his fiancée’s children and statements received from her other children. The Tribunal observed (at [20]) that these children “appear to have formed a very strong bond with the applicant, although they have only met him on a small number of occasions and conversed with him on the phone and through the post”. After hearing the evidence of two nieces and receiving a statement from the applicant’s brother, the Tribunal stated (at [21]) that “[i]t was obvious the various family members have a genuine regard for the applicant, and he appeared to have a genuine affection for his blood relatives and for those whom he hoped would become his new family”.

19    Nonetheless, with respect to the first primary consideration, the Tribunal concluded (at [22]–[23]):

Without questioning the depth of feeling exhibited by [the applicant’s fiancée] and her family, their relationships with the applicant are still virtual relationships that are untested by the harsh realities of daily life as a family unit. The parole authorities have recognised this reality. They presumably want to wait and see if the applicant’s relationships with his new family endure after he is released from prison before allowing him to move in. It remains to be seen whether the new family and the renewed contact with his brother’s family will have the life-changing effect that they expect.

In all the circumstances, I think this primary consideration weighs reasonably heavily against the applicant. He has a record of serious offences that suggest he has a problem controlling aggression, which could lead to disastrous consequences. His lack of insight into his offending and the uncertain nature of the relationships he has formed with his new family all suggest he poses an ongoing risk to the Australian community that is unacceptably high. That is not to say he is likely to offend again; he may well become a law-abiding citizen, especially if the situation with his new family works out. But his offences are so serious that the public are entitled to expect the Minister will be cautious.

Whether the person was a minor when beginning to live in Australia

20    The second primary consideration to which the Tribunal had regard was “whether the person was a minor when they began living in Australia”. The Tribunal found that the applicant came to Australia when he was “of mature years” and was in his forties when he committed the offence for which he was convicted in the Supreme Court of Queensland. The Tribunal concluded (at [24]) that this consideration “actually counts against him”.

Length of residence in Australia

21    The third primary consideration was the applicant’s length of residence in Australia. The Tribunal did “not think this consideration counts heavily in the applicant’s favour”: [2011] AATA 928 at [26]. With respect to this consideration, the Tribunal observed (at [25]):

The applicant first came to Australia in 2006. He was here for about three years before he committed the offence which landed him in gaol most recently. That is not an especially long period of time. He does not appear to have put down strong roots in the community during that period. His former partner broke up with him when he went to gaol; he is now hopeful of making a new life with [his fiancée] and her family. He has other family members in this country but he does not maintain close contact with any of them apart from his older brother and the brother’s children.

International obligations (best interests of children)

22    The Tribunal described the fourth primary consideration as “international obligations — especially the best interests of any children”. In this context, the Tribunal rejected the applicant’s claim that his right to life would be under threat if he returned to New Zealand: [2011] AATA 928 at [27].

23    The Tribunal also considered the rights of his fiancée’s children. In this regard the Tribunal said (at [28]):

Several of the children have health problems of various kinds, as does [his fiancée]. While the applicant might conceivably contribute to their care and support if he were permitted to remain, it is unclear how Australia’s international obligations would be compromised if he were required to leave. While the children have apparently taken to referring to him as “Dad”, he cannot properly be regarded as their parent (and cannot therefore have parental obligations) at this early point in their relationship. He has had limited contact with [his fiancée’s] children: they have only physically met him on a few occasions. One of them does not even reside with [his fiancée], and the others are teenagers or older. While the children speak of having formed an intense bond with the applicant, and they might experience disappointment if they do not have the opportunity to get to know him better, it is unclear how their best interests will be compromised if the applicant is required to leave. Their relationship with the applicant has simply not reached the point where Australia’s international obligations make a difference to my decision. I do not think this primary consideration counts in the applicant’s favour.

Other considerations

24    Having concluded that, taken together, the primary considerations indicated that the applicant’s visa should be cancelled, the Tribunal also considered a number of other matters, including his ties to Australia. These ties centred on his family. The Tribunal found (at [32]) that the applicant was relatively close to his brother and his brother’s family, but that this relationship would not be disrupted if the applicant were removed from Australia. The Tribunal said (at [32]–[33]):

I understand the applicant spends a great deal of time talking to his various family members on the phone from prison. Indeed, all of the witnesses he called at the hearing spoke of the comfort and support they derived from the many lengthy telephone discussions they had with the applicant.

It is unclear how the applicant’s removal from this country will disrupt the relationships he has with his brother’s family. While I accept they may be looking forward to the applicant taking his place in the family if he is allowed to stay here. He has not been a fixed feature of their lives in the past. I accept they will be disappointed if he cannot stay, but that is not the same thing as being disruptive.

25    The Tribunal also stated that the applicant’s relationship with his fiancée “could not yet be described as a de facto marriage” and that the relationship with her children was “not a parental one”: see [2011] AATA 928 at [34]. The Tribunal concluded (at [35] and [39]) that:

While I accept there will be some disruption to familial ties if the applicant’s visa is cancelled, I do not think this consideration counts heavily against cancellation.

…

I accept [the applicant’s fiancée] and her family will be very disappointed if they are denied the opportunity to welcome the applicant into their lives. That is not the same thing as experiencing hardship, of course. The fact that [the applicant’s fiancée] and her children and perhaps other family members will be deprived of the emotional or other support may qualify as hardship. I accept there will be some hardship in that sense.

26    The Tribunal also considered the applicant’s concern that, if he were to return to New Zealand, he would be unsafe because he had given evidence as a Crown witness against a man said to be capable of arranging retribution. In this context, the Tribunal stated (at [41]–[45]):

I asked the respondent to obtain evidence from an expert witness who could speak with authority about the law-and-order situation in New Zealand, with particular emphasis on gang activity. I wanted to know whether the applicant was really in danger if he were required to return. The respondent called Professor Greg Newbold, a professor of sociology at the University of Canterbury. Professor Newbold is a recognised expert on gang culture and activities in New Zealand. The applicant raised questions about Professor Newbold’s background, but I am satisfied he was a credible expert witness. He provided two reports and gave oral evidence.

Professor Newbold said most reports of gang activity in New Zealand were exaggerated. He said members of a number of the gangs did carry on criminal activities, and some of them were capable of exacting revenge against a member of the gang who had broken their codes. But the applicant was not a member of any gang, and there is no suggestion he was bound by a code that he transgressed.

I was told that most of the violence that occurred was restricted to gang members. Professor Newbold said outsiders were not ordinarily in any danger of retaliation from gang members, even in circumstances where, for example, an outsider gave evidence against a gang member in a prosecution. He spoke of well-developed witness protection programs and other measures that had reduced the possibility of witness intimidation. He said retaliatory violence directed at Crown witnesses was extremely rare. He suggested the police were generally equal to the task of containing the gangs and protecting the public.

When provided with more specific information about the applicant’s experience and circumstances, Professor Newbold said there was little to fear. He acknowledged it was possible that a well-connected and wealthy person could arrange for violent retaliation but added those sorts of crimes were rare in New Zealand and tend to be successfully prosecuted. He specifically rejected as unlikely the applicant’s claim that two police officers who were involved in the case in which he gave evidence were forced to transfer as a result of the potential for retaliatory violence.

I accept Professor Newbold’s evidence. I acknowledge that a gang member who gave evidence against a fellow gang member might be in real danger of retaliation, but that is not the case here. I am not persuaded the applicant is in any real danger if he were to return to New Zealand. It follows that the potential for hardship to the applicant is not a serious consideration that counts in his favour.

27    The Tribunal concluded (at [49]) that:

I am satisfied the primary considerations weigh reasonably heavily in favour of cancellation. Some of the other considerations weigh in the applicant’s favour, but I think the balancing process contemplated by the Direction leads me to the conclusion that the visa should be cancelled. I am conscious the decision will be hard news for [the applicant’s fiancée] and her family. While I have sympathy for their predicament, the decision under review must be affirmed.

28    As already noted, the applicant applied for judicial review of the Tribunal’s decision.

SOME PROCEDURAL MATTERS

29    The applicant filed his originating application in the Queensland registry of the Court. This application was the subject of various orders, including an order on 22 March 2012 extending the time in which the application could be duly filed and an order on 13 June 2012 transferring the proceeding to the Victoria registry of the Court in light of the applicant’s detention in Melbourne and his lack of legal representation.

30    Further, in this proceeding, a notice was given under s 78B of the Judiciary Act 1903 (Cth) that the proceeding involved a matter arising under the Constitution or involving its interpretation.

31    In addition to his 131-page written submissions filed on 26 October 2012, the applicant relied on numerous affidavits made by him: namely, two affidavits dated 1 May 2012 (one referring to annexures PST01/70 and following and another, to annexures PST-01/18 and following); an affidavit dated 31 May 2012; an affidavit dated 14 October 2012; and an affidavit dated 18 October 2012. I note too that the applicant made two other affidavits, dated 19 January 2012 and 2 March 2012 respectively, in support of his extension of time application.

32    Many parts of the applicant’s affidavits were in the nature of submissions; and I have treated them accordingly.

33    As will be seen, the applicant’s supporting material was voluminous; and I shall not set out every matter to which he referred. Rather, in these reasons, I have focussed on his key arguments.

34    The Minister, who was represented by counsel at the hearing in this Court, relied on the affidavit of William Adam Sharpe dated 10 October 2012 and 29-page written submissions filed on 12 November 2012.

RELEVANT LEGISLATION

35    It is convenient at this point to set out key parts of the relevant legislative provisions and Direction 41, since they lie at the heart of the applicant’s challenge to the Tribunal’s decision.

36    Under s 501(2) of the Migration Act, the Minister has a discretionary power to cancel a visa that has been granted. Section 501(2) provides:

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

37    The “character test” is set out in s 501(6), which relevantly reads:

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)) …

38    A “substantial criminal record” is defined by s 501(7), which relevantly provides:

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; …

39    The Tribunal’s jurisdiction to review the cancellation decision arose under s 500(1) of the Migration Act. Section 500(1) provides:

(1)    Applications may be made to the Administrative Appeals Tribunal for review of:

…

(b)    decisions of a delegate of the Minister under section 501; …

…

other than decisions to which a certificate under section 502 applies.

40    When making a decision under s 501, the Minister’s delegate and the Tribunal must comply with ministerial directions issued under s 499. Section 499 provides:

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

…

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

…

41    The last provision that should be borne in mind in the present case is s 500(6L), which states:

(6L)    If:

(a)    an application is made to the Tribunal for a review of a decision under section 501 of this Act; 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 Tribunal Act 1975 to affirm the decision under review.

THE DIRECTION

42    As already noted, Direction 41 was given under s 499. Paragraph [4] of Direction 41 states:

4.    Application

(1)    This Direction applies to decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel a visa of, a person who does not satisfy the Minister that the person passes the character test.

(Accompanying note omitted.)

43    Under the heading “Objectives”, paragraph [5.1(2)] of Direction 41 states that “the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens”. Under the heading “General Guidance”, paragraph [5.2(1)] states:

(1)    To facilitate these objectives, this Direction provides direction to decision-makers with respect to performing functions and exercising powers under section 501 of the Act. The Direction is binding on all decision-makers.

(2)    In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:

(a)    the nature of any harm that the person concerned may cause to the Australian community; and

(b)    the risk of that harm occurring.

(3)    Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.

…

44    Part B of Direction 41 concerns the exercise of the discretion. Paragraphs [8]–[10] provide as follows:

8.    When to exercise the discretion

(1)    If, following formal consideration, the person does not satisfy the decision-maker that the person passes the character test, consideration should be given to whether to exercise the discretion to refuse or cancel a visa.

9.    Taking the relevant considerations in account

(1)    Consistent with Part 2, paragraph 2 (Part B) of this Direction, decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.

Note:    The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.

10.    The primary considerations

(1)    In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a)    the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)    whether the person was a minor when they began living in Australia;

(c)    the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

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

(i)    the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)    the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

45    Paragraph 11 provides for other considerations to be taken into account, which are, generally, to be given less weight than the primary considerations. Thus, paragraph 11 provides:

11.    Other considerations

Note:    These are not primary considerations.

(1)    In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.

(2)    It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.

(3)    These other considerations include:

        (a)    family ties, the nature and extent of any relationships:

(i)    the extent of disruption to the person’s family, business and other ties to the Australian community;

(ii)    a genuine marital (including de jure or de facto) relationship with an Australian citizen, permanent resident or eligible New Zealand citizen:

(A)    to be considered are the nature and duration of the relationship; the degree to which the partner is financially, physically or psychologically dependent on the non-citizen; (if applicable) the impact of separation resulting from the person’s removal from Australia; and whether, at the time of entering into or establishing the relationship, the partner knew that the person was of character concern;

(b)    the person’s age … ;

(c)    the person’s health … ;

(d)    any links to the country to which they would be removed …;

(e)    hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia:

(i)    including whether the immediate family members are able to travel overseas to visit the person; the nature of the relationship between the person and the immediate family members; and whether immediate family members are in some way dependent on the person for support which cannot be obtained elsewhere;

(ii)    the ability of the person, together with any accompanying family members, to acquire new language skills and their capacity to obtain support. … ;

(f)    level of education …;

(g)    whether the person has been formally advised in the past by an officer of [the Department] about conduct that brought the person within the deportation provisions of the Act (as in force at that time) or the character (visa refusal and cancellation) provisions of the Act (as in force at that time).

THE PARTIES’ SUBMISSIONS

46    It was common ground that the applicant had a “substantial criminal record” as defined in s 501(7)(c) of the Migration Act. This meant that he did not pass the s 501(6) character test and the discretion in s 501(2) was engaged. The issue between the applicant and the Minister was whether the Tribunal’s decision to affirm the visa cancellation decision contained jurisdictional error. The applicant’s contention was that there was jurisdictional error in the Tribunal’s decision, which should therefore be set aside, with orders for the decision to be made according to law. The Minister maintained that the Tribunal’s decision did not contain any such error.

47    In two of his affidavits, the applicant also purported to seek some kind of compensation order, which at one point he specified as “compensation … for breach of [articles] 17 and 23 of the International Covenant on Civil and Political Rights 1966”. He did not press this claim at the hearing and, in any event, the Court would have no jurisdiction to deal with it. At another point, the applicant also sought an order that the Court waive a debt he owed to the Commonwealth pursuant to s 34 of the Financial Management Accountability Act 1997 (Cth). The applicant did not develop this claim and, in any event, the Court would not have jurisdiction to deal with it.

48    The applicant stated various grounds of review of the Tribunal’s decision, which he expressed in different ways in his supporting documents and at the hearing. These grounds and the details of the parties’ submissions concerning them are discussed hereafter.

CONSIDERATION

Failure to perform the statutory function

49    The applicant’s challenge to the Tribunal’s decision included a ground that the Tribunal fell into error because it failed to perform its statutory function. In essence, the applicant submitted that this meant that the Tribunal misunderstood the nature of its task under s 500(1)(b) of the Migration Act and failed to exercise its own discretion in affirming the visa cancellation decision.

50    With respect to this submission, the applicant focused on the Tribunal’s statement that, on a review of the visa cancellation decision, the Tribunal stepped “into the Minister’s shoes”: [2011] AATA 928 at [6]. The applicant submitted that this showed that the Tribunal considered itself bound to affirm the visa cancellation decision. The applicant also objected to the statement in the Tribunal’s reasons (at [49]) that “the decision under review must be affirmed” (emphasis added). The applicant argued that this statement further demonstrated that the Tribunal considered that it had no choice but to affirm the visa cancellation decision and, accordingly, failed to exercise its discretion independently.

51    When the Tribunal reviews a decision under s 500(1)(b) of the Migration Act, as it did in this case, its task is to reach the correct or preferable decision on the basis of the law and the facts at the time of its decision: see Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), s 43; also, for example, Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 295–302 [26]–[51], 303 [55] (Kirby J), 314–315 [98]–[100] (Hayne and Heydon JJ).

52    In indicating that it stepped “into the Minister’s shoes”, the Tribunal did not thereby indicate that it considered itself bound to affirm the visa cancellation decision. Rather, the Tribunal adopted an expression used for many years to indicate that, in reaching a decision on review, the Tribunal should think of itself as if it were performing the function of the earlier decision-maker (here, the Minister’s delegate) in accordance with the law that applied to that decision-maker: see, for example, Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 671; [1980] FCA 85 (Smithers J). That is, the applicant was generally correct when he said that the Tribunal was to “put itself in the position of a decision-maker, such as the Primary decision-maker, to assess information, submissions, regarded as evidence [sic] and apply the Direction [41] of the Minister”: see the applicant’s affidavit dated 31 May 2012 at paragraph [47]. In general terms, the Tribunal’s use of the expression in question was consistent with the applicant’s understanding. It was also consistent with the accepted understanding of its statutory task.

53    The Tribunal’s statement that “the decision under review must be affirmed” was a statement of the conclusion that it had reached. The Tribunal’s use of the word “must” in this context meant simply that, after considering the various factors to which it referred in its reasons, it considered the outcome clear. The use of “must” here did not show that, regardless of the applicant’s evidence and submissions, the Tribunal considered that it was obliged to reach this outcome.

54    Further, notwithstanding the applicant’s submissions to the contrary, the Tribunal did not act under dictation or exhibit bias when it applied Direction 41. Section 499(2A) of the Migration Act required the Tribunal to comply with Direction 41. This did not mean that the Tribunal was required to reach any particular result. It merely meant that, where appropriate, the Tribunal was required to follow the reasoning process laid down in Direction 41.

55    The applicant raised a further concern about the Tribunal’s reference to his submissions and their attachments as a “bundle of documents”. The applicant argued that this indicated that the Tribunal did not turn its mind to each individual document and instead considered his evidence as a whole. The applicant submitted that this raised the possibility that relevant documents were not properly considered and that irrelevant documents were relied upon. I would reject this submission. The reference to a “bundle of documents” is a common turn of phrase to refer to a documentary group and its use does not indicate that the Tribunal failed to consider each of the documents on which the applicant relied.

56    Having considered the applicant’s written and oral submissions and his various affidavits, I can discern no tenable basis for the proposition that the Tribunal misunderstood its statutory function, acted under dictation, or otherwise failed to exercise its own discretion in reaching its decision. This ground should therefore be rejected.

The applicant’s constitutional argument

57    In substance, the applicant submitted that there was no constitutional power to cancel his visa under s 501 of the Migration Act, because New Zealand was constitutionally a part of Australia. Accordingly, so the applicant said, the Tribunal erred in cancelling his visa because New Zealand’s citizens have a right to travel to and reside in Australia; alternatively, the cancellation was of no consequence because New Zealand’s citizens ought not to be required to hold a visa to travel to or reside in Australia. The applicant made lengthy and far-ranging submissions in support of these arguments, which he elaborated particularly in his oral and written submissions and in his affidavits of 1 May 2012.

58    In support of his submission that New Zealand is a state of, or otherwise a part of, Australia, the applicant relied on various matters. Chief among them were the following:

    New Zealand is included in s 6 of the Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12 (referred to below as “covering cl 6”). Covering cl 6 includes the following definitions:

The States shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a State.

Original States shall mean such States as are parts of the Commonwealth at its establishment.

(Original emphasis.)

    Australia and New Zealand share a common Head of State, namely the Queen.

    Australia and New Zealand were both colonised under the British flag and coat of arms.

    The Treaty of Waitangi was signed in 1840 by Captain William Hobson RN, Lieutenant-Governor of New Zealand, for the Crown. Lieutenant-Governor Hobson was at that time subordinate to Major Sir George Gipps, Governor of New South Wales.

    Australia and New Zealand share many close ties, including a free trade agreement, a military alliance, and reciprocal arrangements such as the jurisdictional arrangements the subject of Part IIIA of the Federal Court of Australia Act 1976 (Cth).

    In the past, travel between Australia and New Zealand did not require a visa.

59    The applicant also relied on the Colonial Boundaries Act 1895 (Imp) 58 & 59 Vict, c 34, although its significance for his argument was unclear. The applicant acknowledged that New Zealand was not mentioned in the royal proclamation of 17 September 1900, establishing the Commonwealth of Australia, but relied on the fact that New Zealand was not expressly excluded from the new polity: see further below. The applicant also called in aid the reference to “peace, order and good government” in s 51 of the Constitution.

60    Relying on the supposition that New Zealand was part of Australia, the applicant argued that the requirement for New Zealand citizens to have a visa to travel to Australia was invalid. The applicant submitted that the cancellation of his visa had no effect on his right to remain in Australia and that New Zealand’s status as part of Australia meant that the cancellation of his visa was invalid. I understand these submissions to be in effect that the visa cancellation decision and the Tribunal’s decision affirming it were both invalid due to an error of law; or, alternatively, that these decisions had no legal consequence. In support of this aspect of his argument, the applicant referred to s 117 of the Commonwealth Constitution, which provides:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

61    Further, the applicant submitted that, as a Maori, he possessed all the rights and privileges of a subject of the Queen, pursuant to the Treaty of Waitangi. In his written submissions (at [48]), the applicant contended that these “would effectively give [him] … citizenship to the United Kingdom, Australia and New Zealand”. In these submissions (at [255]), the applicant also claimed a customary Maori right to travel freely across the Tasman Sea, although he did not develop this aspect of his argument.

62    The Minister submitted that the Tribunal’s rejection of the applicant’s constitutional argument was correct and that there was no substance in the argument.

63    For the reasons stated below, I consider that the applicant’s constitutional argument is misconceived.

64    The applicant’s reliance on covering cl 6 is founded upon a misunderstanding of the terms and effect of that section. Covering cl 6 relevantly defined the States to be “such of the [named] colonies … as for the time being are parts of the Commonwealth, and such colonies and territories as may be admitted” (emphasis added). This provision does not list the States of Australia. Rather, it lists the colonies that, at the time of drafting, it was considered might become States. New Zealand was included because at the time of drafting it was thought that New Zealand might join the federation. When covering cl 6 defines “The States” as “such of” those colonies “as for the time being are parts of the Commonwealth”, it attempts to capture in the definition any of those colonies that happen to be States at any given time. This is because the drafters realised that perhaps not all of the named colonies would in fact become States or, indeed, remain States forever. The definition also includes other colonies or territories that may be admitted as States at a later time. In effect, whilst the definition of “The States” in covering cl 6 did not make New Zealand a State, it left open the possibility that New Zealand could have been part of the Commonwealth at its establishment. To find out what the current states of Australia are, one must look elsewhere.

65    The only States at the outset were New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania. This was the effect of the proclamation dated 17 September 1900, declared under covering cl 3, which established the Commonwealth. See also covering cl 4. By the proclamation, it was declared that:

[O]n and after the First day of January One thousand nine hundred and one, the people of New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western Australia shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia.

66    This understanding of covering cl 6 is confirmed by the following observations in Quick J and Garran RR, The Annotated Constitution of the Australian Commonwealth (Australian Book Company, 1901) (“Quick and Garran”) at 251. Writing in 1901, Quick and Garran state:

But though Australian union has been completed, Australasian union has not. New Zealand — separated from Australia by 1,200 miles of sea, and correspondingly more self-contained and less in touch with the national sentiment of Australia — has not yet decided to enter the Commonwealth.

Of course, under s 121 of the Constitution, the Federal Parliament may admit new States, which on admission would be included in the definition. New Zealand has not been admitted.

67    The Treaty of Waitangi has no bearing on the issue agitated by the applicant; and the connection between the Queen’s representative in New Zealand and the then Governor of New South Wales has no relevant legal consequence. Whether or not there was a time in which citizens of New Zealand did not require a visa to enter Australia is irrelevant to the constitutional question he seeks to raise, as well as to interpretation and application of the law as it currently stands. Nor would the matter of Maori rights appear to be relevant to this question.

68    Section 117 of the Constitution cannot assist the applicant’s argument. The expression “subject of the Queen” signifies today “citizens (but not aliens)”: see Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 (“Shaw”) at 43 [30] (Gleeson CJ, Gummow and Hayne JJ). As their Honours there said, the “purpose [of s 117] is the protection of citizens … resident in one State against the relevant disability or discrimination in another State”. Since s 117 only prevents discrimination based on residency in a different State and New Zealand is not a State for this purpose, s 117 is inapplicable to the applicant’s situation: see, for example, Street v Queensland Bar Association (1989) 168 CLR 461. The deportation of the applicant would not expose him to any disability that he would not suffer equally in another Australian State.

69    Finally, as the Minister submitted, it is well settled that the words “peace, order and good government” in s 51 of the Constitution are not words of limitation: Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10; Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 at 408 [9] (Gaudron, McHugh, Gummow and Hayne JJ), 424–425 [55] (Kirby J). They too cannot assist the applicant’s argument.

70    The basic difficulty with the applicant’s argument is that it overlooked the last 112 years of constitutional history in the two countries. It is true that Australia and New Zealand have strong ties and that, as Quick and Garran indicate in the passage set out earlier, in the late 19th to early 20th centuries, some people entertained the possibility of an Australasian union that included New Zealand. Had history taken a different course then, New Zealand may well have become an Australasian State. But history took a different path and New Zealand is an independent country.

71    For these reasons, I would reject the applicant’s constitutional argument. A person who is not an Australian citizen is a non-citizen as defined in s 5 of the Migration Act. Once the applicant’s visa was cancelled, he became an unlawful non-citizen: see Migration Act, ss 13(1) and 14(1). An unlawful non-citizen may be removed from Australia in certain circumstances: see Migration Act, s 198.

Relevant considerations ignored

72    Another ground of the applicant’s application was that the Tribunal fell into jurisdictional error by failing to take into account relevant considerations, specifically:

    various matters relating to the risk that the applicant posed to the Australian community;

    the risk of retaliation and hardship that the applicant faced on return to New Zealand;

    the fact that the applicant had never been formally warned that his visa could be cancelled as a result of his conduct;

    the nature of the applicant’s relationship with his fiancée and the fact that he intended to marry her; and

    the best interests of his fiancée’s children and grandchildren.

Risk to the Australian community

73    In this context, the applicant argued that the Tribunal erred in finding that he posed “an ongoing risk to the Australian community that is unacceptably high”: [2011] AATA 928 at [23]. The applicant contended that the Tribunal’s finding was inconsistent with: (1) the fact that he had been granted parole before the Tribunal hearing; (2) the documents forming part of his parole application; (3) his good conduct at Woodford and his efforts to rehabilitate himself and acquire workplace skills to secure employment upon his release; and (4) the comments of the Court of Appeal to the effect that he was unlikely to reoffend. The applicant also contended that the Tribunal’s questions about whether he took responsibility for his offending were directed to a consideration that could not be taken into account under Direction 41.

74    As appears below, I doubt that these submissions constituted claims of jurisdictional error. Rather, they were an invitation to the Court to re-consider the merits of the Tribunal’s decision, which the Court cannot do. I return to this fundamental difficulty at that end of this discussion.

75    In relation to the grant of parole, I note that the applicant referred at various times to the fact that the visa cancellation decision by the delegate was made before he had been granted parole. Nothing turns on this now, however, because, once the Tribunal re-exercised the s 501(2) discretion, the delegate’s decision became irrelevant to the applicant’s right to remain in Australia.

76    As the applicant noted, he was notified on 25 November 2011 that he had been granted parole, with effect from 2 December 2011, shortly prior to the Tribunal’s hearing and ultimate decision. The applicant argued that the Tribunal ignored this fact, or gave it insufficient weight. He submitted that it was the function of the Parole Board to assess risk to the community and that it was incumbent on the Tribunal to refer to the Parole Board’s decision and his parole application.

77    The applicant’s submissions concerning the function of the Parole Board and the need for the Tribunal to consider its decision can be accepted. Broadly speaking, the Parole Board was, as the applicant submitted, bound to assess the risk to the community of a prisoner’s release: see Corrective Services Act 2006 (Qld), ss 98(1), 99. There is, as the applicant noted, a degree of overlap between the matters to be considered under these provisions of the Queensland Act and those to be considered under Direction 41. There is, however, no reason to suppose that the Tribunal did not consider the assessment of the Parole Board other than in accordance with Direction 41.

78    As already noted, the Tribunal recognised that, by virtue of paragraph [10(1)(a)] of Direction 41, it was bound to consider, as a primary consideration, “the protection of the Australian community from serious criminal or other harmful conduct”. In relation to this consideration, the Tribunal also had regard to the two main factors listed in paragraph [10.1(2)], which included the risk of re-offending. That is, at this high level, the Tribunal plainly had regard to the relevant considerations; and the applicant’s submission that there was jurisdictional error in this aspect of the Tribunal’s decision fails.

79    Even at a lower level, the applicant’s submissions face difficulty. The Tribunal’s reasons clearly indicate that it had regard to paragraph [10.1.2] of Direction 41, which guided the Tribunal’s assessment of the risk of re-offending. This paragraph read as follows:

10.1.2    The risk that the conduct may be repeated

(1)    The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.

(2)    The following factors are to be considered as particularly relevant to this assessment:

(a)    a recent history of convictions, which should be considered as indicating an increased risk of re-offending;

(b)    evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports from the courts, parole assessments, and similar sources of authoritative information or assessment; and

(e)    evidence that the person has breached judicial orders, including parole, bail, bonds, suspected sentences and any other relevant undertakings or conditions imposed by the courts.

80    In accordance with Direction 41, the Tribunal took account of the parole assessment. The Tribunal referred to the fact that the applicant was “eligible for parole”, noting that this “suggests a level of confidence that he can be released into the community”: [2011] AATA 928 at [18]. As paragraph [10.1.2] indicates, the Tribunal was not bound by the Parole Board’s assessment, as the applicant’s argument assumed. It is evident from this paragraph that the assessments of parole authorities were to be treated as relevant to, though not determinative of, the Tribunal’s (or primary decision-maker’s) assessment of the risk of re-offending for the purpose of exercising the s 501(2) discretion: compare Oliver v Minister for Immigration and Citizenship [2011] FCA 534. Such assessments were in the nature of evidence that were generally to be given greater weight than evidence that was not from an independent and authoritative source. The reasons of the Tribunal (described at [15] above) are compatible with paragraph 10.1.2 of Direction 41.

81    It might be thought that the Tribunal’s subsequent comment that “the parole authorities have not yet approved [his fiancée’s] home as a suitable residence for the applicant if he obtains parole and remains in Australia” indicated factual error on the Tribunal’s part, in that the Tribunal failed to appreciate that the Parole Board had already decided that the applicant should be released on parole. When the Tribunal’s statements are considered in context, however, I am not persuaded that the Tribunal made such an error. Rather, the Tribunal was referring, perhaps inaccurately and obliquely, to the fact that the applicant had thus far not in fact been released into the community since he was detained in immigration detention immediately after his release from Woodford.

82    In any event, even if the Tribunal did mistake the fact, the error in fact-finding would not of itself amount to jurisdictional error: see, for example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 (Mason CJ); Waterford v The Commonwealth (1987) 163 CLR 54 at 77 (Brennan J); and Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] (Gleeson CJ, Gummow, Kirby and Hayne JJ). Further, in this case, the error could not have affected the Tribunal’s evaluation of the risk of re-offending, because the Tribunal nonetheless recognised the key matter, namely, that the Parole Board’s decision indicated that it had some confidence about the applicant’s release into the community.

83    It was clearly open to the Tribunal to take the view that the confidence of the Parole Board was not complete because, amongst other factors, the Parole Board had “not yet approved” the home of the applicant’s fiancée as a suitable residence whilst he was on parole. Rather, the applicant was obliged to reside at his brother’s house. I reject the applicant’s submission that his parole conditions (which included reporting, supervision and residence requirements) were no more than those imposed on all law-abiding citizens.

84    Further, assuming that the contents of the applicant’s parole application can be regarded as relevant, there is no reason to suppose that the Tribunal did not have regard to his application. A failure to have regard cannot be inferred from the Tribunal’s lack of reference to the application because the Tribunal was not obliged to refer to every item of evidence in its reasons: see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641; [2003] FCAFC 184 at [46]; Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 309; [2010] FCAFC 51 at [28] (North and Lander JJ). Relevantly, paragraph [10.1.2] of Direction 41 required the Tribunal to give greater weight to evidence from independent and authoritative sources than other sources, with the consequence that the Parole Board assessment was entitled to greater weight than non-independent and non-authoritative evidence in the applicant’s parole application papers. In this circumstance, the absence of any reference to the applicant’s parole application in the Tribunal’s reasons was unremarkable.

85    Further, there can be no doubt that the Tribunal considered the applicant’s conduct in prison at Woodford. The Tribunal specifically referred to this matter in its reasons: see [2011] AATA 928 at [17].

86    The remaining matter raised by the applicant in relation to the risk of re-offending concerned judicial comments in the Court of Appeal. Paragraph [10.1.2(2)(b)] of Direction 41 provided that judicial comments were to receive “greater weight” than other, non-independent and non-authoritative material: see [79] above.

87    The applicant particularly relied on two paragraphs in the reasons for judgment of the Court of Appeal, which stated, amongst other things, that there were grounds for the view that the applicant would not re-offend on his release.

88    The applicant’s submissions with respect to these paragraphs fail to establish error, let alone jurisdictional error. First, it is clear that the Tribunal had regard to the reasons of the Court of Appeal in making its decision, because elsewhere in its reasons (at [10] and [11]) the Tribunal referred to other parts of the Court of Appeal’s reasons for judgment. Further, these particular passages must be read having regard to the entirety of the reasons for judgment of which they form part. In particular, as counsel for the Minister noted, the two paragraphs of the Court of Appeal’s reasons that immediately follow the paragraphs on which the applicant relied must also be borne in mind. These two subsequent paragraphs indicate that the Court accepted that the applicant’s offending conduct was premeditated and that the sentence was appropriate. Those matters were relevant to the seriousness and nature of the relevant conduct, which had also to be borne in mind in considering the overarching issue of the protection of the Australian community, of which the risk of re-offending was only part. In the circumstances, it cannot be inferred from the Tribunal’s absence of reference to the particular paragraphs on which the applicant relied that the Tribunal overlooked them.

89    Secondly, as the terms of paragraph [10.1.2(2)(b)] of the Direction 41 made clear, the Tribunal was not bound by judicial comments. Rather, such comments, though entitled to greater weight than some other evidence, were necessarily to be considered in light of all the material before the Tribunal; and, as noted already, the Tribunal was not obliged to refer to every item of evidence in its reasons. In considering the risk of re-offending, moreover, it was clearly open to the Tribunal to consider the applicant’s “total criminal history”, question him about his attitude to previous offending behaviour and form an opinion about the significance of his answers. It was open to the Tribunal to regard the applicant’s answers as evidence indicative of the limits of rehabilitation achieved and the prospect of further rehabilitation: see [10.1.2].

90    Ultimately, the applicant’s submissions with respect to the risk of re-offending, including with respect to the Court of Appeal’s comments, amounted to an attempt to challenge the weight given by the Tribunal to items of evidence relative to other evidence. The relative weight to be given an item of evidence is, subject to Direction 41, a matter for the Tribunal.

91    The Tribunal made its position clear at [23], where it held that the protection of the Australian community — a primary consideration under Direction 41 — weighed “reasonably heavily” against the applicant, in large part because of the seriousness and nature of his offending conduct. Unlike Green v Minister for Immigration and Citizenship (2008) 100 ALD 346; [2008] FCA 125, the Tribunal not only considered the factors militating against the applicant but also those militating in his favour. The Tribunal’s conclusion on this matter was that whilst the applicant “may well become a law-abiding citizen … his offences are so serious that the public are entitled to expect the Minister will be cautious”. It was plainly open to the Tribunal to take this view, having regard to the material before it.

92    Having regard to the entirety of the Tribunal’s reasons, it cannot be concluded that the Tribunal did not have regard to a relevant factor that it was bound to take into account or that jurisdictional error otherwise arose in its treatment of “the risk to the Australian community” consideration. See Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 208 at [19]; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 (“Khadgi”) at 270 [58]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [46].

Risks to applicant on his return to New Zealand

93    The applicant briefly contended that the Tribunal did not consider the hardship he would face upon return to New Zealand. He asserted that he had no finances, no accommodation and no immediate employment, and would be part of a minority ethnic group. The applicant also contended that the Tribunal did not properly consider the risk of retaliation he faced in relation to evidence that he had given in court in New Zealand.

94    These matters were clearly considered by the Tribunal, which specifically mentioned them in its reasons: [2011] AATA 928 at [36] and following.

No notice of potential cancellation

95    The applicant claimed that, before the cancellation decision, he had never been formally advised about the potential immigration consequences of his conviction in Australia. This claim was supported by the Department’s written submission to the delegate in advance of the delegate’s decision to cancel the applicant’s visa. The applicant argued that it was not open to the Tribunal to affirm the visa cancellation decision when he had not been given any formal warning that his conduct could lead to his deportation. In support of this submission, the applicant relied on paragraph [11(3)(g)] of Direction 41: see [45] above.

96    For reasons I am about to state, I reject the applicant’s submissions on this point.

97    It is clear from paragraph [11(3)(g)] of Direction 41 that a decision to cancel a visa under s 501(2) may be made, notwithstanding that the prospective deportee has not been earlier advised “about conduct that brought the person within the deportation provisions of the Act”. Paragraph [11(3)(g)] only requires the decision-maker to have regard to whether the prospective deportee has received such advice. Further, paragraph [11(2)] states that such a consideration “should be given less weight” than a primary consideration.

98    The Tribunal clearly had regard to whether the applicant had been given advice of the kind described in paragraph [11(3)(g)], noting that it was unsure about the matter. Thus, in its reasons at [48], the Tribunal said:

I am not aware if the applicant was previously told about the possibility that his visa might be cancelled. I do not think that matters. He was plainly aware that his criminal past might be an issue when he came to this country. He explained in his evidence that he did not complete the section of the landing card that asked about criminal convictions when he arrived at the customs barrier. He was waved through but that story indicates he knew this country generally prefers to be careful about whom it admits.

As already observed, factual error does not establish jurisdictional error. Here too, it is plain that any error in this regard was immaterial. In this case, the Tribunal’s statement that it did not matter whether or not the applicant had received the advice mentioned in paragraph [11(3)(g)] showed that, even if the Tribunal were satisfied that he had not received the advice, the Tribunal’s assessment would not have been relevantly affected.

99    In these circumstances, there is no merit in the applicant’s submission as to the effect of the failure to warn him. There was no jurisdictional error in this regard.

Relationship with fiancée

100    The applicant submitted that the Tribunal did not adequately take into account his relationship with his fiancée, to whom he was engaged at the time of the Tribunal decision. The applicant deposed that he had submitted evidence to the Tribunal that he intended to marry her. At various points, the applicant claimed that the Tribunal had “dismiss[ed]”, “downgrad[ed]”, “not … assess[ed]” or “not … consider[ed]” this relationship. The applicant submitted that he should have been considered part of his fiancée’s family unit and the parent of her children for the purposes of the Migration Act (referring to regs 1.05, 1.12 and 1.14A of the Migration Regulations 1994 (Cth) (“the Regulations”)). On his submission, the Tribunal’s conclusion (at [22]) that his relationship with his fiancée was “virtual” and “untested” was invalid because it resulted in a failure to treat his fiancée’s children as his own and, consequently, in a failure properly to consider the best interests of children affected by the decision. The applicant also put forward records of his fiancée’s visits to him while he was in prison and the telephone communications between them. The applicant referred to ss 5F(1)–(2) of the Migration Act, which relevantly define a person’s “spouse” for the purposes of that Act as a person with whom they are in a married relationship. He also referred to s 66D of the Family Law Act 1975 (Cth), which relates to when step-parents have a duty to maintain children.

101    The applicant submitted that the Tribunal failed to consider the hardship that would be occasioned to his fiancée if he were removed from Australia and indicated that, among other problems, she suffered from throat cancer, a heart condition and required back surgery. The applicant asserted that the Tribunal should have considered these matters “on compassionate grounds”. The applicant further submitted that the Tribunal should also have considered his relationship with his fiancée as a significant tie to the Australian community.

102    As explained below, I would reject the applicant’s submissions concerning the Tribunal’s consideration of his relationship with his fiancée and her family. As also noted below, the submissions failed in terms to disclose jurisdictional error.

103    When the Tribunal’s reasons are read as a whole, it is evident that the Tribunal took into account the applicant’s relationship with his fiancée and her family. At the time of the Tribunal’s decision, the applicant and his fiancée had given notice of intention to marry but had not yet married. They had not lived together in the same residence. The conditions of his parole required the applicant to reside in his brother’s house and did not permit him to reside with his fiancée. These circumstances were noted and carefully considered by the Tribunal: see [2011] AATA 928 at [19]–[22]. The Tribunal also considered (at [34]–[35]) the significance of the applicant’s relationship with his fiancée and her family. The Tribunal specifically took account of his fiancée’s ill-health and the effect on her and her family if deprived of the applicant’s emotional and other support: [2011] AATA 928 at [36]–[39].

104    Neither ss 5F(1)–(2) of the Migration Act nor s 66D of the Family Law Act 1975 (Cth) were applicable to the Tribunal’s decision-making. The various definitions of “spouse” and related concepts in the Regulations were also inapplicable. The regulations relied on by the applicant applied to certain categories of visa and did not apply to decision-making under s 501 of the Migration Act.

105    The applicant’s argument was in substance that the Tribunal should have made different findings with respect to his relationship with his fiancée. That is, he would have the Court re-examine the merits of his case. The Court cannot do this. Rather, the Court’s inquiry is limited to whether the Tribunal decision contains jurisdictional error. The applicant has not shown that the Tribunal’s decision contained any such error with respect to its consideration of his relationship with his fiancée.

The best interests of his fiancée’s children and grandchildren

106    The applicant made lengthy submissions on this consideration. In particular, the applicant’s affidavit affirmed on 14 October 2012 covered this subject in some detail. The applicant relied on paragraph [10(1)(d)] of Direction 41, which made Australia’s international obligations, including the best interests of the child, as described in the Convention on the Rights of the Child (“CROC”), one of the primary considerations for decision-making under s 501(2). The applicant also submitted that the protection of the family unit should have been a primary consideration in light of Australia’s obligations under the International Covenant on Civil and Political Rights (“ICCPR”). In so far as adult children did not fall within a primary consideration, the applicant submitted that the Tribunal failed to consider their best interests as a non-primary consideration under paragraph 11 of Direction 41. As part of these arguments, the applicant contended that not only his fiancée, but also her children and grandchildren would be adversely affected if he were returned to New Zealand and submitted that the Tribunal failed to consider this. The applicant supported his contention in several ways.

107    First, the applicant noted the death of an adult child of his fiancée in a fishing accident in February 2012 as illustrative of the hardship that the family would suffer without his active involvement in their lives. The applicant deposed that the family was now under significant emotional stress and faced the additional financial burden of caring for the deceased’s own children. He contended that his own continuing detention may have contributed to the deceased’s accidental death and that this possibility disclosed relevant error in the Tribunal’s decision. That is, the applicant argued that the circumstances surrounding the accident demonstrated that the Tribunal’s decision could not have been in the best interests of the deceased or his children.

108    Secondly, the applicant described himself as the closest person his fiancée’s children or grandchildren had to a male parent. The applicant submitted that the Tribunal failed to consider the role that he could play in assisting with their medical needs. He noted that between them the family had a number of medical conditions ranging from asthma to a genetic kidney disorder and that a family member had attempted suicide. The applicant contended that the Tribunal should have sought reports relating to the family’s needs and the impact that his removal to New Zealand would have on them. The applicant asserted that the family would suffer hardship over and above the emotional hardship contemplated by the Tribunal if he were returned to New Zealand. He maintained that the Tribunal could not have reached the decision it did unless it had impermissibly disregarded the best interests of his fiancée’s children and grandchildren.

109    Thirdly, the applicant referred to the wishes expressed by his fiancée’s children before the Tribunal. He noted that, pursuant to paragraph [10.4.1(5)(k)] of Direction 41, in considering the best interests of a child, the Tribunal was bound to consider “any known wishes expressed by the child”. Referring to the evidence of one of his fiancée’s children at the Tribunal hearing and the written statements provided by the other children, the applicant contended that the Tribunal failed to consider the best interests of these children by ignoring their expressed wishes that he remain in Australia. The applicant contended that oral evidence from every child should have been received. At times, the applicant submitted that the best interests of his fiancée’s children should have been considered as not merely a primary consideration but the paramount consideration.

110    Whilst the applicant’s argument at this point was eloquent and his concern for the family sincere, his submissions failed to establish jurisdictional error on the Tribunal’s part.

111    As will be apparent, the boating accident in February 2012 occurred after the Tribunal’s hearing and decision. The effect of the accident on the family of the applicant’s fiancée, including her grandchildren, could not have been a part of the Tribunal’s consideration. The issue of these particular grandchildren was not addressed by the Tribunal because it did not arise at that time. The Tribunal’s failure to consider this matter could not therefore amount to jurisdictional error on the Tribunal’s part: see also M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520 at 524, 529; [2004] FCAFC 293 at [12], [34]–[35]. The Court’s jurisdiction does not permit it to re-consider the merits, even allowing for the subsequent boating tragedy. I therefore confine the following discussion to the children of the applicant’s fiancée. These were the children whom the applicant invited the Tribunal to consider.

112    As the applicant submitted, Direction 41 provides, in paragraph [10(1)(d)], that the primary considerations informing the discretion whether or not to cancel a visa under s 501 include “relevant international obligations”, including the best interests of the child as described in the CROC. (The applicant’s reference to the ICCPR did not materially alter his argument with respect to the international obligations consideration; and it is unnecessary to discuss it separately.)

113    The “best interests of the child” consideration is further discussed in paragraph [10.4.1] of Direction 41. The consideration applies only if the child is or would be under 18 at the time when the cancellation decision is expected to be made: paragraph [10.4.1(1)]. Whilst not a primary consideration, the best interest of a child over 18 may nonetheless be considered with other considerations under paragraph 11 of Direction 41: see paragraph [10.4.1(2)]. The Tribunal was informed by the Minister’s representative at the hearing that one of the children turned 18 in February 2012 and another would turn 18 in about August 2013. (This latter date may have been August 2014, as stated in a submission to the delegate, but nothing presently turns on this.) A third child, for the most part, did not live with her mother.

114    Paragraph [10.4.1(5)] stated the factors that were to be taken into account in considering the best interests of the child, including:

(a)    the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child;

(b)    the duration of the relationship …;

…

(d)    the child’s age;

…

(f)    the likely effect that any separation from the person would have on the child;

…

(k)    any known wishes expressed by the child;

…

115    The Tribunal specifically considered the position of the children under the heading “International obligations — especially the best interests of any children”. The Tribunal recognised that the children had various health problems and that the applicant might contribute to their care if he were to remain: [2011] AATA 928 at [28]. The Tribunal concluded, however, that Australia’s international obligations would not be compromised if the applicant were to be returned to New Zealand, because the children’s “relationship with the applicant has simply not reached the point where Australia’s international obligations make a difference”: [2011] AATA 928 at [28]. The Tribunal explained (at [28]) that, although the children referred to the applicant as “Dad”, “he cannot properly be regarded as their parent (and cannot therefore have parental obligations) at this early point in their relationship”. It was clearly open to the Tribunal to reach this conclusion, having regard to the fact that the applicant had had limited contact with the children and that they had only met face to face on a few occasions: [2011] AATA 928 at [28]. As indicated already, the various provisions relied on by the applicant to support his parental status were not applicable here.

116    Elsewhere in its reasons, the Tribunal considered the children’s interests with respect to other considerations. The Tribunal found that the relationship had not existed for a very long time and that it had occurred “through the medium of telephone and postal contact, with limited personal interaction”: [2011] AATA 928 at [34]. In this circumstance, it was also open to the Tribunal to find that, notwithstanding the apparent intensity of the bond between the applicant and the children, “it cannot really be said that they know each other yet”: [2011] AATA 928 at [34]. At the same time, the Tribunal acknowledged that the applicant’s return might deprive his fiancée and her children of emotional and other support: [2011] AATA 928 at [39].

117    It is evident from the Tribunal’s reasons that it gave conscientious consideration to the best interests of the children, having regard to relevant factors such as the nature of the relationship between them and the applicant, the duration of the relationship, the likely effect of his return to New Zealand, and the wishes of the children as stated either in evidence or written statements. The Tribunal was not obliged in the circumstances to call for reports on the family or to have viva voce evidence from each child. Put another way, the Tribunal’s reasons disclose an active intellectual engagement with the “best interests of the child” question: see Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at 7; [2009] FCAFC 140 at [48]–[49]; Khadgi at 270 [57]. There was no jurisdictional error established with respect to this matter.

Going beyond jurisdiction

118    The applicant also challenged the Tribunal’s decision on the ground that the Tribunal fell into jurisdictional error by commenting on matters that were unnecessary for its decision or beyond its jurisdiction. In particular, the applicant contended that: (1) it was beyond the jurisdiction of the Tribunal to reject his constitutional argument; (2) the final paragraph of the Tribunal’s reasons concerned an irrelevant matter beyond its jurisdiction; and (3) the Tribunal erred in mentioning the matter of compensation.

119    For the reasons set out below, there is no substance in any of these objections.

120    As stated at [13] above, the Tribunal described the applicant’s assertion that New Zealand is part of Australia as “wrong”. The applicant contended that the Tribunal had no jurisdiction over matters of constitutional interpretation. This is not to the point. The Tribunal can lawfully state an opinion about a constitutional point when the point is said to preclude the decision under review. As Brennan J observed in Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 at 241–242, although the Tribunal cannot definitively answer a question of constitutional validity, the Tribunal is competent “to consider and reach an opinion on the question”, especially when the question concerns its own authority.

121    In the last paragraph of its reasons, the Tribunal stated:

I want to raise one other matter. [The applicant’s fiancée] took time off work to come to the hearing to give evidence. She said she lost her job as a result. It would be a matter of concern if a witness before the Tribunal were to be penalised in her workplace because she gave evidence. I will ask the Registrar to write to [her] and, if necessary, her employer, to determine what occurred.

The applicant challenged this paragraph. The applicant stated in one of his 1 May 2012 affidavits: “the objective of the Tribunal was to review a visa cancellation decision, not a employment relations Tribunal [sic]”. Referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, he contended that, by mentioning this matter, the Tribunal took into account an irrelevant consideration, with the result that there was jurisdictional error.

122    I reject these submissions. There was no error in the Tribunal expressing concern about a matter that would be likely to affect the future efficacy of its proceedings. The Tribunal had a direct interest in ensuring that witnesses were not penalised in consequence of giving evidence in its proceedings. In any event, the final paragraph was not a part of the Tribunal’s reasons for affirming the visa cancellation decision and could not, therefore, constitute jurisdictional error in that decision.

123    Finally, as noted, the applicant objected to the Tribunal’s statement that it did not have the power to award him compensation, notwithstanding that the applicant had in fact sought an award of compensation from the Tribunal. He submitted that, as awarding compensation was beyond the power of the Tribunal, it came into error by mentioning the matter at all.

124    The Tribunal makes no error, however, in expressing an opinion about its powers when responding to a request for relief.

Procedural fairness

125    The final ground relied on by the applicant was that the Tribunal failed to accord him procedural fairness in receiving expert reports from Professor Newbold and documents from Queensland Correctional Services in response to a subpoena. I deal first with Professor Newbold’s reports.

Professor Newbold’s reports on gang activity in New Zealand

126    To understand this ground so far as it relates to Professor Newbold’s reports, it is necessary to set out the background to their receipt. As indicated already, one of the applicant’s claims before the Tribunal was that he feared reprisals from a gang if he were returned to New Zealand.

127    At a telephone directions hearing on 27 October 2011, the Tribunal requested that the Minister provide a report from an independent source about gang activity in New Zealand relevant to the applicant’s claim. The Minister’s legal representative stated that such a report would be more achievable if the applicant were to provide more particular information. A further directions hearing was held on 10 November 2011, when the Tribunal made orders under s 35 of the AAT Act to keep confidential any material provided by the applicant to the Tribunal and the Minister in connection with the hearing of the review. By a letter dated 18 November 2011, the applicant gave material to the Tribunal and the Minister under cover of this order.

128    On 15 November 2011, the Minister’s solicitors sent a letter of instruction to Professor Greg Newbold of Canterbury University, New Zealand, seeking a report regarding gang activities in New Zealand and the applicant’s claims concerning his safety. On 24 November 2011, Professor Newbold completed a report providing a general profile of gang activity in New Zealand (“the first report”). Also on 24 November 2011, the Minister’s solicitors sent a letter to the applicant containing a list of questions regarding his claims about his safety in New Zealand. On 29 November 2011, the applicant sent the Tribunal and the Minister’s solicitors his response to those questions. On 6 December 2011, the Minister’s solicitors sent a second letter of instruction, which asked Professor Newbold to provide a further report concerning the applicant’s claims. This letter had numerous attachments, including letters from the applicant dated 18 November 2011 and 29 November 2011 setting out his claims. On 8 December 2011, Professor Newbold provided a second report, consisting of 3 pages, addressing the applicant’s claims (“the second report”). The concluding paragraph of the second report read:

For these reasons, I believe that [the applicant’s] claim that his life or personal safety would be threatened if he returned to New Zealand is without substance or foundation.

129    The circumstances in which Professor Newbold’s reports were provided to the applicant were also relevant to his claims that there had been a breach of procedural fairness. On 6 December 2011, the Minister’s solicitors sent an email to the Victorian Case Management Unit of the Department. The email bore the applicant’s name and the following notation “MIAC – 2011/4293 – Respondent’s Further Documents”. The email asked that the attached documents – the Minister’s Statement of Facts, Issues and Contentions and a letter to the Tribunal dated 6 December 2011 (enclosing Professor Newbold’s 24 November 2011 report and the 15 November 2011 letter of instruction) be “hand delivered” to the applicant. On the same day, an officer of the Department replied by email that:

Please be advised the client is scheduled to see a Case Manager tomorrow and will be hand delivered the below papers.

130    Also on 6 December 2011, the Minister’s solicitors sent a facsimile transmission to the Maribyrnong Immigration Detention Centre, which also included a copy of Professor Newbold’s 24 November 2011 report. The cover page of the fax stated:

Can you please provide the following documents to [the applicant] today. …

Can you please arrange for either a staff member or [the applicant] to either ring or email us on the contact details below to confirm receipt of these documents.

(Original emphasis.)

A subsequent transmission report recorded a transmission of some 40 pages at about 4:05 pm that day.

131    On 8 December 2011, the Minister’s solicitors again faxed the Maribyrnong Immigration Detention Centre, this time including a copy of the second report from Professor Newbold that had just been received. Again the fax cover sheet requested that the documents be handed to the applicant on that day. A transmission report recording a transmission of some 74 pages was completed at 3:16 pm that day.

132    On the morning of 13 December 2011, prior to the Tribunal hearing that day, the Minister’s solicitor handed the applicant copies of Professor Newbold’s reports of 24 November 2011 and 8 December 2011, as well as copies of the two letters of instruction to Professor Newbold (and their attachments).

133    The applicant made a number of submissions regarding the Tribunal’s acceptance of Professor Newbold’s evidence. First, he submitted that it was improper for the Tribunal to direct the Minister to obtain a report from Professor Newbold specifically rather than propose a list of suitable experts from which an expert could be selected. The applicant also submitted that the Tribunal displayed bias by relying on Professor Newbold’s reports when they had been prepared at the request of the Minister. He described Professor Newbold as “acting on behalf of the Minister”. The applicant submitted that the Tribunal should have given him the opportunity to put on his own expert evidence regarding his claims to fear for his safety if returned to New Zealand.

134    Secondly, the applicant submitted that the Tribunal ought not to have accepted that Professor Newbold was an appropriate expert because he had a criminal record and his qualifications in sociology did not make him competent to give evidence on a matter of criminology. The applicant submitted that the Tribunal should not have taken Professor Newbold’s reports into account because they lacked credibility and relevance. In support of this submission, the applicant disputed Professor Newbold’s evidence that not all New Zealand gangs are criminally orientated and supplied news reports of criminal activities in New Zealand involving gang members. Further, the applicant argued in one of his 1 May 2012 affidavits that the fact that the confidentiality orders were made demonstrated that there was some threat to his safety.

135    I interpolate here that this last-mentioned argument was untenable. The making of a confidentiality order did not establish that the applicant was at risk. Rather, it indicated only a provisional acceptance that he might be at risk. No finding one way or the other could be made until the Tribunal received evidence on the matter.

136    Finally, the applicant complained that he had not been provided with a copy of the second report prior to the day of the Tribunal hearing. On this basis, he contended that the Tribunal denied him procedural fairness by not giving him an adequate opportunity to consider the contents of that report prior to his cross-examination of Professor Newbold. He also submitted that, because the statutory time limit imposed by s 500(6L) of the Migration Act would have expired during the Tribunal’s end of year closure, the Tribunal rushed to produce a decision before the end of the year at the expense of providing procedural fairness.

137    For the reasons stated below, I reject the applicant’s submissions with respect to Professor Newbold’s reports.

138    The evidence did not support the applicant’s assertion that the Tribunal specifically directed the Minister to obtain a report from Professor Newbold. This evidence indicated that the Tribunal wished to have independent expert evidence about gang activity in New Zealand and, in the course of discussing the need for such evidence, gave “the example of a NZ criminologist” (who was not Professor Newbold). Presumably, the Tribunal asked the Minister rather than the applicant to adduce such evidence because it believed that the Minister would be better placed to meet the cost of obtaining the evidence. Although the Minister obtained the reports, Professor Newbold was in fact retained to provide an independent expert opinion for the assistance of the Tribunal. Professor Newbold was specifically informed of this when he was provided with his letters of instructions. Professor Newbold’s independent status was set out in the Tribunal’s “Guidelines for Persons Giving Expert and Opinion Evidence” and this Court’s Practice Note on Expert Witnesses, with which Professor Newbold was provided. In this circumstance, there can be no reasonable apprehension of bias in the Tribunal receiving and relying on the evidence of Professor Newbold. As a Full Court of this Court said in Rana v Australian Federal Police (2006) 44 AAR 151 at 159; [2006] FCAFC 169 at [50], citing Re JRL; Ex parte CJL (1986) 161 CLR 342 and Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 “even a reasonable apprehension of bias must be ‘firmly established’”. There was, moreover, no reason to suppose that the Tribunal would have denied the applicant the opportunity to adduce evidence from another expert had the applicant been in a position to do so. Nor is there any reason to suppose that the applicant was denied the opportunity to give his own evidence on gangs in New Zealand.

139    Professor Newbold’s qualifications as a professor of sociology specialising in criminology and criminal justice were not in dispute. Further, there was no dispute that he had and continues to have contact with gangs and has previously been convicted of drug dealing. Professor Newbold’s own report of 24 November 2011 stated as much. The relevance and cogency of Professor Newbold’s qualifications were essentially matters for the Tribunal to assess. The Tribunal considered the applicant’s submission that, on account of his previous criminal record, Professor Newbold was not a reliable witness. The Tribunal rejected this submission, as it was open for it to do.

140    As the Minister submitted, there was no requirement for Professor Newbold to provide the applicant with procedural fairness. Professor Newbold’s reports related to the issue of gang retaliatory activity in New Zealand, which was relevant to a consideration relevant to the Tribunal’s exercise of the s 501(2) discretion. The reports could have no direct effect on the applicant’s rights and interests. For this reason, the decision in Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30 (“Maman”) is distinguishable. In Maman the independent expert gave evidence on whether or not the visa applicant had suffered domestic violence – itself a visa criterion – in circumstances where the Tribunal was required by provisions of the Migration Regulations to accept that opinion as correct: see Maman at 37 [22], 38 [25]–[26] (Flick and Foster JJ) and 54 [88] (Katzmann J).

141    If the applicant in fact received the second report of Professor Newbold shortly after it was faxed to him on 8 December 2011, the applicant’s breach of procedural fairness claim would be unmaintainable. Nonetheless, the Minister was “content to proceed on the basis that the Applicant was first given this report on the day of the hearing on 13 December 2011”.

142    There was no dispute about the applicable law. The Minister accepted, as a general proposition, that procedural fairness required that the applicant be informed of the case against him, including any adverse information that was credible, relevant and significant, and given a reasonable opportunity to respond: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611 [40] (Gaudron and Gummow JJ); Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 95 [15] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). The question whether the obligation to afford procedural fairness has been discharged is a practical matter that is “not to be evaluated minutely”: see Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) 195 FCR 318 (“Dunghutti”) at 363 [64]. That is, whether a “reasonable opportunity” to respond has been given must be determined objectively, having regard to the attendant circumstances: see Dunghutti at 367–368 [85], [90]; also Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51 (“Ogawa”) at 58 [36]–[37] (Flick J).

143    The circumstances were that:

1.    The second report of 8 December 2011 was a short report of 3 pages. The second report responded to the applicant’s own claims and did not raise any new issue likely to have taken him by surprise.

2.    Professor Newbold gave his evidence after a lunch break of about an hour (12:41 pm – 1:43 pm). The applicant had an opportunity to consider the second report in this lunch break.

3.    The applicant did not seek an adjournment or tell the Tribunal that he required additional time to consider the second report of Professor Newbold. (The significance of this factor is discussed further with respect to the documents the subject of subpoena.)

4.    The applicant was able to cross-examine Professor Newbold in some detail and actually cross-examined him about the claim in his second report that he would not fear retaliation in the situation outlined.

5.    At the hearing in this Court, the applicant did not identify in what way he might have conducted his case differently if he had had more notice of the second report.

6.    The effect of s 500(6L) of the Migration Act was that, if the Tribunal did not make its decision within 84 days after the applicant was notified of the visa cancellation decision (on 6 October 2011), the Tribunal would be taken to have affirmed the decision under review. This helps to explain how it came about that Professor Newbold’s reports were obtained so very near to the Tribunal hearing.

144    The time constraint imposed by s 500(6L) of the Migration Act is part of the statutory context that must be borne in mind in considering what procedural fairness required in the circumstances of the case. Thus, for example, in Daw v Minister for Immigration and Citizenship [2012] FCAFC 123, a Full Court of this Court upheld the primary judge’s decision that turned on the proposition that s 500(6L) should be taken into account when considering whether the Tribunal’s refusal to grant an adjournment was a breach of procedural fairness or failure to provide a reasonable opportunity.

145    Bearing in mind the statutory context, which meant that matters had to be dealt with as efficiently as possible, and having regard to the circumstances just mentioned, I would conclude that there has been no practical injustice to the applicant and no breach of procedural fairness in providing him with a copy of the second report of Professor Newbold on the morning of the hearing. It is true that the applicant was required to consider this report at the same time as he was also required to consider the Queensland Corrective Services documents discussed below, but I am not persuaded that this worked any practical injustice, bearing in mind the brevity of the report, the applicant’s failure to seek an adjournment, his cross-examination of Professor Newbold and his failure to indicate how he would have run his case differently had he had more notice.

The Queensland Corrective Services documents

146    To understand the breach of procedural fairness ground so far as it relates to the documents from the Queensland Corrective Services, it is again necessary to set out the relevant background.

147    As already noted, the Parole Board did not give notification of its decision to release the applicant on parole until 25 November 2011. The issue of parole therefore arose less than three weeks before the hearing. On 5 December 2011, the Tribunal issued a subpoena to the Parole Board on the Minister’s application for all documents relating to the applicant’s application for parole and the Parole Board’s decision to grant him parole.

148    On 7 December 2011, in answer to the subpoena, the Tribunal received copies of the applicant’s visits history and telephone call records while he was in custody.

149    Further documents were provided at a later date. These documents included: the parole decision; a letter from the applicant to the Parole Board dated 27 October 2011; a home assessment report dated 14 October 2011 (in relation to the applicant’s brother’s home); letters from the Parole Board to the applicant dated 17 October 2011 and 21 September 2011; a parole assessment report dated 1 September 2011; a home assessment report dated 1 August 2011 (in relation to the applicant’s fiancée’s home); an application for parole dated 1 July 2011 (including character references and course certificates); and other documents (being a prisoner request form, notice of intent to marry, job performance report, sentence calculation, verdict and judgment record, transcript of sentencing proceedings, a copy of the Court of Appeal decision, and a Queensland Police person history in relation to the applicant). These documents were in evidence before the Tribunal as exhibit 5.

150    It is unclear precisely when the applicant first received copies of these documents. At the latest, he received them on 13 December 2011, prior to the Tribunal hearing.

151    The applicant submitted that he had not been given adequate opportunity to respond to these documents and that they may have been adverse to his case.

152    The relevant principles with respect to procedural fairness have already been stated: see [142] above. The essential question is whether the applicant was given a “reasonable opportunity” to respond to any adverse, credible, relevant and significant information within the documents. This is to be determined objectively, having regard to the circumstances of the case.

153    The circumstances were as follows:

(1)    As already noted, the effect of s 500(6L) of the Migration Act was that, if the Tribunal did not make its decision within 84 days after the applicant was notified of the visa cancellation decision (on 6 October 2011), the Tribunal would be taken to have affirmed the decision under review. This meant that the Tribunal had to proceed with some expedition to avoid being taken to have affirmed the visa cancellation decision in any event.

(2)    The documents were sought in early December 2011, shortly after notification of the Parole Board decision and about a week or so before the scheduled hearing. Some documents were supplied two days after the subpoena had issued. Others were provided later. There is no reason to suppose that documents were improperly withheld.

(3)    The visits history and telephone records, though bulky, related to events within the applicant’s own knowledge. The applicant has never stated that he would have sought to contradict them if he had been given more time to consider them.

(4)    Other documents were of a formal kind (e.g. the verdict and judgment report) and/or the applicant was already familiar with them before 13 December 2012 (e.g. the parole decision, letters to or from the applicant, the parole application). The applicant has never stated that he would have conducted his case differently if he had been given more time to consider these documents.

(5)    The documents that were not previously available to the applicant were the parole assessment report dated 1 September 2011 and the two home assessment reports respectively dated 14 October 2011 and 1 August 2011. These documents totalled 14 pages. The applicant has not identified any adverse information in these documents which he was unable to answer because he had inadequate notice. Rather, the applicant’s complaint was that he was deprived of the opportunity to cross-examine the authors of these reports and other persons.

(6)    As already noted, the Tribunal hearing was interrupted by a lunch break, which lasted about an hour. The lunch-break gave the applicant an opportunity to consider the documents with which he was unfamiliar.

(7)    As already noted, the applicant did not seek an adjournment. He did not say that he required more time to read any of the material he had been given or to respond to it.

(8)    Reference to the transcript before the Tribunal indicates that the Tribunal was aware that on occasion the applicant needed time to collect his thoughts and it gave him that opportunity. It may be reasonably supposed that the Tribunal would have given the applicant some further opportunity to consider the documents had he sought one (having regard to the time constraint imposed by s 500(6L).

(9)    Although the applicant was unrepresented at the hearing, he was an articulate person who was able to point to any difficulties he was encountering at the hearing.

(10)    In his final submissions at [193] (in this proceeding), the applicant did not allege that there was any adverse passage in these documents. He alleged only that there may have been.

154    In order to establish a beach of procedural fairness, it is necessary for the applicant to identify the adverse, credible, relevant and significant information that he says was the subject of the alleged breach. Unless this is done, no such breach can be established: see Applicant M90 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 109 at [21]. The applicant did not identify any such information in respect of which he was not given a reasonable opportunity to respond.

155    Further, so far as one can tell, the applicant had an adequate opportunity to respond to the two items of information that might be thought to match this description. That is, although the applicant did not identify them, there were apparently two pieces of adverse, credible, relevant and significant information in the Queensland Corrective Services documents. Both of these pieces of information were mentioned in the Tribunal’s reasons. The first, to which the Minister referred in final submissions before the Tribunal, was the recommendation of the Parole Board that the applicant not live with his fiancée. The second, also mentioned by the Minister, was that the visit reports indicated the children had visited him in prison on only a limited number of occasions. Both matters were, however, within the applicant’s own knowledge prior to the hearing. That is, the applicant would have known the number of visits that had been made and the substance of the Parole Board’s recommendation. Furthermore, the applicant also had an opportunity to respond to these matters in his final submissions to the Tribunal.

156    The Minister relied on the lunch-break as giving the applicant the opportunity adequately to consider the documents, especially the 14 pages of the 1 September 2011 parole assessment report and the two home assessment reports. Of course, it must be borne in mind that, within this hour, the applicant, unrepresented, had to locate these 14 pages within the larger bundle of documents and read and digest them, as well as the short report of Professor Newbold. I accept that the applicant may have not have found this an easy task.

157    As already noted, however, the applicant did not seek even a brief adjournment to permit him more carefully to read the documents (and Professor Newbold’s second report) and consider his response. Nor did the applicant inform the Tribunal that he was having difficulty dealing with the documents on account of the fact that he had received them only that morning. In these circumstances, the observations of Collier J in Rountree v Minister for Immigration and Citizenship (2008) 100 ALD 320 at 329; [2008] FCA 251 at [45] are apposite:

[I]f the applicant had required further time to adduce evidence before the tribunal, he should have sought an adjournment of his hearing before the tribunal. In circumstances where a party before the tribunal requires an adjournment in order to adduce evidence necessary to the conduct of its case, it is appropriate that the Tribunal entertain and give proper consideration to such an application. In this case, however, it does not appear that the applicant made an application for an adjournment.

The applicant’s failure to seek an adjournment or tell the Tribunal he needed further time to respond to the Queensland Corrective Services documents (and/or Professor Newbold’s second report) indicates that he was not in fact deprived of a reasonable opportunity to respond.

158    Ultimately, the applicant identified only one way in which his receipt of the Queensland Corrective Services documents on the morning of the hearing affected the way he was able to put his case. The applicant’s only complaint was that he was thereby deprived of the opportunity to cross-examine the authors of the documents and other persons. It is, however, doubtful that the applicant had any right of the kind he asserted. In any event, as the Full Court said in Omran v Australian Postal Commission (1992) 15 AAR 232 at 235, cross-examination, especially of experts, is not necessarily essential to a fair hearing, particularly when an expert’s report is “confined to observations made at the time”.

159    Bearing in mind the statutory context and the circumstances as discussed, I would conclude that there has been no practical injustice to the applicant and no breach of procedural fairness in providing him with the Queensland Corrective Services documents on the morning of the hearing.

160    For the reasons stated, there was no breach of procedural fairness and no jurisdictional error can be imputed to the Tribunal’s decision on this account.

DISPOSITION

161    For the reasons stated, the applicant has failed to establish jurisdictional error on the Tribunal’s part in making the decision to affirm the visa cancellation decision. I would therefore dismiss his application, with costs.

162    I note that the Tribunal considered it appropriate to use a pseudonym to refer to the applicant in its decision and published reasons. Bearing this in mind, as well as the considerations to which the Tribunal referred, I consider it appropriate to pursue a similar course. I therefore also order that any reference to the name of the applicant in the reasons for judgment be replaced with the pseudonym “NZA”.

Associate:

Dated:    28 February 2013