Federal Court of Australia

Palu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1736

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (the Tribunal), on 27 July 2020. The Tribunal affirmed a decision made by a delegate of the first respondent (the Minister) to not revoke the cancellation of the applicant’s Class BF Transitional (Permanent) Visa.

2    The applicant’s originating application was filed on 5 August 2020, and seeks the following relief:

1.     The Respondent's decision made on 27 July 2020 quashed.

2.     A writ of certiorari to issue an order under r4.12 of the Federal Court Rules 2011 (Cth) referring the Applicant for legal assistance on a pro bono basis.

3.     Reconsider the Applicant's application for review according to law.

4.     Such or further orders as the Court deems appropriate.

3    The applicant relies on the following grounds set out in an affidavit dated 4 August 2020:

…

3.     The Second Respondent's decision was unreasonable

4.     The Second Respondent did not properly apply s501CA and 501CA(4) of the Migration Act 1958.

5.     The Second Respondent failed to take relevant consideration into account.

6.     There was insufficient evidence or no evidence to support various findings made by the Second Respondent.

7.     The Second Respondent failed to properly exercise its discretion under s501CA and s501CA(4) of the Migration Act 1958.

8.     The Second Respondent's decision involved an error of law.

9.     The Second Respondent in making the decision did not comply with the rules of natural justice and/or the Applicant was denied procedural fairness.

4    I will set out the background facts, the relevant legislative provisions and the decision of the Tribunal before considering the grounds of review.

Background Facts

5    The applicant is a citizen of Tonga. He moved to Australia at the age of 14 to join his family and was granted a Class BF Transitional (Permanent) visa. He is now 49 years old.

6    The applicant has a long history of offending, beginning at the age of 17. The then Department of Immigration and Multicultural Affairs (the Department) sent Notices for Intention to Consider Cancelling a Visa to the applicant on at least the following dates: 20 May 2002, 6 January 2003, 17 April 2003, 27 April 2005 and 18 September 2007. In response to the notice of 18 September 2007, the applicant wrote to the Department saying that he was repentant for what he had done, and was ready to make amends and be “efficient” for himself, his family and young children. The applicant was also sent a formal counselling letter on 17 June 2008 which warned that his visa could be cancelled if he received any further criminal convictions.

7    On 16 April 2019, a delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he did not pass the character test because he had a substantial criminal record and was serving a sentence of imprisonment on a full-time basis. The applicant made representations on 9 May 2019 requesting that the Minister revoke the cancellation in accordance with s 501CA(4)(a) of the Act.

8    On 1 May 2020, a delegate of the Minister decided not to revoke the cancellation of the visa.

9    On 11 May 2020, the applicant applied to the Tribunal for review of the delegate’s non-revocation decision. The Tribunal had the jurisdiction to review such a decision pursuant to s 500(1)(ba) of the Act.

10    The application was heard by the Tribunal on 13 and 14 July 2020. The applicant was self-represented before the Tribunal. He called two witnesses and gave oral evidence at the hearing. On 27 July 2020, the Tribunal affirmed the decision of the Minister’s delegate to not revoke the cancellation of the visa.

11    The applicant then applied to this Court for review of the Tribunal’s decision pursuant to the power conferred upon the Court under s 476A(1) of the Act.

Legislation

12    Section 501(3A) of the Act provides:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)     paragraph (6)(e) (sexually based offences involving a child); and

(b)     the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

13    Section 501CA(4) of the Act provides:

(4)    The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

(b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

…

14    On 20 December 2018, under s 499 of the Act, the Minister issued Direction No. 79 (Direction 79). Direction 79 took effect from 28 February 2019 and remains in force.

15    Paragraph 13 of Direction 79 sets out “Primary Considerations” that the Minister must take into account when deciding whether to revoke the cancellation of a non-citizen’s visa. They are:

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

(b)    The best interests of minor children in Australia;

(c)    Expectations of the Australian community.

16    Paragraph 14(1) of Direction 79 sets out “Other Considerations” which the Minister must take into account where relevant. They are:

(a)    International non-refoulement obligations;

(b)    Strength, nature and duration of ties;

(c)    Impact on Australian business interests;

(d)    Impact on victims;

(e)    Extent of impediments if removed.

The Tribunal’s reasons

17    The Tribunal’s reasons commenced by giving a brief overview of the background and the legislative framework.

18    The Tribunal concluded that the applicant did not pass the character test under s 501(6) of the Act given his “substantial criminal record”, as he had been sentenced to a term of imprisonment of 12 months or more.

19    The Tribunal then assessed whether there was another reason why the cancellation of the applicant's visa should be revoked in accordance with s 501CA(4) of the Act. The Tribunal commenced by giving an overview of the discretion under s 501CA(4) of the Act, by reference to Direction 79 and case authority, and identified the Primary Considerations and Other Considerations to be taken into account.

20    The Tribunal then set out the applicant's background and offending history, and proceeded to analyse each of the considerations provided under Direction 79. The reasons begin by considering Primary Consideration A (Protection of the Australian community). In determining the weight applicable to Primary Consideration A, para 13.1(2) of Direction 79 requires decision-makers to give consideration to:

(a)    The nature and seriousness of the non-citizens conduct to date; and

(b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

21    The Tribunal’s reasons proceeded to assess the two considerations in para 13.1(2) of Direction 79. With respect to the nature and seriousness of the applicant’s conduct to date, the Tribunal had regard to the factors set out in para 13.1.1(1), concluding that all of the relevant factors, in their totality, weighed heavily against revocation of the visa cancellation decision. With respect to the risk to the Australian community, the Tribunal concluded that, “there is a moderate to high risk that the Applicant will commit further offences, including violent offences, if he is returned to the wider community”.

22    The Tribunal’s reasons concluded that Primary Consideration A weighs heavily in favour of non-revocation.

23    The reasons then considered Primary Consideration B (Best interests of minor children in Australia), concluding that it weighed in favour of revocation of the visa cancellation decision to a limited extent:

87.    I am satisfied that it would be in the best interests of Child A and, to a lesser extent, Child B for there to be at least the potential for the Applicant to make a positive contribution in each of their lives, and that his physical presence in Australia would create potential for that. Based on this potential, I allocate a limited measure of weight in the Applicant's favour in relation to Primary Consideration B.

24    The reasons then considered Primary Consideration C (Expectations of the Australian community), concluding that it weighed heavily in favour of non-revocation of the visa cancellation decision:

92.    The Applicant has repeatedly breached the trust of the Australian community by committing serious offences, and he has continued to offend despite periods of incarceration and previous warnings that further offending could result in his visa being cancelled. Taking all of the above matters into account, Primary Consideration C weighs heavily in favour of non-revocation of the Decision under Review.

25    The reasons then considered the Other Considerations set out in para 14.1 of Direction 79. Only Other Considerations (b) (Strength, nature and duration of ties), (d) (Impact on victims) and (e) (Extent of impediments if removed) were found to be relevant to the application. Other Consideration (d) was found to be of neutral weight, whilst Other Considerations (b) and (e) were found to weigh moderately in favour of revocation of the visa cancellation decision, as follows:

99.    Overall, I am satisfied that the strength, duration and nature of ties to the Australian community warrants the allocation of a moderate level of weight in favour of revocation.

…

109.    It is likely that the Applicant will face some difficulty in re-establishing himself in Tonga as he does not have an existing social or support network there, he will have to secure accommodation, and he will have to find a way to survive financially. However, he has skills in the area of manual labour and personal training, he has relatives in Tonga that he could connect with, and he is open to the idea of growing crops and fishing. I accept that life will be more difficult, his standard of living will be lower, he will not have access to the same level of Government services that he has in Australia and it likely that his dental problems will not be fixed. Considering all of this, I am of the view that this Other Consideration (e) weighs moderately in favour of revocation of the reviewable decision.

26    However, the Tribunal concluded that even when combined, Primary Consideration B and Other Considerations (b) and (e) could not outweigh Primary Considerations A and C. Ultimately, the Tribunal’s reasons concluded that application of Direction 79 heavily favoured non-revocation of the visa cancellation decision. Accordingly, the decision of the Minister was affirmed.

Consideration

27    On 18 August 2020, a pro bono referral certificate was issued to the applicant by a Judicial Registrar. The applicant was represented by pro bono counsel at a case management hearing, but ultimately appeared unrepresented at the hearing.

28    The applicant has not filed any written submissions in support of his grounds of review. He made oral submissions to the effect that the Tribunal did not take into account his age, the unfairness of relocating him to Tonga, the fact that his health is deteriorating, and the fact that his children and siblings are living in Australia. In view of these factors, the applicant submitted that the Tribunal’s decision was unfair. He stated that in the proceeding before the Tribunal, he could not afford a lawyer, and that as he was moved from Queensland to Western Australia for detention, he was not able to be assisted by his support network in gathering and providing material.

29    Based on the applicant’s grounds of review contained in his affidavit and upon his oral submissions, the applicant can be taken to contend that the decision of the Tribunal was affected by jurisdictional error, relying on the following grounds:

(1)    The Tribunal’s decision was legally unreasonable.

(2)    The Tribunal did not properly apply s 501CA of the Act.

(3)    The Tribunal failed to take the following considerations into account:

(a)    the applicant’s age;

(b)    the unfairness of relocation to Tonga;

(c)    the applicant’s health;

(d)    the fact that the applicant’s children and siblings are all Australian citizens who live in Australia.

(4)    There was insufficient evidence or no evidence to support various findings made by the Tribunal.

(5)    The Tribunal failed to properly exercise its discretion under s 501CA of the Act.

(6)    The Tribunal’s decision involved an error of law.

(7)    The Tribunal did not comply with the rules of natural justice and/or the applicant was denied procedural fairness.

30    I will now proceed to address each ground of review in turn.

Ground 1

31    Ground 1 seems to contend that the Tribunal’s decision was legally unreasonable. The applicant did not provide any explanation of why the decision was legally unreasonable.

32    A failure to particularise a ground of review is a sufficient basis for it to be dismissed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]. However, I will consider the ground.

33    In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Kiefel CJ succinctly described the ground of legal unreasonableness at [10]:

In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational.

34    The Full Court in Singh v Minister for Home Affairs (2019) 267 FCR 200 at [61] provided the following exposition of the ground:

The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power. Such a conclusion might be drawn, for example, if it:

(1)    is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational;

(2)    “lacks an evident and intelligible justification”;

(3)    is plainly unjust, arbitrary, capricious or lacking in common-sense.

(Citations omitted.)

35    The Tribunal’s reasons are comprehensive and logical. They address each of the requirements of the statutory scheme in detail, and provide an evident and intelligible justification for the conclusions reached regarding the weight to be given to each of the considerations provided for in Direction 79. I consider that the Tribunal’s findings are supported by the evidence and the decision is not unreasonable.

36    Ground 1 of the application must be rejected.

Ground 2

37    Ground 2 seems to contend that the Tribunal did not properly apply s 501CA, in particular s 501CA(4). The applicant has not particularised this ground.

38    In its reasons, the Tribunal set out the legislative scheme, in particular referring to the discretion under s 501CA(4) and the various considerations in Direction 79. The Tribunal’s reasons then proceed to assess each of the considerations provided for in Direction 79 based on the material before it. There is no indication that the Tribunal misapplied s 501CA(4). The Tribunal considered whether there was another reason why the cancellation of the applicant’s visa should be revoked in detail, applying each of the considerations in Direction 79 to the applicant’s circumstances and reaching conclusions based on the evidence. It has not been demonstrated that the Tribunal failed to properly apply s 501CA.

39    Ground 2 of the application must be rejected.

Ground 3

40    Ground 3 contends that the Tribunal failed to take relevant considerations into account. In oral submissions, the applicant referred to a number of considerations which were alleged not to have been taken into account, including:

(a)    the applicant’s age;

(b)    the unfairness of relocation to Tonga;

(c)    the applicant’s health; and

(d)    the fact that the applicant will be separated from his children and siblings, who are all Australian citizens who live in Australia.

41    I accept that the Tribunal was required to take into account each of the four relevant considerations alleged by the applicant. The applicant’s age and health were required to be taken into account pursuant to para 14.5(1)(a) of Direction 79; the unfairness of relocating the applicant to Tonga when he has not lived there since the age of 14 was required to be taken into account pursuant to paras 14.5(1)(b) and (c) of Direction 79; and the fact that the applicant’s children and siblings will remain in Australia was required to be taken into account pursuant to paras 13.2 and 14.2 of Direction 79.

42    I will now consider whether the Tribunal took into account each relevant consideration.

43    The first relevant consideration contended for by the applicant was his age. The applicant stated that, “They didn’t really take into account my age and how old I am”.

44    The Tribunal addressed the extent of any impediments the applicant may face if removed from Australia from para 102 of its reasons, stating that it was required by para 14.5(1)(a) of Direction 79 to take into account, “the non-citizen's age”.

45    The Tribunal at para 103 noted that the applicant is 49 years old, and at paras 107-108 addressed the impact his age would have on his ability to establish himself and maintain basic living standards:

107.    It was contended in the Applicant's SFIC that he would struggle to maintain a basic level of living standard, that due to his age, manual work would be very hard on him, and that he would not be able to cope financially, spiritually, emotionally or physically. It was further contended that the Applicant would have to fend for himself by growing crops and fishing. He told the Tribunal that he would have to relearn how to grow crops and fish.

108.    The Applicant gave evidence that if he were returned to the wider community he could obtain employment as a personal trainer. Accordingly, I do not accept that he lacks the level of fitness required to do manual labour, grow crops or fish.

46    It is clear that the Tribunal took into account the applicant’s age and the impact that it would have on the applicant in establishing himself in Tonga and maintaining basic living standards, as required by para 14.5(1)(a) of Direction 79.

47    The second relevant consideration contended for by the applicant was the unfairness of relocation to Tonga given that he has not lived there since he was 14 years old. The applicant stated that, “I feel their – to move me to another country at 50 that I haven’t been in in long, long time was – I think it was unfair”.

48    The Tribunal addressed the extent of any impediments the applicant may face if removed from Australia from para 102 of its reasons, stating that it was required by paras 14.5(1)(b) and (c) of Direction 79 to take into account, “whether there are any substantial language or cultural barriers; and…any social, medical and/or economic support available to that non-citizen in that country”.

49    The Tribunal addressed the impact of removing the applicant to Tonga, a country he has not lived in or visited since the age of 14, as follows:

105.     The Applicant told the Tribunal that he has many relatives living in Tonga although he has not been back to Tonga since he first arrived in Australia. He said his brothers and sisters have been back to Tonga and were in touch with relatives there. He said he thought his relatives in Tonga would be willing to help him although he doubted that they would have the resources to.

106.    The Applicant can understand Tongan he and gave evidence that he speaks Tongan with his mother. Having spent the first 14 years of his life there, I am satisfied that the Applicant has reasonably good knowledge of Tongan culture despite having been absent for some 35 years. I am satisfied that the Applicant could update his knowledge of Tongan culture by communicating with his relatives who live in Tonga. I am not satisfied that there would be any significant or substantial language or other cultural barriers to the Applicant's return and re-establishment in Tonga.

…

109.    It is likely that the Applicant will face some difficulty in re-establishing himself in Tonga as he does not have an existing social or support network there, he will have to secure accommodation, and he will have to find a way to survive financially. However, he has skills in the area of manual labour and personal training, he has relatives in Tonga that he could connect with, and he is open to the idea of growing crops and fishing. I accept that life will be more difficult, his standard of living will be lower, he will not have access to the same level of Government services that he has in Australia and it likely that his dental problems will not be fixed. Considering all of -this, I am of the view-that this Other Consideration (e) weighs moderately in favour of revocation of the reviewable decision.

50    It is clear that the Tribunal addressed the fact that the applicant has not lived in or visited Tonga since the age of 14, and the difficulties he would have in establishing himself in Tonga and maintaining basic living standards, as required by paras 14.5(1)(b) and (c).

51    The third relevant consideration contended for by the applicant was his health. The applicant stated that, “I feel that my health – they didn’t take into account that my health is deteriorating since I have been here. I have lost close to 30 kilos since I have been in detention centre”. To the extent that the applicant was referring to health impacts that have eventuated after the Tribunal’s decision was made, that cannot be relevant as it was not something that was before the Tribunal.

52    The Tribunal addressed the extent of any impediments the applicant may face if removed from Australia from para 102 of its reasons, stating that it was required by para 14.5(1)(a) of Direction 79 to take into account “the non-citizen’s…health”.

53    Regarding the applicant’s health generally, and in particular his written submissions made regarding his dental problems, that was addressed by the Tribunal as follows:

103.     The Applicant is 49 years old and does not claim to have any medical problems although he is missing several teeth which causes him pain when eating as some teeth hit the bare gum opposite them. He said the waiting list for dental work at the detention centre is months long. I will proceed on the basis that if he is returned to Tonga, he will not have had his dental problems treated.

104.     The Applicant does not claim to have any psychological problems, although he has unresolved issues with alcohol and drugs. I do not have any information before me about the availability of drugs and alcohol in Tonga, so I am unable to make any assessment of the risk that the Applicant would resume drug taking or abusing alcohol in Tonga.

54    It is apparent that the Tribunal addressed the applicant’s health and the impact that it would have on the applicant in establishing himself in Tonga and maintaining basic living standards, as required by para 14.5(1)(a) of Direction 79.

55    The fourth relevant consideration contended for by the applicant was the fact that his children and siblings are Australian citizens and that he will be separated from them if he is removed to Tonga. The applicant stated that:

They didn’t really take into account that the – all my kids are here. They’re all citizen of Australia, and to remove me away from them, I thought that was a very unfair thing to do. My family – my brothers and sisters, they are all citizen of Australia and they live here. I have no one in – in Tonga. I think – you know, just move me to a new country that I haven’t been in four years, I feel it was unfair, and to leave my children behind, I think – and that’s where I thought it was really unfair of the AAT not to – to consider, you know, mainly my – my children. You know, to – to split up, you know, my children from me with – I didn’t think they – they took to – due consideration to the fact that all my children are here, and I have got two minor kids that I would – I would love to be around for.

56    The Tribunal addressed the best interests of minor children at para 69 of its reasons, stating that it was required by para 13.2(1) of Direction 79 to take into account, “whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant's visa”.

57    The Tribunal addressed the applicant’s submissions regarding minor children whose best interests would be affected by the decision at paras 71 to 86 of the reasons, and concluded at para 87 that:

I am satisfied that it would be in the best interests of Child A and, to a lesser extent, Child B for there to be at least the potential for the Applicant to make a positive contribution in each of their lives, and that his physical presence in Australia would create potential for that. Based on this potential, I allocate a limited measure of weight in the Applicant's favour in relation to Primary Consideration B.

58    It is clear that the Tribunal addressed the applicant’s minor children and the impact that the removal of the applicant would have on those children, as required by para 13.2(1) of Direction 79.

59    The Tribunal at paras 95 to 99 addressed the strength, nature and duration of ties pursuant to para 14.2(1)(b) of Direction 79. In particular, the Tribunal addressed the applicant’s immediate family as follows:

97.     With respect to paragraph 14.2(1)(b), the Applicant's immediate family live in Australia. In addition to Child A, he claims to have four adult children in Australia. His eldest, Ms L, lives in Perth and keeps in touch with him. Ms M and Ms N are sisters who live in Brisbane. Ms M is the child who intervened in the domestic violence offence to protect her mother. The Applicant believes that she has tried to contact him but that there is an “order” in place preventing him from contacting her. The Applicant estimates that the last time he spoke with Ms N was two or three months ago: A son, Mr O, has no contact with the Applicant. The Applicant also has many relatives in Australia. He has established some very recent relationships while in Immigration Detention which do not carry as much weight. Two people who appear to have known the Applicant for some time provided letters of support. I am satisfied that the Applicant has significant familial ties, and some social ties, to the Australian community.

98.     I am further satisfied that the Applicant's immediate family will be adversely impacted by his removal from Australia although there is no reliable evidence that the impact would be significant for any of them.

60    The Tribunal clearly addressed the applicant’s adult children and the impact the removal of the applicant would have on them, as required by para 14.2(1)(b) of Direction 79.

61    The Tribunal addressed the impact of the separation of the applicant from his siblings when it stated that the applicant had “many relatives in Australia”, and when it concluded that the applicant’s “immediate family” would be adversely impacted by his removal, as required by para 14.2(1)(b) of Direction 79.

62    The applicant has not established that the Tribunal failed to take into account the four relevant considerations contended for.

63    Ground 3 of the application must be rejected.

Ground 4

64    Ground 4 contends that there was insufficient evidence or no evidence to support various findings made by the Tribunal. There is no particularisation as to what findings are the subject of this allegation.

65    As I have discussed, the Tribunal’s reasons are comprehensive and logical, and assessed each of the considerations provided for in Direction 79 having regard to the material before it. It is apparent that the Tribunal’s findings are supported by the evidence.

66    Ground 4 of the application must be rejected.

Ground 5

67    Ground 5 contends that the Tribunal failed to properly exercise its discretion under s 501CA of the Act. Again, there is no particularisation of this ground.

68    As discussed above, the Tribunal assessed each of the considerations provided for in Direction 79 in some detail in determining whether to exercise its discretion under s 501CA(4) of the Act. It is not apparent on the material before me that the Tribunal failed to properly exercise its discretion.

69    Ground 5 of the application must be rejected.

Ground 6

70    Ground 6 contends that the Tribunal’s decision involved an error of law. Again, there is no particularisation of this ground.

71    I repeat my comments that the Tribunal’s reasons are comprehensive and logical, and that the Tribunal assessed each of the considerations provided for in Direction 79 having regard to the material before it.

72    Ground 6 of the application must be rejected.

Ground 7

73    Ground 7 contends that the Tribunal did not comply with the rules of natural justice and/or that the applicant was denied procedural fairness. The applicant stated in oral submissions that he could not afford a lawyer to assist him before the Tribunal, and that he was “caught by surprise”. He was also moved from Queensland to Western Australia to be held in a detention centre, and therefore could not call upon his support network to assist him in gathering material to prepare for the hearing. It seems that the applicant is arguing that he was denied procedural fairness before the Tribunal for these reasons.

74    In Dietrich v The Queen (1992) 177 CLR 292, the High Court held at 297–298, 318, 343, 356–357 and 364–365 that a court has the power to stay or adjourn criminal proceedings until legal representation is provided at public expense. However, that principle is concerned only with the right to a fair trial of a party to criminal proceedings, not civil proceedings: New South Wales v Canellis (1994) 181 CLR 309 at 328. An application for judicial review of a non-revocation decision, even though the revocation was based upon a criminal conviction, does not attract the Dietrich principle: cf Nguyen v Minister for Immigration and Multicultural Affairs (2002) 101 FCR 20 at [18]; Rivera v United States of America [2004] FCAFC 154 at [19].

75    The applicant had the opportunity to put material before the Tribunal, which he did in the form of a Statement of Facts, Issues and Contentions dated 26 June 2020. The applicant also appeared at the hearing before the Tribunal on 13-14 July 2020, and was given the opportunity to make oral submissions and call witnesses. The transcript of the hearing reveals that the member who was presiding clearly explained the process to the applicant and ensured that he understood what was happening. There is no evidence before me that indicates that the applicant was denied procedural fairness, or that the Tribunal did not comply with the rules of natural justice.

76    Ground 7 of the application must be rejected.

Conclusion

77    The applicant has not established any of his grounds of review. The application must be dismissed with costs.

Associate:    

Dated:    2 December 2020