FEDERAL COURT OF AUSTRALIA

ARK16 v Minister for Immigration and Border Protection [2018] FCA 825

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 15 December 2017 be set aside, and in their place order:

(a)    The decision of a delegate of the first respondent made on 4 July 2016 in relation to the appellant be set aside.

(b)    The matter be remitted for consideration by another delegate of the first respondent, in accordance with law.

(c)    There be no order as to costs.

3.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    By orders made on 15 December 2017, the Federal Circuit Court dismissed an application for judicial review filed by the appellant. This is an appeal from those orders. The appellant was unrepresented before the Federal Circuit Court, but has been represented on the appeal.

2    For the reasons set out below the appeal should be allowed.

background

3    The appellant arrived in Australia on 19 January 2014 on a Short Stay Sponsored (Visitor) (Class UL) Sponsored Family Visitor (Subclass 679) visa. I will call this “the visitor visa”. Shortly thereafter he applied for a protection visa which was refused by a delegate of the Minister. He applied unsuccessfully for merits review of that decision, and for judicial review of his unsuccessful merits review. That chronology is only by way of background. The subject matter of this application concerns a condition on the appellant’s visitor visa.

4    Section 41(2)(a) of the Migration Act 1958 (Cth) authorises regulations to be made under the Act to provide that a visa may be subject to a condition that:

…despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of the specified kind) while he or she remains in Australia.

5    Condition 8503, which was imposed on the appellant’s visitor visa is a condition of this kind. It is made applicable to the appellant’s visitor visa by subcl 679.611 of Sch 2 to the Migration Regulations 1994 (Cth), as they existed at the time the appellant’s visa was granted.

6    By s 41(2A) of the Act, the Minister may “in prescribed circumstances”, waive a condition such as Condition 8503. The prescribed circumstances for waiver in relation to this particular condition are set out in reg 2.05(4) of the Migration Regulations, which provides:

(4)    For subsection 41 (2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41 (2)(a) of the Act are that:

(a)    since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:

(i)    over which the person had no control; and

(ii)    that resulted in a major change to the person's circumstances; and

(b)    if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and

(c)    if the person asks the Minister to waive the condition, the request is in writing.

7    Having been unsuccessful in his protection visa application, on 22 June 2016 the appellant requested, in accordance with the Regulations, that the Minister waive Condition 8503. It can be seen that the substantive criteria set out in reg 2.05(4)(a) relate to the particular circumstances of a visa holder and require the Minister or her or his delegate to find that:

(a)    “compelling and compassionate circumstances” have developed since the person was granted the visa;

(b)    they are circumstances over which the person had no control; and

(c)    they are circumstances which resulted in a major change to the person’s circumstances.

8    It is clear from the terms of s 41(2A) that the waiver power is discretionary. It is a power conferred on the Minister or her or his delegate independently of the legislative scheme in the Migration Act for the consideration of the grant or refusal of visas.

9    In its reasons for decision at [11]-[12] the Federal Circuit Court set out the basis given by the appellant for his waiver request:

The basis of the Applicant’s request for waiver of Condition 8503 was because his sister, who lives in Sydney, suffered from postnatal depression and has 6 children. He said in his application for waiver as follows:

My sister, [name redacted], has medical condition and requires my assistance & day to day care because she suffers depression and has 6 young children. She previously sponsored my sister, [name redacted], and the visa was refused. I have been looking after my sister, [name redacted], and her children since I came to Australia.

My brother-in-law, [name redacted], is a Station Duty manager. He works hard long hours & does not have time to look after my sister & 6 children.

I submit letter from Westmead Hospital which was submitted in support of my sister’s application.

I also submit a letter from Granville Bridge Medical Centre. My sister needs me as her carer.

The Applicant further indicated in his request for waiver that if the waiver was granted he would apply for a Carer subclass visa.

10    A delegate of the Minister made a decision on 4 July 2016 not to waive Condition 8503 on the appellant’s visitor visa. It appears to be the case, as the Full Court noted in Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 at [8] that the delegate was not required to give reasons for that decision. However, having provided a decision with reasons, a supervising court is entitled to take a decision record as expressing the delegate’s reasoning on the exercise of power: see the decision of the Full Court in Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [69], citing NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [16] per Allsop CJ and Katzman J.

11    The delegate found that the birth of the appellant’s sister’s twins and her development of postnatal depression were major changes to her own circumstances and to those of her husband, but did not accept they were major changes to the appellant’s circumstances. This finding featured in the Minister’s submissions in opposition to the appeal and I return to it below. The delegate accepted that the appellant’s circumstances were compassionate, having regard to his sister’s postnatal depression, but did not accept those circumstances were compelling in the sense of being “forceful or driving, especially to a course of action”. The delegate also found that although the appellant’s sister would prefer to have him care for her:

…the decisions your sister and her husband have made regarding employment and care do not represent compelling circumstances for you. There are alternative options for support available in Australia.

12    Critically, for the proposed amended ground of appeal in this proceeding, the delegate also made the following finding:

Departmental records indicate that you are currently residing with your brother and his family, therefore I give little weight to the statement that there is no family support.

13    Counsel for the appellant submitted, and I am prepared to infer, that the reference to “alternative options” is a reference to what the delegate saw as the possibility of the brother’s support for the appellant’s sister.

14    By reason of its non-inclusion in s 338 of the Migration Act, the delegate’s decision was not a reviewable decision. Accordingly this meant that the Federal Circuit Court had original jurisdiction to review the delegate’s decision as a “migration decision”: see s 476(1), read with the definition of “migration decision” in ss 5 and 474 of the Act.

15    Before the Federal Circuit Court the appellant, unrepresented, advanced three grounds of review which are set out in the Federal Circuit Court’s reasons at [19]:

In his Application filed in this Court the Applicant relies on three Grounds, being:

1.    The Delegate of the Minister failed to interpret and apply the meaning of compelling which, according to his letter, is not defined in the Migration legislation.

2.    The Delegate ignored the state my sister is in which is forceful and failed to ask what will happen to my sister if I am forced to depart Australia.

3.    The Delegate of the Minister misapplied the law and misunderstood the suffering of my sister based on the evidence before him.

16    The Federal Circuit Court rejected each of those grounds of review. It is not necessary to consider the Federal Circuit Court’s reasoning in any detail, as none of those grounds of review are pursued on this appeal.

17    Rather, when the appellant’s written submissions in support of his appeal were filed there was annexed to those submissions a copy of a proposed amended notice of appeal. A single ground of appeal was identified:

The Federal Circuit Court Judge failed to find that the delegate misapplied the law by failing to afford the appellant procedural fairness

Particulars

(1)    The delegate used as a critical matter upon which the decision turned the fact that departmental records showed that the appellant was residing with his brother and his family. This information was material evidence that in the circumstances was personal and adverse to the appellant, but which the appellant was not given an opportunity to respond to.

18    The Minister opposes the grant of leave to the appellant to rely on this ground of appeal.

resolution of the appeal

Leave to rely on the amended notice of appeal

19    I consider it is in the administration of justice for leave to be granted to the appellant to rely on the amended notice of appeal. This is the overarching consideration informing the exercise of the Court’s discretion, although the factors which the Court will take into account and to which it will give weight will vary depending on the particular circumstances of the case. Each of these factors, however, must in some way be probative of the answer to the question whether it is in the administration of justice to grant a party leave.

20    Each of the parties relied on various decisions of this Court emphasising different factors, which have been taken into account in determining applications for leave to amend a notice of appeal. One such factor identified by both parties, is the absence of legal representation in the proceeding from which the appeal is brought. The appellant relied on Perram J’s decision in Prodduturi v Minister for Immigration [2014] FCA 624; 142 ALD 550 at [28] where his Honour was of the view that this was a matter of some weight when considering whether to grant leave to rely on a new ground. In contrast, the Minister relied on the decision of Lander J in SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [20] where his Honour held that the fact that an appellant was unrepresented at first instance on judicial review was not a sufficient basis to grant leave to raise a new ground of review on appeal. Another factor to which the Minister referred was the undesirability of this Court in its appellate jurisdiction becoming a first instance court of judicial review. There are many decisions that deal with this factor: the Minister relies on the decision of Wigney J in SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [29]-[36]. Another decision to which reference might be made is the decision of Perram J in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 at [14].

21    In other proceedings in which the Minister has sought to rely on a new ground for the first time on appeal, the Minister has referred the Court to the decision of the Full Court in Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79]-[83] and especially at [79] where the Full Court endorsed the approach taken by another Full Court in Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179. Since Haritos was a decision of five members of this Court and endorsed another Full Court decision, I consider that is an appropriate authority on which to base my approach. The passage at [79] of Haritos reads as follows:

We regard as correct and orthodox the approach taken by the Full Court in Summers v Repatriation Commission (2015) 230 FCR 179, an appeal to the Full Court from the decision of the primary judge on an appeal to the Court from the Tribunal under s 44 of the AAT Act, in which the Court stated as follows, at [93]-[95]:

Almost self-evidently, proposed ground 4D(a) was not raised before the primary judge; and parties are of course bound by the way a case is conducted: see, for example, Siegwerk Australia Pty Ltd (in liq) v Nuplex Industries (Australia) Pty Ltd (2013) 305 ALR 412 at [97] per Robertson J and Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7 per Kenny, Besanko and White JJ at [161]–[162]. Thus, a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence at trial. This is, however, not such a case; and, as reference to authorities such as Metwally v University of Wollongong (1985) 60 ALR 68 at 71, Water Board v Moustakas (1988) 180 CLR 491 at 497 (“Water Board v Moustakas”) and Coulton and Others v Holcombe and Others (1986) 162 CLR 1 (“Coulton v Holcombe”) at 7–8 show, an appellate court has a discretion to permit an appellant to argue an issue on appeal that was not argued below where it considers that it is expedient and in the interests of justice to entertain the issue: see Water Board v Moustakas at 497 and Coulton v Holcombe at 8, citing O’Brien and Others v Komesaroff (1982) 150 CLR 310 (“O’Brien v Komesaroff”) at 319 per Mason J (with whom the other members of the Court concurred). The fact that an alleged error of law is not raised before the court at first instance does not preclude an appellate court from entertaining the point where it is in the interests of justice to do so: see, for example, Summers No 1 [(2012) 130 ALD 32] at [60]; Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 194–195 per Bowen CJ, 199 per Fox J and 205 per Deane J, cited with approval in Grant v Repatriation Commission (1999) 57 ALD 1 (“Grant v Repatriation Commission”) at [20] per Merkel, Goldberg and Weinberg JJ (also noting that the respondent must have an opportunity to be heard on the issue).

The court must be satisfied that allowing a new point to be argued would work no injustice to the other party, recognising that it is not always an easy task to pinpoint whether the matter would have been approached differently had the point then been raised: Peacock v Human Rights and Equal Opportunity Commission and Another (2003) 73 ALD 341 at [28] per Kiefel and Allsop JJ. Generally speaking the court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O’Brien v Komesaroff at 319; Lansen and Others v Minister for Environment and Heritage and Another (2008) 174 FCR 14 at [3]–[6] per Moore and Lander JJ; Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at [126]–[131] per Tracey, Gilmour, Jagot and Beach JJ.

We consider it expedient and in the interests of justice for us to entertain the issue raised by the proposed ground 4D(a) and we grant leave to Mr Summers to further amend his Amended Notice of Appeal so as to include that ground. …

22    The proposed new ground of appeal is not one which could possibly have been met by the calling of evidence before the Federal Circuit Court. All the evidence which was before the delegate was included in the court book before the delegate and the Minister has not suggested on appeal that he would have sought to call any further evidence had this ground been raised below.

23    The Minister did not suggest there is any particular prejudice to him in the grant of leave, but did rely on the kind of analysis set out by Perram J in AAM15. I accept that is a factor to consider. In the present situation, it has little weight, given the merit of the new ground and the matters to which I refer at [25] below.

24    The above approach is consistent with the approach taken by Gilmour J and myself in Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 at [31]-[33], which the Minister accepted was an applicable authority.

25    It is clear from the passages to which I have referred in Haritos that a relevant factor to the exercise of the Court’s discretion will be the nature of the point to be raised and its merit. As the appellant submitted, the merit of any proposed ground of appeal will be an important consideration: see for example BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 at [66] (Allsop CJ). The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

26    In the present case not only do I consider that the proposed ground of appeal has some merit, I consider it should succeed. In those circumstances I propose to grant leave to the appellant to rely on the amended notice of appeal.

27    The result of the grant of leave is that the error in the orders of the Federal Circuit Court is to be identified as an error in not setting aside the decision of the delegate on the ground of jurisdictional error. There is no express error to be identified in the reasoning of the Federal Circuit Court, as this argument was not put before it.

The alleged denial of procedural fairness

28    The appellant’s contention is that the finding to which I have referred at [12] above, was a finding made by the delegate involving a denial of procedural fairness to him. I did not understand the appellant to dispute the fact that he had told the Department he was living with his brother in Sydney. Rather, he submits that he was given no opportunity to address the delegate, either orally or in writing, about whether there was, in fact, any other family support for his sister provided by his other brother.

29    It appears from a document in evidence before the Court, which is described as a “submission to delegate” that the delegate was informed, through this submission, that:

Departmental records indicate that the client is residing with his brother.

30    There does not appear to be any further information provided to the delegate beyond this statement. I note that the departmental “submission” is drafted as if it is a set of reasons for decision (even to the extent of using the first person in places), and the decision record ultimately produced by the delegate reflects almost verbatim all of the substantive parts of this “submission”. Thus, the “submission” appears to be some kind of briefing note to the delegate.

31    Aside from what the appellant said in the waiver application itself, the material before the delegate consisted of a letter from the appellant’s sister’s treating doctor, although this letter actually related to the appellant’s sister securing support from another sibling: a sister, whose application for a visitor visa was refused. Nevertheless, I infer the point of submitting it was to show the needs of the appellant’s sister. The letter was capable of performing that function. The letter did not mention the appellant’s brother. There was then also a letter from a Social Work Team Leader at Westmead Hospital, Western Sydney Local Health District, again in relation to the appellant’s sibling rather than himself. However, it also emphasised the needs of the appellant’s sister. Again, it was capable of supporting his waiver application. It also did not mention any support which could be offered by the appellant’s brother. The appellant disclosed the fact that these letters referred to his sister in his own application.

32    The decision record refers in general terms to the fact that the delegate had regard to “other relevant information held on departmental files” but does not specify what that information was. The Court is entitled to proceed on the basis that the material which has been produced in the appeal book is the material to which the delegate had regard, in accordance with the Minister’s obligations as a model litigant to ensure that such material is before the Court on judicial review, particularly where at first instance on judicial review the appellant was unrepresented. The Minister did not submit there was any other material, in the face of a submission by the appellant that there was no evidence or information about the appellant living with his brother, or about his brother, outside the statement extracted at [29] above.

33    Accordingly, I accept there was no other material before the delegate about where the appellant was living and with whom, nor about the appellant’s brother. I am also satisfied that the delegate did not himself look at the “departmental records” which suggested, according to the “submission” made to the delegate that the appellant was living with his brother. In other words I am satisfied that the delegate relied on this statement in the “submission”, and went no further than that. I am comfortable in drawing that inference particularly because the delegate has adopted, word for word, much of what is in the “submission”, and the decision record does not on its face appear to be the product of a separate assessment of departmental records by the delegate.

34    In Yaacoub at [30]-[33] the Full Court proceeds, I infer, on the basis that there is attached to an exercise of power concerning a waiver of a visa condition, an obligation to afford procedural fairness to an applicant for the waiver. The content of that obligation need not be fully developed out in these reasons because for the purposes of this appeal it is sufficient to return to first principles, in circumstances where there is no basis in the legislative scheme to see an obligation of procedural fairness as excluded.

35    As McHugh J stated in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 311–312 (in dissent but in a passage approved by McHugh and Gummow JJ in Re Minister for Immigration & Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [81]–[83]):

In the absence of a clear contrary legislative intention, those rules require a decision-maker “to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that [she or] he may have an opportunity of dealing with it”.

36    A majority of the Full Court in Comcare v Wuth [2018] FCAFC 13 at [101] also referred to this passage from Teoh with approval (Perry J, Siopis J agreeing).

37    Where an obligation to afford procedural fairness is expressly or impliedly imposed, the general question is whether a person has been denied an opportunity to be heard on a matter which she or he ought fairly to have been given in the totality of the circumstances: Minister for Immigration & Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [55] (Gageler and Gordon JJ). The plurality at [42] also emphasized the following (citations omitted):

As was said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs:

It is … not to the point to ask whether the [decision-maker’s] factual conclusions were right. The relevant question is about the [decision-maker’s] processes, not its actual decision.

38    Another often cited expression of the general principle is in Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [83]:

Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.

39    The footnote to that proposition refers, amongst other authorities, to Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576, which I discuss below. It is the last feature (“the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person”) which is of relevance in the current appeal.

40    The Minister sought to rely on the Full Court’s well known passage in Alphaone at 591-592:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (my emphasis)

41    I do not consider the qualification expressed in Alphaone, accepting it has been endorsed on many occasions, affects the outcome of this appeal. While it may be assumed that the fact the appellant has a brother is, of course, a finding “obviously open on the known material”, the finding that the brother could provide the support and assistance needed by the appellant’s sister is not of such a character. The “known material” included nothing at all about the appellant’s brother’s circumstances. That is what makes the delegate’s finding unexpected, as well as affected by jurisdictional error. The circumstances of families are many and varied, and no stereotypical assumptions can be made about whether a family member is able (and willing) to provide assistance of the kind the material suggested the appellant’s sister and her children needed.

42    Finally, in terms of principle, it is well established that the Court must be satisfied the appellant was denied the possibility of a different outcome – the threshold for relief is no higher than this. In WZARH at [60] Gageler and Gordon JJ said that:

denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

43    See also Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; 253 FCR 21 at [69]. I discuss the application of these principles in the context of a particular submission by the Minister below.

44    I find that the delegate’s reliance on the fact that the appellant and his sister had another sibling in Australia who the delegate found could provide support to the sister, was a material finding made in reaching the conclusion that the precondition to the exercise of the discretion to waive Condition 8503 (the need for “compelling circumstances”) was not made out. It would appear the delegate used the finding about the existence of another sibling in Sydney as a material contributing factor to his decision that there was nothing in the appellant’s circumstances that was “driving or forceful” in the sense of “compelling” for the purposes of reg 2.05(4), because there was another sibling who could support the sister.

45    Yet, in his waiver application, the circumstances on which the appellant relied were premised on the proposition that there was no other appropriate family support to his sister and her children. That was indeed the position put forward in the Westmead Hospital letter:

In my experience of working with families with multiple birth infants, the first year can be a very challenging time, even when there are no problems with settling and sleeping. [Name redacted] and her husband state that they have no family support in Sydney available to assist them at this time.

46    As the Federal Circuit Court noted in its reasons, the visitor visa application of the appellant’s other sister (to whom the statements by health service providers were directed) had been refused.

47    There was thus a direct conflict between the way in which the delegate proposed to use a single statement, reported to the delegate through a “submission” in a way which was adverse to the appellant’s interests, and the premise of the appellant’s waiver application.

48    In circumstances where the delegate formed a view about a fact, which had been discovered through a perusal of departmental records, and considered that fact to be material in the exercise of the waiver discretion, the delegate was in my opinion obliged to raise that matter with the appellant and to give him an opportunity to deal with it. There may have been reasons, or there may not, about whether the appellant’s brother was able to support their sister. The appellant was not confronted by the question, so this critical matter remains unknown. More importantly, the delegate was deprived of this information which was clearly material to any conclusion on whether the appellant’s circumstances were “compelling”.

Discretion

49    The Minister raised during the hearing of the appeal a further point, going to the Court’s discretion if it did find a denial of procedural fairness, and a consequential error in the Federal Circuit Court’s orders.

50    Accepting the threshold as the one set out in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145–147 (and repeated in WZARH by Gageler and Gordon JJ as I have extracted above), the Minister submitted that the Court should find the appellant had not been deprived of the possibility of a different outcome. That is because the Court should find that, even if procedural fairness had been afforded, the delegate would have reached the same conclusion on the exercise of power under s 41(2A). The Minister relied on the finding made by the delegate at the start of the decision record, where the delegate found:

The birth of your sister’s twins and postnatal depression are a major change to her and her husband’s circumstances, however I do not accept that your sister’s circumstances have resulted in a major change to your circumstances. (emphasis added)

51    The Minister submitted that, even if the appellant had been given procedural fairness about the use to which the line in the “submission” about his brother might be put, whatever was said about why his brother could not provide any assistance or support was not capable of affecting the finding by the delegate concerning a separate precondition in reg 2.05(4)(a)(ii).

52    This submission is not without merit, if I might say so with respect. However I have concluded it should not succeed. One of the characteristics of a denial of procedural fairness, as the extract at [35] above demonstrates, is that it concerns the process by which a decision is made, and the evidence or information to be considered by a decision-maker before she or he has made up her or his mind. This point was made in a different but applicable context by the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [14], and [16]-[17]:

As these reasons will show, it is not useful to begin the inquiry about procedural fairness by looking to what the Tribunal said in its reasons. Rather, as procedural fairness is directed to the obligation to give the appellant a fair hearing, it is necessary to begin by looking at what procedural fairness required the Tribunal to do in the course of conducting its review.

….

Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.

It follows that what is “credible, relevant and significant” information must be determined by a decision-maker before the final decision is reached.

53    The supervising court proceeds on the basis that, at the stage before the decision, the decision-maker had an open mind in relation to the exercise of power, and a mind capable of persuasion. Without knowing what the nature and scope of what new and/or different information and evidence might have been presented had procedural fairness been afforded, it is difficult for the supervising court confidently to determine that there was no possibility of a different outcome. That is why the presumption is, as Gageler and Gordon JJ observed in WZARH, that relief will issue on a proven denial of procedural fairness. This is especially so when the preconditions involve an evaluative task, as the preconditions in reg 2.05(4)(a) do.

54    An exception (covered by the “unless” in Gageler and Gordon JJ’s reasons) is a situation where there is a clear and non-evaluative impediment to an appellant succeeding on remitter, even if all her or his arguments are otherwise accepted. For a recent example see my decision in Cai v Minister for Immigration and Border Protection [2018] FCA 782.

55    The nature of the denial of procedural fairness in the present appeal is such that, had procedural fairness been afforded, it is likely the appellant would have needed to put on quite a bit of detailed information and evidence about his brother’s circumstances, his sister’s circumstances, and his own circumstances, to put in context why it was he (as his waiver application contended) who was the one able to support his sister. If that had occurred, this Court cannot be confident that the material may not have also gone to the precondition concerning the appellant’s own change of circumstances.

56    The appellant is entitled to the relief sought.

Conclusion

57    The appeal should be allowed. The appellant conceded that since this was a new point not raised before the Federal Circuit Court, there should be no order as to costs in that Court if the appeal were successful. I accept that is appropriate.

Associate:

Dated:    4 June 2018