FEDERAL COURT OF AUSTRALIA

Dharma v Minister for Home Affairs [2019] FCA 431

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be upheld.

2.    The decision dated 20 July 2018 of the second respondent be set aside.

3.    The application for review of the delegate’s decision dated 7 May 2018 be remitted to the second respondent for reconsideration according to law.

4.    The first respondent 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.

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    The applicant seeks judicial review of a decision dated 20 July 2018 by a Senior Member of the Administrative Appeals Tribunal (AAT). The AAT affirmed the decision of the Minister’s delegate not to revoke the cancellation of the applicant’s Class BF transitional (permanent) visa. That visa had been mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) in circumstances where the applicant had been sentenced to a term of imprisonment of 12 months on four different occasions (namely 31 October 2008, 13 September 2010, 6 February 2013 and 3 April 2017). The applicant was invited to make representations about revoking the mandatory cancellation decision and he did so on 18 September 2017. On 7 May 2018, the Minister’s delegate declined to revoke the mandatory cancellation decision under s 501CA(4). The applicant then sought a review of that decision in the AAT. The AAT conducted a hearing on 25 and 26 June 2018. As noted above, the AAT affirmed the delegate’s decision on 20 July 2018.

The AAT proceeding

2    The relevant question for the AAT, in circumstances where it was clear that the applicant did not pass the “character test”, was whether there existed “another reason” for revoking the mandatory cancellation decision (s 501CA(4)(b)(ii)). The AAT was obliged to have regard to Direction No 65 in making its decision (see s 499 of the Migration Act).

3    The applicant, who represented himself, provided the AAT with a written statement dated 20 June 2018 in which he described, inter alia, his relationship with his three sons who, at the time of the AAT’s hearing, were aged 17, 15 and 6. He said that he did not want his children to experience what he himself had experienced as a child, i.e. growing up without a father. He said that it was in their best interests and would be of benefit for them if he was “permanently here for them”. He said that he had been in their lives from the day they were born and that he had “played (sic) significant role in their upbringing”. He said that his ex-partner takes very good care of the children in his absence but that “the lack of one or both parents will leaves (sic) some children emotionally and psychologically crippled” and that he needed “to be here for them because it’s my role and my duty as their father to provide my growing children with ongoing guidance, supports (sic), affirmation, affection and attention and much more”. He said that his mistakes should not affect the lives of his children negatively. He said that he accepted his wrongdoing but added that “it would be very unfortunate and unfair on their future and their well being (sic) to be punish (sic) and suffer for my mistakes and all the wrong choices I made”. He said that deporting him would “definitely have a great negative impacts (sic) on my children”, that he and his children “are really close”, that he understood them well and that they would suffer emotionally and psychologically.

4    In his written statement dated 20 June 2018, the applicant explained why he believed that the delegate had given little weight to the primary consideration of the best interests of his minor children and that she had made incorrect assumptions. He said:

In fact I did had (sic) some control and care for my children since my separation with their mother and of course it wasn’t daily because I was living away from home, working and they had to go to school. I sleepover whenever I can. When I said that I keep in contact with my children on the weekend is (sic) only when I was in prison not when I was out there.

5    The applicant said that the delegate had failed to take into “serious consideration” the fact that his removal “will affect the future and well being of my youngest son who is only 6 years old”.

6    The applicant then stated as follows (without alteration):

I choose not to get my family and friends involved and that is why I didn’t ask any of them to write me a support letter. I am sure they are all happy to write me one but I just thought that it’s enough for them. I caused them so much heartache and headache and also feel so embarrass to all of them and I just hope that I have the opportunity to show and prove to them one day that I’m a changed man.

7    The applicant concluded his statement to the AAT with the following (without alteration):

… I still hope that if I was to be given a last chance to remain in Australia I will never go back using drugs. This experience is very real and I feel like I am on death row waiting for name to be called. I have so much to lose especially the big possibility of losing my children and not able to rectify my relationship with their mother which something I’m sure my children wanted to see their parents are getting back together…

(a) The AAT’s decision to contact the applicant’s ex-partner

8    A copy of the entire transcript of the AAT hearing was put in evidence in the Court by the Minister (Exhibit A). It records that, at the commencement of the first day of the hearing, the AAT raised with the Minister’s solicitor, Mr Andras Markus, a concern that there was nothing to indicate that the applicant’s ex-partner and his three children were aware of the proceedings. When this matter was then put to the applicant, he responded by saying that they were not aware of the hearing that day and that he did not know whether they were aware of the proceedings more generally. He said that he had chosen not to involve them. The AAT described the difficulty it had in assessing the primary consideration of the interests of the applicant’s children when it did not know whether they, or their mother, knew about the proceedings and the possible implications for their interests. The AAT Senior Member foreshadowed that the delegate’s decision might need to be set aside and remitted to the delegate so that the ex-partner could have an opportunity to put material to the delegate about her interests and those of her children. That proposal was opposed by the Minister on the basis that under the s 503CA regime it was the applicant who bore the burden of having the cancellation revoked.

9    The Senior Member then suggested that Mr Markus, or another lawyer representing the Minister should contact the applicant’s ex-partner by telephone and ask whether or not she was aware of the proceedings, inform her that her interests and the best interests of her children were relevant considerations and ask whether she wanted to say anything. Mr Markus said that he was willing to make the call but he added that he preferred if it was done by the applicant. The Senior Member responded by saying that if the applicant were to conduct the conversation, the AAT would not be able to take into account his evidence of what was said having regard to the restrictions imposed by s 500(6H) of the Migration Act. The transcript is silent as to whether the Senior Member gave any consideration to making the call himself in the course of the hearing and with the applicant present.

10    The proceeding was then adjourned for a short time to enable Mr Markus to contact the ex-partner. This evidently occurred outside the hearing room and in the absence of the applicant. It is notable that, in the events that occurred, the applicant was not given an opportunity to ask any questions of his ex-partner in the course of Mr Markus’ telephone contact with her. When the hearing resumed, Mr Markus advised the AAT (and the applicant) as follows:

MR MARKUS: Senior Member, I have contacted [the ex-partner]. She indicated that she and the children are aware of the proceedings, but they were not aware of the hearing today. She indicated that, because of the way they separated, she hasn’t really been in contact with the applicant. She said that they have visited him on one occasion in immigration detention but, as she put it, "It wasn’t good". They haven’t seen him since. I asked whether she wanted to make any statement. I informed her that you are concerned that her and the children's best interests are an issue and they haven’t been heard. She indicated that she didn’t wish to make a statement, although she said that she thinks what should happen is what's in the best interests of the applicant. That's what - the way she put it.

SENIOR MEMBER: All right.

MR MARKUS: I asked about the children and she said she'd prefer not to say anything on their behalf, and they're at school so she can't ask them.

SENIOR MEMBER: All right.

MR MARKUS: That is basically the effect of our conversation.

11    The Senior Member asked Mr Markus to prepare a file note of his conversation which could form part of the AAT documentary record. A further brief adjournment was given for that to occur. The handwritten file note was then provided to both the AAT and to the applicant, who read it. The file note is as follows (with redactions to protect the ex-partner’s identity which might also reveal the identity of the three children):

RECORD OF TELEPHONE CONVERSATION

1.    At around 10:35AM on Monday, 25 June 2018 I contacted [ex-partner], the Applicant's Former Partner on her mobile phone (redacted).

2.    I explained to her that I am a lawyer from the Australian Government Solicitor's Office, and that I represent the Minister for Home Affairs in proceedings before the Administrative Appeals Tribunal concerning her former partner, Mr Dharma. I also told her that the proceedings relate to the question whether Mr Dharma should be allowed to remain in Australia or not.

3.    I then informed her that the Senior Member hearing the matter was concerned that one of the issues he had to have regard to was her [redacted] interests, as well as the interests of her 3 children, and that neither [redacted] nor the children made any statements or have given any evidence in regard to what they though (sic) ought to happen, or how they may be affected if the Applicant is removed from Australia.

4.    I asked whether she and the children were aware of the proceeding and that it was listed for hearing today and tomorrow, and whether they wished to give evidence or make a statement.

5.    [redacted] informed me that they were aware of the proceeding, but not that it was listed for hearing today.

6.    She said that I have to understand that her relationship with the Applicant has ended some time ago, and because of the way it ended, they have not kept in contact.

7.    She said that they did visit the Applicant in Immigration Detention once but 'it was not good' and they did not go again.

8.    I asked whether she would be affected if the Applicant was removed, or considered that it would adversely affect the children.

9.    She said she did not want to say anything on behalf of his children, but they are in school so she cannot ask them now. She indicated that she wanted what was in the Applicant's interests.

10.    I asked whether the children have been in contact with their father. She said she did not know. The oldest son is almost 18 years, he is quite independent, and does not tell her everything. The youngest child does not really have a relationship with his father, he was either in gaol or not around since he was born.

 11.    I thanked [redacted] for speaking to me and ended the conversation.

25 June 2018

A. Markus [Signed]

12    The Senior Member asked the applicant whether he had any objection to the file note being treated as an exhibit. The AAT transcript records the following exchange at T 10 lines 28 to 46:

MR DHARMA: Yes. In a way, yes I do, Senior Member, because the fact that Mr Markus the only one that spoke to my partner, and so it's not really, like - the way I see it, it's not really like her own statement, like, you know, I mean, it's not like her writing a statement or - from herself, like, where we know of. It's just the fact that it's only Mr Markus that spoke to her, so I'm not saying that he's - you know, Mr Markus lying or anything like that, but it just - and I know that probably it's not possible for the hearing to be adjourned for another day for her and my children to come here. So, well, yes, I suppose I will have to accept this then. And also that, in regard to that she said that - here Mr Markus wrote that "They were aware of the proceeding, but not that it was listed for hearing today". Well, I'm very certain that she doesn’t know, even any of my children know any - you know, that I've - - -

13    Later in the transcript, the applicant is recorded as reiterating his concerns regarding the process by which his ex-partner had been contacted (see the extract at [16] below).

14    As will shortly emerge, the applicant complained in the hearing in this Court that it was procedurally unfair for Mr Markus to have contacted his ex-partner on an ex parte basis and that such contact ought to have been made by the Senior Member himself.

(b) The balance of the AAT’s hearing

15    The applicant was then cross-examined at some length relating to matters such as his criminal record, his relationship with his children, his relatives in Indonesia and the contact that he had had with his ex-partner and his children while in immigration detention. The Senior Member also asked him various questions on some topics, including the ex-partner’s qualifications and employment, her family and the fact that the applicant and his ex-partner had separated in December 2015.

16    It was put to him that he was in prison from early February 2007 until the end of 2013, he responded “I never neglect my kids or – you know, in any ways”. When it was then squarely put to him that his employment history did not suggest that he was able significantly to contribute to the upbringing of his children, he said that that was the case during the six year period he was in prison, but he disagreed with the wider proposition. The transcript records an exchange with Mr Markus as follows:

Not just during that period; overall?---See, that's - that's the thing that I don't agree with, this - from the beginning, this record of the (indistinct) conversation that you had with my partner. That's - I would love to, you know, earlier ask for the - if I can get a - you know, I know it's not possible to get an adjournment, but I would love to - you know, I mean, from them to be here so you can ask them yourself, you know what I mean? Because I don't want to sound like I'm defending myself, I'm justifying myself, answering things or - you know what I mean? On their behalf. And - yes. But, you know, I mean, like, as I said earlier, like, as a father, of course I want the best for my kids, and, you know - and as you can see for the record too, you know, the DoCS never been involved, you know what I mean? All the other stuff, and they - you know, that's never (indistinct) any complaint saying that my kids are starving or my kids not well clothed or - you know what I mean? But like I said earlier, that I would agree with you that during the - my addiction to heroin, especially when I was, you know, locked up in prison and there for that period from 2007 on and off for - until about 2016. Yes, I'm not - I'm not going to, you know, deny that I could have done better, but unfortunately, yes, because of my drug addiction, I was in - in prison. And then - then I couldn't - yes, I couldn't play that role to that - to that extent, yes, from that period, yes.

17    Later in his cross-examination, the applicant explained why he told his ex-partner that it was probably best if the children did not come to visit him while he was in detention because he did not want them to see him the way he was. He added, however, that he still spoke with his children over the telephone and that they wanted to come and see him but that it all depended on their mother as she was the only one who could bring them to him. Later, in response to questions from the Senior Member, the applicant said that his ex-partner had told him that he should look after himself again and that, when he knew what he really wanted, “then come back to her”. He then added at T47 lines 8-10:

That's - that's - that's the thing, Senior Member, you know, like, I just hope that I have the opportunity to - to rectify my relationship with - with their mother, which is - you know what I mean? Like, I'm sure there's something then what my children wants too.

18    At the end of the applicant’s evidence, he was told by the Senior Member that there would be a short adjournment so that he could think about whether he wanted to clarify anything about the answers he had given to the questions from either Mr Markus or the Senior Member. When the hearing resumed on the first day the applicant said that he had nothing to add.

19    When the AAT hearing resumed the next day, both Mr Markus and Mr Dharma made submissions (although on one view much of what the applicant said was more in the way of evidence). Mr Dharma reiterated that his ex-partner had made it clear to him that it was up to him to rectify their relationship and that she would only take him back if he started to look after himself and make good decisions. He emphasised that his role and responsibility as the father of his children was “forever, and it is their right to have both parent (sic) in their life (sic)…”. He said that he would not be like his own father who had never made any effort to fix his relationship with his children. At page 69 of the AAT transcript, Mr Dharma is recorded as saying as follows:

For the record I’d like to say that, to the AAT, that I love my children and there is no evidence that I had abused, neglect (sic) any of my children physically, sexually, mental abuse, and there is no evidence that any of my children has suffered physical, emotional trauma arising from a – the non-citizen conduct, and Mr Markus also suggesting yesterday that my oldest son, [redacted], is turning 18 this year, and (indistinct) advancing into his teenage year. And in the respond (sic), you know, I would like to say that I know that my son [redacted] is turning 18 this year. I just feel that I know my son. I know all my children inside out. I know how they’re like, and I just feel that, as their father, I feel that [redacted] is not ready yet to take on the world on himself.

I don’t’ think he’s well prepared mentally, and it’s just that, you know, I believe that, you know, just because my child turn 18 that my role and my responsibility is ended. I believe that, as his – as their father, I have so much to give for their future, and yes, I might not be a perfect father, as I said on my statement, you know, but I know I’m a good father to my children. I raised my children in the opposite way the way I was raised. I was abused, physically, emotionally, by my stepfather, and that’s the main reason I came to Australia in the first place, and again with my son [redacted] that, especially these days, drugs is everywhere. It’s easier to get, and I just don’t want my – any of my children to follow my path.

And as I also already said on my statement, that they will benefit from me being here with them because I believe that, you know, if they – if I was to be deported my children will be – suffer with their sense of wellbeing, their self-esteem, social development, and their academic achievement, and I have no reason to lie or exaggerate, you know, all this stuff that – what will happen with me, what will happen with my children if I was deported,…

20    Later, Mr Dharma told the AAT that he regretted what he had done and the effect that it had had on his family, children and friends. He then said:

… that’s also the reason why I didn’t ask any of them for letter of support, because I just thought that I put them through a lot of headache (indistinct), heartache, and I just hope that I have the opportunity to start my life all over again in Australia, to be a good citizen, and I still going to follow my goal to be youth worker so I can help young people, child, and I been doing my own study, …

21    In summing up his submissions, Mr Dharma said at T 71, that, in addition to his other plans, he would “try to spend my time with my kids, you know, engage my kids in development, and then hopefully then my relationship with my partner can start over again, and then if we do, we always thinking about moving to Adelaide so she can stay close to her mum. So, yes, that’s in the picture…”.

The AAT’s reasons for decision summarised

22    The applicant has a lengthy criminal history as is reflected in the following extracts from the AAT’s reasons at [13]:

(a)    Prior to 2005 (by which time he was 28 years old) Mr Dharma committed approximately 31 offences.

(b)    Those offences can reasonably be categorised as involving 17 dishonesty related matters (about 11 of which apparently involved theft or unlawful possession of property) and five drug offences.

(c)    Between the ages of 30 and 40 (ie, from 2007 to 2017) Mr Dharma committed approximately 47 further offences.

(d)    The offences Mr Dharma committed after 2005 can reasonably be categorised as involving 26 dishonesty related matters (about 23 of which apparently involved theft or unlawful possession of property).

(e)    The prison sentences imposed on Mr Dharma in relation to his “post 2007” offences cumulatively totalled about 190 months (or almost 16 years) – of which only 30 months were the subject of suspended sentences.

(f)    On the most recent occasion when Mr Dharma was the subject of suspended sentences (3 November 2016) he re-offended during the suspension period.

(g)    Mr Dharma was incarcerated for (i) all but about eight months of the four year period from February 2007 to January 2012, (ii) more than half of 2013, and (iii) most of 2017. (He was taken into immigration detention in October 2017.)

23    In its reasons for decision, and by reference to the three primary and other considerations set out in Direction No 65, the AAT considered the material before it and concluded that the applicant’s repeated offending meant that he posed a serious risk of reoffending and that the Australian community would have a justifiable expectation that the visa cancellation would not be disturbed. In reaching these conclusions, the AAT took into account the fact that the applicant had been put on notice on three separate occasions of the possible consequences of his offending for his immigration status. The AAT reasoned that these two primary considerations, protection of the Australian community and expectations of the Australian community, outweighed all other considerations in favour of revoking the mandatory cancellation decision, including the primary consideration of the best interests of the applicant’s children and especially his youngest son.

24    It is desirable to say something more about the AAT’s consideration of the best interests of the applicant’s children. The AAT acknowledged at [34] that Mr Dharma had placed significant emphasis in his written statement dated 20 June 2018 on the welfare of his three sons and he repeatedly expressed his concern about the adverse impact on them if he were removed to Indonesia. The AAT referred to Mr Dharma’s statements concerning his two older boys doing well at school, as well as his expressed concern that his youngest son was at an age where psychologically and emotionally he had a particular need for a father in his life.

25    At [37], the AAT turned its attention to the telephone call to the applicant’s former partner:

Mr Dharma's explanation for not involving his former partner, and the three boys, was surprising. Moreover, it potentially deprived the Tribunal of relevant information in objectively assessing the mandatory consideration of the reality of each child's best interests. In order to attempt to overcome that difficulty, I successfully encouraged the Minister's representative at the hearing to contact Mr Dharma's former partner. That contact produced the following information:-

(a)    she was aware of Mr Dharma's visa cancellation, and the nature of the present proceedings - although not of the actual hearing

(b)    she had ended her relationship with Mr Dharma "some time ago" and "because of the way it ended, they had not kept in contact"

(c)    she and the boys had visited Mr Dharma on one occasion after he had been taken into immigration detention, but the visit was "not good" and she had neither visited again, nor had any further contact with Mr Dharma

 (d)    she did not wish to contribute any information to the review proceedings

(e)    she did not wish to attribute any opinions to any of the three boys - all of whom were at school at the time of the hearing - other than that (i) the eldest boy was quite independent, (ii) the youngest boy did not really have any relationship with Mr Dharma - because he had either been "in gaol or not around since he was born"

(f)    she did not know whether any of the boys had been in contact with Mr Dharma since their immigration detention centre visit.

26    At [39], the AAT identified some of the specific considerations which had to be addressed in accordance with Direction No 65 in respect of the best interests of children. Those considerations are set out in cl 13.2 of the Direction.

27    At [40], the AAT explained why it had considerable doubt about the applicant’s proposition that he had played a strongly supportive past role in any of the boys’ upbringing. It also explained why it was questionable that the applicant had prospects of playing a meaningful and significant future parental role.

28    At [41], the AAT identified the relevant question as what weight can and should properly be accorded to the “concession” made by both the delegate and the Minister’s representative in the AAT proceeding that each of the boy’s best interests likely favoured the revocation of the visa cancellation. The Senior Member stated at [42] that, without intending to convey any disregard of the potential significance of permanent physical paternal separation, where the other two primary considerations pointed in favour of visa cancellation, and one of them did so strongly, “it is necessary to flesh out, as best one can, the details of each child’s interest”.

29    The Senior Member addressed those details at [43]-[47] of his reasons for decision. Despite their length, and because of their significance, it is desirable to set them out in full:

43.    The starting point, in relation to the boys' collective position is that they live with their mother, and Mr Dharma conceded that she cared for them well. She has been in regular employment and, since about 2014 she obtained child care qualifications and has subsequently worked in that role. In the case of the eldest son, he will turn eighteen in October 2010 (sic). He is apparently doing exceptionally well at school, and being ably cared for by his mother, who (as I would infer from the reality of Mr Dharma's circumstances) must have effectively been his primary parental carer in recent years. In the absence of any more detailed information about this boy's circumstances, needs, attitudes and preferences it is difficult to accord any significant weight to the best interests that were conceded to apply to him.

44.    Much the same conclusion applies to the second of Mr Dharma's sons. He will turn sixteen in October 2018, and although that means he is more than two years short of his majority, he is at an age of substantial maturity and intellectual and emotional development. Consistent with that view, he too is apparently performing exceptionally well at school. Consequently it is again difficult, in the absence of any more detailed information, to accord any significant weight to the best interests that were conceded to apply.

45.    Mr Dharma's youngest son will turn seven in December 2018. He is therefore of comparatively tender years, and likely to benefit significantly in his development by close association with, and support from, a constructively involved paternal figure. Whether Mr Dharma has fulfilled, or is likely to fulfil that role, is unclear and doubtful (given his former partner's remarks). Mr Dharma was in gaol when the boy was born, returned to gaol before his first birthday, and spent a large part of the calendar year 2013 in goal (sic) as well. In the following year, Mr Dharma's domestic relationship appears to have become problematic (based on his October 2014 assault conviction). Its apparent permanent breakdown shortly afterwards resulted in Mr Dharma moving into accommodation away from his former partner and the three boys. In the subsequent three years, Mr Dharma worked only occasionally, continued with his chronic illicit drug use and continued to offend. He went back into custody in March 2017, just after his son's fifth birthday, and remained there until he was taken into immigration detention in October 2017. That history points to the conclusion that in the last six years Mr Dharma has spent approximately 32 months in either gaol or immigration detention, and something likely to be in the order of 30 months (all of 2015 and 2016, and part of 2014 and 2017) otherwise living separately.

46.    Mr Dharma's significant period of physical separation, limited income, and the drug addiction that underlay them, does not of course preclude him from having played a significant role in his youngest son's upbringing and development. But it undermines confidence in the reality of his assertions to that effect, and hardly provides an evidentiary basis for accepting them. Still less does it provide a basis for confidence in the likelihood of his future conduct corresponding with his assertions.

47.    Notwithstanding the justification for the kind of reservations expressed in the preceding paragraph, it is appropriate to recognise and accept that paternal contributions and attachments are not measured solely by close physical presence or financial contributions. Reasonably practicable accessibility, communicated affection, affirmation and guidance are other important aspects of the parental role and relationship. Consequently in a situation where Mr Dharma professes his concern for the welfare of his three sons, and particularly in relation to his youngest son, it is necessary to accept the generality of the proposition that the youngest son's best interests likely point in favour of the visa cancellation decision being revoked. But the reservations I have expressed, and the absence of any specific information about the details of Mr Dharma's relationship with his youngest son, and the appearance that he is well cared for by his mother, and living in an environment where his older male siblings appear to be thriving, lead to the conclusion that there is no evidentiary basis for according significant additional weight to that "best interest" generality.

30    It is desirable to also set out [58], which encapsulates the essence of the AAT’s reasons for affirming the decision under review:

58.    Two of the primary considerations to which Direction no. 65 mandates regard favour maintenance of the visa cancellation decision. The background of Mr Dharma’s repeated offending, in the face of three occasions when he has been put on notice of his visa cancellation risk, justifies the conclusion that the concept of community expectation, as expressed in Direction no. 65, weighs heavily in favour of visa cancellation. That weight is supplemented by the reality of the risk that Mr Dharma’s patently obvious past recidivism will continue. The contrary weight contributed by regard to the apparent best interests of each of Mr Dharma’s sons is not determinative, because of the elder boys’ ages, the problematic role that Mr Dharma has played, and is likely to play in his youngest son’s future, and the potential for Mr Dharma maintain meaningful paternal communication from Jakarta. Nor does that contrary weight become determinative when regard is had to the combined relevance of Mr Dharma’s other, but limited, Australian ties and the difficulties his Indonesian repatriation will likely occasion. The ultimately determinative considerations, in Mr Dharma’s particular circumstances, are the reality of the risk of his re-offending and the inappropriateness of extending the concept of “low tolerance”, against the background of mandatory regard to community expectation (as expressed in Direction no. 65), to an individual who has previously been warned about his visa cancellation risk on three occasions.

The proceedings in this Court

31    By an amended originating application filed on 20 December 2018, the applicant challenged by way of judicial review the AAT’s decision on the following two grounds (without alteration):

1.    The Tribunal failed to take into account a primary or other relevant consideration that it was bound to take into account or Carried out its decision-making functions in a way that was unfair to the relevant person

2.    The Tribunal failed to give an adequate weight to relevant factor of great importance or has given excessive weight to a relevant factors of no great importance.

The Tribunal has failed to give me(The unsuccesful (sic) party)an opportunity to be heard.

Denial of procedural fairness/ Lack of procedural fairness or of Natural Justice. The Tribunal has not adopting a fair process in making the decision,Identifying a wrong issue and incorrectly interpreting/applying law.

There was no substantive evidence(Other than I have not pass the Character Test due to my Criminal Convictions)to legitimize the position that I would be a Risk to the safety of Australian Community.. l do strongly believe that because of those reasons I have mentioned above,the Tribunal decision is Manifestly Unreasonable and it is affected by Jurisdiclioanal Error (sic).

32    The applicant represented himself in the proceeding. He failed to provide an outline of written submissions as required by the Court’s orders dated 2 October 2018.

33    The applicant relied on two affidavits sworn by himself and filed on 22 August 2018 and 18 December 2018 respectively. The first affidavit contained the following paragraph (without alteration):

3    The reason I am Lodging this application is because I feel that the NCCC and the AAT made few errors in deciding the outcome of my case and also while I was in jail I received my Revocation letter. I didnt (sic) know what to do and did not have the right frame of mind to complete my paperwork since I didn't have legal representation. The same thing happened when NCCC affirmed the decision "Not to Revoke My Visa Cancellation" where I had to take it to the AAT for review. The fact that I didn't have legal representation made me feel I was disadvantage and made me feel I already lost with my case. I've been in Australia since 1991. I came here as a child, never been back to Indonesia since 1994 and never had any contact with anyone there since 1994. I grew up here, I went to school here, all my friends are here and everything I know its (sic) all about Australian ways of life. Most importantly, My three children are here and they all were born here. They all needs me here especially my youngest son who is only 6 years old.

34    The second affidavit annexed the applicant’s application for exemption from paying Court fees because of financial hardship, and also made reference to two annexures (AM3 and AM1 being annexures to an affidavit dated 12 November 2018 by Mr Andras Markus, which was relied upon by the respondent). One included the file note dated 25 June 2018 written by Mr Markus of the telephone conversation he had had with the applicant’s former partner on the first day of the hearing before the AAT. Other material annexed to Mr Markus’ affidavit comprised:

(a)    a medication chart identifying the applicant’s medications in May 2018; and

(b)    a National Police Certificate dated 4 December 2017, the sentencing remarks of Magistrate McAnulty on 3 April 2017 and the sentencing judgment dated 31 October 2008 of Judge Keleman in the District Court of NSW in relation to the applicant’s plea of guilty to a charge of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW), for which the maximum penalty is imprisonment of 20 years.

The applicant’s adjournment request

35    At the commencement of the hearing, the applicant sought an adjournment. He said that he had had a “little issue” with a lawyer whom he had retained and that he had lost confidence in him. He further stated that an application by him for legal aid had been refused in February. He said that he needed more time to “round up the funds” and arrange alternative legal representation. The adjournment request was opposed by the Minister.

36    After hearing further oral submissions from the applicant, I indicated that his request for an adjournment was refused and that I would provide reasons for that ruling in due course. These are those reasons.

37    First, the applicant was on notice for almost five months that the hearing was listed to be heard on 18 March 2019. He delayed making an adjournment request until the day of the hearing. He provided no evidence to suggest that he was in any better position now than before to obtain legal assistance.

38    Secondly, the applicant is in immigration detention. In those circumstances, it is important that the outcome of his originating application be determined earlier rather than later, while of course taking into account procedural fairness considerations.

39    Thirdly, it was pointed out that the Court had made arrangements for the hearing to proceed today and that the Minister had acted on this basis.

40    Fourthly, it was evident that the applicant, while preferring to have more time, had come to Court with notes which he said he proposed to read out in support of his originating application in the event that the hearing was not adjourned.

41    Fifthly, as was pointed out to the applicant during the course of the hearing, under Australian law, he has no legal right to legal representation.

42    For all these reasons, the adjournment application was refused.

The parties’ submissions summarised

43    As noted above, the applicant failed to file an outline of written submissions before the hearing commenced. His oral submissions may be summarised as follows. First, he complained that it was procedurally unfair for the Minister’s solicitor to contact his ex-partner, rather than this being done by the AAT Senior Member. He said that the file note was inadequate because it was not expressed in direct speech. He said that the file note was prejudicial and unfair to him and should have been the subject of a ruling by the AAT under either ss 135 or 136 of the Evidence Act 1995 (Cth). The applicant suggested that the process adopted meant his former partner was not able to appreciate the context of her involvement in the proceedings, specifically that what she said on the brief telephone call with Mr Markus would be used as evidence. The applicant suggested that his former partner may not have been forthcoming with information due to some uncertainty and apprehension about the nature of the phone call and unfamiliarity with the caller. The applicant said that he should have been given an opportunity to ask further questions of his ex-partner to ensure that the information she provided was fully explained and placed in its proper context. He clarified that his complaint related to the way in which the information had been obtained from his ex-partner – that the process was unfair and additional information ought to have been obtained given that the interests of his minor children was a primary consideration.

44    The applicant contended that the AAT had failed to take into account relevant matters, including the fact that he had voluntarily participated in a methadone program while in immigration detention. He said that this should have been taken into account as it was relevant to an assessment of the risk he posed to the Australian community.

45    The applicant complained that the AAT had not given consideration to the lengthy time he had spent here in Australia and that he had not been back to Indonesia for 25 years. He emphasised the hardship he would suffer if he were forced to return there. He said that Indonesia was a third world country and that it did not have social welfare schemes, housing assistance or public health care such as Medicare. He said that the living standards there were very different to what he had become accustomed to over 25 years in Australia. He also said that he was suffering from depression.

46    The applicant submitted that the AAT had not taken into account, as a primary consideration, the best interests of his children. He said that his two older sons were now doing well at school and that the applicant should have been given more credit for their successful upbringing.

47    The applicant said that the AAT had failed to take into account that he had been abused by his stepfather in Indonesia and that this was the reason he had come to Australia when he was aged only 14.

48    The Minister filed a brief outline of submissions before the hearing and drew attention to the unparticularised nature of the alleged errors.

49    Mr Markus, who appeared for the Minister, emphasised that the AAT review had to be completed within 84 days to avoid the primary decision being automatically affirmed (see s 500(6L). The applicant filed his application for review by the AAT on 11 May 2018 which means that the 84 day period would have expired on 3 August 2018, which is 14 days after the AAT published its decision. He also emphasised the significance of the restriction imposed by s 500(6H) insofar as the applicant’s evidence in chief is concerned. Mr Markus submitted that the restriction did not apply to information provided to the AAT as a result of the applicant’s cross-examination.

50    The Minister submitted that it was significant that it was the AAT itself who raised the issue of ascertaining the ex-partner’s awareness of the proceedings and if she wished to say anything as to her own interests of those of her children. This was done in circumstances where the applicant had said very little about those matters in his written statement dated 20 June 2018.

51    The Minister submitted that the procedure adopted by the AAT was “more than fair to the applicant because it allowed him, in substance, to provide more evidence and material than he originally intended to do”, and that the applicant’s other complaints went to the merits of the AAT’s findings. It was submitted that the AAT did take into account the applicant’s methadone program, which is expressly referred to in [54] and [57] of the AAT’s reasons. The AAT also referred to the abusive relationship the applicant had with his stepfather at [48]. Attention was given to the applicant’s personal circumstances and the hardship he was likely to experience if he were returned to Indonesia, referring to [55] to [57] of the AAT’s reasons.

52    In reply, the applicant said that he wished he had more time to look at the relevant papers so that he could present his case in this Court. He explained that his failure to provide detailed information to the AAT relating to his children was because he did not want to bother them with his problems.

53    The applicant emphasised that, while he had a very poor criminal history, he was not a violent person. He said that although the AAT generally accepted at [26] of its reasons for decision that his past offences do not involve either the threat or the actuality of personal injury, it erred by then relying upon one of two qualifications to that proposition, namely the AAT’s finding that the applicant had been convicted of “armed with intent” in December 2011. The applicant claimed that he had never been charged with that particular offence.

Analysis

54    Given the nature of the proceeding, the applicant carried the burden of establishing one or more jurisdictional errors on the part of the AAT. The two grounds of review set out in the amended originating application appear to raise the following alleged errors:

(a)    a failure to take into account an unparticularised “primary or other relevant consideration” that the AAT was bound to take into account;

(b)    unfairness, or a failure to adopt a fair process in the making of the decision, denial of procedural fairness and lack of procedural fairness or of natural justice;

(c)    identifying the wrong issue;

(d)    incorrectly interpreting/applying the law; and

(e)    manifest unreasonableness.

55    Prior to the hearing in the Court, none of these alleged errors was particularised by the applicant. As noted above, however, the applicant’s oral submissions clarified to some extent what he contended were the AAT’s errors.

(a) Procedural unfairness

56    It is convenient to first address the applicant’s complaint of procedural unfairness relating to the process which was undertaken whereby, at the AAT’s request, the Minister’s solicitor contacted the applicant’s ex-partner to obtain her response to the matters set out in [9] above. The circumstances in which this occurred are set out in broad terms above. It is necessary, however, to say something more about those factual circumstances before summarising the statutory framework within which the AAT was conducting its review.

57    These matters fall to be considered against the background of the well-established general principle that the fair hearing limb of procedural fairness requires close attention to a range of matters, some of which were described by Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118:

There are, in my view, no words which are of universal application to every kind of inquiry and every kind of tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.

58    In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [59] (Aala), Gaudron and Gummow JJ explained how the:

… conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures.

59    As Gageler and Gordon JJ pointed out in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 (WZARH) at [54]-[57], this approach is consistent with Gleeson CJ’s statement in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [38] that the concern of procedural fairness is to “avoid practical injustice”. One category of case involving practical injustice is where the procedure adopted by an administrative decision-maker is such that an affected person is not provided with a fair opportunity to be heard. In those cases procedural unfairness “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” (WZARH at [60] per Gageler and Gordon JJ).

60    This last part has been emphasised in recent statements by the plurality in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (SZMTA) at [45] and [46] regarding the relevance of materiality to a breach of procedural fairness:

45.    Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

46.    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

61    The question of materiality is an ordinary question of fact in relation to which the judicial review applicant bears the onus of proof (see SZMTA at [46] and DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [52] per Griffiths and Steward JJ). However, demonstrating materiality does not mean “that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process” (WZARH at [58]). In cases where the practical injustice is said to inhere in the nature of the process adopted, it is enough to demonstrate that the procedural unfairness may have denied the “possibility of a successful outcome” (WZARH [56]; see also Aala at [80]-[81] per Gaudron and Gummow JJ referring to the observations of Sir Robert Megarry in John v Rees [1970] Ch 345 at 402).

(i) Relevant facts and circumstances summarised

62    The Senior Member was concerned that, primarily because the applicant had provided little material relating to his ex-partner and his relationship with their three children, he could not assess what Direction No 65 described as one of only three primary considerations, namely the best interests of the applicant’s minor children in Australia. In view of the statutory constraints imposed by s 500(6H), the AAT believed that the applicant could not make those enquiries on the first day of the AAT hearing because the timing of the provision by him of any relevant information would mean that the AAT could not take it into account.

63    It may be assumed that the Senior Member was aware that the applicant was in immigration detention. It may also be assumed that the Senior Member was aware of the 84 day time period within which a decision on the review application had to be made if the deeming effect of s 500(6L) was to be avoided. It is clear from the transcript of the AAT hearing that the Senior Member was mindful of the operation and limiting effects of s 500(6H). The lack of detailed evidence relating to the best interests of the applicant’s children was a matter of particular concern to the Senior Member. This is reflected in the fact that, initially, he raised the possibility of setting aside the decision and remitting it to the delegate in order that additional relevant information could be obtained. Unsurprisingly, this course was opposed by the Minister. It was then that the Senior Member raised the possibility of the ex-partner being contacted by the Minister’s representative to obtain her response to the matters which are described in [9] above.

64    There are two other matters which bear upon the content of the requirements of procedural fairness in this case. The first concerns the subject matter of the review proceeding in the AAT and the significance of the outcome, not only for the applicant but also for his children. Unless the decision to revoke the applicant’s visa was revoked, it was virtually certain that he would be removed from Australia and returned to Indonesia where he had not lived for 25 years and where he would be physically removed from his children. As Allsop CJ recently observed in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3], such decisions “might have devastating consequences visited upon people” and genuine consideration “of the human consequences demands honest confrontation of what is being done to people”. Although those statements were addressed to what the Chief Justice described as “the requirement of legality”, they apply with equal force to the need for such decisions to be made in compliance with relevant requirements of procedural fairness (see also the observations of Griffiths J in Griffiths v Minister for Immigration and Border Protection [2018] FCA 629 at [2] concerning the human dimension of primary decision-making in this area).

65    Secondly, the fact that the applicant was a litigant in person before the AAT is another relevant circumstance which shapes the question of the fairness of the procedure which was adopted by the Senior Member. As Gageler and Gordon JJ observed in WZARH at [53], the condition of procedural fairness requires the decision-maker to adopt “a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances” (citing Kioa v West [1985] HCA 81; 159 CLR 550 at 627). It is not suggested that if the applicant had been legally represented in the AAT the process which was adopted and implemented by the Senior Member would have been procedurally fair. Rather, it is likely that a legal practitioner acting for the applicant would have objected to the procedure or, at the very least, insisted that the telephone conversation be conducted as part of the hearing, so that it could be heard by the Senior Member, the legal representative and the applicant and the legal representative would have an opportunity to ask questions of the ex-partner.

66    The procedural unfairness of the process which was adopted by the Senior Member in this case may have been mitigated if the Senior Member had required the telephone contact with the ex-partner to be conducted in the AAT hearing room (in circumstances where evidence is often given in that manner in that Tribunal) and taken appropriate steps to ensure that the applicant was aware that he could make “an effective choice” as to whether or not he wished to ask his ex-partner any questions after hearing what she said to the Minister’s representative (see, in the context of a Court trial, Hamod v New South Wales [2011] NSWCA 375 at [312] per Beazley JA, with whom Giles and Whealy JJA agreed, and, in the context of an administrative tribunal, MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; 238 FCR 158 at [72] per Mortimer J).

(ii) Some relevant statutory provisions

67    Unsurprisingly, the Minister did not contest that procedural fairness applies to the AAT’s review of an application under s 500(1)(b) (which forms part of Pt 9 of the Migration Act). The central issue for determination in this proceeding, as is often the case, is to determine the content of procedural fairness requirements. This requires careful consideration and application of the relevant general principles, many of which are outlined in [57] ff above. Several relevant provisions in both the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and the Migration Act need to be considered in determining whether or not the process adopted by the AAT gave rise to procedural unfairness.

68    Section 2A of the AAT Act obliges the AAT, in carrying out its functions, to pursue the objective of providing a mechanism of review that:

(a)    is accessible;

(b)    fair, just, economical, informal and quick; and

(c)    is proportionate to the importance and complexity of the matter; and

(d)    promotes public trust and confidence in the decision-making of the Tribunal.

69    This provision has been described as “aspirational or exhortatory in nature, rather than as a source of directly enforceable rights and obligations” (see Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 417 at [80] per Griffiths J and, by analogy, see the observations of Bell, Gageler and Keane JJ in SZMTA at [9] with reference to s 420 of the Migration Act).

70    Section 33(1) of the AAT Act is an important provision:

Procedure of Tribunal

(1)    In a proceeding before the Tribunal:

(a)    the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)    the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)    the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

71    Under s 40 of the AAT Act, the Tribunal is empowered to take evidence on oath or affirmation and to adjourn the proceeding from time to time. Under s 43, the AAT is obliged to make a decision in writing on the review and to give reasons either orally or in writing for its decision.

72    As noted above, there are several relevant provisions in Pt 9 of the Migration Act which impose important restrictions and constraints on the conduct of a review by the AAT of a decision of the Minister’s delegate under s 501CA(4). Any such application for review must be lodged with the AAT within nine days after the day on which the person was notified of the delegate’s decision in accordance with s 501G(1) (s 500(6B) of the Migration Act, which modifies various provisions in the AAT Act). The application for review must be accompanied by the document notifying the person of the delegate’s decision and one of the sets of documents given to the person under s 501G(2) when the person was notified of the decision (s 500(6C)). Where a review application is made to the AAT in respect of the delegate’s decision, the Registrar of the AAT must notify the Minister of the fact that the review application has been made and various provisions in the AAT Act relating to the provision of documents are stated not to apply (s 500(6D)). In the circumstances specified in s 500(6F), the Minister is obliged to lodge with the AAT, within 14 days of the notification required by s 500(6D), a copy of every document that:

(a)    is in the Minister’s possession or under the Minister’s control;

(b)    was relevant to the making of the decision;

(c)    contains non-disclosable information (s 500(6F)). The AAT is empowered to have regard to non-disclosable information for the purposes of reviewing the delegate’s decision and is prohibited from disclosing non-disclosable information to the review applicant (s 500(6F)(d)).

73    Where a review application has been made in the circumstances specified in s 500(6G), the AAT is prevented from holding a hearing (other than a directions hearing) or making a decision under s 43 of the AAT Act in relation to the decision under review until at least 14 days have lapsed after the day on which the Minister was notified that the review application had been made (s 500(6G)).

74    As noted above, s 500(6H) imposes an important restriction on the AAT having regard to information presented orally in support of the review applicant’s case. It provides:

500    Review of Decision

…

(6H)    If:

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

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

the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

75    A similar restriction is imposed by s 500(6J) in respect of any document submitted in support of the review applicant’s case. The effect is that the AAT is prevented from having regard to any such document unless a copy of it was given to the Minister at least two business days before the AAT holds a hearing (other than a directions hearing) in relation to the decision under review (subject to some exceptions). Section 500(6K) empowers the AAT to obtain from the Minister particular documents or documents included in a particular class of documents which it considers may be relevant in relation to the decision under review where those documents are in the Minister’s possession or control.

76    As noted above, if the AAT has not made a decision under s 43 of the AAT Act within the period of 84 days after the day on which the review applicant was notified of the decision under review, the AAT is deemed to have made a decision under s 43 of the AAT Act to affirm the decision under review (see s 500(6L)).

77    Another relevant provision is s 499 of the Migration Act, the effect of which is to oblige the AAT to comply with Direction No 65. Having regard to the nature of the application for review here, the AAT was bound to apply Pt C of the Direction, as the AAT correctly acknowledged. Many of the relevant provisions of the Direction are referred to in the AAT’s reasons for decision.

(iii) Why there was procedural unfairness here

78    The procedure adopted by the Senior Member here, in having the Minister’s representative conduct an ex parte telephone conversation with the applicant’s ex-partner, gave rise to procedural unfairness for the following reasons. First, the procedure denied the applicant an opportunity to listen to what his ex-partner said to the Minister’s representative and, more importantly, denied him the opportunity to ask her any questions which were relevant to the AAT review. This unfairness was not avoided by the subsequent tender of Mr Markus’ file note of the conversation. Ironically, unless the hearing was adjourned, s 500(6H) would have prevented the AAT from having regard to any information presented orally in support of the applicant’s case by the applicant in response to what his ex-partner was recorded as saying. But this provision would not have prevented the AAT from having regard to the ex-partner’s responses to questions asked of her by the applicant if he had been given an opportunity to do so.

79    Secondly, the AAT acted upon Mr Markus’s file note of what the ex-partner had said. This is reflected in the fact that the file note was summarised by the Senior Member at [37] of his reasons for decision. Moreover, it appears likely that the Senior Member took into account aspects of the file note in making the findings which he did at [40] regarding the apparent breakdown of the applicant’s relationship with his ex-partner and the prospects of its revival. The position is even clearer when the Senior Member expressed doubts at [45] as to whether the applicant had fulfilled, or was likely to fulfil, his paternal role vis a vis his youngest son. The Senior Member explicitly stated that these doubts related to “his former partner’s remarks”. This is a clear reference to the file note.

80    Thirdly, the process adopted by the Senior Member resulted in the applicant suffering practical injustice because he was not afforded an opportunity to participate in the telephone conversation and to ask his ex-partner relevant questions, the answers to which may have assisted his case. The AAT initiated and implemented a procedure which was inherently unfair to the applicant (who was unrepresented) because it precluded him from cross-examining his ex-partner. Ironically, the unfairness was compounded by the operation and effect of s 500(6H), which is the very provision which influenced the AAT to adopt the course which it did.

81    Fourthly, none of the relevant provisions of the Migration Act or the AAT Act authorise, either explicitly or implicitly, the process which was adopted here.

82    Finally, I am comfortably satisfied that the procedural unfairness inherent in the process adopted by the AAT is material and gives rise to jurisdictional error in the sense described by the plurality in SZMTA and Gageler and Gordon JJ in WZARH (see [60]-[61] above]. If the applicant had been allowed to hear what his former partner said on the telephone, and given the opportunity to meaningfully participate in the process of obtaining her evidence, by means of cross examination, the evidence obtained from her may have been more fulsome and provided more support for the applicant’s case, particularly with regard to the critical issue of the best interests of their children.

83    For all these reasons, the applicant’s complaint of procedural unfairness is upheld.

(b) Failure to consider relevant matters

84    I reject the applicant’s complaints that the AAT failed to consider various matters as identified by him in his oral submissions. I accept the Minister’s submission that the AAT considered the applicant’s methadone treatment, as well as the abuse the applicant had experienced with his stepfather. Moreover, the AAT gave detailed consideration to the applicant’s personal circumstances and the hardship which faced him if he were returned to Indonesia (see [51] above). The applicant’s submission regarding ss 135 and 136 of the Evidence Act (Cth) is also rejected because that legislation has no application to the AAT. The rules of evidence do not apply, but the requirements of procedural fairness do.

(c) The applicant’s criminal record

85    As to the applicant’s denial that he had been charged with the offence of “armed with intent”, that claim is inconsistent with the relevant details of the applicant’s National Police Certificate, which records that on 2 December 2011 he was convicted in the Campbelltown Local Court of “Commit s 114 offence, having previous conviction”. The reference to “s 114” is a reference to s 114 of the Crimes Act 1900 (NSW), which relevantly provided as at 2 December 2011:

114    Being armed with intent to commit indictable offence

(1)    Any person who:

(a)    is armed with any weapon, or instrument, with intent to commit an indictable offence,

(b)    has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance,

…

shall be liable to imprisonment for seven years.

(2)    For the purposes of subsection (1) (b) conveyance means any cab, carriage, motor car, caravan, trailer, motor lorry, omnibus, motor or other bicycle, or any ship, or vessel, used in or intended for navigation, and drive shall be construed accordingly.

86    I am not persuaded that the AAT was not entitled to act upon the relevant information in the National Police Certificate or that it fell into jurisdictional error when it did so.

(d) Unreasonableness

87    As to the applicant’s complaint of unreasonableness, which directs attention to the outcome of the AAT’s review as opposed to the process which it adopted, normally it is a matter for the decision-maker to determine what weight to give to particular evidence, subject to review where the decision is arbitrary or capricious.

88    Whether or not the AAT’s decision was unreasonable needs to take into account the AAT’s obligation to apply the relevant parts of Direction No 65 and the binding instruction therein that primary considerations should generally be given greater weight than other considerations, and that one or more primary considerations may outweigh other primary considerations.

89    The three primary considerations identified in Pt C of Direction No 65 were:

(a)    protection of the Australian community from criminal or other serious conduct;

(b)    the best interests of minor children in Australia; and

(c)    the expectations of the Australian community.

90    I accept the Minister’s submission that the AAT’s approach to the weighing of these primary considerations against other primary considerations and non-primary considerations is orthodox (putting aside the procedural unfairness). The AAT concluded that the first and third of the three primary considerations identified above strongly favoured the non-revocation decision being affirmed and that these two primary considerations outweighed all other considerations which favoured the applicant, including the primary consideration relating to the best interests of minor children and other non-primary considerations.

91    I accept the Minister’s contention that if the applicant asserts that there was no “substantive evidence” to support the AAT’s finding that he would pose a risk to the safety of the Australian community, the applicant’s lengthy criminal history and his repeated failures to cease his offending behaviour despite having been put on notice three times of the risk of visa cancellation, provided a rational and probative basis for the AAT’s finding that he was at significant risk of reoffending, as well as its finding that the risk could not confidently be confined to any particular category of offences (see the AAT’s decision record at [27]). The applicant plainly disagrees with the merits of the AAT’s findings and decision, but he has failed to persuade me that the decision is legally unreasonable. Nor am I persuaded that the AAT’s decision is tainted by any of the other alleged errors raised by the applicant.

Conclusion

92    For these reasons, the amended originating application will be upheld, with costs. Appropriate orders will be made accordingly.

Associate:

Dated:    29 March 2019