FEDERAL COURT OF AUSTRALIA

Nathanson v Minister for Home Affairs [2019] FCA 1709

ORDERS

THE COURT ORDERS THAT:

1.    The application for review be dismissed.

2.    The applicant do pay the first respondent's costs of the application to be assessed if not agreed.

3.    The costs of the application be assessed on a lump sum basis if not agreed.

4.    If it is necessary to fix costs then:

(a)    the first respondent may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);

(b)    within 14 days of service of the Costs Summary the applicant do file and serve any costs proposal in accordance with GPN-COSTS; and

(c)    if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). The cancellation occurred because the applicant was serving a sentence of imprisonment of more than 12 months. The applicant made representations to the Minister for the cancellation to be revoked. A delegate of the Minister decided not to revoke the cancellation. Then, on 15 January 2019, the applicant sought review in the Administrative Appeals Tribunal. The Migration Act provides for an 84 day period within which the Tribunal must make its decision on review: s 500(6L). There is no dispute that, as a result, the Tribunal's decision had to be handed down by 4 April 2019. It was made on that date.

2    In making its decision, the Tribunal was required to comply with any written direction given by the Minister under s 499 of the Migration Act. A direction concerning the exercise of the power to revoke the relevant visa cancellation has been in place for some time. A new direction came into effect on 28 February 2019 (that is, after the commencement of the review application but before the Tribunal had made its decision). The direction is referred to as Direction No 79, the previous direction being known as Direction No 65. At the hearing, the Tribunal made some statements to the applicant about the extent of the changes made by Direction No 79 to the position under the previous direction. It will be necessary, in due course, to consider those statements and the context in which they were made.

3    The Tribunal decided to affirm the decision not to revoke the visa cancellation. The applicant now brings an application for review under s 476A of the Migration Act. For present purposes, the applicant must demonstrate jurisdictional error in the Tribunal's decision in order to succeed on the review application. Two grounds are raised.

4    The first ground is to the effect that the procedure adopted by the Tribunal concerning the application of the new direction did not accord with the requirements of procedural fairness because it led the applicant to believe that the new direction would be of limited relevance and then the Tribunal proceeded to treat it as an important consideration when making its decision. The ground is also expressed in the alternative as an unreasonable failure to adjourn the hearing.

5    The second ground is to the effect that the Tribunal failed to properly perform its statutory task because it was Direction No 65 and not Direction No 79 that the Tribunal was required to apply as the applicant had an accrued right to have his application determined by applying Direction No 65.

6    For the following reasons, the application should be dismissed with costs.

Relevant change made by Direction No 79

7    Direction No 79 is substantially in the form of the previous direction. It continues to express a requirement that in deciding whether to revoke the mandatory cancellation of a visa the following are the primary considerations:

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

b)    The best interests of minor children in Australia;

c)    Expectations of the Australian community.

8    For present purposes, of significance is a change to the matters to which decision-makers must have regard when considering the nature and seriousness of the person's conduct for the purposes of evaluating the first of the primary considerations. The change adds the following factor to which the decision-maker must have regard:

The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed

9    The expression 'very seriously' applied under the previous direction to 'violent and/or sexual crimes' and that provision is continued in Direction No 79. Its application to violent crimes against women or children is new. Otherwise, the direction continues to leave the evaluation of the degree of seriousness of various matters to the decision-maker.

Events before the Tribunal concerning Direction No 79

10    It is common ground that the applicant had not been convicted of any crimes of a violent nature against women or children. However, he had been the subject of a violence restraining order taken out by his wife.

11    In the Tribunal, the Minister filed a statement of facts, issues and contentions dated 8 March 2019 (Minister's Statement). The Minister's Statement said that the relevant discretion to be exercised by the Tribunal on review had to be exercised by reference to Direction No 79. It set out the overall principles to be applied as stated in that direction. In dealing with the primary consideration of the best interests of the applicant's minor children, the Minister's Statement submitted that the consideration should be given minor weight as the children had suffered or experienced emotional trauma arising from the applicant's conduct, specifically as a result of incidents of domestic violence against the applicant's wife resulting in the issuing of violence restraining orders. There was no allegation that violence had been directed towards the applicant's children. The same issues were not referred to at all in the part of the Minister's Statement that dealt with the nature and seriousness of the applicant's conduct. There was no other form of disclosure of issues that might be raised before the Tribunal that were not otherwise evident from the terms of the decision by the Minister's delegate that was under review. The issue of domestic violence had not been addressed in the reasons provided by the Minister's delegate when making that decision.

12    The Tribunal convened a hearing on 21 March 2019. The applicant appeared on his own behalf. Early in the course of the hearing, the Tribunal reminded the applicant of 'the two day rule'. This was a reference to the requirements of s 500(6H) and s 500(6J) which relevantly provide that, where a review is sought in a case like the present case, the Tribunal must not have regard to any information presented orally (or to any written document submitted) in support of the person's case unless the information (or document) was given to the Minister at least two business days before the hearing.

13    Thereafter, the Tribunal first explained that the overall issues to be determined were whether the applicant passed the character test and if not whether there was another reason why the visa cancellation should be revoked.

14    The Tribunal then explained to the applicant that Direction No 79 set out the policy that the Tribunal must apply. The Tribunal listed the considerations as stated in the direction (which were the same as those that had applied under the previous direction). The list included both the nature and seriousness of the applicant's conduct as well as the best interests of minor children. The Tribunal explained that when the decision under review had been made by the Minister's delegate it was Direction No 65 that applied. The Tribunal member then said:

There are only minor changes to the direction but it's important, I think, that you know that I'm making the decision with a slightly different direction in front of me.

15    The Tribunal then provided the applicant with a copy of Direction No 79 that marked up in red where there were differences. There were relatively few changes. By reference to the marked-up version, the Tribunal member then said:

Most of those changes relate to how we treat crimes where women and children are involved, and with respect to the conviction history I have for you in front of me, I think they're of minor relevance, those changes. That is, mostly relevant to where the applicant has been [charged] in relation to convictions and offences in relation to women and children.

16    The hearing then proceeded. The applicant made short opening submissions to the effect that his past behaviour was 'under the influence of drugs' and that since then he had turned his life around. He said he was now rehabilitated and had become a Christian.

17    For the Minister, as to the matter presently in issue, it was submitted:

We've made submissions and evidence in relation the likelihood that the applicant will play a positive role in the children's lives in the future, given the evidence of domestic violence that's in the documents before the tribunal.

18    Counsel for the Minister did not indicate that any contention was to be made to the effect that by reason of Direction No 79 any domestic violence was to be viewed very seriously for the purposes of considering the application for review. Nor did counsel indicate that the evidence concerning domestic violence was relevant to undertaking an evaluation of the nature and seriousness of the applicant's criminal activity or other serious conduct.

19    In response to a question from the Tribunal member, the applicant then confirmed that he relied upon matters that he had advanced to the Minister in support of revocation of the cancellation of his visa. The applicant was then asked questions by counsel for the Minister. They began with questions about his offending. Then the applicant was questioned in some detail about previous domestic violence incidents and a restraining order that had been obtained by his wife. It was one of the main issues explored in questioning the applicant.

20    The applicant was then asked questions by the Tribunal member. He said he gets visits from his wife and children every weekend in the detention centre. He said he had discussed the restraining order with his wife and that she said that she sought it because she feared that he was 'getting influenced by drugs a fair bit'. He said 'I hold full responsibility for all my actions and everything I've committed'. When asked about the test of living with his wife and family again he said 'I haven't actually been this clean for this amount of time' and explained his reasons for expecting that things would be different to the past.

21    There were materials before the Tribunal from the applicant's wife supporting his position and the role he played in the lives of his children.

22    Counsel for the Minister made closing submissions. On the issue of the past domestic violence and its relevance, the following submission was made:

The Direction also directs the tribunal to place less weight on the consideration of the best interest[s] of the child where an applicant is unlikely to play a positive parenting role in the future [referring to a previous Tribunal decision] …

With respect, the delegate's findings failed to adequately [address] the harm suffered by children whose parents are the subject of violence at the hands of their partners. The victims of domestic violence are obviously those who are assaulted and threatened, however, they also include the children who witness threatening behaviour from one parent to another. The destructive long term psychological impact on these children cannot be overstated. This is insidious behaviour and threatens the opportunities traumatised children have for long term safety and a sense of normality …

Now that's particularly relevant in this case where the applicant's children were present during the applicant's assault on their mother and, in the case of [their oldest child], witnessed the assault. In light of that, we would submit, that that consideration also weighs against the applicant.

23    The above submissions reflected the way in which matters had been raised in the Minister's Statement and in opening submissions.

24    However, before the submissions quoted immediately above, counsel also made the following closing submissions concerning the relevance of the domestic violence when considering the protection of the Australian community in the context of past offending:

The applicant has also, in my submission, been involved in other violent conduct against his wife and, notwithstanding the fact that the applicant's wife chose not to press charges against the applicant, we would submit, that that conduct is extremely serious conduct, especially having regard to the new directions in Direction 79 that any violent conduct against a female is serious, regardless of the sentence imposed.

In the respect, the applicant accepted that his conduct involved grabbing his wife by the throat in 2012 and smashing her head against a wall and that the children - or his eldest child - witnessed that offending as well. The applicant was taken to another incident in 2016 in which he, again, grabbed his wife by the throat; this time causing bruising to her neck.

25    These additional submissions were not made in the context of addressing the best interests of minor children. Counsel for the Minister addressed that issue separately in the manner described above. Rather, the submission called in aid the terms of Direction No 79 to support the characterisation of the two incidents of domestic violence as extremely serious conduct. This is the first time in the process that it was indicated that the evidence of domestic violence might be used in that manner when deciding whether to revoke the visa cancellation.

26    After the Minister's closing submissions, the applicant made short submissions in response in which he spoke of his remorse and that he had 'done a full turnaround'. He said that applied to the way he communicated with his children and his wife.

27    The Tribunal then published reasons in which it addressed the applicant's history of family violence and the issuing of a violence restraining order against the applicant as matters that should be regarded as extremely serious conduct by reason of the new terms of Direction No 79. It dealt with that issue in the following way:

(1)    it identified the first primary consideration of protection of the Australian community (para 39ff);

(2)    it set out the terms of Direction No 79 concerning the factors to which there must be regard in evaluating the nature and seriousness of the applicant's conduct (para 44);

(3)    it dealt with the applicant's history of offending (para 45ff);

(4)    it again quoted the provision applying to 'crimes of a violent nature against women or children' (para 51);

(5)    it noted that the applicant's convictions were not for offending of that kind, but then referred to the submission for the Minister that the evidence as to family violence should be regarded as extremely serious conduct particularly having regard to the terms of Direction No 79 (para 51);

(6)    it dealt with the evidence, particularly evidence where the applicant accepted that two domestic violence incidents had occurred (paras 52-54);

(7)    it again quoted the part of Direction No 79 that referred to crimes of a violent nature against women being viewed very seriously and noted that the introductory language referred to 'criminal offending or other conduct' (paras 56-57);

(8)    it concluded that the provision about crimes of a violent nature against women being viewed very seriously may inform how conduct that has not resulted in a criminal conviction 'should be regarded' (para 57);

(9)    it referred to a part of the statement provided by the applicant's wife (para 58);

(10)    it referred to the family violence and concluded that '[h]aving regard to the general principles expressed in Direction no. 79 the Tribunal regards such conduct seriously' (para 59);

(11)    it dealt with the fact that the victim of the applicant's most recent crimes had been an elderly man who was a vulnerable member of the community and concluded they were serious crimes (paras 60-61);

(12)    it dealt with an incident where the applicant threatened a hotel worker and lunged at him with a knife (paras 62-63);

(13)    it dealt with the applicant's acknowledgement of his behaviour and his remorse and the likelihood of repeat offending (paras 64-69);

(14)    it addressed other relevant matters (paras 70-73); and

(15)    it expressed the following conclusion (para 74):

Having regard to all the evidence including of the circumstances of the Applicant's conduct and offending, the Tribunal finds that the Applicant has a history of repeated violent offences. While some of these offences were relatively minor, on balance, the Tribunal finds that the nature of the Applicant's offending is very serious and strongly weighs against exercising the discretion to revoke the cancellation of the visa.

28    In all the circumstances, the characterisation of the conduct as 'very serious' rests to a considerable degree upon reasoning by reference to the terms of Direction No 79. I do not accept the submission for the Minister that it can be concluded on the basis of the reasoning that the same characterisation would have been reached without regard to the evidence of domestic violence. The characterisation of the conduct as very serious derives from the consideration of that conduct.

29    In dealing with the risk to the Australian community, the Tribunal then found that if the applicant was to continue to engage in violent conduct within the family home the potential physical and psychological damage to his spouse and children would be serious (para 84). This is a further application of the earlier reasoning which had characterised that conduct as very serious.

30    The Tribunal then came in its reasons to the second primary consideration, the best interests of minor children (para 102ff). In the course of doing so it referred to the submission for the Minister to the effect that limited weight should be given to the applicant's relationship with his children by reason of the incidents of domestic violence (para 113). It dealt with the submission in the following way (paras 114-115):

The Tribunal accepts the submission that family violence can have a long‐term and damaging effect on children who are exposed to it. There is no evidence before the Tribunal that the children have experienced any physical or emotional trauma from the Applicant's conduct (paragraph 13.2(4)(h) of Direction no. 79). There is, however, evidence that one child was a witness to violence by the Applicant against the child's mother and the Tribunal accepts that it is likely that was traumatising for [the child]. There is, however, no evidence as to the degree or effect of any trauma suffered.

Were the applicant to continue to engage in violent conduct within the home, this would likely have a significant negative impact on the children. The Tribunal balances this consideration against the evidence of the Applicant's commitment to having a positive relationship with his children and support for that ongoing relationship including from his wife.

31    It then dealt with supporting character references and reached conclusions. The ultimate conclusion by the Tribunal as to the second primary consideration was expressed as follows (para 125):

… notwithstanding some of the Tribunal's reservations expressed in this discussion, on balance, the best interests of the children are likely to be served by the revocation of the cancellation of the Applicant's visa. The children have a strong bond with their father and are settled in Australia. Their best interests would be served by maintaining their parental bond in an environment [which] is familiar to them.

32    For the applicant it was submitted that the earlier approach by the Tribunal in characterising the domestic violence conduct as very serious infected or tainted the findings at this point because the Tribunal's view as to the seriousness of the domestic violence was part of the context for the conclusion expressed by the Tribunal at this point. There is no particular aspect of the language used by the Tribunal at this point that might provide an express foundation for that submission. However, it is the case that the behaviour was not separately addressed or characterised at this point. Therefore, this part of the reasoning must depend upon the conclusions reached earlier when evaluating that conduct. Also, there is no suggestion in the reasons that the Tribunal did not bring forward the earlier views.

The case advanced to support ground 1

33    For the applicant, the following contentions were advanced in support of the claim made by the first ground that the applicant was misled as to the approach that the Tribunal would adopt concerning the evidence of family violence. First, he was not told in advance of the hearing that the changes to the direction may lead the Tribunal to conclude that his conduct would be viewed as very serious by reason of the incidents of family violence. Instead, the Minister's Statement was in a form that would encourage the view that the evidence of family violence was a matter that was relevant only to whether limited weight should be given to the applicant's relationship with his children. Second, when the proceedings commenced, the Tribunal told the applicant that the changes to the direction were of 'minor relevance'. Third, the Minister made closing submissions that gave the changes to the direction significance and the changes then provided the foundation for a conclusion by the Tribunal that the applicant's conduct was very serious. Fourth, the conclusion then contaminated the conclusions reached by the Tribunal in relation to the best interests of the applicant's children. This aspect was said to be particularly significant because it infected the Tribunal's reasoning on the best point in the applicant's favour. It was submitted that the emphasis upon family violence being very serious tended to diminish the best interests of the applicant's children.

34    It was submitted that the applicant lost the opportunity to advance submissions and evidence from his wife concerning the manner in which the evidence of his family violence should be viewed. There may have been acceptance of the events that occurred (as found by the Tribunal) but, so it was submitted, there remained the issue of the use to which those facts might be put in making the overall qualitative judgment that required a balancing of the weight to be afforded to particular considerations.

35    It was submitted that the applicant did not need to advance a counter-factual as to what might have occurred or adduce evidence as to particular steps that might have been taken. The case was advanced on the basis that by reason of the misleading nature of the procedure there was an opportunity lost to the applicant to deal with the significance of the evidence of family violence in a context that treated the change introduced by Direction No 79 as significant.

The Minister's position

36    For the Minister it was submitted that the applicant was on notice that the incidents of domestic violence were matters to be considered by the Tribunal. It was said that the Tribunal did not treat that evidence as establishing that there were crimes of a violent nature against women and therefore it did not apply the new provision in Direction No 79. Further, it was submitted that findings by the Tribunal concerning the seriousness of the applicant's conduct would have been made even if there had been no regard to the evidence of domestic violence. In particular, the evidence as to the nature of offending for which the applicant was convicted was such that there was no realistic prospect of a different conclusion. Further, it was said that the applicant was on notice as to the factual significance of the evidence of domestic violence by reason of the Minister's Statement. It was emphasised that the occurrence of domestic violence had been accepted by the applicant. Therefore, it was submitted that this was not a case where the applicant might have adduced other evidence on the subject. On that basis it was submitted that if a different procedure had been followed, the Tribunal would have reached the same result.

37    I have already rejected the submission that the conclusion by the Tribunal that the conduct of the applicant was very serious might be viewed as resting on the evidence of his offending and not on the evidence of domestic violence. I have also found that the Tribunal's finding to the effect that the applicant's conduct was very serious was informed by the new provision in Direction No 79. Therefore, even though the Tribunal did not find that the conduct was a crime of a kind that it was required to bring to account by reason of the direction, it was guided by the new provision in forming its view as to the applicant's conduct. It appears to have carried that perspective through when dealing with the interests of the applicant's children. For those reasons, I do not accept those aspects of the Minister's position.

38    Otherwise, the position of the Minister turns upon contentions to the effect that any breach of procedural fairness did not have a material effect upon the decision.

Principles to be applied

39    Procedural fairness is implied through the operation of a common law principle of interpretation and its precise content depends upon the particular statutory framework: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [34] (Bell, Gageler and Keane JJ).

40    The applicant relied, in particular, upon the reasoning of Allsop CJ (Collier J agreeing) in Degning v Minister for Home Affairs [2019] FCAFC 67. The reasoning of the Chief Justice in Degning exposes the importance of undertaking an evaluative, context specific inquiry when adjudging whether particular steps have resulted in procedural unfairness of a kind that was not contemplated by the kind of statutory power being exercised. Drawing on authority approved in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [32], the Chief Justice said at [12]:

Applying these principles, Mr Degning was entitled to have his mind directed to the critical issues or facts on which the decision was likely to turn unless the recognition of the issue was, from the material with which he was provided, an obvious and natural conclusion to draw.

41    Degning was a case concerned with a decision by the Minister, but SZBEL was a case more like the present where there was a review in the Tribunal of a migration decision made by a delegate of the Minister. In SZBEL the Court said at [35]:

… But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are 'the issues arising in relation to the decision under review'. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

42    These observations resonate in the circumstances of the present case where the Minister's delegate applied the earlier direction and the applicant was not informed in any way of the prospect that the terms of the new Direction No 79 might affect the assessment of the seriousness of his conduct until closing submissions.

43    However, the implied obligation of procedural fairness is only breached if there is practical injustice: SZMTA at [38]. It must concern an aspect of procedure that is of a kind that has practical consequences for the decision to be made in exercise of the statutory power.

44    Further, statutes which require a condition to be observed in the course of a decision-making process are not ordinarily interpreted as denying legal force and effect to every decision that might be made in breach of the condition. Rather, there is a threshold of materiality that must be breached before there is invalidity. Ordinarily, a breach of a condition of the exercise of statutory power cannot be material unless compliance could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]-[31] (Kiefel CJ, Gageler and Keane JJ). Materiality is thus essential to the existence of jurisdictional error: SZMTA at [45].

45    The questions of practical injustice and materiality may be distinct. This was the view expressed by Edelman J in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [66]. In that decision, his Honour described the hearing rule as a statutory implication that will usually require the power to be exercised 'by respecting those requirements of justice that natural reason would require having regard to all of the circumstances': at [45]. Expressed in that way, it requires the observance of procedures that are natural to human beings. It incorporates their characteristic response to a particular situation in manifesting an innate sense of fairness. Natural reason would not require something to be done that was not necessary in order to afford practical justice. Therefore, inherent in that general description is an aspect of practicality; that is, what is reasonable and sensible having regard to the nature of the power being exercised and the circumstances in which it is being exercised. The requirement to be read into the statute as a matter of construction by implication is not one the content of which can be stated in abstract terms. It is a requirement that itself incorporates a need to consider context. So, you do not know what is necessary to meet the requirement until you know the particular circumstances.

46    However, in SZMTA, Bell, Gageler and Keane JJ appear to have treated practical injustice and materiality as different words used to express the same principle, namely that any denial of an opportunity to make submissions must be material to the Tribunal's decision: see [38] and [49]. Although the language 'realistic possibility that the Tribunal's decision could have been different' is ultimately used to describe what must be shown, so also is the language from the long standing authority of Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145 where it was said that it is no easy task for the court to satisfy itself 'that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'. Also referenced was the following passage from the reasons of McHugh J in Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [104] (a passage concerned with when a breach of natural justice has an invalidating effect rather than the content of the rules of natural justice):

Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission when it said that 'not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.' Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because '[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome.' In this case, however, the denial of natural justice did not affect the outcome. After analysing the reasons of the second Tribunal and the history of the proceedings, the best conclusion is that the Tribunal would have found that the prosecutor did not have a well-founded fear of persecution even if it had had the four statements before it.

(footnotes omitted)

47    The warnings in these passages have been referred to in the context of judicial review where a failure to afford procedural fairness has been established and the Court must decide whether it affected the outcome: see, for example, WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137; (2014) 230 FCR 130 at [28] (decision upheld on appeal).

48    There do appear to be two aspects to the inquiry. First, whether there has been breach of the rules of procedural fairness. Second, whether that breach was material and therefore invalidating. However, the inquiries merge to some degree. As procedural fairness is contextual, the implied obligation does not require procedural steps to be taken that would be pointless in the particular circumstances. It is focussed in a practical way upon what fairness demands in the particular situation. Also, procedural fairness may not require a particular step to be taken because the decision-maker has not been not provided with adequate material to demonstrate that any purpose would be served by taking that step. There may be no procedural unfairness if the Tribunal acts on the basis of an assessment (objectively justifiable), to the effect that no practical purpose would be served by taking a particular procedural step. However, such evaluations are to be undertaken without knowing how the decision-maker might reason as to contested issues. The content of a fair procedure is to be established by reference to the context at the time the procedure is established, not with foresight as to the outcome. Otherwise, there would be fundamental unfairness in the form of a decision-maker justifying a decision not to adopt a particular procedure by reference to a view as to the likely outcome.

49    Therefore, as to the requirements of procedural fairness, the relevant question is about the processes not the actual decision: SZBEL at [25] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

50    Materiality addresses a different aspect. It is concerned with the extent of the invalidating effect of a demonstrated failure to conform to the requirements of procedural fairness. It gives effect to a principle of construction that means that, unless there is some other indication in the statute, a breach of a statutory requirement (including the implied requirement to afford procedural fairness) does not invalidate an ultimate decision unless the breach was material in the sense that compliance could have led to a different outcome. Importantly, it involves a consideration of the decision that has been reached and any reasons provided for that decision.

51    The use in SZMTA of the language of 'realistic possibility' appears to allow for the inherent uncertainty in undertaking an inquiry as to what might have been the outcome if a different, fairer procedure had been followed. It is not the case that procedural fairness is invalidating unless the Court can conclude with certainty that the result would have been the same if the unfairness had not occurred. Rather, there must be a realistic possibility that it affected the result. That directs the inquiry to a consideration of what might have happened if the procedure had been different. The warnings stated in Stead and Aala remain to be heeded. At the point when materiality is being considered, the reasoning and result are the outcome of a flawed procedure. The question is whether, absent the flaw, a different result could have been reached. If that possibility is demonstrated then there is invalidity.

52    What appears to be a significant consequence of recognising that materiality must be demonstrated before there is invalidating error, is that it emphasises the need for an applicant to show that the outcome could have been affected. On an application for judicial review, the applicant has the onus of establishing on the balance of probabilities the facts which found the claim to relief: BVD17 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). If the applicant for review fails to clear the hurdle of demonstrating that the error was one whose absence might have resulted in a different outcome then the review application fails: BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171 at [37]-[39] (Middleton, Bromberg and Snaden JJ).

53    The materiality inquiry is backward looking. It is concerned with whether there was a material invalidating failure to comply with a condition of the valid exercise of power in the particular case. I addressed these aspects in PQSM v Minister for Home Affairs [2019] FCA 1540 at [65]. However, it remains an inquiry as to whether compliance with the requirements of natural justice 'could realistically have resulted in the decision-maker making a different decision: i.e., whether the … applicant has been deprived of the realistic possibility of a successful outcome': Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40 at [33] (Yates, Murphy and Moshinsky JJ).

54    Further, as I noted in CHZ19 v Minister for Home Affairs (No 2) [2019] FCA 1112 at [34]-[37], in undertaking that inquiry it is not for the Court to usurp the statutory task entrusted to the Tribunal and form its own view as to what the result ought to have been, or indeed what the result could have been. There is jurisdictional error if there was a realistic prospect of success before the decision-maker, that is to say, if the decision made by the particular decision-maker could realistically have been different if the alleged procedural unfairness had not occurred.

55    As a result, even if the applicant demonstrates a failure to afford procedural fairness of the kind alleged, in order for the applicant to demonstrate invalidating jurisdictional error, the applicant must demonstrate on the facts and taking account of the Tribunal's reasoning that there is a realistic possibility that the Tribunal's decision could have been different if the breach of procedural fairness had not occurred.

Procedural unfairness in this case

56    In this case, by reason of the change made by Direction No 79, there was the possibility of a new issue, namely whether the terms in which it was expressed meant that evidence of domestic violence that had not been proven to be a crime might be viewed as very serious conduct by reason of the changes introduced by the new terms of the direction. It appears that the nature of that issue was not a matter adverted to by the Tribunal or the Minister until it was raised in closing submissions by the Minister. By that time, the Tribunal proceedings had been conducted on the basis that the issue was 'of minor relevance'. When the submission was advanced by the Minister in closing, the Tribunal did not know what the applicant might be able to present on that issue by way of evidence or submission. Fairness required the Tribunal, at least, to afford the applicant an opportunity to present further evidence and submissions on that aspect before making a decision, in effect, upholding the Minister's submission. Instead, the Tribunal took no procedural step to address the unfairness and invite the applicant to present further material even though there was ample time to do so.

57    There was no reason why the Tribunal might not have taken that step (or adjourned the proceedings for a short period) to enable that to occur. This was not a case where the expiry of the 84 day period was imminent.

58    The Minister's Statement raised the factual issue of the domestic violence, but only insofar as it might bear upon the interests of the applicant's children. The prospect of the evidence being used by the Tribunal to reach a conclusion that the applicant's conduct was very serious was not raised with the applicant. As a result he was not invited to present any material or argument as to why that conduct should not lead to such a conclusion.

59    Therefore, the course taken by the Tribunal was procedurally unfair. However, as I have noted, it would only be procedurally unfair in a respect that invalidated the exercise of statutory power if it had the consequence of depriving the applicant of the possibility of a successful outcome.

60    The applicant did not point to any particular evidence that might have been presented if an opportunity had been afforded to present that evidence. The submission advanced was in general terms and was to the effect that the applicant's wife had provided supportive evidence and the opportunity to present further evidence was taken away from the applicant by the process. It was not suggested that there was any particular submission that might have been advanced that might have caused the Tribunal to reach a different view when considering the evidence of domestic violence in forming a view as to the seriousness of the applicant's conduct. It was not suggested that the Tribunal itself might have taken some different procedural course other than affording the applicant an opportunity to present further material and submissions in order to redress the unfairness that had arisen.

61    Therefore, this was not a case where there was some additional identified matter which the Court could evaluate whether, if presented, might have persuaded the Tribunal to a different outcome. There was no evidence or argument identified that might have been advanced that could have caused the Tribunal to reach a different outcome. For example, there was no indication of the different perspective that might have been presented to the Tribunal concerning the evidence of domestic violence.

62    The onus is upon the applicant to demonstrate the factual basis upon which the alleged breach of procedural fairness is said to have been material. It is not necessary for the applicant in all cases to identify precisely what the evidence may have been or the arguments that may have been made. However, it is necessary to point to a sufficient factual basis upon which the Court can conclude that the breach was material. In circumstances where the applicant was on notice that the factual material concerning the domestic violence was in issue and the conduct was accepted by the applicant as having occurred, the deployment by the Tribunal of that evidence in reaching a conclusion that the conduct of the applicant was very serious without affording the applicant an opportunity to address that point was only material if there was something that could have been put to the Tribunal that might have resulted in a different outcome on that aspect. The application falls short of demonstrating that to be the case.

63    It follows that the alternative claim to the effect that the Tribunal should have adjourned the hearing fails for the same reason.

Ground 2

64    The point raised by the applicant's second ground has already been determined in a manner adverse to the applicant's contention by Robertson J in Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 at [54]. The applicant accepted that the decision was on point and disavowed any attempt to argue before me that it was plainly wrong. The ground was raised formally to preserve its availability if the matter proceeds on appeal.

65    In those circumstances, I do not uphold ground 2.

Conclusion and costs

66    It follows that the application should be dismissed. Both parties accepted that costs should follow the event. I will make orders for assessment of costs on a lump sum basis if the parties are unable to agree costs.

Associate:

Dated:    18 October 2019