FEDERAL COURT OF AUSTRALIA
Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1710
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Within seven days hereof, the applicant is to file and serve a second further amended originating application so as to include ground 3.
2. The decision dated 29 April 2019 of the second respondent be set aside.
3. The applicant’s application for review be remitted to the Administrative Appeals Tribunal for reconsideration according to law.
4. The first respondent pay the applicant’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
GRIFFITHS J:
Introduction
1 The applicant seeks judicial review of a decision dated 29 April 2019 of the Administrative Appeals Tribunal (AAT). The AAT affirmed a decision of the Minister’s delegate not to revoke cancellation of the applicant’s Class BS Partner visa under s 501CA(4) of the Migration Act 1958 (Cth) (Act).
Summary of background facts
2 The applicant is a citizen of Fiji. He was born in February 1974 and first entered Australia in October 2010. In November 2015 he was granted a Class BS Partner visa. The applicant met and married his current wife, an Aboriginal woman (Ms Mavis Fernando Ratu), in 2011. Ms Fernando had five children from a previous marriage. The applicant is stepfather to each of them and the only father known to the youngest three children. The eldest two children are adults with children of their own, and they think of the applicant as their father and grandfather respectively. The applicant’s wife and her two adult children provided letters in support of the applicant’s request for revocation of the cancellation of his visa. The wife and one of the adult step-children also provided subsequent statements to the AAT.
3 At some stage in 2015, the applicant entered into a relationship with another woman (Ms X) and began to reside with her around the same time. The offending conduct that led to cancellation of the applicant’s visa involved a serious act of domestic violence committed by the applicant against Ms X in 2017.
4 On 6 November 2017, a magistrate imposed on the applicant an aggregate sentence of one year and 11 months imprisonment, with a non-parole period of 18 months. The convictions he was sentenced for were reckless grievous bodily harm, contravention of a prohibition or restriction in an apprehended violence order and reckless wounding. On 28 February 2018, on a severity of sentence appeal, the District Court varied that sentence to an aggregate sentence of 18 months imprisonment with a non-parole period of seven months.
5 On 13 March 2018, the Department of Home Affairs wrote to the applicant informing him that his partner visa had been cancelled on that day under s 501(3A) of the Act. He was invited to make representations under s 501CA(4) about whether the Minister should revoke the cancellation of his visa. On 21 March 2018, the applicant submitted a request for revocation of a mandatory visa cancellation under s 501(3A), along with a personal circumstances form and supporting letters from members of the community and his family. The Department wrote to the applicant on two occasions requesting further information or comment on various documents, including a National Police Certificate issued on 5 June 2018 and the sentencing remarks made during the applicant’s appeal to the District Court. The applicant responded to each of these invitations in writing. On 1 February 2019, the Minister’s delegate decided not to revoke cancellation of the applicant’s visa. The applicant was informed of the delegate’s decision by letter dated 4 February 2019.
Proceedings in the AAT
6 The applicant applied on 8 February 2019 for review of the delegate’s decision in the AAT. Initially, he did not have legal representation. The applicant relied on a statutory declaration affirmed by him on 12 March 2019, a letter addressed to the AAT by him, and supporting letters from his community and family (including the statements referred to at [2] above). The hearing was scheduled for 17 and 18 April 2019.
The adjournment request
7 On 1 April 2019, the applicant emailed the AAT and requested an adjournment of the hearing for at least 3 weeks. He explained that he had made multiple attempts to arrange legal representation over the previous few months, including approaching Salvos Legal, but had been unsuccessful. He explained that his request for an adjournment was because he had inadvertently heard recently of a solicitor from another detainee and had attended a conference with the solicitor on 29 March 2019 at the detention centre. The applicant said that at the conference he was able to identify for the first time, presumably with the solicitor’s assistance, evidence that was potentially helpful to support his case against removal from Australia. He stated in his letter that he may be able to obtain evidence “that is important, significant and relevant to my case”. He added that the solicitor indicated that he was prepared to represent the applicant but was unable to attend the hearing on 17 April 2019. The applicant said he did not believe he had the capacity to present his case himself and that without the advice and assistance of the solicitor he would not receive procedural fairness. Accordingly, he requested “at least a three week period of adjournment subsequent to the 17 April” hearing. The applicant stated in his request letter that the solicitor had “informed me he will not file a Notice of Appearance until such time he becomes aware whether he can appear on a date available” (emphasis added).
8 The AAT responded by email the same day, sent by the Senior Member’s associate, and said that it was unable to grant the adjournment. Due to the centrality of this email in the present proceeding, I will set it out in full (emphasis added):
Dear Mr Ratu,
The Tribunal is unable to vacate the hearing currently listed for 17 and 18 April 2019. As the matter is a review of a decision under section 501 of the Migration Act 1958 (Cth) not to revoke a decision to cancel your visa, the Tribunal is required under s 500(6L) of the Migration Act to make a decision within 84 days. As you lodged your application with the Tribunal on 8 February 2019, the 84th day will be 3 May 2019. As a result, the Tribunal is unable to grant a three week adjournment. In addition, the Senior Member assigned to hear and decide the matter is full booked up (sic) to 3 May 2019 and is therefore unable to find another day to hear the matter.
Kind Regards,
[Associate]
9 As it happened, the applicant subsequently obtained representation from another solicitor, but the solicitor did not accept the retainer until the day before the hearing (i.e. 16 April 2019). The applicant sent the “G-Documents” to the solicitor late on 15 April 2019. I accept the applicant’s evidence that the solicitor told him on the morning of the hearing, before the hearing started, that the applicant could not provide the AAT with any further evidence (as the previous solicitor had advised) because it was too late to do so (which is an apparent reference to the limitations imposed by ss 500(6H) and (6J) of the Act).
10 The hearing proceeded as scheduled on 17 April 2019, with the applicant represented by the second solicitor. There was no further request for an adjournment, however, during the course of the hearing the solicitor referred several times to the practical difficulties created by his late involvement in the case. The AAT made a decision on 29 April 2019 to affirm the delegate’s decision not to revoke the mandatory cancellation of the applicant’s partner visa. As it was not in issue that the applicant did not pass the character test due to the substantial criminal record provisions, the only issue was whether there was another reason why cancellation of the applicant’s visa should be revoked. In view of the specific grounds of review pursued in this Court, the summary of the AAT’s reasons below will concentrate on those grounds.
The AAT’s reasons summarised
11 The AAT noted that, on 20 December 2018, the Minister issued Direction 79 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA. The direction was binding on the AAT. The AAT referred to cl 13(2) of Part C of Direction 79 which sets out the three primary considerations the AAT was required to have regard to:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) The best interests of minor children in Australia; and
(3) Expectations of the Australian community.
Protection of the Australian community
12 The AAT concluded that the protection of the Australian community criterion favoured non revocation. In brief, this was because although the AAT found the likelihood of reoffending had been significantly reduced following the applicant’s detention and engagement with health professionals, it did not consider that the risk of reoffending had been completely removed or was negligible. The AAT placed some weight on repeated driving offences which it said demonstrated a disregard for the law and the safety of others. It also stated it considered the 2017 offences as serious, having regard to 13.1.1 of Direction 79. . Furthermore, the AAT found that the applicant’s denial of the offending conduct before the AAT, despite the fact he had been convicted, suggested that the applicant did not have that insight into his conduct or genuine remorse. As to the applicant’s contention that he misunderstood the charges and the criminal proceedings, the AAT rejected the applicant’s explanation on the basis that he was legally represented in the criminal proceedings and chose only to appeal his sentence, rather than the underlying conviction. These matters along with other aspects of the applicant’s history caused the AAT to conclude that the risk of reoffending had not been completely removed and was not negligible. In view of the significant harm to the community that would follow from reoffending, the protection of the community consideration favoured non-revocation.
The best interests of minor children in Australia
13 The AAT’s consideration of this second primary consideration has some importance as it is the focus of the applicant’s second ground of review in the proceedings in this Court.
14 The AAT recorded the applicant’s evidence that he has been accepted as father by his wife’s children and grandchildren (the children of the eldest two of his wife’s children) and that he had a good relationship with each of them. The AAT acknowledged that there were statements from the applicant’s wife and her two adult children, but said that as they were not available to give evidence in person before the AAT, it was not possible to test that evidence.
15 The AAT noted that the applicant had not been living with his family in the period leading up to his incarceration and that he had not been involved in the daily care of the younger children during that time. The applicant contended that although he had been living away from his family he had maintained a relationship with his wife and her five children, and continued to support them financially. The AAT also noted that the applicant had confirmed at the hearing that he continued to support three other minor children of his in Fiji.
16 The AAT accepted that although the applicant had moved out of the family home, he had maintained a relationship with his wife, whether or not he also had a relationship with the other woman he resided with during this time. The AAT also accepted that the applicant provided financial support to the family while he was employed (i.e. prior to his incarceration) and that his wife visited him while he was in detention and took some of his savings.
17 The AAT stated, however, that there was little probative evidence of any ongoing relationship between the applicant and his children and grandchildren. The AAT referred to the evidence in the supporting letters from the applicant’s wife and her eldest son that the family would be devastated if the applicant were to leave Australia, but it said that that evidence offered little detail on how or why the minor children would be impacted by the decision not to revoke cancellation of the applicant’s visa, in circumstances where the applicant had lived away from the family home for a number of years.
18 The AAT said the applicant agreed that there had been minimal contact with the children since his detention in 2017 and that there was little evidence to show that he had played any meaningful role in his children and grandchildren’s lives since his incarceration, and possibly since he had moved out of the family home. The AAT also placed weight on the fact that the offences for which the applicant was convicted were ones involving violence to others and that such conduct did not offer a positive example for the children.
19 Further, the AAT was not satisfied that the family’s finances had been adversely affected since the applicant lost the opportunity to be employed or that the family had been unable to meet their financial obligations as a result of the limited support the applicant had been able to provide in recent years. The AAT said there was little evidence on whether the family was able to access other forms of income such as social security payments, or support from family and friends. The AAT concluded that, on the evidence before it, it was not satisfied the family and minor children would suffer financial hardship as a result of the applicant’s visa remaining cancelled.
20 In summary, the AAT accepted that while the applicant resided at the family home he established a good relationship with his wife’s children and had assumed a role as father figure who provided financial and emotional support. But the AAT was not satisfied that the relationship continued after the applicant moved out of the family home. As to the future, the AAT said that the applicant had not presented evidence that he would return to the family home and live with his wife and her children. These matters meant that, on the evidence before it, the AAT was not satisfied that the best interests of minor children in Australia favoured revocation of the cancellation of the applicant’s visa.
Expectations of the Australian community
21 The AAT held that while community expectations may favourably view various aspects of the applicant’s personal circumstances, in particular his length of residence in Australia, employment, contributions to the community and relationships with Australian citizens, his criminal history meant that the applicant’s conduct did not meet community expectations. In particular, the AAT said the Australian community would not expect the applicant to hold a visa in circumstances where the applicant had committed violent and other offences over a period of time. The AAT found this this primary consideration favoured non-revocation of the cancellation of the applicant’s visa.
Other considerations
22 The AAT considered whether there were any other considerations bearing on its decision. The AAT accepted that the applicant has strong ties to the community and enjoyed community support and that these factors favoured revocation. Similarly, the AAT accepted that in view of the length of time the applicant has been in Australia and his degree of settlement, there will be some impediment to him if he is removed from Australia. The AAT said this consideration also favoured revocation.
23 Overall, the AAT concluded that although there were factors favouring revocation, the expectation of the community and protection of the community primary considerations outweighed those factors. As noted above, the AAT gave less weight to the best interests of minor children primary consideration because it formed the view that there was limited evidence of the applicant’s positive relationship with his wife’s children after leaving the family home and that there was uncertainty in that relationship continuing in the future.
Proceeding in this Court
24 In his further amended originating application dated 25 September 2019 (which further amendments were unopposed), two grounds of review were raised:
Grounds of application
1. That the decision of the second respondent of 1 April 2019, whereby the second respondent purported to refuse to grant an adjournment sought by the applicant (on the grounds identified by the application in his email communication and letter dated 1 April 2019):
aa. involved a failure to correctly construe the Administrative Appeals Tribunal Act 1975 (Cth), leading the Tribunal to misconceive the nature of the function it was performing;
a. was legally unreasonable;
b. denied the applicant the reasonable opportunity to present his case as required by s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth); and/or
c. failed to afford the applicant procedural fairness
with the consequence that the Tribunal failed to conduct the review required by the Migration Act 1958 (Cth).
2. The second respondent:
a. had before it material which was to the effect that, if the applicant’s visa remained cancelled, that state of affairs would affect his family (including his wife, his step-children and his step-grandchildren) financially, in circumstances where the applicant had previously provided financial support to his family while employed and whilst in detention;
b. considered that that material was relevant (solely) to the issue of whether the applicant’s step-children and step-grandchildren (or his family) would experience what the second respondent termed “financial hardship” if the applicant’s visa remained cancelled;
c. was not satisfied that such “financial hardship” would result if the applicant’s visa remained cancelled on the basis that there was:
i. little evidence to satisfy the second respondent that the family’s finances been adversely affected since the applicant lost the opportunity for employment or that the family had been unable to meet their financial obligations as a result of the limited support the applicant had been able to provide in recent years; and
ii. little evidence on whether the family were able to access income from other sources such as employment, Centrelink or support from family or friends;
d. thereby:
i. failed to make an obvious inquiry about what were, on the second respondent’s path of reasoning, critical facts that were readily ascertained;
ii. failed to ask itself the correct question, which was whether the potential absence of the financial contribution the applicant was capable of making (and proposed to make) would have a material effect upon the financial position of the applicant’s family and the best interests of the minor children in the applicant’s family (regardless of whether the absence of that financial contribution would or would not have led to “financial hardship” on the part of the applicant’s family and regardless of whether the applicant’s family did or did not have other sources of income to meet their financial obligations without the help of the applicant);
iii. misunderstood the matter that was in fact identified by the applicant as “another reason” why the original decision to cancel the applicant’s visa under s 501(3A) should be revoked; and/or
iv. failed to give genuine consideration, via an active intellectual process, to the matter identified in sub-paragraph (d)(iii) above or overlooked a substantial, clearly articulated argument advanced as demonstrating “another reason” why the original decision to cancel the applicant’s visa under s 501(3A) should be revoked;
e. in the premises, failed to conduct the review required by the Migration Act 1958 (Cth).
25 In his closing address in reply, the applicant’s counsel sought leave to raise the following third ground of review:
The Tribunal’s conclusions that:
(a) It was not satisfied that the relationship between the applicant and his family had continued or was ongoing; and/or
(b) The applicant’s family and minor children will experience financial hardship if the applicant’s visa remains cancelled
were irrational, illogical or unreasonable or involved a failure to give active intellectual consideration to the merits of the case before it.
26 With the Court’s leave, the parties filed supplementary submissions after the hearing in respect of the proposed third ground. Although the Minister opposed leave to further amend being granted, he did not complain of any prejudice. As this ground raises a pure matter of law, and there is no prejudice, the applicant should have leave to rely upon it (see further at [107] below).
The applicant’s submissions summarised
27 The applicant relied on two affidavits, one affirmed by the solicitor who appeared for the applicant in the AAT, Mr Ziaullah Zarifi (dated 10 September 2019), and the other affirmed by the applicant himself (dated 10 September 2019). Neither was cross-examined.
Ground 1
28 In his affidavit, the applicant deposed that the possibility of providing further evidence emerged from his conference with his prospective solicitor, who had discussed with him in general terms the issues to which that further evidence might relate. In his affidavit, the applicant said that, following the first solicitor’s advice he received on 29 March 2019, he understood that the further evidence might deal with:
(a) the counselling services he received both in prison and in Villawood, including psychological, drug and alcohol counselling;
(b) his wife’s depression and its effects upon her; and
(c) the financial difficulties being experienced by his wife and his children.
29 I accept that evidence.
30 The AAT’s reasons for refusing the adjournment are set out in full above at [8]. The applicant submitted that the following matters are notable about these reasons:
(a) The AAT did not suggest that the applicant’s reasons for seeking an adjournment were not compelling or did not warrant the grant of an adjournment. Nor did the AAT express any doubt that the applicant would be able to provide the further evidence referred to in his request.
(b) The only reasons given by the AAT for refusing the adjournment were first, the 84 day limit imposed by s 500(6L) of the Act, which the AAT said expired on 3 May 2019 and secondly, the Senior Member who was allocated to hear the matter was unavailable to hear the matter before 3 May 2019.
(c) No consideration was given to the possibility whether the AAT, differently constituted, would have been able to hear the matter on an alternative date and still make a decision within the time limit imposed by s 500(6L).
(d) While the applicant had sought a 3 week adjournment, the AAT was plainly aware that the applicant’s primary concern was to obtain a date at which his prospective solicitor could appear for him.
31 The applicant emphasised the follow matters of principle as being relevant to the Court’s review of the AAT’s decision to refuse the adjournment. First, the AAT had ample power to adjourn the proceeding (s 40(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)). The Tribunal could also be reconstituted by a direction under s 19D(1), either by the President or a delegate (which can include Senior Members), with particular flexibility in the pre-hearing period. In giving any such direction, s 19D(7) requires the President to have regard to the AAT’s objective of providing a mechanism of review which is amongst other things, accessible, fair and just (s 2A of the AAT Act).
32 Secondly, by analogy with s 500(6H), the applicant submitted that the limitations imposed by s 500(6L) have the limited statutory purpose of preventing applicants from manipulating the system in an attempt to delay their removal. However, that limited statutory purpose did not warrant provisions of this kind being given an operation beyond that required by their language. In particular, the applicant submitted that they are not to be read so as to pre-empt hypothetical possibilities that the AAT might grant adjournments supinely or unreasonably. Furthermore, the applicant submitted that the obligation in s 500(6L) only requires a decision to be made by the 84th day and it did not require delivery of written reasons by that time (Khalil v Minister for Home Affairs [2019] FCAFC 151).
33 Thirdly, the applicant relied on the uncontroversial proposition that the AAT is obliged to provide procedural fairness, as reflected in s 39(1) of the AAT Act, and that in some circumstances failure to accede to a reasonable request for an adjournment can amount to procedural unfairness (Khalil at [31]; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [40]). The applicant submitted that having regard to the limited statutory purpose of s 500(6H), the provision should not be regarded as restricting the flexibility of the procedures available to the AAT to ensure the parties to the review receive procedural fairness.
34 Fourthly, the applicant submitted that in some circumstances a failure to grant an adjournment may be legally unreasonable. He referred to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [44] where the Full Court identified two aspects of legal unreasonableness – one that was outcome focussed and the other concerned with a more specific identification of jurisdictional error. The applicant here relied on both aspects of legal unreasonableness, but primarily the second aspect.
35 The applicant submitted that the AAT considered no other possibility than the Senior Member then constituting the AAT proceeding to hear and determine the application for review. This demonstrated that the AAT had necessarily overlooked the possibility of reconstituting the AAT by direction under s 19D(1), a course expressly contemplated by the AAT Act. Such a course may have allowed another member to hear the review application and accommodate a later hearing date. The applicant accepted that s 19D(1) was a discretionary power and there is nothing to say it would have been exercised in the manner proposed. Nevertheless, the applicant submitted that by failing to advert to the possibility of such a direction and assuming the Senior Member was the only repository of power for conducting the review, the AAT fell into error through a misconstruction or misunderstanding of its function under the AAT Act. This error, the applicant submitted, fell within the second aspect of legal unreasonableness in Singh, but could also be characterised more conventionally as a jurisdictional error arising from misconstruction of the statute conferring jurisdiction and its function under that legislation (referring to Craig v South Australia [1995] HCA 58; 184 CLR 163).
36 On the outcome focussed aspect of legal unreasonableness, the applicant submitted that the AAT’s refusal of the adjournment was akin to the error identified in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. That is, putting aside the AAT’s erroneous reasoning concerned with the Senior Member’s availability, there was no evident or intelligible justification for the AAT’s refusal of the adjournment request (relying on Li at [76], [84]-[85] and Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81). The applicant submitted that in failing to accede to the applicant’s reasonable adjournment request, the AAT denied the applicant procedural fairness and a reasonable opportunity to present his case.
37 The applicant submitted that the errors were material in that they could realistically have affected the ultimate result in two ways. First, the errors denied the applicant the opportunity to have his case prepared and conducted by a lawyer, at least one who had more than a single night to prepare for the hearing. Secondly, the applicant submitted that the errors identified meant the operation of ss 500(6H) and (6J) restricted the evidentiary case that he was able to present to the AAT.
Ground 2
38 This ground claimed that the AAT erred in artificially restricting its consideration of the financial effect of the applicant’s removal on his family, by reference to an enquiry into whether the family would suffer “financial hardship”. In so confining its enquiry and artificially limiting its consideration of the applicant’s submission to the question of “financial hardship”, the applicant submitted that the AAT erred in several ways.
39 The applicant contended that his s 501CA(4)(a) representations put in issue the financial effects of his removal on his family which was a more general point than the issue of financial hardship considered by the AAT – that is, if the applicant’s visa remained cancelled that would affect his family because the positive financial contribution he had previously made, would not be made in the future.
40 The applicant submitted that the representations made under s 501CA(4)(a), treated as a whole, are a mandatory relevant consideration for a decision under s 501CA(4)(b), and the AAT’s failure to consider the representation as put by the applicant constituted jurisdictional error by failing to consider a substantial and clearly articulated argument (Navoto v Minister for Home Affairs [2019] FCAFC 135 at [85]) or failing to give the representation active intellectual consideration (Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [43]-[46]). The applicant submitted the AAT’s approach revealed error in that the applicant’s representation went to the interests of minor children in Australia, a matter the AAT is required to consider under cl 13.2 of Direction 79.
41 In oral submissions, the applicant said the error could be characterised as one similar to those identified in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [45]-[47] and [53]-[54] per Robertson J and BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [62]-[64] and [67]-[72] per Bromberg and Mortimer JJ. The applicant described that type of error as an error in legal reasoning that leads to a truncated consideration of a relevant matter, resulting in a constructive failure to exercise jurisdiction.
42 The applicant submitted that, as was made clear in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [64] and [68], the inquisitorial nature of proceedings in the AAT requires matters going to the interests of minor children in Australia to be considered, whether or not an applicant raises those interests as a positive part of their “case”.
43 Alternatively, the applicant submitted that even if the AAT correctly reasoned that it lacked material that was, on its view, critical to its inquiry, the failure to seek that further material was itself an error. The applicant submitted that failure to make even cursory inquiries to follow up on information relevant to the issue of the financial impact on minor children meant the AAT did not comply with its obligation under the Direction to have regard to the interests of minor children in Australia.
44 At a more general level, the applicant submitted that this failure to make an obvious inquiry about a critical fact, could in some circumstances amount to a constructive failure to exercise jurisdiction by failure to discharge the duty of review imposed by the AAT Act (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25]). As an example of this type of error, the applicant referred to Nettle J’s reasons for judgment in Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [49]-[51].
45 Finally, the applicant submitted that the errors identified by him was material in the relevant sense because they went to the AAT’s overall conclusion that “it was not satisfied” that the best interests of minor children would be in favour of revocation. Therefore, these errors led to the exclusion of a matter of significance that might have favoured revocation, and so could realistically have affected the outcome of the AAT’s review.
Ground 3
46 In his supplementary submissions, the applicant explained that this ground relies partly upon the principle in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 that a determination which is irrational or illogical may give rise to jurisdictional error. He referred to what Crennan and Bell JJ said at [131] that the test for illogicality or irrationality:
… must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
47 The applicant described the AAT’s relevant reasoning as involving the following propositions:
(a) the applicant appeared to agree that his contact with his children and grandchildren had been minimal since his detention in 2017 and possibly from the time he moved out of the family home in 2016 (at [52]);
(b) there was little evidence to show that the applicant had played a “meaningful role in the children’s and grandchildren’s lives at least since incarceration…”; and
(c) that while the applicant “has established a good relationship with his partner’s children and step children” the AAT was “not satisfied that relationship continued after the applicant moved out of the family home”.
48 The applicant submitted that these findings were largely based upon the AAT’s view that, with the possible exception of Ms Sharnice Fernando, the children and grandchildren had not seen the applicant after his detention. The applicant emphasised that he was not cross-examined on this issue and that he had explicitly said in his witness statement that “I have a good relationship with each child and grandchildren (sic)” (emphasis added).
49 The applicant also emphasised the evidence before the AAT from the applicant’s wife and adult children, which was all consistent with them having maintained a relationship with him. The evidence was to the effect that the relationship between the applicant and his family members was current and was expected to continue in the future. The only contrary indication was that the applicant had not physically seen the children while he was detained. The applicant emphasised, however, that this fact alone did not indicate the end of the relationship because there are many reasons why people could reasonably decide not to subject minor children to a detention environment.
50 In these circumstances, the applicant submitted that the AAT’s conclusion that it was not satisfied that the relationship had continued was not reasonable, or was illogical or irrational (referring by way of analogy to BTW17 v Minister for Immigration and Border Protection [2018] FCAFC 10; 258 FCR 511 at [28]-[30]).
51 The applicant submitted that similar unreasonableness, illogicality or irrationality affected the AAT’s approach to the question whether the family and minor children would experience financial hardship. That was because there was evidence from the applicant’s wife, who was best placed to know about the family’s finances, in the letter she sent to the AAT concerning adverse financial effects for the family arising from the applicant’s detention. The applicant submitted that the AAT’s reasoning that income might be obtained from other sources in the future was merely speculation and was inconsistent with the gravamen of Ms Fernando’s letter. Accordingly, the AAT’s conclusion that it was not satisfied that the family and minor children will experience financial hardship if the applicant’s visa remains cancelled was not reasonable or was illogical or irrational. Alternatively, the applicant contended that the AAT failed to give active intellectual consideration to the merits of the case, citing Carrascalao.
52 Finally, the applicant contended that these errors were material for the same reasons as in relation to ground 2. He emphasised that the AAT’s conclusions regarding the best interests of the minor children were critical to its ultimate decision.
The Minister’s submissions summarised
Ground 1
53 The Minister submitted that it was important that the adjournment request made by the applicant was one which specifically sought a 3 week adjournment. That would have delayed the hearing until at least 8 May 2019. The Minister said, even assuming that it was correct for the AAT to calculate time on the day the application for review was lodged (rather than the day after the applicant was notified of the delegate’s decision), the 84 day time period would have expired, in any event on 3 May 2019. This meant that the request as put to the AAT could never be accommodated within the framework of s 500(6L).
54 The Minister submitted that the applicant’s case on this ground was implicitly premised on the proposition that the applicant had a right to be legally represented before the AAT. On well-established authority, that premise is not sound (Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; 101 FCR 20).
55 The Minister submitted that it was significant that, on receiving the AAT’s response, the applicant did not seek a shorter adjournment (neither before the hearing or at the hearing), nor did he seek to have his case reassigned to another Tribunal member. The Minister also highlighted the fact that the applicant’s prospective solicitor had indicated that he would not file a notice of appearance until it was clear there was another hearing date at which he would be able to appear. This meant that there never was any certainty that the applicant would be able to obtain the legal representation which was the basis for the adjournment request. Furthermore, the applicant was, in any event, able to obtain legal representation at the hearing.
56 In oral submissions, the Minister placed some emphasis on the fact that the applicant was eventually able to obtain a solicitor shortly before the hearing. The Minister said this late development meant the applicant received a reasonable opportunity to present his case.
57 The Minister submitted that the absence of any reference to the various procedures available to the AAT was not enough to found an inference that the Senior Member was not fully aware or misunderstood the full scope and flexibility of the procedural powers available to her. The Minister submitted that to require the AAT to explore all those options in its reasons for refusing the adjournment would create an unduly onerous burden on the AAT.
58 As to any obligation located in s 39 of the AAT Act, the Minister submitted that what was required was giving the parties a reasonable opportunity to present their respective case. As Deane J said in Sullivan v Secretary, Department of Transport (1978) 20 ALR 323 at 343, “[n]either the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.”
59 The Minister submitted that the question is not whether legal representation would have meant the applicant’s case would have been better presented, but is instead whether there was a failure to give the applicant an adequate opportunity to prevent his case (Weti v Minister for Immigration & Citizenship [2007] FCA 1531 at [32]). The Minister stated that the applicant has not explained what further evidence or contentions could have been, but were not, put to the AAT due to the refusal of the adjournment.
60 The Minister submitted that central to the consideration of the AAT’s discretionary power to adjourn its proceedings was the statutory framework and, in particular, the time constraint imposed by s 500(6L). Failure to comply with that constraint would have meant that even a decision favourable to the applicant would have been invalid. The Minister submitted that the applicant’s case depends on an assertion of a failure by the AAT, of its own motion, to seek an alternative member and date for hearing the review application within the permitted time. The Minister said that it is notable that the applicant pointed to no authority for such a duty, because, no such duty exists under either s 39 of the AAT Act or common law procedural fairness.
61 In the alternative, the Minister submitted that any failure identified by the applicant has not been shown to be material (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 at [4], [41] and [46]; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 at [29]-[31]). As materiality is an ordinary question of fact (on which the applicant bears the onus of proof), the applicant has not discharged that onus by the mere assertion the AAT was deprived of potentially significant material. Without particularisation of how the applicant’s case may have been differently presented or conducted, the applicant’s case on ground 1 cannot succeed, so the Minister submitted.
Ground 2
62 The Minister submitted that this ground cannot succeed as it effectively contends that the AAT erred in not itself seeking to cure the deficiencies or gaps in the evidence provided by the applicant. The Minister submitted that the AAT had regard to the evidence provided by the applicant on this issue, and the absence of evidence arose from the fact that the applicant’s wife and two adult children were not available to give evidence in person before the AAT. The Minister emphasised the AAT’s statement that “there [was] little evidence to satisfy the Tribunal that the family’s finances had been adversely affected …”, the fact that the AAT noted the applicant had provided limited support in recent years and that there was an absence of evidence on other sources of income for the family.
63 The Minister contended that there is no error in the AAT’s approach. While the AAT is required to consider the best interests of minor children as a primary consideration, it is not required to make a positive finding one way or the other if the evidence is insufficient to enable it to do so (Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; 219 FCR 504 at [27] per Buchanan J and [117]-[119] per Perry J; and Uelese at [67]). The Minister accepted that the various errors identified by the applicant in this ground could constitute jurisdictional error, but he contended that the difficulty in the applicant’s case is its dependence on seeking the Court to find error by the AAT in not making its own independent inquiries into the financial effect of non-revocation on the applicant’s family.
64 In oral submissions, the Minister said there was no error in the AAT’s approach or anything to show that it addressed the wrong issue. The Minister submitted that the AAT responded to the submission that was put to it, and that financial hardship was always a part of the applicant’s s 501CA(4)(a) representations, as evidenced by the fact that the applicant claimed in his affidavit in support of ground 1 that he could have put on evidence of financial hardship had he had additional time.
65 As to SZIAI and the applicant’s claim that the AAT failed to make an obvious inquiry about a critical fact, the Minister submitted that the evidentiary lacuna arose due to the failure of the applicant’s witnesses to attend to give evidence. In these circumstances there was nothing giving rise to an obligation on the AAT to fill that evidentiary gap.
66 In oral submissions, the Minister developed this argument by submitting that in the few cases where it has been held there was a failure to make an obvious enquiry, such as Wei and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J, the obvious enquiry was one which admitted a “yes/no” answer, meaning that the enquiry could be answered. In contrast, in the present case the applicant alleged that the AAT should have made enquiries into a body of evidence, without any identification of a specific critical fact that could be answered easily.
Ground 3
67 The Minister opposed leave being granted for the applicant to further amend his originating application and advance submissions with respect to the proposed ground 3. The Minister’s reasons for opposing leave were the lateness of the proposed further amendment, in circumstances where the applicant had already amended their originating application twice, but more fundamentally because the additional ground had no prospect of success.
68 The Minister emphasised that what this proposed ground focussed on were findings by the AAT as to inadequacy of evidence. The Minister said the AAT did not make findings either way about the existence or otherwise of a continuing relationship between the applicant and the Australian minor children or on the question whether the family would suffer financial hardship were the applicant’s visa to remain cancelled. Instead, the Minister says the applicant’s submission amounts to a contention that it was irrational or illogical for the AAT to refer to the paucity of evidence on these matters and conclude that it could not be satisfied of them on the basis of that evidence.
69 The Minister accepted that these questions were not to be approached through a formal question of onus, but submitted that where an applicant fails to provide the information and evidence necessary to satisfy a primary decision maker of the relevant statutory requirements, the statutory power will not be exercised as no occasion to exercise the power in favour of the applicant arises (Beezley v Repatriation Commission [2015] FCAFC 165; 150 ALD 11 at [68]).
70 After referring to the evidence before the AAT on these issues, the Minister submitted that contrary to the applicant’s submissions, the AAT did not find there was little evidence of an ongoing relationship because the applicant had not seen the Australian minor children while he was in detention. The Minister referred to a part of the transcript which demonstrated that the AAT was under the impression (whether it was true or not) that at least one of the minor children had visited the applicant while he was in detention.
71 The Minister accepted that had the AAT made positive findings that revocation was or was not in the best interests of the Australian minor children the situation may be different, however in the present case the impugned findings were ones determining that there was insufficient evidence to make positive findings. Further, as to the correctness of the AAT inferring that the applicant had not seen the minor Australian children, the Minister said no evidence of any other form of contact (such as by telephone) was put forward. Similarly, the Minister said it was the absence of evidence on the family’s sources of income that led it to find that there was insufficient evidence to conclude the family would face financial hardship if the applicant’s visa remained cancelled.
72 The Minister contended the AAT’s determinations that there was insufficient evidence to make findings on these issues did not meet the stringent standard of irrationality or legal unreasonableness (SZMDS at [131] and [135]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [10]-[11] per Kiefel CJ, at [52] per Gageler J). In light of the material before it, the AAT’s conclusion there was insufficient evidence before it to make findings in favour of the applicant had an evident and intelligible justification (Li at [76]).
73 With respect to the applicant’s claim the AAT failed to give active intellectual consideration to the merits of the applicant’s case, the Minister said that such a finding will not be made lightly and requires clear evidence (referring to Carrascaleo at [48]). The Minister submitted that in this case there was no such clear evidence and consequently the applicant has not discharged his evidentiary burden (SZMTA at [4], [41] and [46]).
Consideration and determination
Ground 1
74 The AAT’s email dated 1 April 2019 (see [8] above) reveals two reasons for refusing the adjournment request:
(a) the limited available time to hear the review application and make a decision due to s 500(6L) of the Act meant that the tribunal was “unable” to grant the requested three week adjournment; and
(b) the Senior Member’s inability to hear the case in that limited time on any other day apart from 17 and 18 April 2019 (the scheduled dates for the hearing) because she was fully booked up on all hearing days before expiration of the 84 day period under s 500(6L).
75 It is convenient first to address the applicant’s claims regarding legal unreasonableness. The applicant contended that the AAT’s final decision dated 29 April 2019 was tainted by its earlier decision to refuse the adjournment request.
76 As is evident from the summary above, the parties were in substantial agreement as to the relevant legal principles. They were recently summarised by the Full Court in Khalil at [34] to [49], by reference to cases such as Li, Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1, Singh, SZVFW, Hossain and SZMTA. In brief, they relevantly are as follows:
(a) The standard of judicial review for legal unreasonableness is stringent, but it is not necessary to show that a decision was bizarre or one which no reasonable decision-maker could make for the ground to be established.
(b) As the applicant contended here, unreasonableness has two aspects, one of which focusses on the outcome, while the other focusses upon more specific errors in the decision-making process.
(c) Where in a case such as the present reasons are given for a decision those reasons are the focus of the review for legal unreasonableness. Part of the Court’s task is to ascertain whether there is an evident and intelligible justification for the impugned decision.
(d) Whether or not there is legal unreasonableness requires a close analysis of the statutory framework within which the impugned decision was made.
(e) Review for legal unreasonableness is heavily fact dependent.
(f) Not every error of law is a jurisdictional error, but in a statutory decision-making process, jurisdictional error may arise where there is failure to comply with one or more statutory preconditions which results in a decision which lacks characteristics necessary for it to be given force and effect by the statute under which the decision has purportedly been made.
(g) An error does not rise to the level of a jurisdictional error unless it is material in the sense that, if the error had not occurred, there realistically could have been a different decision. This involves a question of fact on which the applicant for judicial review bears the onus of proof, but which may be determined from inferences drawn from the evidence.
(h) In a case such as the present, where the challenge is directed to an earlier decision in the decision-making process, it will be necessary to demonstrate that the earlier refusal to adjourn was material to the AAT’s final decision.
77 It is desirable to say something more about Khalil because, although there are some factual differences and while I am mindful of the need to look at each case individually and not simply conduct a comparative analysis with other cases, I consider that it provides strong support for the applicant’s legal unreasonableness case.
78 Khalil also involved a judicial review challenge to the AAT’s refusal to grant an adjournment in the context of the AAT reviewing a delegate’s decision not to revoke a decision by a Ministerial delegate who refused to grant a visa on the grounds that the visa applicant did not pass the character test. On the morning of the scheduled AAT hearing, the review applicant’s barrister informed both the review applicant and the AAT that he could not attend the hearing because of a commitment in another proceeding. The barrister asked the AAT to defer the hearing. The Minister opposed the adjournment request. The review applicant appeared for himself at the opening of the hearing, by video link from Christmas Island. As he had not yet receive the relevant papers, the AAT deferred the hearing for 24 hours. When the hearing resumed the review applicant sought an adjournment, which was refused. The refusal was based in large part on the AAT’s belief that the 84 day period in s 500(6L) was about to expire and the AAT believed that it needed to deliver both its decision and reasons for decision within that timeframe.
79 The Full Court held that the AAT erred in proceeding on the basis that it had to publish its reasons for decision within the relevant period. This misconception of its task was found to have infected the conduct of the hearing and, through that, the AAT’s ultimate decision. It was an error of such gravity that it was characterised as jurisdictional. In reaching that conclusion, the Full Court also found that the AAT’s error was material to its ultimate decision under s 43 of the AAT Act because there was a possibility that the outcome would have been different if an adjournment had been granted which would have enabled the review applicant to be legally represented and, even if s 500(6H) operated to confine the further documentation which the review applicant could provide in support of his case, his legal representative would have been able to make oral submissions based on the material before the AAT.
80 As to the first and primary reason given by the AAT for refusing the adjournment in the present case, I accept the applicant’s submission that an analogy can be drawn between s 500(6L) of the Act and the consideration given to the 2 day rule in s 500(6H) in Uelese at [72]-[77]. As the High Court stated, the effect of a provision such as s 500(6H) should not be given an operation beyond that warranted by the statutory language and underlying statutory purpose of the provision. In that case, the limited statutory purpose of ensuring proceedings were not delayed by the necessity for an adjournment arising from late changes to applicants’ cases was held not to confine the AAT’s power to adjourn its proceedings, or alter the flexibility of its procedures designed to afford procedural fairness.
81 For similar reasons, it would be inappropriate to give s 500(6L) an operation or effect beyond that warranted by its language and specific statutory purpose. The language of s 500(6L) and its statutory purpose impose an outer limit for the timeframe of a review in the AAT (Uelese at [58]-[59] and [75]-[76]). Therefore, while the operation of s 500(6L) was a relevant consideration which the AAT was entitled to have regard to in considering the applicant’s adjournment request, the presence of s 500(6L) did not require the AAT to conclude that listing the hearing well before the expiry of the 84 day period was necessary, nor did it alter the content of the AAT’s procedural fairness obligations (beyond providing a contextual factor that the AAT had to bear in mind). The AAT might properly have concluded for various reasons that scheduling the hearing unduly close to the expiry of the 84 day period was undesirable. But what s 500(6L) did not do was absolve the AAT from considering the applicant’s request for an adjournment on its merits – that is, in light of the reasons put forward by the applicant. The AAT needed to turn its mind to the fact that the express basis for the applicant’s adjournment request was that he had only recently received legal advice, was able for the first time to identify evidence which was potentially helpful to his case and that he “may be able to obtain evidence which was important, significant and relevant to my case”. The applicant did not particularise the further evidence, but there was no basis for the AAT to assume that the applicant was not being truthful.
82 As the applicant submitted, the AAT’s reasons for refusal did not suggest that the applicant’s reasons for seeking an adjournment were not compelling or were unwarranted. Instead, the AAT was concerned with what it regarded as the practical impossibility of accommodating the adjournment request within the confines of the 84 day limit and the Senior Member’s availability to hear the matter, hence the reference three times to “unable” (see [8] above). The AAT’s reasons, as expressed in the email, are limited to aspects of the practical impossibility of granting the requested adjournment and that must, therefore, be the focus of the Court’s review and determination of whether there is legal unreasonableness. That is because, as noted, the Court’s review of the AAT’s decision for legal unreasonableness is limited to the reasons given by the AAT in determining whether they disclose an intelligible justification for the decision to refuse the adjournment. The Court should not speculate on other possible reasons why the AAT might properly have concluded that the adjournment was not warranted for other reasons (Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; 365 ALR 202 at [35]).
83 The procedures provided in the AAT Act are sufficiently flexible to accommodate reconstitution of the Tribunal and adjournment of a hearing if it was necessary to do so. I do not understand the Minister to have submitted to the contrary. Rather, as noted above, the crux of the Minister’s submissions was that the AAT was under no duty, of its own motion, to consider reconstituting the Tribunal and an alternative shorter adjournment, in order to provide the applicant with the best opportunity (rather than merely a reasonable opportunity) to present his case.
84 The difficulty with that submission is that it does not squarely meet the applicant’s case. The applicant’s case does not require the Court to conclude that such an adjournment would or should have been granted, nor is it premised on any right to be legally represented before the AAT or that the AAT should have been reconstituted. The applicant’s core proposition is that his request for an adjournment should have been considered on its merits and with proper consideration of all the relevant and flexible powers available to the AAT. The AAT’s reasons reveal that the sole basis for refusing the adjournment was the issue of logistics and practical impossibility, without regard to those other powers. That is the source of the AAT’s error which, for reasons which will shortly emerge, was material and amounted to a jurisdictional error (see by analogy Li and Singh). The AAT’s reasons disclose no intelligible justification for the decision reached.
85 For completeness, I should add that I do not think anything turns on the fact that the applicant’s request on 1 April 2019 was expressed as a request for a 3 week adjournment. The applicant’s request in his email dated 1 April 2019 revealed that the substance of his concern was obtaining a hearing date so that his proposed solicitor could attend, so as to obtain the benefit of the solicitor’s assistance in appearing at the hearing, but also the benefit of the solicitor’s assistance in preparing for the hearing.
86 To hold that the AAT was obliged only to consider the adjournment request as specifically formulated rather than on the basis of the substance of the concern revealed in the request, would be to fail to give due regard to the inquisitorial context of the AAT’s review function and import a degree of formality that is inconsistent with s 2A of the AAT Act.
87 Finally, I do not consider the applicant’s failure to ask for a further adjournment either before or at the hearing obviates the AAT’s error. It is well to remember that the applicant was unrepresented for most of the period leading up to shortly before the hearing, and that a significant reason why he sought the adjournment was to secure the representation of the solicitor whom he had first consulted (who had said that his taking on the applicant’s case was conditional on obtaining a new hearing date).
Materiality
88 The AAT’s error was material and amounts to a jurisdictional error (see Hossain at [24] per Kiefel CJ, Gageler and Keane JJ; SZMTA at [44] per Bell, Gageler and Keane JJ; Khalil at [43] to [53] per Logan, Steward and Jackson JJ and Nguyen v Minister for Home Affairs [2019] FCAFC 128 at [45]-[54]).
89 Such evidence as might have been obtained may well have affected the AAT’s assessment of the primary consideration of the best interests of minor children noting that the AAT in its reasons for decision, commented on the absence or limitations of the evidence before it concerning any ongoing relationship between the applicant and his step-children and step-grandchildren (see at [52] and also at [53]) and that little detail was provided in the letters from the applicant’s wife and his adult stepson as to how or why the minor children would be affected by his removal. Similarly, in the AAT’s reasons which address the strength, nature and duration of the applicant’s ties in Australia, the AAT noted at [62] that there was little evidence of the applicant’s role with respect to his partner’s family since he moved out of the family home. The AAT also noted at [62] that the applicant claimed that he provided financial support to his partner and her family. Although that paragraph ends with a statement by the AAT that it “accepts that evidence”, on a fair reading of that paragraph it would appear that that acceptance relates to other matters outlined in that paragraph, including supporting statements from third parties regarding his involvement in church activities and his voluntary work. This reading is supported by the fact that, later in its reasons, the AAT stated at [70] that there is “little evidence of the applicant providing ongoing financial support to his partner and her family since 2016”. Moreover, the AAT then added at the end of [70]:
As noted above, there is insufficient evidence before the Tribunal to establish whether the family have other sources of income to meet their financial obligations without the help of the applicant.
90 Although the AAT ultimately stated at [73] that it accepted that there may be “significant impediment to the applicant, his partner and her family if the applicant is removed”, the further evidence may well have justified an even stronger finding in the applicant’s favour on this matter, which might have tilted the balance in favour of revocation.
Ground 2
91 The parties were largely in agreement as to the applicable principles. The Minister accepted that the summary in Navoto at [84]-[89] outlined accurately the various species of error that may infect decision-making in the present context. The dispute between them is whether any of those errors occurred in this case.
92 That dispute raises two principal factual questions concerning:
(a) the content of the applicant’s s 501CA(4)(a) representations; and
(b) the AAT’s consideration of the applicant’s s 501CA(4)(a) representations and the issue of financial support.
93 In my view, there is sufficient evidence to support the applicant’s submission that the applicant’s s 501CA(4)(a) representations included a claim that failure to revoke cancellation would adversely affect his family, and his minor Australian step-children through his reduced ability to make financial contributions. That evidence includes:
(a) The applicant’s response to the question “Please describe the impact the cancellation of the your visa would have, or has had, on your partner”, contained in the a personal circumstances form provided in response to the notice of visa cancellation under s 501(3A):
The impact of the cancellation of my visa to my wife (sic). She will face more financial difficulty. The bills, rent and specially the welfare of our kids. It will be very hard for her. It will effect her (sic) terribly bad.
(b) The applicant’s response to the question “Please describe the impact the cancellation of our visa would have, or has had, on your family”, also contained in the personal circumstances form:
It will affect them financially. I got a permanent job. I contribute a lot in paying the bill, food, rent and etc.
(c) A supporting letter from the applicant’s wife, Ms Fernando, provided to the Minister’s delegate in which she said:
[The applicant] has been supporting me and my 5 kids financially since our marriage.
(d) A supporting letter from the applicant’s wife, Ms Fernando, provided to the AAT in which she said (emphasis in original):
I have been facing financial problems with our situation where money worries are causing my (sic) stress and it’s impact to my mental health due to all our bills and payments that used to be taken care of by my husband even though he stays in his own place. (attached or (sic) some of our outstanding bills that needed to be taken care of when my husbands (sic) comes home)…
94 The second factual question is more difficult. The AAT’s reasons on this matter are ambiguous. The relevant passages are at [52], [70] and [72] of the AAT’s reasons:
[52] …The Tribunal is also prepared to accept that the applicant provided financial support to the family while he was employed and his evidence is that his wife visited him in detention and took some of his savings. However, there is limited probative evidence of any ongoing relationship between the applicant and his children and step-children. The applicant appears to agree that his contact with the children and grandchildren has been minimal since his detention in 2017. There is little evidence to show that the applicant has played a meaningful role in the children’s and grandchildren’s lives since at least since incarceration and possibly from the time he moved out of the family home in 2016. Importantly, there is little evidence to satisfy the Tribunal that the family’s finances had been adversely affected since the applicant lost the opportunity for employment or that the family had been unable to meet their financial obligations as a result of the limited support the applicant has been able to provide in recent years. There is little evidence on whether the family are able to access income from other sources, such as employment, Centrelink, support from family or friends. On the evidence before it, the Tribunal is not satisfied that the family, and minor children, will experience financial hardship if the applicant’s visa remains cancelled.
[70] The applicant submits that his removal from Australia would cause financial hardship to his partner, and also emotional hardship to his partner and her children and grandchildren. The applicant states in his revocation request that he purchased a car for his partner and through his employment, he contributed to the payment of bills, food and rent. Ms Ratu provided a statement to the Tribunal in which she refers to the financial hardship and states that she needs her husband at home to support her. The Tribunal is prepared to accept that the applicant contributed to the family’s budget, when he was staying with his partner…The applicant states that despite moving away from his family, he continued to spend time with them on the weekends and he spoke to his wife regularly but there is little evidence of the applicant providing ongoing financial support to his partner and her family since 2016. As noted above, there is insufficient evidence before the Tribunal to establish whether the family have other sources of income to meet their financial obligations without the help of the applicant.
[72] The Tribunal is also mindful that the applicant had spent considerable time in detention, first in criminal detention and later in immigration detention. During the period of his incarceration, the applicant would not have been able to engage in gainful employment and contribute to the family’s finances, although he claims that his wife took his savings while he was in detention. There is no evidence before the Tribunal to indicate that as a result, the family had been adversely affected. Thus, while the Tribunal accepts that the applicant did contribute financially to the family, the Tribunal does not accept that if his visa remains cancelled, the family will suffer financial hardship.
95 Some parts of these passages indicate that the AAT did consider whether non-revocation would adversely affect the applicant’s family (including the minor children), but it found that there was insufficient evidence to make such a finding. For example, in [52], the AAT said there was “little evidence” to satisfy it that the family’s finances had been adversely affected or that they had been unable to meet their financial obligations as a result of the more limited support he has been able to provide in recent years (while the applicant had been in detention). Similarly, at [72] the AAT said there was “no evidence” before it to indicate that the family had been adversely affected financially, as a result of the applicant’s reduced ability to contribute to the family’s finances during his period in detention. Those conclusions are not necessarily inconsistent with the AAT’s acceptance of the applicant’s evidence that he provided financial support to the family while he was employed and that his wife had drawn on his savings when she visited him in detention.
96 While minds may differ over whether the AAT statement’s about the inadequacy or absence of evidence are correct (which is not the relevant issue in a judicial review challenge), the relevant statements may be interpreted as suggesting that the AAT did consider the applicant’s claim of financial hardship as articulated by him. It was open to the AAT to find that, where there is a paucity of evidence, it is unable to make a determination on that aspect of the claim (Paerau at [27] and [117]-[119]). On this reading of the AAT’s reasons, the AAT considered the claim, but concluded that the limited evidence did not support a finding that there would be an adverse financial impact on the applicant’s family.
97 Other parts of the quoted passages may suggest that the AAT’s comments on the evidence of the family being adversely affected financially were regarded by it as findings intermediate to its determination of the applicant’s claim that non-revocation of his visa cancellation would result in financial hardship for his family. That is the applicant’s reading of the AAT’s reasons.
98 In my view, that is not a fair or correct reading of the AAT’s reasons and the former reading is to be preferred, particularly having regard to the emphasis the AAT repeatedly gave to the limited nature of the evidence before it.
99 This is not a case such as Goundar or BCR16, where the decision-maker truncated consideration of the claim put forward by the applicant. In contrast, in the present case the AAT has expressed conclusions or views on the matters which the applicant now says were not properly considered by it. Furthermore, unlike Goundar and BCR16, there is nothing in the AAT’s reasons to indicate that it misunderstood the applicant’s claim.
100 For these reasons, the applicant’s principal submissions on ground 2 fail. There remains, however, the alternative contention that the AAT failed to make an obvious enquiry about critical facts that were readily ascertained.
101 The general relevant principle is to be found in SZIAI at [25] (footnote omitted):
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed under the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifest itself as jurisdictional error. It is not necessary to explore these questions of principle in this case…
102 Earlier, in Prasad at 169-170, Wilcox J expressed a tentative view that in some circumstances it may be legally unreasonable to fail to make obvious enquiries into material that is readily available. In Prasad such a failure was regarded as relevant to identifying the field of material that the Court could have regard to in conducting a judicial review of the operative decision. In Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151 at [60]-[67], Kenny J surveyed the relevant authorities following Prasad. Her Honour described the jurisdictional error as one of vitiating unreasonableness arising from the manner in which the decision was made (at [63]).
103 Significantly, the relevant challenge here focusses on the AAT’s failure to take certain action and there are no reasons available to explain this aspect of the AAT decision-making process (noting that there is no obligation on the AAT to give reasons for the non-exercise of a procedural power of this kind: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [69]; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [16]).
104 The applicant says that once the AAT reached the view that the evidence before it was insufficient to make particular findings as to the best interests of the minor children, it should have made further attempts to gather the evidence necessary to enable it to make those findings. However, as the Minister submitted, the obvious enquiry which the applicant alleges should have been made was not one that identified specific information or evidence that the AAT could have readily obtained and which would have admitted a clear answer to a critical fact.
105 From the AAT’s perspective, the extent of any particular value that that further information may have held was entirely speculative. Nor would it have known how easily such information may be obtained, when it might be obtained and what opportunity to the Minister to consider and test that further evidence, procedural fairness may have required. For that reason, the present case is far removed from one such as Wei which concerned specific information which the primary decision-maker was able to obtain, without difficulty or delay (see Wei at [51]).
106 Having regard to these matters, the alternative submission with respect to ground 2 fails.
Ground 3
107 Having regard to the applicant’s success on ground 1, it is strictly unnecessary to determine this proposed additional ground. If necessary, I would have rejected it for reasons which substantially reflect the Minister’s supplementary outline of submissions.
108 First, contrary to the applicant’s claim, there was no finding by the AAT that there was little evidence of an ongoing relationship between the applicant and his family because he had not seen the children since he had been in prison or detained. It is clear from the AAT’s transcript that the AAT understood that at least one of the young children had visited the applicant at Villawood Detention Centre.
109 Secondly, the AAT found that the applicant had maintained a relationship with his wife even after he had moved out of the marital home. Significantly, however, the AAT noted that there was limited probative evidence of any ongoing relationship between the applicant and his stepchildren and step-grandchildren and that the applicant himself appeared to agree that his contact with the children had been “minimal” since his detention. At [52] the AAT emphasised that there was little evidence to show that the applicant had played a meaningful role in the lives of the children or grandchildren in recent times.
110 Thirdly, as to the issue of financial hardship to the family if there was no revocation, the AAT again emphasised the limited nature of the evidence before it concerning the family’s financial position. It emphasised at [52] that, there was “little evidence” as to whether the family was able to access income from other sources but that, on the evidence which was before it, it was not satisfied that the family (and minor children) will experience financial hardship if the visa remained cancelled. Similarly, at [53] the AAT described how there was “very little detail” on how or why the minor children would be affected by a non-revocation decision. This correctly reflected the need to treat as a primary consideration, the best interests of the minor children.
111 Fourthly, as is evident from the examples given above, it was the limited nature or lack of evidence on the relevant matters which informed the AAT’s ultimate findings on the two issues challenged in ground 3.
112 Finally, I accept the Minister’s submission that the AAT’s findings that there was either insufficient or a paucity of evidence before it were not findings that no reasonable decision-maker could make or that they were not open to the AAT, having regard to the stringency of the relevant test, as emphasised in SZMDS at [131] and [135]; SZVFW at [10]-[11] and at [52].
113 Nor would I have been satisfied, if it had been necessary to decide, that the AAT failed to give active intellectual consideration to the merits of the case before it bearing in mind that the relevant test is also a stringent one (Carrascalao at [48]).
Conclusion
114 For these reasons, the applicant should file and serve a second further amended originating application within seven days, adding ground 3. The AAT’s decision dated 29 April 2019 will be set aside and the applicant’s application for review will be remitted to the AAT for reconsideration according to law. Although it is ultimately a matter for the President of the AAT to determine the constitution of the AAT, I consider that there is considerable force in the applicant’s request that the AAT be constituted by a different member having regard to the strong adverse findings of fact made by the AAT. Costs should follow the event. Orders will be made accordingly.
115 Finally, the Court expresses its gratitude to Mr Lenehan, now of Senior Counsel, for agreeing to act for the applicant on a pro bono and direct access basis.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. |
Associate:
