FEDERAL COURT OF AUSTRALIA
Judd v Minister for Immigration and Border Protection [2017] FCA 827
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Pursuant to section 44 of the Administrative Appeals Tribunal Act 1976 (Cth), the decision of the Administrative Appeals Tribunal given on 28 February 2017 is set aside and the application for review of decision is remitted to heard and decided again by a different member of the Tribunal.
2. The respondent is to pay the applicant’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 The applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), made on 28 February 2017. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister, to refuse to approve the applicant, Mr Judd, becoming an Australian citizen by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The ‘appeal’ on questions of law is instituted pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). In the alternative, the applicant seeks judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth).
2 The applicant alleges that the Tribunal denied him procedural fairness in making certain adverse findings without notice.
3 Further or in the alternative, the applicant alleges that the Tribunal failed to review the delegate’s decision according to law including in its treatment of ministerial policy and in failing to consider the unchallenged evidence of certain witnesses important to the applicant’s case.
4 For the reasons given below, the appeal under s 44 of the AAT Act is allowed by reason of a failure by the Tribunal to comply with the requirements of procedural fairness. Accordingly, the matter should be remitted to the Tribunal to decide according to law.
5 The applicant relied upon the affidavit of Farid Varess, lawyer, affirmed on 20 June 2017, which was read without objection. Mr Varess deposed as to correspondence with the Tribunal regarding the applicant’s request for the Tribunal hearing to be listed so as to correspond with his holiday to Australia: see further below. His evidence was not challenged.
6 The purpose of the Citizenship Act “is to be inclusive and to expand the numbers who embrace the common bond referred to in the Preamble” which in turn involves “reciprocal rights and obligations, uniting of all Australians, while respecting their diversity.”: Lin v Minister for Immigration and Citizenship [2009] FCA 494; (2009) 176 FCR 371 (Lin) at [83] (Foster J).
7 Subdivision B of Part 2 of the Citizenship Act (ss 19G-28) provides for a person to become an Australian citizen by conferral. A person becomes a citizen by conferral under s 20 if the Minister decides under s 24(1) to approve the person becoming an Australian citizen and, if so required, the person makes a pledge of commitment to become an Australian citizen.
8 An application to become an Australian citizen may be made under s 21(1). The general eligibility requirements are set out in s 21(2) which relevantly provides that:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
9 The criteria in issue before the Tribunal were the general residence requirement in s 21(2)(c) and the criterion in subs (g) (Tribunal’s reasons at [4]).
10 It is not in issue that the reference to a “close and continuing association” in s 21(2)(g) does not require the person to maintain a personal presence in Australia: Lin at [110] (Foster J). Nor does s 21(2)(g) impose a temporal restriction in that the Tribunal can be satisfied that residence in Australia is likely “even though it is only ‘likely’ some years in the future”, notwithstanding that it may be more difficult to establish that residence is likely where a long period is envisaged before the possible time at which residence will commence: Lo v Minister for Immigration & Border Protection [2014] AATA 736; (2014) 144 ALD 450 at [23] (DP Constance).
11 Section 22(1) sets out the circumstances in which the general residence requirement in s 21(2)(c) will be met and provides that:
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
12 The applicant here did not meet subs (a) or (c). However, the Minister has a discretion to deem an applicant to be a permanent resident present in Australia relevantly under s 22(9) of the Citizenship Act in certain circumstances, namely:
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a) the person was a spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
13 Before the Tribunal, the question was whether the applicant satisfied s 22(9)(d), the other criteria being met (Tribunal’s Reasons at [8]-[9]).
14 The purpose of s 22(9) “is to qualify or ameliorate the strictness of the general residence requirement” by providing a mechanism whereby that requirement, and the difficulty which some applicants could experience in meeting it, can be mitigated: Minister for Immigration & Border Protection v Han [2015] FCAFC 79; (2015) 231 FCR 113 at [51] and [54] (the Court). While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”: Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25]. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”.
15 It is helpful briefly to summarise certain key facts by way of background drawn from the Tribunal’s findings.
16 The applicant and his wife have been married since 1991 (Tribunal’s reasons at [56]). On 19 August 2003 the applicant and his family were granted Subclass 457 Business (Long Stay) visas valid until 19 August 2007. The applicant entered Australia on his subclass 457 visa on 16 September 2003. He was followed in December 2003 by his family. They established a home here and the children attended school in Australia (Tribunal’s reasons at [22]-[24]).
17 In January 2007, the applicant was offered the permanent role of CFO for the European-based division of the company for which he worked but he ultimately decided to turn it down. The Tribunal accepted that in making that decision, the fact that the applicant’s family had settled within the Australian community and that he and his wife wished to make Australia their permanent home were important considerations (Tribunal’s reasons at [27]). Following that decision, the applicant took steps to convert his status from a temporary resident to a permanent one, despite the detrimental impact that this had on his compensation package and tax status. In June 2007, the applicant transferred his UK pension into an Australian superannuation account and made a substantial non-concessional contribution into his Australian superannuation fund (Tribunal’s reasons at [29]).
18 On 6 July 2007, the applicant and his family became permanent residents of Australia upon being granted subclass 856 visas (Tribunal’s reasons at [30]).
19 In November 2009, the applicant’s wife and four children applied for citizenship. This was granted by conferral on 24 June 2010. The applicant did not apply at that time because he did not meet the general residence requirement. His global role had required him to travel outside Australia to such an extent that he fell short of satisfying the requirement (Tribunal’s reasons at [32] and [35]). Nor was the applicant’s occupation specified for the purposes of the special residence requirement until June 2013 after he had left that occupation (Tribunal’s reasons at [35]).
20 On 31 October 2012, the applicant was granted a subclass 155 Five Year Resident Return visa which was valid until 31 October 2017 (Tribunal’s reasons at [43]).
21 The applicant and his family lived in Australia until 2 January 2013 when they returned to the United Kingdom to care for their ageing parents (Tribunal’s reasons at [37], [44], [57] and [64]). By this time they had sold their Sydney property in order to purchase a home in the UK, which they did sometime thereafter (Tribunal’s reasons at [42] and [44]).
22 The applicant continued to pay tax in Australia and stated in his UK tax returns that he was domiciled outside of the UK since the date of his permanent residence in Australia. The applicant also continued to maintain his superannuation account in Australia (Tribunal’s reasons at [45]-[52]).
23 The applicant applied for Australian citizenship on 29 June 2015.
24 The applicant and his family returned to Australia on 5 July 2016. He travelled to Fiji for a family holiday and returned to Australia on 18 January 2016 (Tribunal’s reasons at [53]).
5.1 The parties’ statements of facts, issues and contentions
25 In his statement of facts, issues and contentions (SFIC) dated 15 July 2016, the applicant identified the issues for consideration by the Tribunal as follows:
48. Having regard to how the Delegate’s decision is framed, there are two central issues that arise for consideration, namely:
(a) Whether the discretion under section 22(9) can and should be exercised in favour of the Applicant in respect of his periods of absence from Australia in the four years preceding his application;
(b) Whether the Applicant meets the criteria set out in section 21(2)(g).
49. A further issue that arises is, if the answer to the above issues is in favour of the Applicant, whether the Tribunal should order that citizenship be conferred upon the Applicant.
26 The applicant submitted that he satisfied many of the factors identified as relevant to ss 22(9) and 21(2)(g) in the Australian Citizenship Instructions dated 1 June 2016 (Instructions) which set out the relevant policy guidelines. It was the applicant’s case that he intended to reside in Australia “some time in about 2020” once his youngest daughter completed secondary education. The applicant relied upon essentially the same evidence in support of the statutory criteria in ss 22(9) and 21(2)(g), including that he had informed the UK authorities that he is domiciled overseas and that he has left his superannuation and other significant cash here to establish a retirement in Australia. With respect to the Instructions, I note that the Tribunal is entitled to treat government policy as a relevant consideration but not to abdicate its statutory function of determining whether the decision under review is the correct or preferable one: Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115 at [41]-[44].
27 In his SFIC, the Minister agreed with the specific issues identified by the applicant for consideration by the Tribunal. However, the Minister submitted that “the applicant has not demonstrated an intention to reside in Australia in the near future” (emphasis added). The Minister submitted that the intention to which s 21(2)(g) refers is one to be acted upon within a reasonably short time frame (relying upon Re Ann Nee Chang and Minister for Immigration and Citizenship [2009] AATA 14 at [59] (SM Ettinger) and Re Saba and Minister for Immigration and Border Protection [2014] AATA 579 (SM Taylor SC)). In the Minister’s submission, the applicant had indicated no more than a general intention to reside in Australia at some unspecified future time which was insufficient to meet the statutory criterion.
28 The Tribunal hearing was held on 17 August 2016 and the applicant was cross-examined on essentially two topics only: first, that his superannuation fund was not really portable outside Australia and that his Australian pension was portable once he was able to draw a pension; and secondly, that there uncertainties about his family situation and, in particular the circumstances of his and his wife’s parents, which may affect his plans to return to Australia in 2020.
5.3 The Tribunal’s reasons for decision
29 The first issue for the Tribunal was whether it was satisfied that the applicant had a close and continuing association with Australia during the four-year period before he applied for citizenship (June 2011 to June 2015), thereby engaging the operation of s 22(9) deeming him to have been in Australia for that period (see above at [11]-[13]).
30 While accepting that the applicant had a close association with Australia from 29 June 2011 until he left in January 2013, the Tribunal did not accept that he had a close and continuing association with Australia thereafter (Tribunal’s reasons at [89]). The Tribunal therefore found that its discretion under s 22(9) to deem compliance with s 22(1)(a) and (c) was not engaged and accordingly the general residence requirement in s 21(2)(c) was not met. In reaching this conclusion, the Tribunal referred relevantly to the following matters:
(1) the fact that the applicant has not made regular return visits to Australia since leaving in January 2013;
(2) the finding that the applicant’s trip to Australia in July 2016 was primarily because of the Tribunal hearing (Tribunal’s reasons at [57]);
(3) the transfer by the applicant of his United Kingdom pension and refusal of the position in Europe in 2007, being matters to which the Tribunal gave little weight given that those were decisions made by the applicant when he was still forging a career with the company in Australia and that he had been establishing a new business career in the UK since his return (at [62]);
(4) the applicant’s and his wife’s concern about their parents’ welfare which caused them to move back to the United Kingdom in 2013, and an alleged inconsistency between that concern and the applicant’s evidence about their parent’s current situation (at [66]);
(5) the strength of the financial link between the applicant and Australia by reason of his superannuation and bank accounts in Australia (at [67]-[73]);
(6) the fact that the applicant is not on leave from employment in Australia whilst in the UK and owns no real property in Australia (at [74] and [75]);
(7) the fact that the applicant has paid income tax in Australia but that the amount has decreased significantly recently, consistently with the applicant no longer living and working in Australia (at [76]);
(8) the applicant’s completion of a Fine Arts Diploma in Australia and his membership of clubs in Australia (at [77]-[80]); and
(9) the applicant’s ongoing Australian friendships to which the Tribunal gave little weight (at [81]).
31 The Tribunal’s treatment of the matters identified at [30](2), (4), (5) and (8) above are the subject of challenge by the applicant on judicial review.
32 Secondly, in assessing the strength of the applicant’s association with Australia for the purposes of s 22(9), the Tribunal did not accept the applicant’s submission that it was relevant that, if the policy stated in the legislative instrument IMMI 13/056 had been in force when the applicant’s wife and children obtained their citizenship, the applicant would have met the “special residence requirement” (at [83]-[84]). The applicant also contends that the Tribunal erred in rejecting the relevance of IMMI 13/056 on the ground that this demonstrated that the Tribunal had misunderstood the width of its discretion.
33 Thirdly, the Tribunal found that it was not satisfied that the applicant was likely to reside in Australia or maintain a close and continuing association with Australia if the application were to be approved for the purposes of s 21(2)(g) of the Citizenship Act (at [87]). In reaching that view, the Tribunal found that:
85. The Tribunal does not accept that the matter of their parents’ circumstances will not be a very important, if not decisive, consideration in any future decision the applicant and his wife make about moving to Australia. While the applicant said that his firm intention is to move to Australia “in about 2020” after their youngest daughter finishes her secondary studies in June 2019, any decision to move will depend on the circumstances he then faces, including the circumstances of his mother and his in-laws. The Tribunal finds that the applicant down played the significance of those circumstances because they do not assist his claim that he has a firm intention to return at a specified time.
34 The Tribunal concluded:
88. The Tribunal accepts that the applicant had a close association with Australia from 29 June 2011 until he left in January 2013. However, he was absent from Australia entirely from 2 January 2013 until the end of the four year period, almost two and a half years. He provided no explanation for that absence. The Tribunal accepts that he was establishing a new business career in the UK, and his family, including his elderly mother and his wife’s elderly parents were there. He did travel to his home in France during that period. Those matters do not demonstrate a close and continuing association with Australia.
89. Taking into account all the matters discussed above, and giving more weight to the listed factors because the applicant was lawfully and physically present in Australia for more than 356 days in that period as a permanent resident, the Tribunal does not accept that the applicant had a close and continuing relationship with Australia during the four year period such that the Tribunal should treat the period of the applicant’s absence from Australia as one in which he was present as a permanent resident.
35 Accordingly, the Tribunal found that the applicant did not satisfy the criteria in s 21(2)(c) and (g) of the Citizenship Act and affirmed the decision of the Minister’s delegate (Tribunal’s reasons at [90]).
6. RELEVANT PRINCIPLES: PROCEDURAL FAIRNESS
36 It is a fundamental principle of procedural fairness that the party liable to be directly affected by a decision is to be given to the opportunity to be heard. As the Full Court held in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 (Alphaone) at 591-592, “That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material” (approved in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) at [32]). Conversely, the Court in Alphaone pointed out that “[w]ithin the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject’s case”: at 591.
37 These general propositions were subject to qualification by the Court at 591 (approving Jenkinson J in Somaghi Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 (Somaghi) at 108-109):
1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it…
2. The subject is entitled to respond to any adverse conclusion drawn by the decision maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West (1985) 159 CLR 550 at 573, 588 and 634.
(emphasis added).
38 More recently, in Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594, French CJ and Kiefel J drew an analogy between the statutory requirement in s 424A of the Migration Act 1958 (Cth) to give particulars of information that would be a reason for affirming the decision under review and the common law, observing with respect to the latter that:
9. … Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.
(emphasis added).
39 These principles were not in issue. The issue is whether, as the applicant contends, certain allegedly adverse conclusions arrived at by the Tribunal were not obviously open on the known material. In this regard, the Minister disputes the characterisation by the applicant of the allegedly adverse findings as adverse. The Minister further contends that the findings in issue were obviously open on the known material, and that this was a case in which the applicant impermissibly complains of a failure by the Tribunal to expose part of the “mental processes” by which it arrived at its decision (citing Puafisi v Minister for Immigration and Citizenship [2008] FCAFC 39 at [21]-[23]).
40 As to the apparent dichotomy between the parties’ positions, it is important to bear in mind the caution sounded by the High Court in SZBEL, namely:
30. Particular attention was directed in argument in this Court, as it had been in the courts below, to the Tribunal’s conclusion that the three identified elements of the appellant’s story were not “plausible”. Was that a conclusion “which would not obviously be open on the known material”? Or was it no more than a part of the “mental processes” by which the Tribunal arrived at its decision?
31. Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged.
41 In this regard, it is fundamental that the content of the requirements of procedural fairness will turn upon the facts and circumstances of the particular case and the particular statutory framework within which the decision-maker exercises power, as opposed to a priori classifications: SZBEL at [26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
42 Finally the Minister submitted that there was a difference between the Tribunal making a finding that the applicant was untruthful on the one hand, and the Tribunal merely not accepting their evidence, on the other hand, relying upon the distinction drawn in Smith v NSW Bar Association (1992) 176 CLR 258 (Smith). In that case, the High Court held that considerations of procedural fairness had required that the Court of Appeal not make an order based at least in part on a finding that evidence given by the barrister in question was deliberately false without giving him an opportunity to be heard on that issue. In this regard, Brennan, Dawson, Toohey and Gaudron JJ observed in Smith at 268 that:
There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied. In some cases, a rejection of evidence may lead to a finding that that person lied on another occasion.… On other occasions, other evidence may be of such a nature or of such weight that, in combination with the rejection of some particular evidence, it will justify a finding that that evidence was fabricated. But, as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.
43 However, their Honours did not suggest that the requirements of procedural fairness could not require that a person be afforded an opportunity to be heard in circumstances where the proposed adverse finding was to reject the person’s evidence, without finding that she or he had deliberately lied. In my view, any such suggestion would run counter to the fact-sensitive nature of the requirements of procedural fairness. Thus, if it is proposed to reject a person’s evidence on a ground not raised or obviously open, then as a matter of fairness that person ought generally to be afforded the opportunity to be heard on that ground. I do not accept the Minister’s submission that this would necessarily open the door to multiple hearings in cases such as the present where the Tribunal reserved its decision and may not decide on whether to reject the evidence in question until later when writing its reasons. That submission ultimately goes no further than to identify the policy which underlies, at least in part, the reason why in general the mental processes of the decision-maker do not attract an obligation to invite comment. It does not obviate the need to determine whether an adverse conclusion was obviously open in line with relevant principles.
7. GROUND 1: DENIAL OF PROCEDURAL FAIRNESS RELATING TO THE APPLICANT’S INTENTIONS
44 In support of ground 1, the applicant relied upon the cumulative effect of certain findings made by the Tribunal, submitting that:
The clear finding at [70] is to be read and understood in light of the manner in which the hearing was conducted, and in the context of the Tribunal’s fixation on the idea that Mr Judd and his wife were pursuing a citizenship “objective” when making declarations to the UK tax authorities; had returned to Australia in July 2016 “primarily because of the Tribunal hearing”; had feigned ignorance of superannuation matters about which Mr Judd in fact had a “detailed knowledge”; had made a “conscious” decision to keep superannuation funds in Australia for the purpose of strengthening his claim to citizenship; and had “downplayed the significance of” their parents circumstances because “they do not assist his claim that he has a firm intention to return”.
45 Yet, in the applicant’s submission “[n]one of those issues or conclusions were raised with Mr Judd and none were obviously open on the known material. Mr Judd’s bone fides were never questioned.” As such, the applicant contended that the Tribunal denied him procedural fairness.
46 In the applicant’s submission, once it is accepted that both the applicant’s case before the Tribunal and the premise on which the Tribunal’s review was conducted were that his intention to return to and reside in Australia was genuine and honest, the applicant must succeed. In this regard, the Minister did not allege that there is an independent line of reasoning untainted by the alleged breach of procedural fairness which would sustain the validity of the Tribunal’s decision in any event. However, the Minister disputed the applicant’s construction of the Tribunal’s reasons as finding that the applicant was doing anything untoward. Rather, in the Minister’s submission, the Tribunal made findings about the applicant’s evidence, especially about his knowledge about his Australian superannuation and his concern for his parent’s welfare, which were open to it and were not so surprising that an obligation arose to raise them with the applicant and give him an opportunity to comment.
47 The first ground therefore turns upon the proper reading of the Tribunal’s reasons and the scope of the issues fairly in issue. In this regard, the particular passages upon which the applicant relies to establish reviewable error should be construed in the context of the reasons as a whole. The Tribunal’s reasons should be fairly read and not read “with an eye keenly attuned to… error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 372; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALR 630 at [46].
7.2 Is the breach of procedural fairness in ground 1 established?
7.2.1 Overview and issues before the Tribunal
48 The limited scope of the issues was evident from the submission by Mr Markus for the Minister at the end of the Tribunal hearing in which he emphasised that no issue was taken with respect to the truth of the applicant’s current intention to return to Australia. Rather, it was the Minister’s position that his intention to do so in three and half years was not sufficient: see further below at [55]. This was recognised by the Tribunal at [60] of its reasons where it stated that “[t]he respondent accepted that the applicant’s stated intention was to return to Australia”. For completeness, it should be mentioned (as the applicant pointed out) that in the course of the closing address for the applicant, the Tribunal asked the applicant whether he wanted to return to Australia “just because you want to get dual citizenship so you can travel more easily between Australia and Britain”. However, the applicant explained that he already has a visa granting him permanent residence which he is able to renew although the rules may change, and the solicitor for the respondent, Mr Markus, agreed that “there is no bar on him renewing it” subject to a favourable decision. No further point was taken regarding the applicant’s intentions and the clear impression is that that matter had been fairly laid to rest at that point in the proceedings. Nor did the Minister on this appeal contend otherwise.
49 It follows in my view that, in the absence of the Tribunal member identifying some other issue, the applicant was entitled to assume that those issues which the Tribunal might consider dispositive were those put in issue by the Minister who cross-examined the applicant (or which had been the subject of adverse findings by the Minister’s delegate – a matter not in issue here).
50 However, for the reasons below, I accept the applicant’s submission that the Tribunal’s findings are tainted by a concern that certain conduct relied upon by the applicant was or may have been undertaken by him to further an objective of successfully applying for Australian citizenship and that, as a consequence, the Tribunal rejected or discounted a number of the matters on which the applicant relied in support of his application. Similarly, I accept the applicant’s submission that, in finding that the applicant sought to “down play” circumstances which did not assist his claim that he had a firm intention to reside in Australia in 2020, the Tribunal was concerned about the bona fides of the applicant’s stated intentions. However, neither the concerns as the applicant’s motivations for his actions, nor any concerns as to the genuineness of his intention to return in 2020, were put in issue or obviously open on the available material.
7.2.2 The Tribunal’s findings as to the applicant’s reasons for returning to Australia in July 2016 (Tribunal’s reasons at [57])
51 First, in considering whether the applicant had maintained a close and continuing connection with Australia, the Tribunal found (relevantly) that the applicant “returned in July 2016 with some family members, which the Tribunal finds was primarily because of the Tribunal hearing” (at [57]). In so finding, the Tribunal implicitly rejected the affidavit evidence of the applicant’s wife that she and her family had “returned to Australia for a holiday and to see some friends”, which was consistent with the applicant’s affidavit evidence describing the trip as a “holiday”. However, it was not put to the applicant that the reason for the trip was primarily to attend the hearing. Furthermore, if it had been, it is likely that the applicant would have led evidence that the Tribunal listed the hearing on 17 August 2016 in order to accommodate his request for a hearing date during a period when he already planned to be in Australia as evidenced by the contemporaneous documents. As such, as Mr Lloyd SC for the applicant submitted, the failure to put the applicant on notice of this potentially adverse finding resulted in a practical unfairness.
52 Against this, the Minister contends that the Tribunal did not need to inform the applicant that it may make this finding. Rather, in the Minister’s submission, “[t]his was an obviously open inference from the dates of the Applicant’s travels concerned, especially as he had not been in Australia for the previous three years, and the fact that he had been required to attend the Tribunal hearing for cross-examination”. Therefore, in the Minister’s submission, at best the complaint was that the Tribunal had made a wrong finding of fact which was beyond the power of this Court to review. However, I agree with the applicant’s submission that the point is not whether the Tribunal made a wrong finding of fact adverse to the applicant, but rather that it made a positive finding adverse to him upon which he was not cross-examined and which was not raised with him by the Tribunal. I do not accept therefore in the context of the manner in which the hearing was conducted and the known material, that the applicant could have anticipated that the Tribunal may make this adverse findings.
53 Nor do I accept the Minister’s submission that the finding at [57] was without relevance. It is correct to say that procedural fairness requires the provision of an opportunity to deal with “relevant matters adverse to [the affected person’s] interests which the repository of the power proposes to take into account in deciding upon its exercise”: Kioa v West (1985) 159 CLR 550 at 628 (Brennan J). However, here the applicant relied upon the evidence that his visit to Australia was a holiday to visit friends as part of his case that he held close and continuing ties with Australia. It cannot be said that this aspect of his case was without significance, particularly in circumstances where the Tribunal found that this was his only visit since leaving Australia in January 2013.
54 Further, to the extent, if any, that it was suggested that there was no unfairness in the Tribunal’s finding at [57] because the finding concerned the applicant’s own conduct, I agree with the applicant that the suggestion must be rejected. As Gummow J observed in Somaghi at 119 (in a passage approved by the Full Court in Alphaone at 591):
… in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant’s interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or materials provided by the third party, but which is seen to be the conduct of the applicant in question.
7.2.3 The Tribunal’s findings as to the primary purpose of the declarations in UK tax returns of domicile in Australia (Tribunal’s reasons at [67])
55 Secondly, the applicant submits that further important context for the Tribunal’s subsequent findings is provided by the Tribunal’s consideration of the applicant’s evidence that he had declared in his UK tax returns that he had been domiciled outside the UK since 7 July 2007, being the date on which he was granted permanent residence in Australia. That evidence was not challenged, as the Tribunal found at [67]. The Minister’s submission in closing address before the Tribunal was only that “[t]here is [sic] various reasons why people choose to be domiciled in various places and not a lot can be read into that”, perhaps suggesting that it might not be a factor to which the Tribunal could attach much weight as a result. However, Mr Marcus for the Minister then continued immediately to confirm that:
But as I said, Madame Senior Member, we do not actually take issue with the proposition that the applicant is telling the truth when he says that it is his current intention to return. We accept that. We just say that that’s not enough if the current intention relates to something three and a half years away. …
Because circumstances can change.
56 That being so, it is apparent that there was no suggestion by the Minister that the applicant had sought to further his application for citizenship by declaring his place of domicile to be Australia in his UK tax returns. To the contrary, the Minister accepted those declarations as consistent with the applicant’s genuine intention to return to Australia.
57 That notwithstanding, the Tribunal found at [67] of its reasons that:
The Tribunal takes into account that the applicant has maintained that he is a permanent resident despite negative tax consequences and stated in his UK tax returns that he is domiciled outside of the UK. That evidence was not challenged. The applicant has a subclass 155 five year resident return visa which is valid until 31 October 2017. Given the expense and effort the applicant has made pursuing his application for citizenship, the Tribunal accepts that the applicant would not do anything to jeopardise maintaining whatever migration right he has to Australia. Declaring that he was a resident of the UK in his UK tax returns may not have assisted that objective.
58 The Minister submitted on judicial review that the finding at [67] should be read as meaning no more than it says and not as finding that the UK declarations of Australian domicile were some kind of subterfuge. When pressed as to what the Minister’s interpretation of the paragraph was, Mr Reilly for the Minister submitted that:
The tribunal is simply saying in response to a submission that this is something that is in his favour, that essentially – and I’m now paraphrasing - - -
That essentially it’s not surprising that he would say that, because if it said something different, or at least if he said that he was a resident of the UK, that wouldn’t be helpful for his stated and undeniable intention to get Australian citizenship. It’s a thought bubble, but it doesn’t go anywhere after that.
59 I do not accept that the Tribunal’s finding at [67] was a mere “thought bubble” or the observation that it did not bear on the outcome. The clear implication from [67] is that, while the Tribunal acknowledged that the applicant’s evidence that his UK tax returns stated that he is domiciled outside the United Kingdom was not challenged, it did not give that evidence any or much weight because the applicant may have done so to avoid jeopardising whatever migration right he had to Australia. In other words, as the applicant put it, in effect the Tribunal found that the applicant declared Australia to be his place of domicile not because he genuinely intended to reside in Australia, but because he was pursuing an “objective” related to Australian citizenship. It was not in issue that no such proposition was put to the applicant and I do not accept the Minister’s assertion that a conclusion by the Tribunal to that effect “was obviously open.”
7.2.4 The Tribunal’s findings as to the applicant’s financial links to Australia (Tribunal’s reasons at [68]-[73])
60 Thirdly, the applicant relied upon the Tribunal’s treatment of his evidence as to his financial links to Australia. In this regard, the Tribunal found that:
68. The strongest link the applicant has with Australia since leaving in January 2013 is his financial link – his superannuation and bank accounts. He said that he had not sort [sic] advice about its portability outside Australia, he did not know whether he would lose benefits if he moved it, or whether he could access the funds anywhere in the world after the account reaches pension phase, or the implications of accessing funds held overseas. The Tribunal did not find his claimed lack of knowledge about his superannuation fund, to be persuasive.
69. The applicant has significant wealth in the UK, France and Australia. The Tribunal does not accept that a person of his wealth, qualifications, and experience in finance would not have a detailed knowledge of what he could or could not do with his Australian superannuation funds. He has regular discussions with a financial planner. He has made decisions in the past to move his funds.
70. The Tribunal finds that the applicant was conscious that his case was stronger if his funds in Australia were not readily available to him outside Australia.
61 The Tribunal then further found that:
71. The applicant’s legal representative said during submissions that the applicant could access his superannuation funds on reaching preservation age in November 2016. The legal representative submitted that the applicant will leave the money in Australia until he retires and returns to Australia.
72. The applicant did say that he knew that he could transfer money from bank accounts held in Australia to UK accounts without difficulty. That would apply to his Australian bank accounts, subject to the terms and conditions applying to those accounts.
73. The Tribunal accepts that the applicant has retained and added to his superannuation fund and bank accounts in Australia which is consistent with being able to access and use the funds when he is in Australia or making payments overseas in Australian dollars, subject to the funds being available at the time.
62 As the applicant submits, the finding by the Tribunal that it did not accept that a person in the applicant’s position would not have “detailed knowledge of what he could or could not do with his Australian pension funds”, while expressed in the negative, can be read only as a positive finding that he did have such detailed knowledge contrary to the applicant’s evidence. That understanding of the Tribunal’s reasons is confirmed by the fact that it is apparently that finding which forms the basis of the finding at [70] of the Tribunal’s reasons. With respect to the finding at [70], the applicant submitted that:
There is no ambiguity in that finding. The Tribunal found that Mr Judd made a conscious decision to keep his superannuation funds in Australia for the purpose of strengthening his case: that is, he kept his funds in Australian accounts not because he genuinely intended to retire in Australia, but for the purpose of laying a trail that could be shown to the Minister as evidence of a close and continuing association with Australia in circumstances where he did not genuinely intend to reside or retire in Australia. That is the only basis upon which a finding made in those terms could have been material to the tribunal’s decision.
63 I agree with that construction of the finding. It is true in this regard, that the applicant was cross-examined as to his knowledge about the portability of his superannuation fund and whether or not his Australian pension was portable once he was able to draw a pension, as earlier mentioned. Further, in a somewhat confused exchange before the Tribunal, the Senior Member suggested that there was a question about the applicant’s knowledge of the portability of the applicant’s pension, to which Mr Marcus for the Minister said that “I suggested the exact opposite. I suggested that one of the reasons why he may not have taken it with him is that it wasn’t portable. He would have lost all the tax benefits”, apparently referring to the fund itself. However there was no suggestion at the hearing in cross-examination or otherwise that the applicant in fact had a detailed knowledge of what he could do with his Australian pension fund or, more significantly, that suggested that he left the money in Australia in order to strengthen his case for citizenship as the Tribunal found at [70]. To the contrary, the bona fides of the applicant was not at any point put in issue. In those circumstances, the findings at [68] to [70] of the Tribunal’s reasons cannot be said to have been obviously open such that it was unnecessary for the applicant to have been put on notice that his credibility on this matter was in issue. It follows that this was not a case answered by the proposition upon which the Minister relied, namely that “in assessing and reconciling material before it, [the Tribunal] is not bound to accept or reject any piece of evidence in whole, and it is often the case that a view of the facts is found which does not accord with the evidence or submissions by either side” (Lidono Pty Ltd v Commissioner of Taxation [2002] FCA 174; (2002) 67 ALD 656 at [20] (Gyles J)).
64 Nor do I accept the Minister’s submission at the hearing that the finding at [70] “doesn’t go anywhere at the end of the day” given the finding at [73] that the applicant has superannuation funds in Australia consistently with him being able to access and use them when he is in Australia. The submission with respect misses the point. As Mr Lloyd SC for the applicant submitted, at [73] the Tribunal simply accepts the undisputed facts, whereas the earlier finding at [70] diminished the weight apparently given to those facts as evidence of the applicant’s continued and close relationship with Australia and his intention to reside here in the future.
7.2.5 The Tribunal’s finding that the applicant had “downplayed” his parent’s and in-law’s circumstances (Tribunal’s reasons at [85])
65 In the fourth place, in the context of considering whether it was satisfied that the applicant is likely to reside in Australia or to maintain a close and continuing association with Australia if his application were approved for the purposes of s 21(2)(g), the Tribunal found first that:
85. The Tribunal does not accept that the matter of their parents’ circumstances will not be a very important, if not decisive, consideration in any future decision the applicant and his wife make about moving to Australia. While the applicant said that his firm intention is to move to Australia “in about 2020” after their youngest daughter finishes her secondary studies in June 2019, any decision to move will depend on the circumstances he then faces, including the circumstances of his mother and his in-laws. The Tribunal finds that the applicant down played the significance of those circumstances because they do not assist his claim that he has a firm intention to return at a specified time.
(emphasis added)
66 After finding that the applicant had also established a significant business career in the UK and referring to the applicant’s evidence that he would seek some directorships when he returned to Australia (at [86]), the Tribunal concluded on this issue that:
87. On the evidence before it, the Tribunal is not satisfied that the applicant is likely to reside in Australia or to maintain a close and continuing association with Australia if the application were to be approved. His personal and business links with the UK are significant. Whether he will wish to return to Australia “in about 2020” will depend on the circumstances he faces at that time
67 In reaching this conclusion “[o]n the evidence before it” and given the applicant’s reliance upon the same factors to satisfy both s 22(9) and s 21(2)(g), the Tribunal’s finding that s 21(2)(g) was not satisfied necessarily also took into account the findings that led it to conclude that the criteria in s22(9) were not met.
68 The applicant focused upon the finding at the end of [85] that the applicant “down played” his parents’ circumstances, but did not contend that this finding was not an available inference contrary to the assumption in the Minister’s submissions. Rather, the applicant submitted “that it is another tile in the Tribunals mosaic depicting Mr Judd as disingenuous.” Read in the context of the Tribunal’s reasons as a whole, I consider that the applicant’s characterisation of the finding at [85] is a fair reading of it.
69 It follows for these reasons that the Tribunal failed to observe the requirements of procedural fairness in the manner identified at [50] above. At the applicant submitted, the cumulative effect of the findings considered above demonstrates that the Tribunal’s decision was tainted by its concerns that the applicant was pursuing a citizenship objective and may not have a genuine intention to reside in Australia. However, he was not given notice that his bona fides might be in question and no such concerns were put to him or fairly open on the material.
8. THE REMAINING GROUNDS OF JUDICIAL REVIEW/APPEAL
70 In those circumstances, it is unnecessary for me to consider the further grounds on which the applicant challenged the Tribunal’s decision. Nonetheless, without deciding the point, I express doubt as to the correctness of the proposition that the Tribunal fell into reviewable error in that it failed to appreciate the breadth of its discretion by finding that the instrument IMMI 13/056 was not relevant, given that the instrument was not in force at the relevant time and applied with respect to the special residence requirement as opposed to the general residence requirement. That is not, however, to suggest that the Tribunal would necessarily have fallen into reviewable error if it had taken into account the policy underlying the instrument, which is a different question.
71 For the reasons set out above, the appeal under s 44 of the AAT Act is allowed with costs and the matter should be remitted to the Tribunal to be determined according to law. Furthermore, given that I have found that, in effect, adverse findings as to the applicant’s credibility were made by the Tribunal as originally constituted, I consider that it is in the interests of the appearance of administrative justice that the matter be heard and decided by a different member of the Tribunal.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
