Federal Court of Australia

GKD18 v Minister for Home Affairs [2020] FCA 1664

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal (the Tribunal) dated 5 November 2018 be set aside.

2.    The matter be remitted to the Tribunal, differently constituted, for determination according to law.

3.    The First Respondent pay the Applicant’s costs, as agreed or in default of agreement as assessed.

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

REASONS FOR JUDGMENT

KERR J:

1    The Applicant was born in South Sudan. He arrived in Australia on 25 June 2006 on a Class XB (Subclass 2020) Global Special Humanitarian Visa (Visa). He was then aged 25.

2    Between October 2010 and July 2016, the Applicant was convicted of various offences. He was first found guilty of driving while his licence was suspended. On 17 April 2014, he was convicted of various offences and given a suspended 18 month sentence of imprisonment. On 17 July 2015, he was sentenced to 18 months imprisonment for the offence of recklessly causing serious injury. On 13 July 2016, he was convicted of various offences in relation to his wife including contravention of a family violence intervention order, assault and other offences. He was given an aggregate sentence of five months of imprisonment for those offences, to be served concurrently. It is uncontentious that the Applicant thus acquired a substantial criminal record for the purposes of s 501 of the Migration Act 1958 (Cth) (Migration Act), and therefore did not pass the character test.

3    On 3 August 2016, the Applicant’s Visa was cancelled pursuant to s 501(3A) of the Migration Act.

4    On 21 August 2016, the Applicant sought revocation of that cancellation.

5    On 9 May 2017, a delegate of the Minister (the Delegate) refused to revoke the cancellation of the Applicant’s Visa pursuant to s 501CA of the Migration Act (the non-revocation decision).

6    On 16 May 2017, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the non-revocation decision.

7    On 26 July 2017, the Tribunal affirmed the non-revocation decision.

8    On 10 August 2017, the Applicant sought review of the Tribunal’s decision in this Court.

9    On 5 February 2018, the Court made orders by consent setting aside the Tribunal’s decision and remitting the matter to the Tribunal for determination according to law.

10    On 16 and 18 July and 3 August 2018, the Tribunal (differently constituted) heard the application.

11    On 5 November 2018, the Tribunal again affirmed the non-revocation decision.

12    On 10 December 2018, the Applicant filed an application for review of the Tribunal’s decision in this Court. On 1 July 2019, the Applicant filed an amended application for review. It is that application that the Court is now required to determine.

The Applicant’s claims

13    In a “Statement of Evidence” to the Tribunal dated 8 June 2018, the Applicant set out his claims (AB599-610). The relevance of those claims to the present application is limited. He referred to what he had endured during his childhood in South Sudan and the risks he would face if returned there; his family and social connections in Australia; and his previous offending and rehabilitation.

14    Relevantly for the purposes of the present application, the Applicant also provided to the Tribunal a “Statement of Facts, Issues and Contentions” dated 8 June 2018 (Supplementary AB2-37). Under the heading “Non-refoulement obligations” the Applicant addressed the risk of harm he faced arising from a lack of physical and psychological medical care in view of his “complex mental and physical health needs” (at [145]-[155]). Later, under the heading “Extent of impediments if removed” the Applicant’s representative relevantly stated that (at [182]):

[i]f the Applicant were removed from Australia to South Sudan, for the reasons outlined above he would have an extremely difficult life. He has no close family there, no support, and would be re-traumatised by the return. He would have no access to the physical and mental health care he needs.

(Emphasis added).

15    The significance of the Applicant having thus presented those submissions will become clear later in these reasons.

16    Other materials before the Tribunal included written submissions dated 24 April 2017 that the Applicant had provided to the Minister in requesting revocation of the cancellation of his Visa (AB142-149). Those submissions, inter-alia, addressed his various offences.

The Tribunal’s decision

17    It is helpful first to set out various aspects of the Tribunal’s decision that are material to the application before the Court.

The Applicant’s credit

18    The Tribunal found that the Applicant “did not make a very good impression in the witness box” (at [22]). More broadly, it found that he had a propensity to “avoid or not recall important events that were adverse to him, or otherwise put a gloss over them or engage in some level of reconstruction so as to diminish their impact on his case” (at [31]).

19    In that regard, the Tribunal relevantly referred to the following matter:

44.    Another example of the Applicant inaccurately recounting events is in the submission to the Respondent dated 24 April 2017 in support of the revocation of the mandatory cancellation of his visa. In that submission the Applicant states:

20/7/15- Reckless cause injury. I had a party at my home with many people attending and drinking on that night. I was upstairs when an argument ensued downstairs. I came downstairs to calm down the situation when I found a female’s foot was bleeding due to broken glass on the floor. The female was taken to hospital and provided a statement to the police. The trial was set for the incident. The female could not remember the event due to intoxication and was found to have been lying, resulting in the trial being thrown out due to insufficient evidence to prove any guilt by me, other than that the female patron got injured at my property at the time of the party.

45.    This account is clearly false. The reasons of the Court of Appeal state that the Applicant was convicted following a trial before a judge and jury. The case was hardly thrown out. Under the heading “Circumstances of the offending”, a very different version of the events is referred to. The Applicant produced a 20 to 25 cm long sharp kitchen knife and swiped it at the victim during which attack she sustained a deep laceration to the back of her right ankle. The Court opined that it probably occurred when she kicked at the Applicant in self-defence.

46.    This inconsistency was not put to the Applicant and therefore, the Tribunal will place comparatively little weight upon it. However the failure to explain this discrepancy is a further example of the Applicant’s selective memory in relation to matters adverse to his application. It seems hard to believe that he could have made such a fundamental error by oversight. The Tribunal finds that the purpose for which the Applicant either could not recall or gave varying versions of important events was to advance his case. Overall the Tribunal concludes that the Applicant is an unreliable witness.

(Footnotes omitted).

20    It is helpful at this stage to note that at paragraph [8] of its reasons, the Court of Appeal had found as follows with respect to the relevant events (which had occurred on 11 March 2013; the Applicant’s submissions refer to the date of the reasons of the Court of Appeal being 20 July 2015):

8.    The applicant then swiped at A with the knife and during this attack she sustained a .5 of a cm superficial laceration to her wrist and a 15 cm long and 5 cm wide deep laceration to the back of her right ankle. The injury to her ankle probably occurred when she kicked at the applicant in self-defence. The applicant sustained a bite injury and lacerations to her from being hit with the bottle.

21    The Tribunal made further references to that apparent inconsistency later in its reasons. In relation to the nature and seriousness of the Applicant’s conduct, as was relevant to the primary consideration of the protection of the Australian community, the Tribunal made the following observation with respect to the “11 March 2013 stabbing incident”:

89.    This offending is serious. There are several disturbing aspects of it which are readily apparent. The quick way in which the Applicant had resort to the use of a knife in a social setting, triggered by a belief that people were laughing at him, cannot be justified. It shows significant uncontrolled anger management problems. Additionally, the Applicant committed an appalling act of violence by using a knife against a woman, who was a vulnerable member of the community. These aspects of the offending reflect extremely badly upon him. This also needs to be considered in the context that he is an individual who, on his own admission, has had extensive military training and was probably physically much stronger than his victim.

22    In a footnote to that paragraph (footnote 31), the Tribunal observed:

Additionally, the contents of paragraphs 38 above are referred to where the Applicant gave a false version of this incident and its treatment by the Court of Appeal in his submission to the respondent dated 24 April 2017 in support of the revocation of the Mandatory Cancellation of his visa. The Tribunal repeats that this does not reflect well upon him. Particularly, this is so given the gravity of the offence which was stabbing a woman.

23    In their written submissions, both the Applicant and the Minister also drew the Court’s attention to the following observations that the Tribunal made with respect to the risk to the Australian community should the Applicant reoffend:

122.    However, with respect to the 11 March 2013 stabbing, he was convicted after a jury trial. As noted above in his submission to the Respondent, he asserted that the case was thrown out. This level of indifference to the crime both before and after his conviction reflects poorly upon him.

Offences committed while in possession of knives

24    In relation to the nature and seriousness of the Applicant’s conduct, the Tribunal began by making preliminary observations that the Applicant had been convicted of two offences of stabbing women and that this offending - which had “resulted in considerable jail terms” - was, on its face, serious ([66]). The Tribunal also observed that “several” of the Applicant’s offences had arisen in circumstances where the Applicant was in possession of or using a knife ([66]).

25    The Tribunal then addressed various relevant incidents in greater detail. They included:

    an incident on 3 September 2012 after which the Applicant had been convicted of contravening a Family Violence Intervention Order (FVIO) in circumstances where he was said to have been in possession of a knife ([73]-[83]);

    the 11 March 2013 stabbing incident referred to above ([44]-[46]; [84]-[89]);

    subsequent breaches of a FVIO between July and October 2013, including an incident when the Applicant had threatened to kill his wife while holding a small knife ([90]-[99]); and

    an incident on 20 January 2014 during which the Applicant had stabbed his wife ([33]-[34]; [100]-[108]).

26    For reasons that will later become clear, it is helpful to reproduce the following passages of the Tribunal’s reasons as referred to the 3 September 2012 incident:

The 3 September 2012 incident and subsequent court appearance

73.    On 3 September 2012 at approximately 8:15 PM, in violation of the existing Intervention Order, the Applicant arrived intoxicated at the home his wife occupied. According to police reports, the Applicant became aggressive and intimidated his wife. She then packed a bag and endeavoured to leave the house. The Applicant confronted his wife, continued to argue with her and attempted to prevent her from leaving. It is recorded in the police material that he attempted to strike her. In the course of that confrontation he removed his T-shirt and used the words: “is this what you want”. He then went to the kitchen and picked up a kitchen knife from a drawer, chased his wife through the house outside and down the street. The police were called and the Applicant was arrested. Constable Chatila made a statement that upon attending the premises, he found the Applicant’s wife hiding in some bushes next door. He described her condition as: “distraught, shaking, scared and crying.”

74.    The police “Summary of Charges” records that the Applicant was asked what his reasons were for contravening the Intervention Order. The Applicant reportedly said: “I didn’t actually break it; I forgot to change it at court”. When asked what the reason was for committing an assault with a weapon he answered: “I don’t have a comment, it sounds funny”.

75.    From these incidents the Applicant was charged with contravention of a FVIO and Assault with Weapon. For reasons that cannot be determined, the charge of Assault with Weapon was struck out or withdrawn. The charges of contravening a FVIO were proven. The Applicant pleaded guilty, was convicted and placed on a CCO for a period of 15 months. The conditions attached to the CCO included 60 hours of unpaid community work and a requirement that the Applicant undergo a treatment and rehabilitation program which included, amongst other things, a mental health assessment together with an anger management program.

76.    There was some debate between Mr Hughan for the Applicant and Mr Brown for the Respondent concerning this incident. The Applicant was not convicted of any assault arising from this incident. The Applicant contends that the Tribunal should not take into account the fact that the Applicant was in possession of and used a knife, during the course of the 3 September 2012 incident, when applying the relevant considerations prescribed by the Direction. Mr. Brown contends that the incident happened and the Tribunal is able to take it into account and look into what did happen on that day.

77.    Whilst the Applicant was not convicted of any assault arising from this incident, the Tribunal takes into consideration the fact that he was in possession of a knife, as part of the overall factual matrix giving rise to the contravention of the FVIO. It was a serious and wilful contravention of the order against not only his wife but his children, who were affected family members afforded protection by the terms of the order.

(Footnotes omitted).

27    Importantly for the purposes of this application, the Tribunal then referred to the following additional offences:

The 8 December 2015 offences

109.    After his release from prison, the Applicant was convicted at the Sunshine Magistrates’ Court (on 13 July 2016) of unlawful assault and contravening a FVIO. A knife was waived [sic] around by the Applicant as part of the factual matrix constituting the assault but was not used. He was sentenced to a term of imprisonment of five months as part of an aggregate sentence. The Magistrate noted that he had been held in custody for 117 days, which was included as part of the term of imprisonment imposed by those orders. The circumstances and the gravity of this offending were not referred to by the Applicant in his witness statement. Nor was it touched on in his evidence in chief.

(Footnote omitted; emphasis added).

28    Later, in addressing the risk to the Australian community should the Applicant reoffend, the Tribunal relevantly reasoned as follows:

133.    It is of concern that [the Applicant] has consistently engaged in violence against his wife, on several occasions in the presence of his young and vulnerable children. It is also of significant concern that there has also been resort on several occasions to use of a knife by the Applicant in the commission of his crimes. There was also the fact that his wife was denied immediate emergency attention and treatment by the delay of the call to 000. The role of the Applicant in this does not reflect well upon him and also shows a casual indifference to not only his wife and his children, but also human life. In effect he has consistently put his own interests ahead of his family, even when confronted with the grave consequences of his violent conduct. The risk of reoffending by the Applicant and using a knife in the future is considered by the Tribunal to be unacceptably high. It has the potential to be extremely serious reoffending.

134.    The Applicant used a knife to stab his wife in the home environment in the presence of his children. The graphic detail given by the Applicant’s son to the police is an appalling indictment on the Applicant. He conceded that his children saw their mother after she had been stabbed and the vast amounts of blood in several places in the house. The history of committing offences in the presence of vulnerable family members indicates a trait that is highly likely to be repeated. Past conduct is a reliable indicator of future risk in the context of repeated violent incidents using a knife.

(Emphasis added).

Access to healthcare in South Sudan

29    In considering the extent of the impediments that the Applicant would face if returned to South Sudan, the Tribunal first cited paragraph 14.5 of Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Cth) (Direction 65), as follows:

198.    Paragraph 14.5(1) of the Direction requires the Tribunal to consider the extent of any impediments if the Applicant is removed from Australia:

(1)    The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)    The non-citizen’s age and health;

(b)    Whether there are substantial language or cultural barriers; and

(c)    Any social, medical and/or economic support available to them in that country.

30    The Tribunal then reasoned as follows:

199.    The Applicant contends that he will face a number of impediments were her to be returned to South Sudan. Some of those potential impediments have already been considered earlier in these reasons.

200.    Both the Applicant and the Respondent acknowledge that he suffers from a number of health conditions. These conditions include PTSD, anxiety and depression, severe bilateral hip and lumbar sacral arthritis, together with a possible heart condition. There are limited medical facilities available in South Sudan for treatment of those conditions. The Respondent contended that he would be in no different position to any other South Sudanese national in that he would have the same access to whatever medical facilities may be available. There is no evidence to suggest otherwise. However, the Applicant disagrees with this contention and contends that he would have an extremely difficult life with no access to the physical and mental health care he needs. The evidence before the Tribunal does not establish that he would be in a different position to any other South Sudanese national concerning access to these facilities.

…

205.    The Tribunal considers that this factor should be given some weight in favour of revoking the mandatory decision to cancel the Applicant’s visa.

31    It should be noted that in relation to international non-refoulement obligations, the Tribunal had earlier observed:

Risk of harm arising from lack of physical and psychological medical care

174.    There is evidence of the various physical and mental conditions from which the Applicant suffers before the Tribunal. The DFAT report indicates that South Sudan’s population has extremely poor access to health care. It further notes that accurate data prepared by the government on health indicators is often non-existent or outdated. It seems more probable than not that were the Applicant to return to South Sudan these conditions would not be treated. This does weigh in favour of revocation of the mandatory cancellation of the Applicant’s visa.

…

Conclusion on international non-refoulement obligations

181.    Based on the limited evidence before the Tribunal, as noted in the sub-paragraphs above, it accepts that the Applicant faces some risk of harm as asserted by him if returned to South Sudan. Therefore, on the limited evidence before it, this finding weighs to some extent in favour of revoking the mandatory cancellation of the Applicant’s visa.

(Footnote omitted).

Grounds

32    The Applicant’s amended grounds of review are as follows:

1.    The Second Respondent erred in the exercise of its jurisdiction to review the decision by the First Applicant [sic] not to revoke the mandatory cancellation of the Applicant’s visa by denying the Applicant procedural fairness.

Particulars

(a)    The Second Respondent referred at [44]-[46] to an inconsistency between a written submissions made to the First Respondent dated 24 April 2017 on behalf of the Applicant and his application to the Second Respondent for review.     

(b)    At [46] the Second Respondent acknowledged that this inconsistency was not put to the Applicant.

(c)    The Second Respondent proceeded to rely on the stated inconsistency which had not been put to the applicant, adversely to the Applicant, including at [46], [89] and [122].

2.    The Second Respondent erred in the exercise of its jurisdiction to review the decision of the First Respondent not to revoke the mandatory cancellation of the Applicant’s visa by making and relying on a finding of fact without any evidence of the fact.

(a)    At paragraph [109] the Second Respondent referred to an offence committed by the Applicant in December 2015 and found that on that occasion, the Applicant had been in possession of a knife.

(b)    The Second Respondent did not cite any documentary source for that finding.

(c)    There is no evidence in the materials filed by the parties that the Applicant was in possession of a knife on that occasion or in the evidence given at the hearing.

(d)    The Second Respondent relied on this finding adversely to the Applicant.

3.    The Second Respondent erred in the exercise of its jurisdiction to review the decision of the First Respondent not to revoke the mandatory cancellation of the Applicant’s visa by misconstruing and/or misapplying paragraph 14.5 of Direction 65.

(a)    In considering the extent of impediments to the Applicant if removed, at paragraph [200] the Second Respondent found that there was no evidence to establish that the Applicant would be in a different position to any other South Sudanese national in accessing healthcare facilities in that country.

(b)    The Applicant has complex health issues beyond those experienced by the general population.

(c)    Pursuant to section 14.5 of Direction no 65, the Second Respondent was required to take into account the Applicant’s health, but it did not do so.

Ground 1

33    Ground 1 is stated as follows:

The Second Respondent erred in the exercise of its jurisdiction to review the decision by the First Applicant [sic] not to revoke the mandatory cancellation of the Applicant’s visa by denying the Applicant procedural fairness.

Particulars

(a)    The Second Respondent referred at [44]-[46] to an inconsistency between a written submissions made to the First Respondent dated 24 April 2017 on behalf of the Applicant and his application to the Second Respondent for review.     

(b)    At [46] the Second Respondent acknowledged that this inconsistency was not put to the Applicant.

(c)    The Second Respondent proceeded to rely on the stated inconsistency which had not been put to the applicant, adversely to the Applicant, including at [46], [89] and [122].

Applicant’s submissions

34    The Applicant takes issue with the way in which the Tribunal addressed his written submissions dated 24 April 2017 (AB142-149) at paragraphs [44]-[46] of its reasons regarding the 11 March 2013 incident. The Applicant first draws attention to the terms of those submissions, which relevantly read as follows:

Client name: …

Date of birth: …

Client ID: …

File Number: …

SUBMISSION

                Date 24.4.2017

Further information for [GKD18] with respect to

Australian Federal Police check and charges listed, dated 27 June 2016:

Please note, there is currently no intervention order in place since early 2016.

…

20/7/15 – Reckless cause injury – I had a party at my home with many people attending and drinking on that night. I was upstairs when an argument ensued downstairs. I came downstairs to calm down the situation when I found a female’s foot was bleeding due to broken glass on the floor. The female was taken to hospital and provided a statement to the police. A trial was set for the incident. The female could not remember the event due to intoxication and was found to have been lying, resulting in the trial being thrown out due to insufficient evidence to prove any guilt by me, other than that female patron got injured at my property at the time of the party.

…

35    The Applicant submits that the Court should infer that he did not write those submissions himself, but rather that they were written on his behalf. He points in that regard to the fact that he did not sign the document. He further notes that parts of the document are written in the third person. I note by way of example that the 24 April 2017 submission also provides as follows:

SENTENCE/REMAND REPORT – COMPREHENSIVE PRISON HISTORY

In response to the Sentence/Remand Report, the following charges are displayed for review applicant with which the applicant disagrees and comments as follows:

1.    31.1.2014 – Indecent Assault/Rape … this was a charge made against review applicant when he contact the police when a female in his own home started to break things in his house, hence he contacted the police, however female was never charged. In fact, the female then contact the police and made charges against review applicant … and that he had indecently assaulted her …

36    The Applicant then submits that the Tribunal did not put to him that there was any inconsistency between his written statement and the reasons of the Court of Appeal concerning the events of 11 March 2013. He submits that as a result, he was deprived of the opportunity to make submissions on this point or call further evidence. He was therefore denied procedural fairness (citing NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 (NBNB) and Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; 256 FCR 177).

37    The Applicant acknowledges that at paragraph [46] the Tribunal noted that circumstance and indicated that as a result it would place comparatively little weight on this inconsistency. He submits however that contrary to its acceptance of that limitation the Tribunal had in fact placed significant weight on this inconsistency in coming to its overall finding that he was not a reliable witness, and in reaching an adverse conclusion with respect to the risk of future harm that he posed. The Tribunal’s references to the relevant inconsistency at footnote 31 and paragraph [122] clearly establish that it did not afford the inconsistency that it had identified, but had not put to the Applicant, “little weight”.

38    The Applicant further notes that he did not repeat what he had said in his written statement dated 24 April 2017 at the hearing before the Tribunal. He submits that on the contrary, he provided greater detail around his offending by himself tendering the decision of the Court of Appeal concerning the 11 March 2013 incident. That material had not been before the Delegate, or the previous Tribunal.

39    In oral argument counsel for the Applicant Mr Hughan observed that when the Tribunal had reasoned that the Applicant’s account was clearly false (without putting that to the Applicant), it had referred to the reasons of the Court of Appeal for the proposition that the Applicant had in fact been convicted following a trial before a judge and jury. The Tribunal had then concluded bluntly that “[t]he case was hardly thrown out”. It had proceeded on the basis that any assertion to that effect was necessarily false, and entirely so.

40    In that regard however Mr Hughan drew the Court’s attention to the fact that the reasons of the Court of Appeal as had been before the Tribunal also had included references to the transcript of the proceedings before the primary judge. The primary judge relevantly had stated (AB656):

… [a]nd he beat the stuff that mattered in this, and at the end of the day I look with totality at what he is doing, I would be very interested in if they gave him a sentence and a CCO to perhaps tack into that CCO for this. But I don’t know where we’re going with that and I haven’t heard from the Crown. But the reality is this is a recklessly cause injury charge I have to sentence him for, which at the end of the day is the least of his worries, isn’t it.

41    Mr Hughan accordingly submitted that what the primary judge had said was consistent with the Applicant not having been found guilty of the most serious of a number of charges for which he had stood trial: “the stuff that mattered”. So understood, the Applicant’s reference to “the trial being thrown out due to insufficient evidence to prove any guilt by me, other than that the female patron got injured at my property at the time of the party” was, at least in that respect, no more than a colloquial but substantially accurate summary of what the learned trial judge himself had stated. He could have explained that to the Tribunal, had the matter been put to him.

42    In summary, Mr Hughan thus submitted as follows (T5, line 45-T6, line 8):

Mr Hughan:    So one of the ways that the applicant could have confronted the weight to be given to the discrepancy or the inconsistency, was to say, “Well, look, this wasn’t my document. I got some help from somebody else. I tried to explain what had happened. They typed it out, and it was submitted on my behalf.”

That’s one way of dealing with it. But the other way of dealing with it would be to say, “Well, look, I did make a mistake in relation to that, but some of these charges were thrown out, some of them were not.” And to have it brought to his attention, and to have said what he could have said about them …

Minister’s submissions

43    The Minister’s written submissions contend that the Court should reject Ground 1 for the following five reasons:

(1)    Procedural fairness does not “ordinarily” require a decision-maker to expose their preliminary thought processes to comment by highlighting apparent inconsistencies in material that a person has provided and providing them with an opportunity to respond (citing Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at 598-599).

(2)    Procedural fairness may require a decision-maker to give a person an opportunity to comment on a perceived inconsistency where that inconsistency will be “critical” to the decision (referring to Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 at [32] as being consistent with the observations of Mason J in that regard in Kioa v West [1985] HCA 81; 159 CLR 550 at 589). In the present case however, the relevant inconsistency was not “critical”. The Minister submits that the Tribunal’s observations with respect to this issue were “more of an aside in the Tribunal’s reasons”, which contained many other strands.

(3)    The Applicant himself provided both his statement dated 24 April 2017 and the decision of the Court of Appeal to the Tribunal. The inconsistency would thus have been apparent on the material known to the Applicant. That circumstance makes it less likely that procedural fairness required that it be put to him for comment (citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; Minister for Immigration and Border Protection v Ly [2018] FCAFC 123; 263 FCR 512).

(4)    The Tribunal was aware that it had not put the relevant inconsistency to the Applicant, and gave it less weight accordingly. That course was open to the Tribunal.

(5)    While the Applicant cites NBNB, that decision is distinguishable. It concerned non-English speaking applicants, whereas in this case the Applicant was represented by counsel and a solicitor.

44    In oral submissions however counsel for the Minister Mr Tran did not seek to rely on those propositions. Neither did he dispute Mr Hughan’s contention that, notwithstanding the Tribunal having stated that because the relevant inconsistency had not been put to the Applicant it would place comparatively little weight upon it, it had in fact given that inconsistency very considerable weight in concluding that the Applicant had given a clearly false account (as went to his character and credit as reflected at fn 31) as it applied in reaching its substantive conclusion at paragraph [122].

45    Mr Tran, consistently with his obligations as counsel representing a model litigant, frankly conceded that the Minister could not succeed in his opposition to Ground 1 unless he was able to persuade the Court that a breach of a duty of procedural fairness had not in fact occurred in respect of the Tribunal failing to put the relevant inconsistency to the Applicant.

46    Mr Tran submitted that the relevant principles were uncontroversial. The basic content of that duty, and the circumstances in which it would arise, were correctly articulated by the Full Court (Flick, Mortimer and Banks-Smith JJ) in National Disability Insurance Agency v WRMF [2020] FCAFC 79; 378 ALR 449 (WRMF) at [68]-[69] as follows:

68    The Full Court in SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; (2018) 266 FCR 105 (Besanko, Gleeson and Burley JJ) explained further as follows:

[38]    Procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject's case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 ('Alphaone') at 590-591. However, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Alphaone at 591.

69    The Full Court's statement above indicates that the Agency was entitled to respond to any adverse conclusion drawn on the materials before the Tribunal which is not an obvious and natural evaluation of that material. Put another way, the Agency was entitled to be directed to the critical issues on which the Tribunal was likely to decide unless recognition of such issues was, from the material, an obvious and natural conclusion to draw: Degning v Minister for Home Affairs [2019] FCAFC 67 at [12] (Allsop CJ), citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 at 590-591; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [32].

47    Relying on what the Full Court had stated in WRMF at [69], Mr Tran submitted that a duty to put adverse matters to an applicant will not arise where all that is involved is the undertaking by a decision maker of “an obvious and natural evaluation” of the materials before him or her and in circumstances where the conclusion that the decision maker draws is no more than the “obvious and natural conclusion” to reach.

48    Mr Tran submitted that in this case if the Tribunal’s reference to placing only limited weight on the relevant inconsistency might be thought to imply that the Tribunal itself had recognised that it had failed to accord the Applicant the opportunity to be heard to which he was entitled, that circumstance was irrelevant. Either the Tribunal had such a duty (as would have been breached by what Mr Tran accepted to have been its substantive reliance on the inconsistency), or it did not. Mr Tran’s submission was that in the facts of the hearing and having regard to the materials as were before the Tribunal, no such duty had arisen. The Applicant’s statements had been obviously and self-evidently directly inconsistent with the findings of the Court of Appeal at paragraph [8]. No opportunity to explain such an obvious inconsistency was required as an aspect of procedural fairness. As Mr Tran submitted (T30, lines 8-28):

Mr Tran:    So even if my learned friend is right that there were other serious offences that – or serious charges which were dropped, it was well open obvious on the face of the material that what he said about that conviction when he was asked to explain that conviction at page 100, and then copied into the submission that my learned friend took your Honour to referencing a female’s foot bleeding due to broken glass on the floor, is just not consistent with what the Court of Appeal said, which is that he swiped at the victim with a knife, and during this attack she sustained a .5 of a centimetre superficial laceration to her wrist and a 15 centimetres long and five centimetre wide deep laceration to the back of her right ankle. It was well open on the face of the material to say, in circumstances where he was asked to explain or say whatever he wanted to say about these convictions, that he just referred to a female’s foot bleeding due to broken glass:

A female patron got injured at my property –

compared to what the Court of Appeal actually said which was that he slashed at her and caused what is actually a serious cut, 15 centimetres long and five centimetres deep. I don’t have any better point than that, your Honour.

Consideration

49    It is uncontentious, to the point that authority need not be cited for the proposition, that the Tribunal’s exercise of statutory power is conditioned on that power being exercised in compliance with the rules of procedural fairness.

50    In Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 the New South Wales Court of Appeal (Allsop P, Giles JA and Tobias AJA) at [64] accepted it to be uncontroversial that the rule in Browne v Dunn (1893) 6 R 67 that any imputation intended to be made against a person with respect to their conduct relevant to the case or to their credit must be put to them to them to enable them to controvert the basis of the imputation - being one of fairness - applies equally to a trial judge as to counsel. I take it to be equally uncontroversial that, at least in its generality, that proposition applies equally in respect of an inquisitorial tribunal as an aspect of procedural fairness. It is assumed as the general rule in the reasoning of the Full Court in WRMF.

51    It is also uncontentious to the point that no authority need be cited for the proposition that the rules of procedural fairness must be applied in the facts of a particular instance. Applying the reasoning of courts as to particular instances provides guidance. However, reference to such cases is not akin to the task of a court in construing a statute.

52    I would hesitate to accept that what their Honours stated at paragraph [69] of WRMF was intended necessarily to exclude in every instance the possibility that the Tribunal’s duty of procedural fairness might require that an applicant be given an opportunity to comment notwithstanding that there are materials before a Tribunal, which on their face, are directly and unarguably inconsistent. That is because it would appear to me that, turning on the facts of a particular case, even seemingly obvious inconsistencies may sometimes be explained if explored.

53    If the materials before the Tribunal had been limited to paragraphs [1]-[8] of the reasons of the Court of Appeal, as do not refer to the proceeding before the primary judge with respect to the events of 11 March 2013, I would have had to consider that question further.

54    My hesitation in that regard can however be put aside. That is because, even accepting that the reasoning in WRMF at paragraph [69] should be understood and applied as Mr Tran submits it ought to be, I reject that in the facts of the Applicant’s review all the Tribunal did was to make “an obvious and natural evaluation” of the materials before it and that its conclusion was no more than the obvious and natural conclusion to draw.

55    That is because the materials before the Tribunal were not limited only to paragraphs [1]-[8] of the reasons of the Court of Appeal. They also included paragraphs [9]-[16] of those reasons which, under the heading “The plea hearing”, referred to what had occurred when the Applicant had been tried and sentenced by the primary judge. Those paragraphs included, inter-alia, the passage from the transcript of the proceedings before the primary judge as is set out above at [40].

56    Against that circumstance there is no requirement that the Court speculate as to what might have been capable of being advanced by way of explanation of at least one critical imputation that the Tribunal did not put to the Applicant, being that:

[his] account was clearly false. The reasons of the Court of Appeal state that the Applicant was convicted following a trial before a judge and jury. The case was hardly thrown out.

57    I accept Mr Hughan’s submission that in response the Applicant might have given evidence that his reference to “the trial being thrown out due to insufficient evidence to prove any guilt by me, other than that the female patron got injured at my property at the time of the party” was - at least in that respect - no more than a colloquial but substantially accurate summary of what the learned trial judge himself had stated.

58    It is entirely unclear whether the Tribunal overlooked those passages of the reasons of the Court of Appeal. In any event however, even assuming that what was said at paragraph [69] of WRMF was intended as a precise delineation of the circumstances in which the obligation of procedural fairness as required adverse material to be put to the Applicant would not apply, such circumstances were not in existence in this case. In that regard it cannot be accepted that if some other aspects of the Applicant’s earlier submissions might also have appeared to the Tribunal to be inconsistent with findings of the Court of Appeal, that denies the significance of an established breach of procedural fairness in respect of a critical finding of the Tribunal.

59    Mr Tran accepts that if an obligation of procedural fairness arose in the facts of the present case, it was not complied with so that Ground 1 must succeed. Mr Tran does not suggest that the error, if made, was not material. I am satisfied that an obligation to put the apprehended inconsistency to the Applicant did arise. I would uphold Ground 1.

Ground 2

60    Ground 2 is stated as follows:

The Second Respondent erred in the exercise of its jurisdiction to review the decision of the First Respondent not to revoke the mandatory cancellation of the Applicant’s visa by making and relying on a finding of fact without any evidence of the fact.

(a)    At paragraph [109] the Second Respondent referred to an offence committed by the Applicant in December 2015 and found that on that occasion, the Applicant had been in possession of a knife.

 (b)    The Second Respondent did not cite any documentary source for that finding.

(c)    There is no evidence in the materials filed by the parties that the Applicant was in possession of a knife on that occasion or in the evidence given at the hearing.

 (d)    The Second Respondent relied on this finding adversely to the Applicant.

Applicant’s submissions

61    The Applicant submits that there was no documentary or other evidence before the Tribunal to support its finding at paragraph [109] that during the events of 8 December 2015 he had waved around a knife. The Applicant notes that the Tribunal itself observed that he had not addressed those events in his statement or in his evidence before it. The Applicant further submits that as described by the Tribunal, the events would have constituted the more serious offence of assault with a weapon. That was not the offence with which he was charged.

62    The only materials before the Tribunal to support its finding that a knife was involved were the Respondent’s submissions. In both its written and oral submissions, the Respondent had contended that the Applicant had produced a knife on that occasion. The Applicant refers the Court in that regard to the following passage of the “Statement of Facts Issues and Contentions of the Respondent” in the proceeding before the Tribunal (Supplementary AB42):

31.    On 8 December 2015 the applicant arrived at … home late at night asking to see the children. When allowed into the house, the applicant began talking about their relationship, became angry and began swearing and yelling at … They went outside (as the children were asleep), and the applicant tried to wrench … mobile phone away from her, twisting her arm with force. She broke away and ran down the street. She rang 000, and the applicant returned inside the house. He then reappeared, holding a knife, and … ran away down the street. By the time that the police arrived the applicant had departed.

(Emphasis added).

63    The Applicant had not agreed with that proposition.

64    This error was, in the Applicant’s submission, critical. That is because the Tribunal’s finding that a knife was involved in that offending supported its conclusions about his pattern of previous offending involving knives, as informed its assessment of the risk he posed (citing paragraphs [66], [133] and [134] of the Tribunal’s reasons).

65    Mr Hughan also advanced the following submissions with respect to the Tribunal’s finding concerning another incident asserted to have involved a knife, as had been relied upon by the Minister in submissions that I address below (T32, line 40-T33, line 13):

Mr Hughan:    And I just wanted to take – in respect of paragraph 73, there is certainly an allegation that the applicant used a knife, but at the end of the day the charge of using – the charge of assault with a weapon did not proceed, and what’s to be made of that I’m not entirely sure, but it certainly was something that I did bring to the attention of the tribunal. So when I sort of said earlier on I thought there were three or four incidents, that’s how I got to …

His Honour:    So 73 you say is not a conviction for use of a knife.

Mr Hughan:    Yes. That’s right, your Honour. The tribunal referred to it. There was factual material before the tribunal that was disputed as to the existence of a knife or not. At the end of the day the tribunal made its decision and said, “Look, we do take it that there was a knife there.” If one looks at paragraph 75, for example:

From these incidences the applicant was charged with contravention of a family violence intervention order and assault with a weapon. For reasons that cannot be determined the charge of assault with a weapon was struck out or withdrawn.

Now, I don’t want to take that too much further, because I hadn’t made a specific argument about it. I – there was material before the tribunal. It was entitled to make a decision about it, but I just wanted to indicate to your Honour where in my earlier submissions I had got my way of thinking that there were three or four incidents … less this one …

Minister’s submissions

66    The Minister concedes that there was no evidence before the Tribunal that the Applicant had been in possession of a knife during the events of 8 December 2015. The Minister submits however that this was a mere error of fact that did not go to jurisdiction (citing Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at 560, [137]).

67    The Minister further submits that “repackaging the mistake as a finding of fact without any evidence” does not assist the Applicant. While there is an unresolved controversy in this Court regarding the appropriate test for establishing a jurisdictional error of that nature (citing Navoto v Minister for Home Affairs [2019] FCA 295 at [60]), that need not be addressed in the present case. On the most “lenient” formulation of the test as far as the Applicant is concerned, the relevant finding of fact must be a “critical” step in the Tribunal’s reasons (citing SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402 at [19]). The Minister submits that that is not so on the facts of the present case:

25.    Even leaving aside paragraph 109 of the Tribunal's reasons, it was open to the Tribunal to find that the applicant had possessed or used a knife on "several" - meaning, more than two - occasions. The Tribunal referred to incidents with a knife at paragraphs 73, 84-89, 92 and 103 of its reasons. Even leaving paragraph 109 to one side, there were four occasions where a knife featured in the chronology.

26.    Given that the applicant levels no challenge at those paragraphs of the Tribunal's reasons, any error in paragraph 109 is a mere error of fact within jurisdiction. That is because the statements made in paragraphs 66, 133 and 134 of the Tribunal's reasons about "repeated" or "several" incidents with a knife can be supported without paragraph 109.

Consideration

68    The considerations standing in favour of and against upholding Ground 2 are finely balanced. Mr Tran accepts that the Tribunal erred in stating that the Applicant had been in possession of a knife, and had waved it around, during the events of 8 December 2015. However, he is correct to submit that not every error of fact is a jurisdictional error. I accept his submission that an error of fact will go to jurisdiction only if the relevant finding is in respect of a critical matter.

69    On the other hand, Mr Hughan must be correct to identify that the Tribunal’s finding that a knife was involved in that offending might well be considered to have been critical as it supported its conclusions about his pattern of previous offending involving knives as then informed its assessment of the risk he posed as referred to at paragraphs [66], [133] and [134] of its reasons.

70    In oral argument I thus explored with counsel whether it might be the case that if there were a considerable number of other instances available to support the Tribunal’s findings in those regards, the absence of any evidence for one of those instances would be immaterial.

71    The Tribunal at first blush appears to have referred to six instances of offending by the Applicant where a knife was involved: those as are referred to at paragraphs [44]-[46]; [73]; [84]-[89]; [92];[33]-[34]/[103], as well as the disputed finding for which Mr Tran accepts there was no evidence (at paragraph [109]). On its face, such a large number of other instances suggests that a finding of an established pattern of knife use was inevitable.

72    However, after hearing submissions I have accepted that the Tribunal’s findings at paragraphs [84]-[89] and [44]-[46] were in respect of the same incident. With respect to the incident identified at paragraph [73] it also appears from what the Tribunal stated at paragraph [75] that although the Applicant had been charged with the use of a weapon in respect of what appears as a finding at paragraph [77], those charges had been struck out or withdrawn: although the Tribunal does state that nonetheless it took “into consideration the fact that [the Applicant] was in possession of a knife, as part of the overall factual matrix giving rise to the contravention of the FVIO”.

73    If the Tribunal was correct with respect to its entitlement to have regard to the asserted facts in the police statement with respect to the incident identified at paragraph [73] of its reasons, later not advanced in court, I am satisfied that aside from the incident addressed by the Tribunal at paragraph [109] the Tribunal only had before it evidence of four other incidents in which the Applicant had used a knife. If the Tribunal were not entitled to rely on those alleged events, there were only three.

74    In those circumstances, although I accept that the Tribunal might well have come to the same firm and critical findings it did on the basis of those incidents I reject – albeit with some significant hesitation - that it necessarily would have done so absent taking into account the (imagined) use of a knife on the occasion on 8 December 2015. An evaluation of propensity as the Tribunal was undertaking must necessarily have regard to the number and circumstances of instances which are said to manifest an inclination towards future behaviour. In that evaluation, the Tribunal plainly had regard to the imagined incident to which it referred at paragraph [109]. I accept that the Applicant bears the burden of proof that the error was material, and I accept that the evidence before the Tribunal could have (and may be thought likely to have) led it to express the same conclusion irrespective of that flawed step in its reasoning. However, the contrary is not fanciful. In evaluating propensity each of the elements that are added together is not independent of the other and on that premise I accept that Mr Hughan must be correct that in the absence of that flawed finding the Tribunal could have come to a different conclusion. That is sufficient for the error to be accepted as material.

75    I would uphold Ground 2.

Ground 3

76    Ground 3 is stated as follows:

The Second Respondent erred in the exercise of its jurisdiction to review the decision of the First Respondent not to revoke the mandatory cancellation of the Applicant’s visa by misconstruing and/or misapplying paragraph 14.5 of Direction 65.

(a)    In considering the extent of impediments to the Applicant if removed, at paragraph [200] the Second Respondent found that there was no evidence to establish that the Applicant would be in a different position to any other South Sudanese national in accessing healthcare facilities in that country.

(b)    The Applicant has complex health issues beyond those experienced by the general population.

(c)    Pursuant to section 14.5 of Direction no 65, the Second Respondent was required to take into account the Applicant’s health, but it did not do so.

Applicant’s submissions

77    The Applicant here takes issue with the Tribunal’s finding at paragraph [200] that if returned, he would be in the same position as any other South Sudanese national as regards access to healthcare. The Applicant submits that he suffers health problems beyond those suffered by the general population: post-traumatic stress disorder, anxiety and depression, severe osteoarthritis, asthma and sleep apnoea. He submits that the Tribunal was required to take into account those conditions, having regard to paragraph 14.5 of Direction 65. In his submission, it was not sufficient in that regard for the Tribunal merely to note that he would be “in no different position” to the general population of South Sudan. The general population did not have his treatment needs.

78    The Applicant submits that in the circumstances the only conclusion available to the Tribunal regarding the extent of the impediments that he would face in establishing himself in South Sudan was that those impediments would be severe in view of his health conditions. On that basis:

the extent to which this consideration weighed in favour of revocation was greater than as accepted by the Tribunal [at [205]) in its finding on this issue: “some weight in favour of revoking”.

79    The Applicant further submits that it is “important to note” that at paragraph [174] in the context of its analysis of international non-refoulement obligations, the Tribunal had earlier found that it would be more probable than not that if he were returned to South Sudan his conditions would not be treated and that this weighed in favour of revocation.

Minister’s submissions

80    The Minister submits that the Applicant’s submissions with respect to Ground 3 bear “the hallmarks of a dispute about weight”. In the Minister’s submissions, a perhaps more appropriate way to frame the asserted error would be for the Applicant to allege that from the Tribunal’s reasoning at paragraph [200] it can be inferred that if it had thought that analysis to be sufficient in addressing the Applicant’s health conditions then it must have misunderstood paragraph 14.5 of Direction 65.

81    However, the Minister submits that any error that the Tribunal may have committed in that regard was not jurisdictional when its reasons are read as a whole. At paragraph [199], the Tribunal refers to some of the relevant impediments having “been considered earlier in these reasons”. The Minister submits that the Applicant’s health conditions were so considered at paragraph [174], and indeed were there given weight in favour of revocation. It would therefore be inappropriate to infer that the Tribunal had misunderstood paragraph 14.5 of Direction 65. In any case, any such error was not material in circumstances where the Tribunal had earlier in its reasons considered the Applicant’s health conditions and found them to weigh in his favour (citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421, Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123).

82    Mr Tran also drew the Court’s attention to what he submitted to be the relevance of the terms of the Applicant’s submissions to the Tribunal regarding the extent of impediments if returned, as follows (T21, lines 9-40):

Mr Tran:    … [the Applicant] says at paragraph 182, supplementary book page 36:

If the applicant were removed from Australia to South Sudan for the reasons outlined above he would have an extremely difficult life. He has no family, no support, would be re-traumatised. He would have no access to the physical and mental health care he needs.

In my submission it’s important to appreciate that below the applicant said “for the reasons outlined above”. The reasons outlined above included his concerns about obtaining adequate health care in the context of non-refoulement, which begins at page 30 of the supplementary court book at paragraphs 145 onto paragraph 155. My ultimate submission being … the tribunal has dealt with this matter precisely how the applicant put it to the tribunal. The applicant put it to the tribunal in terms of, “I’ve made submissions about risk of harm” - - -

His Honour:    Yes.

Mr Tran:    … “and I rely upon those in the context of the impediments.”

His Honour:    All right.

Mr Tran:    The tribunal has done the exact same thing and then more, because the tribunal went on to also say, “And, by the way, comparatively you’re going to get the same as those in South Sudan.” So it wasn’t just limited to that.

Consideration

83    I am satisfied that the Minister’s submissions as summarised above at [81]-[82] must succeed. When reference is made to the order in which the Applicant himself advanced his submissions before the Tribunal (as referred to above at [14]), the sequence and nature of its findings are directly responsive. I reject the contention that, read in context, the Tribunal’s reasons reveal the asserted error.

84    I would reject Ground 3.

Orders and disposition

85    I will order that this matter be remitted to the Tribunal, differently constituted, for reconsideration according to law.

86    The parties were agreed that costs should follow the event. The Minister must pay the Applicant’s costs as agreed, or in default of agreement, as taxed.

Associate:

Dated:    17 November 2020