FEDERAL COURT OF AUSTRALIA

Umi v Minister for Home Affairs [2019] FCA 2148

ORDERS

THE COURT ORDERS THAT:

1.    The amended application for judicial review be dismissed.

2.    The applicant pay the first respondent’s costs of the application, to be fixed by way of a lump sum.

3.    On or before 4 pm on 15 January 2019, the parties file any agreed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and summary

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 31 July 2019. By that decision the Tribunal affirmed the decision under review, and decided that the cancellation of the applicant’s permanent visa should not be revoked.

2    For the reasons set out below, the amended application for judicial review should be dismissed.

The background to the Tribunal application

3    The course of the applicant’s visa cancellation and revocation request is set out in the Tribunal’s reasons from [1]-[10], and this summary is taken from those reasons.

4    The applicant held a Class AS Subclass 801 (Spouse) Visa, and had done so since February 2008.

5    The applicant came to Australia from Samoa in October 1995 on a tourist visa at the age of 19. He married an Australian citizen in 2006, although the Tribunal found the relationship ended in 2011. They had four children. I will identify the applicant’s wife in the same way the Tribunal did, as Partner A. The applicant subsequently commenced a relationship with another woman, with whom he had one child, who was 17 years old at the time of the Tribunal’s decision. I will also identify this woman in the way the Tribunal did, as Partner B.

6    It was not disputed in this proceeding that the Tribunal accurately summarised the applicant’s history of criminal offending at [6]:

Mr Umi’s criminal convictions span a 14-year period between August 1999 and August 2013, during which he has been sentenced to several periods of imprisonment. Mr Umi is currently imprisoned as a result of convictions on 13 August 2013 for Armed Robbery, Make Threat to Kill, Prohibited person possess a firearm, Unlawful assault, and several other offences.

7    The applicant’s spouse visa was cancelled on 2 February 2017, under s 501(3A) of the Migration Act 1958 (Cth). He was invited, and did, make representations to have the visa cancellation decision revoked. Those representations were made within the time period set out in the Regulations, but thereafter the consideration of whether or not to revoke the applicant’s visa appears to have taken a very long time. On 10 May 2019, a delegate of the Minister decided not to revoke the visa cancellation, and the applicant applied for review of that decision to the Tribunal on 21 May 2019.

8    The applicant was unrepresented throughout the Tribunal’s review process, and had not been represented at the delegate stage either. His first language is Samoan, and his English is, as the evidence demonstrates, adequate but far from fluent. The evidence also demonstrates he had a basic education in Samoa. I accept the applicant was somewhat compromised in his ability to present his case to the Tribunal, to understand the Tribunal’s procedural requirements, and the procedural and forensic options available to him on the review, and to make decisions such as whether to ask for an adjournment, or whether to call witnesses. That said, I do not accept his ability was as compromised as counsel suggested, and in my opinion, both the Tribunal and the Minister’s legal representative acted properly and fairly in the way the review hearing was conducted, to accommodate the limits of the applicant’s abilities to advocate for himself.

9    The Tribunal hearing occurred over two days, on 22 and 23 July 2019. The Tribunal adopted the role of questioning the applicant, both “in chief” and then after he had been cross-examined. He was fairly cross-examined. The Tribunal attempted to draw out information from the applicant which it saw as relevant. That was the best the Tribunal could do in the circumstances, and the fact that the hearing spanned two days demonstrates that it did so at some length.

10    Some of the applicant’s family attended the Tribunal review hearing, including four of his children. However, none of them gave any evidence. It is unclear whether the applicant knew he could ask them to do so, even though the Tribunal explained, on 29 May 2019 (about eight weeks before the review hearing) during a telephone directions hearing that he could put witness statements to the Tribunal, but he had to comply with the “two day rule” in s 500(6H) and s 500(6J).

11    The Tribunal demonstrated some sensitivity to the presence of the applicant’s family, as the transcript reveals. The transcript was in evidence. At p 7 of the transcript, and after a suggestion from the Minister’s legal representative, the Tribunal alerted the applicant to the fact that his offending history would be discussed in some detail, and asked whether the applicant would like his children to leave the hearing room while that was being discussed. I infer the Tribunal did so, because of the nature of some of the applicant’s offending. The applicant indicated he would like the children to leave, and the applicant’s 17-year-old daughter, who was present with the children at that point, took them outside. It is this 17-year-old daughter who features in the correspondence to the Tribunal which is the foundation for the ground of judicial review.

12    Time constraints are imposed by s 500(6L) of the Migration Act on the amount of time in which the Tribunal must deliver a decision on a review of a visa cancellation decision: namely, 84 days after the day on which the review applicant was notified of the reviewable decision. For ease of reference, that is approximately 12 weeks. As the Tribunal noted at [10] of its reasons, on the applicant’s review the Tribunal was required to discharge its review function by 6 August 2019. If it did not, by operation of s 500(6L) the decision under review would be deemed to be affirmed.

13    Thus, the Tribunal’s review hearing was being conducted close to the end of the 12 week period, with only approximately two weeks before the 84 day time limit expired.

The Tribunal’s decision

14    The Tribunal followed the policy guidance provided by Ministerial Direction No. 79. There was no challenge on behalf of the applicant to the way the Tribunal used the policy guidance. Nor was there any challenge to the Tribunal’s description (at [29] of its reasons) of the issue to be resolved on the review:

It follows that what remains to be determined is if there is ‘another reason’ to revoke the visa cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act. This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection, which the Tribunal adopts:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…

15    Where necessary to the resolution of the ground of review, I address particular parts of the Tribunal’s reasoning. Suffice to say that in general terms, the Tribunal provided detailed and comprehensive reasons for its decision. Relevantly to the ground of review, the Tribunal’s reasons disclose two principal points of focus: first, the applicant’s history of offending, and what findings should be made in respect of it, following the guidance provided by Ministerial Direction No. 79; and second, the emphasis given by the applicant, and by the material he had filed, to his strong desire to remain in Australia to be with, and support, his children. For example, at [49], the Tribunal summarised the applicant’s evidence in the following way:

The Tribunal has had regard for Mr Umi’s written submissions in the G-documents. This includes when requesting revocation of his visa cancellation in 2017, and a more recent revocation request dated February 2019. The principal emphasis in these submissions is the interests of five biological children Mr Umi has fathered while living in Australia.

16    And at [71]:

Mr Umi repeatedly expressed the love he has for his children and wanted to remain in Australia to support and look after them. He claims to speak to his children regularly by telephone. The Tribunal notes that four of Mr Umi’s five biological children attended the hearing at some stage to support him. When asked about maintaining contact with his children if repatriated, Mr Umi said he would: ‘try to survive the best way I can’ and, after establishing himself in Samoa, he would explore avenues to remain in contact with them.

17    Having read the “G-documents”, and the transcript of the Tribunal’s review hearing, I am satisfied the Tribunal’s statements are accurate. From the outset, the applicant’s repeated emphasis was on the interests of his children, what he perceived they needed, how he wished to be a better father to them, how he wished to support them, and to be able to be a positive presence in their lives. That was a repeated theme of what he said in the review hearing, as well as in his written documents.

The late submitted material

18    The submission of this material is key to the applicant’s ground of review. To understand the context, it is necessary to set out the description given in the Tribunal’s reasons at [76]-[80].

Approximately an hour before the hearing commenced, the Tribunal’s Registry received an email from Partner B. The email was sent at 08:57am and stated: ‘I only found out yesterday that the hearing is today…Please consider my evidence.’ An unsigned letter was attached to the email, which the Tribunal did not read. At the commencement of the hearing Mr Brown objected to the letter being taken into evidence given the requirement of s 500(6H) of the Act. The Tribunal’s Registry staff subsequently advised that Partner B had sent a further email at 09:09am on the morning of the hearing attaching further documents, which the Tribunal did not read.

The Tribunal notes by way of background that following a Telephone Directions Hearing (“TDH”) on the morning of 29 May 2019, which was approximately eight weeks prior to the commencement of the hearing, Mr Umi was invited to give to the Tribunal and the respondent by 4:00pm on 26 June 2019:

(a)    a witness statement from any witnesses proposed to be called at the hearing;

(b)    all reports, records and any other documents on which the Applicant intends to rely at the hearing; and

(c)    a Statement of Facts, Issues and Contentions.

Mr Umi was also informed both verbally during the TDH, and in subsequent written directions, that under the two-day rule contained in sections 500(6H) and 500(6J) of the Act, the Tribunal could only have regard to information presented orally at the hearing, if that information was set out in a written document given to the Tribunal and to the respondent by no later than two full business days before the hearing commenced.

After it was noted no materials were lodged by Mr Umi prior to 26 June 2019, the Tribunal sent him an email reminder on 28 June 2019. Mr Umi did not lodge any further materials in support of his application prior to the hearing.

The Tribunal declines to consider the correspondence from Partner B lodged on the morning of the hearing because:

(a)    It is precluded by s 500(6H) of the Act;

(b)    It is procedurally unfair to the respondent that the Tribunal accepts a witness statement and other documents on the morning of a hearing, given that the respondent’s case preparations were concluded in the absence of such materials;

(c)    Mr Umi has been on notice since 29 May 2019 about the hearing dates and due dates for submitting material he intended to rely upon. Mr Umi has not requested more time at any stage or the pre-hearing process to lodge further materials;

(d)    Mr Umi’s application is an expedited matter in which a decision must be made by 6 August 2019. There was insufficient time to adjourn the hearing by two days to enable the Respondent to consider the new material, and to comply with the requirements of s 500(6H). Moreover, an adjournment on this basis may be seen as an attempt to circumvent a statutory provision of the Act; and

(e)    Mr Umi remains imprisoned and it is important that the outcome of his application be determined as soon as possible, while ensuring procedural fairness to both parties.

19    The documents submitted by Partner B, and her email, were in evidence in this proceeding. It was not disputed by the Minister that the evidence showed that the evening before the Tribunal hearing, and by mistake, Partner B sent a letter and the documents first to the Minister’s solicitor, rather than to the Tribunal. She did so after sending an initial email to the Minister’s solicitor inquiring if it was “too late, or still possible for me to submit a reference for” the applicant. Approximately three hours later, she sent a further email, attaching a letter and some supporting documents.

20    The letter relevantly stated:

I believe you are representing Saoloapu Umi tomorrow morning at the AAT.

In case you haven’t seen my previous email, my name is [redacted] and I am the mother of one of Saoloapu’s children, [redacted].

I have attached my Support Letter with images of supporting documents.

I hope you are able to use these to support his case. Some of his children including my daughter [redacted] will be attending the hearing, she will have hard copies of everything I’m emailing you on her if you need to use the original documents.

21    As counsel for the applicant submitted, Partner B was clearly under a misapprehension about the role of the Minister’s legal representative. Contrary to counsel’s submissions, I do not infer that the applicant himself was under a similar misapprehension: there is simply no evidentiary basis for such an inference, and there is nothing in the transcript which would suggest the applicant had any such impression.

22    Attached to the letter were a number of documents:

(a)    a three page letter from Partner B, which addressed how she met the applicant, some of his family history in Samoa, his family relationships, his involvement in rugby league, her opinions about his character, his remorse, the punishments he experienced for his offending, his work ethic and work prospects, her opinions on how the interests of all his children would be best served by him remaining in Australia, including because four of his children are Indigenous, and why the Australian community would expect him to get his visa back;

(b)    several Christmas cards and messages sent by the applicant to Partner B and his daughter;

(c)    several letters sent by the applicant to his daughter; and

(d)    the 17-year-old daughter’s birth certificate showing the applicant as her father and Partner B as her mother.

23    One other matter addressed in Partner B’s letter should be separately mentioned. It is the following passage:

Sar has good work prospects as he has a lot of experience in warehouse operations and looks to work straight away to help support his family. He needs to stay in Australia so that he can work to pay child support for his children as Australia does not have a reciprocal child support agreement with Samoa.

Removing his VISA further punishes myself and the other mother of his kids as we have already had full financial responsibility of his children and would have to continue with this financial burden. I believe it is Sar’s children’s choice on whether they involve him in their lives and that right should not be taken away from them. He has served his time for his crimes, to deport him would be a life sentence because Sar would lose any hope at being able to rebuild a strong relationship with his children and lose any hope at seeing his grandchildren grow up. Our daughter, [redacted] has hopes in attending the University of Melbourne next year and will be staying at home as she will need extra support with paying for her studies, first car, and other purchases as she becomes a young adult. There is no doubt that Sar’s other children will need further financial support in the years to come as they grow up.

24    During oral argument, the Court asked counsel for the applicant some questions about how this aspect of the letter should be understood, this being an important aspect of the letter for the applicant’s ground of review and the need for him to establish that any legal error was material to the outcome of the review. Despite the submissions made by counsel, in my opinion, the correct understanding of these passages is that Partner B is saying to the Tribunal that she has aspirations that the applicant will provide financial support for his children in the future. Partner B is not asserting that he was currently providing financial support, or that she or Partner A were at the time reliant on any financial support from the applicant. The absence of any reliance, at the time of the Tribunal’s decision, by Partner A or Partner B on financial support from the applicant, was a factual finding the Tribunal made: see [113(c)] of the Tribunal’s reasons.

25    It was the following morning, the morning of the hearing, that Partner B sent an email and the attached documents to the Tribunal itself, as the Tribunal describes in its reasons. Counsel for the applicant did not challenge the factual accuracy of what is set out at [76] of the Tribunal’s reasons.

26    Counsel also relied on a portion of the transcript of the Tribunal’s hearing. It can be accepted that the transcript revealed two relevant facts:

(a)    when the Tribunal explained to the applicant during the hearing what the legal difficulty was with the Tribunal receiving the material (that is, the “two day rule”), the Tribunal member did not mention the possibility of an adjournment to the applicant, and did not make any statement that the review could be adjourned, but that the member had decided not to do so; and

(b)    the Minister’s legal representative told the Tribunal that:

I only saw those [the late submitted documents] this morning and as, so you’re well aware, the statute does preclude that material being taken into account by reason of the so called two day rule. However, I would say that the territory that that letter covers is similar territory to that which I had intended to lead - or cross-examine, or ask questions of the application - in relation to. So, I think that the opportunity will be afforded to the applicant, notwithstanding the contents of that letter - which you quite rightly have not read - to make whatever points he wishes to make in relation to those issues.

(Emphasis added.)

27    The applicant submits that, in fact, not all the matters touched on by Partner B in her three page letter were the subject of questions of the applicant by the Minister’s legal representative. That fact also assumes some significance in the applicant’s materiality submissions.

The ground of review

28    There is a single ground of review in the applicant’s amended application, which concerns the way the Tribunal dealt with the material submitted to it on the morning of the Tribunal’s hearing. I have outlined what the Tribunal said about that issue in its reasons at [18] above. Four kinds of errors are identified in the ground.

29    The ground is expressed as follows:

The Tribunal’s decision is affected by error in that the Tribunal’s decision not to adjourn the hearing for two days in order to consider material provided by [Partner B]:

(a)    was a legally unreasonable non-exercise of the Tribunal’s adjournment power in s 40(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act);

(b)    involved a failure to correctly construe the procedural fairness provisions in the AAT Act leading the Tribunal to misunderstand its own task;

(c)    denied Mr Umi the reasonable opportunity to present his case as required by s 39(1) of the AAT Act; and

(d)    failed to afford Mr Umi procedural fairness,

with the consequence that the Tribunal constructively failed to conduct its review.

30    Thus, the focus of the ground is on the Tribunal’s decision not to adjourn the hearing. The applicant contends that only a two day adjournment was required, so that the prohibition in s 500(6J) – which it is common ground was the applicable provision, despite the Tribunal’s mistaken reference to s 500(6H) – could be avoided.

31    Section 500(6J) provides:

(6J)    If:

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

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

the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.

Resolution

32    Aside from the misunderstanding error, two out of the four bases identified in the amended application relate to procedural fairness arguments. They can be dealt with together. The other basis is legal unreasonableness, which must be considered separately.

33    In its reasons, the Tribunal referred to its express consideration of the use of its adjournment power in s 40(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth). The proper reading of this aspect of its reasons is that the Tribunal gave consideration to this matter at the time of the review hearing on 22 July 2019. One of the reasons it gave for not adjourning the hearing related to the time limits imposed by the Migration Act on the making of a decision on the review by the Tribunal. Those time limits are found in s 500(6L), which provides:

(6L)    If:

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

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

(c)    the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.

34    Both parties relied on the High Court’s decision in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203. From that decision, the following propositions can be drawn.

35    Sections 500(6H) and 500(6J) only apply to material sought to be adduced to support an applicant’s case, not material to be used in cross-examination: see [5], [44] and [53] of Uelese.

36    Section 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms: see [57] of Uelese. At [59] of Uelese, the plurality said:

The purpose of ensuring the expeditious determination of applications for review under s 500 of the Act by requiring that the Minister be given “an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing”, which might result from a late change to the applicant’s case, is not compromised by accepting that the preclusory effect of s 500(6H) is confined to information presented by or on behalf of the applicant for review in support of his or her case. Where information is adduced in cross-examination by the Minister or in response to inquiry by the Tribunal itself, it is inherently unlikely that the information is provided as part of an attempt to manipulate or delay the review process.

(Footnote omitted.)

37    Contrary to Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; 111 FCR 378 at [31], an adjournment can overcome the requirement of s 500(6H) that information can only be presented by an applicant to the Minister in writing at least two days before a hearing. Goldie was overruled. At [74] of Uelese, the plurality said:

Thirdly, to say that the resumption of a hearing is not a new hearing is distinctly not to say that the notice requirements of s 500(6H) may not be satisfied by the exercise by the Tribunal of its power of adjournment where an appropriate case is made out for the exercise of its undoubted power in that regard under ss 33 and 40 of the AAT Act. If either party had sought an adjournment on the ground that it was surprised and disadvantaged by Ms Fatai’s evidence and required an adjournment of the hearing to meet that disadvantage, then the question whether or not the fair determination of the application for review could only be achieved by granting the adjournment would have arisen for the Tribunal to resolve.

38    This passage illustrates how the plurality saw the Tribunal’s adjournment power operating in the context of information arising which the Tribunal was precluded from considering by reason of s 500(6H). The same would be true of s 500(6J).

39    In response to a submission by the Minister that applicants might cynically take advantage of the Tribunal’s adjournment power by withholding information so as to trigger the prohibition in s 500(6H), at [76] of Uelese, the plurality said:

In any event, there is no reason to suppose that, in exercising its discretion, the Tribunal would not be mindful of the time frame established by s 500(6L) of the Act for the determination of review applications.

40    That consideration is one of the matters the Tribunal took into account in the present proceeding, as part of its justification for refusing an adjournment. Yet the applicant contends the refusal to adjourn was legally unreasonable.

41    Before turning to the two limbs of the applicant’s challenge to the Tribunal’s decision, it is necessary to note that during oral argument, counsel for the applicant sought to use what was said by the Tribunal in the transcript of the review hearing to illustrate error by the Tribunal. This contention was also reflected in the applicant’s reply submissions (at [8]):

The transcript reveals that when the Tribunal pressed on without the information from [Partner B] on the first morning of the hearing, the Tribunal was not conscious or aware of its power to adjourn the hearing in order to allow in the information from [Partner B].

(Emphasis added.)

42    That submission is made despite what is said in the Tribunal’s reasons about its adjournment power, and its refusal to exercise it. It appears the applicant invites the Court to disbelieve what the Tribunal says in its reasons.

43    Specific situations aside (such as some arguments about procedural fairness, but not the present one) an approach to identifying error through what a Tribunal says during a hearing is not permissible. In AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317 the Full Court said at [57]-[59]:

The question on appeal is whether these reasons, considered in their proper context, reveal that the Tribunal did not give real and genuine consideration to the appellant’s wish that it hear the evidence of these two witnesses. In assessing this contention, the Court can and should examine the relevant documentary evidence before it on the appeal, together with the transcript of the review hearing. The purpose of referring to the documentary evidence, and the transcript of the review hearing, is to ensure the Tribunal’s reasons are read in their proper context.

However, we do not consider the transcript of the review hearing can be employed to supplement and expand the Tribunal’s stated reasons for exercising the power in the way it did: see Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 at [33], referring to the decision of Griffiths J in Kelly v Australian Postal Corporation [2015] FCA 1064; 67 AAR 359 at [51]-[53].

In the present case, the Tribunal’s reasons are set out in [45] of its decision, read with [7]. They must be read fairly, and in context, but to say as much is not to allow them to be re-written by reference to statements made by the Tribunal during the hearing.

44    While the transcript of the review hearing can be used in the present proceeding in order to prove the course of the review, to prove how the issue about the late submitted material arose during the review hearing, and to prove the approach taken during the hearing, insofar as the applicant seeks to identify a jurisdictional error in the Tribunal’s failure to adjourn the review hearing, especially on the ground of legal unreasonableness, the applicant must grapple with the Tribunal’s explanation for the refusal of the exercise of the adjournment power as it is expressed in its reasons, not by reference to what was said by the Tribunal member during the course of the hearing.

The “misunderstanding” ground

45    In oral argument counsel submitted the transcript of the Tribunal’s review hearing demonstrated that the Tribunal failed to understand the options available to it, and failed to understand it could adjourn the review. That contention was based on the fact that the Tribunal did not refer to any adjournment power, or consider such a course, in its explanation to the applicant during the hearing. Rather, it simply informed the applicant it was “precluded by law” from considering the late submitted material.

46    This contention fails for two reasons. First, the Tribunal’s decision cannot be impugned by reference to any alleged jurisdictional error arising from what is said in the transcript of a review hearing: see Kelly v Australian Postal Corporation [2015] FCA 1064; 67 ALR 359 at [52]-[53].

47    Second, in any event, the Tribunal’s reasons disclose it appreciated it had an adjournment power. What the transcript shows is that during the review hearing the Tribunal was (correctly) referring to the preclusion arising from the statute on considering the material submitted by Partner B. I infer that is what it meant by “precluded by law”. It is correct that the Tribunal did not expressly invite the applicant to apply for an adjournment, and did not state to the applicant and the Minister’s legal representative that the member did not consider there should be such an adjournment. However, given what is said in its reasons, the proper inference to draw is that the Tribunal did turn its mind to that question in the review hearing, even if it did not expressly raise the matter with the applicant and the Minister’s representative. There is no basis to infer the Tribunal mistakenly understood it was “precluded by law” from adjourning the review, so as to provide the two day window required by s 500(6J). Rather, as a matter of discretion, it decided not to do so.

48    Therefore, I reject the contention at paragraph (b) of the ground in the amended application that the Tribunal’s refusal to adjourn the review “involved a failure to correctly construe the procedural fairness provisions in the AAT Act leading the Tribunal to misunderstand its own task”.

The procedural fairness arguments

49    In oral argument, counsel for the applicant clarified that the denial of procedural fairness arguments identified by the applicant constituted the failure of the Tribunal to adjourn the review hearing, for at least two days, so that the preclusory effect of s 500(6J) could be avoided and the material submitted by Partner B could be considered.

50    The Minister referred the Court to the decision of Kenny J in NZA v Minister for Immigration and Citizenship [2013] FCA 140; 140 ALD 55. There are two passages from that decision which I would respectfully adopt, and with which I respectfully agree. The first is at [142], and explains the basic principles of procedural fairness:

There was no dispute about the applicable law. The Minister accepted, as a general proposition, that procedural fairness required that the applicant be informed of the case against him, including any adverse information that was credible, relevant and significant, and given a reasonable opportunity to respond: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611 [40] (Gaudron and Gummow JJ); Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 95 [15] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). The question whether the obligation to afford procedural fairness has been discharged is a practical matter that is “not to be evaluated minutely”: see Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) 195 FCR 318 (“Dunghutti”) at 363 [64]. That is, whether a “reasonable opportunity” to respond has been given must be determined objectively, having regard to the attendant circumstances: see Dunghutti at 367–368 [85], [90]; also Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51 (“Ogawa”) at 58 [36]–[37] (Flick J).

51    The second is at [144], and deals with the interaction between s 500(6L) and principles of procedural fairness:

The time constraint imposed by s 500(6L) of the Migration Act is part of the statutory context that must be borne in mind in considering what procedural fairness required in the circumstances of the case. Thus, for example, in Daw v Minister for Immigration and Citizenship [2012] FCAFC 123, a Full Court of this Court upheld the primary judge’s decision that turned on the proposition that s 500(6L) should be taken into account when considering whether the Tribunal’s refusal to grant an adjournment was a breach of procedural fairness or failure to provide a reasonable opportunity.

52    Therefore, taking into account that this was a review which was subject to the time limits in s 500(6L), was the applicant, as a practical matter, denied a reasonable opportunity to present his case by the Tribunal not adjourning the review for at least two days so that the material submitted by Partner B could be taken into consideration?

53    In my opinion, he was not. In approaching this, I have characterised what occurred as the Tribunal deciding, of its own motion, not to exercise its adjournment power. The undisputed fact is that the applicant did not request an adjournment. As the Minister’s counsel properly recognised, the absence of a specific request may be of less relevance where a person in the applicant’s circumstances is conducting the review without legal assistance. The applicant may or may not have known he could ask for an adjournment. He may have been too hesitant or apprehensive to do so. The power dynamics may have been such that he felt he could not ask. There are many possible explanations. The real issue, as all counsel accepted in the way they approached the argument, is whether the Tribunal’s own failure to adjourn the hearing occurred because of a misunderstanding of its powers, or constituted a denial of procedural fairness, or was legally unreasonable.

54    It is true that aspects of the Tribunal’s explanation for not adjourning the review can be criticised. It misstated the applicable section of the Migration Act. The applicant’s counsel in this proceeding properly accepted nothing of substance turns on this, especially given the preclusory effect is the same. The Tribunal made something of the procedural unfairness to the Minister if the Tribunal had regard to the late submitted information, when it is apparent that, first, the Minister’s legal representative had in fact seen the material the day before, and second, he told the Tribunal he intended to cross-examine the applicant on matters which were in substance the same as the information contained in what Partner B had said: see the extract at [26(b)] above. Finally, it might be difficult to see how the fact that the applicant was imprisoned (see (e) in the extract at [18] above) counted one way or the other in circumstances where what was at stake before the Tribunal was whether he would be able to remain in Australia when he was released. If these had been the only three justifications for the refusal of an adjournment, then (and without speculating about what the ground might have been) it might have been arguable that the Tribunal’s exercise of power had miscarried in a way which affected its jurisdiction to decide the review.

55    However, two of the explanations given by the Tribunal were substantive, intelligible and reasonable, and are sufficient to provide a lawful foundation for the Tribunal’s refusal to adjourn the review, and to proceed to determine whether the cancellation decision should have been revoked.

56    The first of those was the Tribunal’s reference to the procedural steps which had been undertaken during the review. While I accept that the applicant was at some disadvantage because he had no legal representation, and his English language ability was only moderate, I consider it is apparent from the evidence (for example, the transcript of the review hearing and the applicant’s letters to the Minister and to his family) that he had sufficient comprehension to understand what the Tribunal had told him in both the directions hearing, and in the follow-up emails when he filed nothing ahead of the review hearing. I note the applicant is also familiar, over a long period of time, with court processes. I infer he realises there are timetables, orders made about filing material and the like. I do not accept he is unaware of what is supposed to happen when an entity like the Tribunal makes directions about what he should do to progress his review. Further, he responded within the 28 day time period to the cancellation decision, and he made substantive, handwritten representations on his own behalf, and indeed the handwritten answers he gave to the notification of the original cancellation decision, over a large number of pages and at considerable length, demonstrate a more than adequate capacity to express himself. I find on the evidence the applicant had a reasonable level of understanding about the need to file material and comply with processes, and on that basis there was nothing procedurally unfair about the Tribunal’s expectation that if he had material he wished to put forward, he should have done so in a way which did not engage the preclusory provisions in s 500(6H) or s 500(6J).

57    Second, the Tribunal was entitled to rely upon the need for it to complete its review within the 84 day time period, and a supervising Court should, as Kenny J found in NZA, take the existence of this time period into account in determining what does, and what does not, constitute a reasonable and meaningful opportunity for a person to be heard in the Tribunal’s review, and to put forward material to the Tribunal. Although the unstated premise of the applicant’s submissions was that there would have been no difficulty in the Tribunal adjourning the review for a minimum of two days, and then reconvening, there was no evidence at all to support such a premise. There was a period of approximately two weeks to run before the 84 day time period would expire. The hearing was listed for two days, so that the Tribunal would have needed to find an additional two days within that two week period, as well as leaving itself enough time to write a decision. This would have needed to occur in the midst of what is a pressing and constant workload for the Tribunal. Counsel’s suggestion in oral submissions that the Tribunal could have issued a decision without reasons is contrary to s 43(2) of the AAT Act, which imposes a mandatory obligation on the Tribunal (subject to exceptions which are not presently relevant) to give reasons, either orally or in writing. This review was plainly not appropriate for the giving of oral reasons. Further, to suggest that the Tribunal could act in a procedurally fair way only by deliberately electing not to comply with its obligation to give reasons is not a suggestion which should be accepted.

58    The Tribunal was entitled to, and indeed it was appropriate for it to, plan to leave enough time after the review hearing to write its decision and deliver it within the 84 day time period.

59    Of course, there may be exceptional circumstances where a matter arises during a review (whether at the review hearing or otherwise) which does indeed mean a review applicant cannot be given a meaningful and reasonable opportunity to be heard without some kind of adjournment of the review, even within the tight time frames for which s 500(6L) provides, and the Tribunal may have to compromise some of its other review work to secure that fairness to a particular visa applicant. That is not this case, for the reasons I have given but also because of the matters to which I now turn.

60    Separately from my findings above, and separately from the reasons given by the Tribunal for failing to adjourn the review, in my opinion there was no denial of procedural fairness to the applicant because he was, in substance, given a meaningful opportunity to address the matters which were in the late submitted material. That is because, in substance (rather than in form), most of those matters were already amply raised before the Tribunal by the material the applicant had already submitted to the Minister, and by what the applicant said at the review hearing. Others were objectively of no or marginal relevance to the outcome of the review.

61    In my opinion, these factors mean that, in law, there was no denial of procedural fairness at all because the applicant was not denied the opportunity to put before the Tribunal the issues which might give rise to “another reason” why his visa cancellation should be revoked; and in particular, he was not denied a meaningful opportunity to persuade the Tribunal that it should give the most weight to the best interests of his children and that this should outweigh the other (adverse) considerations which might tend to support the maintenance of the visa cancellation.

62    Therefore, my primary conclusion is there was no denial of procedural fairness to the applicant in the Tribunal failing to adjourn his review for a period of at least two days.

63    At [71]-[93] below, under the heading “Materiality”, I set out the factors which lead me to this conclusion. I do that because, if I am wrong in my conclusion that there was no denial of procedural fairness, I would in any event have concluded the denial of procedural fairness did not deprive the applicant of the “realistic possibility” of a different outcome to his review: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46]. The factors which lead me to find no denial of procedural fairness are substantively the same as those which lead me to find any breach of procedural fairness was not “material” to the outcome of the review.

The legal unreasonableness arguments

64    I have set out my approach to the review of an exercise of power, or decision, for legal unreasonableness in CWS16 v Minister for Immigration and Border Protection [2019] FCA 1414 at [26]-[27], which refers to DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [110]-[111].

65    Many of the Court’s findings on the applicant’s procedural fairness arguments are also applicable to this aspect of the ground of review. The applicant has not proven that the way the Tribunal approached the issue of what to do with the late submitted material, and in particular its refusal to adjourn the review hearing, were steps that no reasonable Tribunal in its position would have taken. To the contrary, its approach was well within the bounds of a legally reasonable approach, even if some of its less central explanations might be objectively criticised. That was particularly so given, first, the impending expiration of the 84 day time period set out in s 500(6L); and second, the amount of material the applicant had already put before the Tribunal, and was going to be able to put before it during the review hearing, about the best interests of his children.

66    The applicant’s counsel relied on the decision in Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1710. That decision does not assist his argument. In Ratu, Griffiths J observed at [82]-[84]:

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]).

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.

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.

(Original emphasis.)

67    As the Full Court pointed out in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [42], a hallmark of the ground of legal unreasonableness on judicial review is that it is fact intensive, and there is little point in either composing checklists, or comparing outcomes in various cases. The observations of Griffiths J in Ratu are, with respect, correct. However, the applicant’s reliance on those observations insufficiently appreciates that the application of those observations was specific to the situation then before the Court. Whether or not a relatively significant step, such as the reconstitution of the Tribunal, would be a step that a reasonable Tribunal would inevitably take will be highly fact-dependent in any given circumstances. It cannot be said here that any Tribunal acting reasonably would have decided to ask the President of the Tribunal to reconstitute the review to another member. Apart from anything else, there are many assumptions about the availability of the Tribunal in that statement. Further, the content of Partner B’s letter, when read with all the material already before the Tribunal, simply did not objectively justify such a significant step.

68    In the circumstances facing the Tribunal in the present proceeding, it cannot be said that any Tribunal acting reasonably would inevitably have adjourned the review hearing. The two particular considerations articulated by the Tribunal, combined with what the evidence discloses about the significant amount of points raised before the Tribunal about the best interests of the applicant’s children, which he had already made to the delegate, and would also be able to communicate to the Tribunal, persuade me that the Tribunal’s failure to adjourn the hearing so that it could consider the material from Partner B cannot be described as legally unreasonable.

69    Where a failure or refusal to exercise an adjournment power is concerned, the links between procedural fairness and legal unreasonableness were identified by the Full Court in Singh at [50]:

A further control on the manner in which these tribunals may exercise discretions reposed in them is the interaction between their obligations of procedural fairness in the conduct of a review, and the standard of legal reasonableness. In some circumstances, an exercise of power which is said to be legally unreasonable may overlap with an alleged denial of procedural fairness because the result of the exercise of power may affect the fairness of the decision-making process. That will commonly be the case where the exercise of an adjournment power is under review, because refusing an adjournment may deny a person an opportunity to present her or his case: see for example Deane J’s comments in Sullivan v Department of Transport (1978) 20 ALR 323 at 343.

70    Those links reflect why similar factors inform my views of both aspects of the applicant’s arguments in this proceeding.

Materiality

71    Even if, contrary to the conclusions I have reached, there was a denial of procedural fairness to the applicant, in order for such a denial to be characterised as affecting the jurisdiction of the Tribunal, the denial would need to be of a nature which deprived the applicant of the “realistic possibility” of a different outcome on his review: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [24] and [31]. It is usually a question of fact on which an applicant bears the onus of proof: see SZMTA at [45]-[46].

72    In other words, if the Tribunal had, as the applicant submits it should have, adjourned the hearing and considered the material from Partner B, has the applicant established, as a matter of fact, that there was a “realistic possibility” the Tribunal might have reached a different conclusion on the review?

73    That question needs to be addressed not simply by considering the remainder of the Tribunal’s reasoning as it is expressed. The “realistic possibility” test (as with the approach in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147, reaffirmed by members of the High Court in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [43], [53] and [60]) is a hypothetical exercise. Here, it involves considering what might have happened if, before the hearing started, the Tribunal had taken the information from Partner B into account, and ultimately, what effect the subject-matter of the documents she provided was likely to have had on the Tribunal’s reasoning process and its opinions about the correct or preferable decision on the review.

74    Adopting that approach, and even if contrary to the conclusion I have reached there was a denial of procedural fairness, in my opinion, the applicant was not deprived of the possibility of a different outcome on the review by the Tribunal’s failure to adjourn so it could consider Partner B’s late submitted material.

75    Assessing whether there was a realistic possibility of a different outcome for the applicant presents a particular challenge when, as here, the particular factor to which the jurisdictional errors are said to relate (the best interests of the applicant’s children) was a factor which the Tribunal said favoured revocation. In other words, in terms of its contribution in the Tribunal’s reasoning to the outcome of the review, the factor of the best interests of the applicant’s children was already weighed by the Tribunal in favour of the outcome which the applicant sought.

76    As counsel ultimately accepted, this analysis reduces to whether the Court accepts that the weight given by the Tribunal to the factor of the best interests of the children would have been sufficiently different that it may have resulted in a different outcome to the review: that is, to the revocation of the visa cancellation.

77    In that context, counsel for the applicant, in written submissions in reply and in oral argument, relied on three particular aspects of Partner B’s letter which they contended realistically could have altered the weight the Tribunal gave to the factor of the best interests of the applicant’s children, to a sufficient level such that this factor could have persuaded the Tribunal to revoke the visa cancellation. That last aspect was not expressly stated by counsel, but it must be implicit in the submissions for it to be consistent with the way the concept of materiality is said to operate. I set out the three aspects (from [16(a)]-[16(c)] of the applicant’s submissions in reply) in full:

(a)    The [Partner B] letter contained representations about Partner B and Partner A’s reliance on the Applicant’s future financial contribution to their care and support of the children. The Applicant was asked questions by the Tribunal about the quantum of his financial support of the children prior to his incarceration in 2012 (T90:95 - T91:9). The Tribunal made a finding, at [113(c)], that “[t]here is no corroborating evidence that Partner A or the children he has with Partner A are financially reliant on [the Applicant], who has been imprisoned since late 2012”. The [Partner B] letter contained that evidence. Moreover, the Tribunal’s erroneous understanding of the Applicant’s relationship with his step-son is captured at T107:L40. It is plain that there has been no consideration by the Tribunal of a tangible financial contribution that the Applicant could make to the interests of his biological children, or those of his step-son, should he be allowed to remain in Australia.

(b)    The [Partner B] letter also contained representations about the Aboriginality of Partner A’s children, and the associated cultural and financial needs of those minors, both present and future (SCB 4). The fact of their Aboriginality is simply not referred to during the course of the hearing. There is no consideration of those needs, nor the way in which the Applicant's return to Samoa would impact those needs, by the Tribunal in its decision.

(c)    The [Partner B] letter contained representations about the role that the Applicant could play in helping his children forge a connection with their respective cultural backgrounds, should he be allowed to remain in Australia (SCB 4 and 5). These matters were not subject of viva voce evidence from the Applicant during the hearing. Mr Brown did not ask about them. There was no consideration of the children’s interest in forging a connection with their respective cultural backgrounds by the Tribunal in its reasons.

(Footnotes omitted.)

78    As to (a), and as I have found above, I do not agree that Partner B’s letter did any more than express her aspirations about how helpful it would be to her, to Partner A, and to their respective children, if the applicant were to contribute in the future to support their financial needs. What the Tribunal said at [113(c)] of its reasons was a finding open to it on the evidence, as was the finding at [138]:

The Tribunal notes on his own evidence, however, Mr Umi has not worked since 2009 and there is no evidence of a realistic prospect of work on release [from prison].

79    No additional evidence about the aspirations of Partner B was likely to have had any effect on the Tribunal’s approach.

80    As to (b), it is apparent from [112] of the Tribunal’s reasons, and its reference to what the applicant said in his original revocation request, that he was aware Partner A identified as Aboriginal, and therefore aware that their children may identify as Aboriginal. Further, it is difficult to understand what additional weight this factor could objectively have caused the Tribunal to attribute to the children’s best interests, when it was not the applicant who identified as Aboriginal, and the applicant himself had not said anything about his intentions or commitment to assisting his children to foster and develop their Aboriginal identities, nor why he would need to be present in Australia to do that.

81    As to (c), similar reasoning applies. It is difficult to understand what additional weight this factor could objectively have caused the Tribunal to attribute to the children’s best interests, when the applicant himself had not said anything about his intentions or commitment to assisting his children to foster and develop a connection with their respective cultural backgrounds, which I take to mean both their Samoan heritage and their Aboriginal heritage. Ultimately, as to both factors (b) and (c), if the Tribunal were to give more (and significantly more) weight to the best interests of the applicant’s children because of these matters, it would have needed to be persuaded about the applicant’s commitment to and interest in these matters. The applicant’s submissions do not point to anything in his material before the Tribunal about these matters. He did not raise them, and they were not his focus.

82    I note again, that in aspects of this submission, impermissibly, the applicant seeks to rely on what the Tribunal said during the review hearing, rather than on its reasons, to impugn the Tribunal’s decision.

83    Further, even though the Tribunal did conclude the best interests of the applicant’s children favoured revocation, it did so in a way which gave effect to its findings that the applicant had not always had his children’s best interests in the forefront of his own mind. To demonstrate that the Tribunal’s reasoning, even on this factor, was more nuanced than the applicant’s submissions appear to acknowledge, it is necessary to extract the whole of the Tribunal’s findings on the “best interests” factor:

The Tribunal finds there are potentially three biological children and a grandchild under the age of 18, whose interests may be enlivened within the terms of the Direction.

The evidence discloses that through his own criminal conduct, Mr Umi has absented himself from members of his family, including his children, for prolonged periods. That includes disturbing incidents recorded by Police where Mr Umi has been violent against women in his life. It also includes an occasion when Police reported that a number of Mr Umi’s children were present when he committed domestic violence against their mother.

Mr Umi’s contact with his children since late 2012 has predominantly been via telephone calls and others have assumed primary parental and supporting responsibilities.

Mr Umi’s role in the lives of his children can be considered sporadic and unreliable since his imprisonment in 2012. The Tribunal is unable to reliably discern, in the absence of evidence from Mr Umi’s former partners, or his children, or others with personal knowledge about the children, how the individual interests of the children may differ. That said, the Tribunal concludes that:

(a)    the interests of the grandchild Mr Umi refers to can be given very little weight, given he has never met the child;

(b)    the interests of the child Mr Umi has with Partner B, who is approaching adulthood, can be given some weight; and

(c)    the interests of the two youngest children Mr Umi has with Partner A are given most weight given the specific circumstances of this case. These children may most benefit from a close and meaningful paternal relationship with Mr Umi.

The Tribunal finds that on balance this primary consideration weighs in favour of revoking the cancellation of Mr Umi’s visa.

(Footnotes omitted.)

84    Paragraph [115] of the Tribunal’s reasons should also be set out:

The ex-partners Mr Umi refers to were not called as witnesses during the hearing and could not be cross-examined. No documentary evidence was before the Tribunal from the children or caregivers of the children whose interests Mr Umi invokes. That said, the Tribunal is satisfied, from the attendance of four of Mr Umi’s five biological children at the hearing, that he has a close and continuing relationship with them and that the love they share is genuine. These children may want to have a continuing relationship with Mr Umi in the future, which would be significantly complicated if he were repatriated to Samoa.

85    The applicant’s counsel relied on this paragraph to illustrate that if the Tribunal had adjourned so that it could lawfully consider Partner B’s material, then there would have in fact been some “documentary evidence…before the Tribunal from the children or caregivers of the children whose interests Mr Umi invokes”. That is so. However, that fact in itself is not sufficient for materiality to be demonstrated. The question is: was there a “realistic possibility” that such documentary evidence could have resulted in a different outcome on the review for the applicant? As I have sought to explain, I do not consider the applicant has proven it could have.

86    Finally, I also take into account the other parts of the Tribunal’s reasons where it gave beneficial consideration to matters related to the applicant’s family, outside its consideration of the best interests of his children as a separate factor. For example, at [71]:

Mr Umi repeatedly expressed the love he has for his children and wanted to remain in Australia to support and look after them. He claims to speak to his children regularly by telephone. The Tribunal notes that four of Mr Umi’s five biological children attended the hearing at some stage to support him. When asked about maintaining contact with his children if repatriated, Mr Umi said he would: ‘try to survive the best way I can’ and, after establishing himself in Samoa, he would explore avenues to remain in contact with them.

87    At [144]:

The Tribunal is satisfied Mr Umi’s strongest links are in Australia, including with his children, who are Australian citizens.

88    And at [155]-[156]:

The Tribunal acknowledges that if returned to Samoa, Mr Umi would lose easy physical access to the family and friends he has in Australia, and to income support and other payments. He would also be subject to the stresses of re-establishing himself in a country he last lived in at the age of 19. That includes trying to re-connect with relatives, securing stable accommodation, and maintaining basic living standards. His aspiration to play a more prominent parental role in the life of his children would also be significantly complicated, potentially causing Mr Umi tangible distress. Under such circumstances, his psychological health may be impacted.

The Tribunal accepts that there are impediments confronting Mr Umi in re-establishing himself in Samoa and this consideration weighs in favour of revocation.

89    I accept the Minister’s submissions that these other aspects of the Tribunal’s reasons demonstrate that, in fact, it gave considerable weight to matters related to the applicant’s family throughout its reasoning. However, its firm view about the matters adverse to the applicant could not be shifted. I do not consider that if it had read and actively engaged with the content of Partner B’s letters, and the attached documents, its opinion would have changed. Whether viewed through the prism of the Tribunal’s existing reasons, or objectively outside those reasons, the material from Partner B was not of a nature that it would have added anything of real substance to the clear picture which the applicant himself had already painted about the damaging effects on his children of him being returned to Samoa.

90    Reading the whole of the Tribunal’s reasons fairly, I do not accept that even if Partner B’s information had been considered by the Tribunal, there was any possibility, let alone a realistic one, of a different outcome on the review. What Partner B had to say, even taking the three specific aspects highlighted by the applicant’s counsel, was simply more detail about, or more variations on, why it was important for the applicant to be able to remain in Australia with his children. Some of the claims (such as the financial support issue) were expressions of aspiration by Partner B, no more than that, and were less compelling in the face of the Tribunal’s express finding that the applicant may not secure work on his release in any event.

91    Rather, on a fair reading of the Tribunal’s decision and the adverse findings it made, the Tribunal was so strongly persuaded about the risk to the Australian community if the applicant remained in Australia, and about what the expectations of the Australian community would be, that even giving more weight to the best interests of the applicant’s children would not have dislodged its conclusion on the review. That can be seen from both the detail in its reasons about the applicant’s previous offending, and from the tenor of its reasons. Its conclusions suffice to illustrate this:

Mr Umi’s criminal offending has caused harm to members of the Australian community. Despite previous lenient treatment by the courts and frequent rehabilitative opportunities, Mr Umi continued to re-offend. He received multiple custodial sentences between 2004 and 2013, and was sentenced as a serious violent offender at his most recent court appearance. Mr Umi’s conduct reflects a disturbing propensity for violence and a lack of respect for Australia’s law enforcement framework.

If Mr Umi were to repeat his violent offences, the harm that may be inflicted is potentially very serious, encompassing serious injury or death. The Tribunal is unpersuaded by his claims about rehabilitation, noting that despite attendance on a number of courses and programs over the years, he has consistently re-offended. Moreover, the incidents of misconduct recorded against him during his current sentence do not reflect someone with persuasive insight, remorse and an intention to live a law-abiding life. Mr Umi’s risk of reoffending is real and the potential harm caused by his recidivism is so serious that it constitutes an unacceptable risk to the Australian community.

Mr Umi clearly loves his children and aspires to reconnect more meaningfully with them in the future. Notwithstanding a dearth of evidence from his minor children or their guardians, the Tribunal is satisfied Mr Umi’s children reciprocate his love and want him to remain in Australia. The Tribunal finds this primary consideration weighs in favour of revoking the cancellation of Mr Umi’s visa, but less so given Mr Umi’s role in the lives of his children can be considered sporadic and unreliable at best since his imprisonment in 2012. The interests of the two youngest children Mr Umi has with Partner A are given most weight given the specific circumstances of this case. These children may most benefit from a close and meaningful paternal relationship with Mr Umi.

Mr Umi’s serious and prolonged criminal conduct is at odds with the reasonable expectations of the Australia community. Informed of the specific circumstances of his case, the broad middle ground of Australian society would expect that Mr Umi should not hold a visa.

The Tribunal is satisfied that the strongest family and social ties Mr Umi has are in Australia and this consideration weighs in favour of revocation.

The Tribunal accepts there are impediments confronting Mr Umi in re-establishing himself in a country he left as a 19-year-old. That includes locating stable accommodation, employment and basic living expenses. His unchallenged evidence is that he has no family or friendship networks to draw on in Samoa, because his mother lives in American Samoa. On balance, the Tribunal finds this consideration weighs in favour of revocation.

Having weighed all of the considerations individually and cumulatively, the weight of evidence supports a finding there is not another reason why the decision to cancel Mr Umi’s visa should be revoked. That is because ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very strongly against revocation. These considerably outweigh the primary consideration of ‘Best interests of minor children in Australia,’ and the other considerations of ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ which favour revocation.

92    Further, the Tribunal’s reasons disclose it had serious doubts about the applicant’s prospects of remaining drug free, and being able to avoid future re-offending. It did not accept the applicant’s evidence about those matters:

The Tribunal acknowledges the vocational and rehabilitative courses undertaken by Mr Umi, which are clearly a step in the right direction. The responsibility he has been given in prison, particularly in mentoring other Islander inmates is to his credit. The Tribunal accepts he takes that role seriously. The Tribunal also accepts as genuine Mr Umi’s aspiration to reconnect more meaningfully with his children and involve himself in activities, like coaching a children’s rugby team. But the specific circumstances of Mr Umi’s case do not reflect enduring rehabilitative gains or a reliable commitment that he will live a law-abiding life it released. Notwithstanding his heartfelt aspirations and expressions of remorse at the present hearing, the evidence shows his violent offending has persisted after similar submissions to the courts in the past. The incidents of misconduct recorded against him in prison, particularly illicit drug-taking since 2017 and violence involving other inmates, detract from his submissions about remorse, insight and rehabilitative progress. Remorse must be more than words in the context of a court or Tribunal appearance. It must be evident from a person’s actions. The evidence shows Mr Umi’s past submissions about remorse and rehabilitation have proven consistently unreliable. The Tribunal cannot take him on his word alone that he will ‘clean’ himself up prior to release. Having been in prison since 2012, he should have made much more substantial progress with that aspiration by now. The Tribunal is unpersuaded that the long-standing link between Mr Umi’s drug abuse and violent offending has been effectively addressed.

Any rehabilitative progress Mr Umi has made is incomplete at best, relatively short-lived, and has not been tested in the community. The evidence supports a conclusion that Mr Umi’s risk of reoffending is real and the potential harm arising from any repeat of his violent conduct is so serious it constitutes an unacceptable risk to the Australian community. It follows that this primary consideration weighs very strongly, against revoking the cancellation of his visa.

93    On the assumption (and without deciding) that the extra step of a materiality assessment has a role to play in determining if a finding of legal unreasonableness goes to the jurisdiction of the Tribunal, I would have reached the same conclusion as I have on materiality in respect of the procedural fairness arguments.

Conclusion

94    In summary, although Partner B’s letter is eloquent and sincere, and raises a number of aspirations Partner B has for the applicant, and for the applicant’s children (not only for her own but also Partner A’s children), the plain fact of the Tribunal’s reasons is that it was sceptical about the applicant’s capacity to change by avoiding re-offending (including avoiding further domestic violence offending) and by avoiding drug-taking. It took a dimmer view of the applicant’s conduct in the past, and likely conduct in the future, than Partner B put forward in the letter. The Tribunal did so despite its recognition in its reasons of the love and support the applicant’s family had shown towards him.

95    The Tribunal’s conclusion was that the negative findings it made “considerably outweigh[ed]” the factors favouring revocation. There is no objective basis to find that if the Tribunal had considered Partner B’s letter and the attached documents, there was any possibly, let alone a realistic one, that the Tribunal would have decided to revoke the visa cancellation.

96    The amended application must be dismissed, with costs.

97    Both senior and junior counsel for the applicant accepted a referral pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) to act on behalf of the applicant. The Court was assisted by their submissions, and expresses its gratitude.

Associate:

Dated:    20 December 2019