Federal Court of Australia

DOM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 862

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time within which to apply for judicial review be granted.

2.    The decision of the second respondent is set aside.

3.    The matter be remitted to the second respondent for determination according to law.

4.    The first respondent pay the applicant’s costs.

5.    Within 7 days hereof, the first respondent make any application it may seek to make for costs incurred by reason of the applicant’s late filing of the Affidavit of Rose Kiden Bayok.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant seeks an order quashing the decision of the second respondent (Tribunal) to affirm the decision of a delegate of the first respondent (Minister) made under s 501CA of the Migration Act 1958 (Cth) (Act) not to revoke the cancellation of the applicant’s visa under s 501(3A) of the Act.

2    The application for judicial review was made outside the statutory timeframes prescribed by s 477A(1) of the Act. The applicant now seeks an extension of time pursuant to s 477A(2) of the Act. That application was heard instanter with the application for judicial review. For the reasons set out at [54] below, I consider it appropriate to grant the applicant the extension of time which he seeks.

3    There is only one ground of judicial review pressed by the applicant. It concerns the proper construction of s 500(6H) of the Act in the context of the applicant’s contention that, by misconstruing that provision, the Tribunal prohibited the applicant from calling his partner to give evidence at the hearing held by the Tribunal and thereby denied the applicant procedural fairness.

4    Section 500(6H) of the Act provides:

500 Review of decision

…

(6H)     If:

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

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

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

5    It is not in dispute that the facts required by s 500(6H)(a) and (b) are established in the circumstances. In or around 1994, the applicant was born in South Sudan. In 2004, the applicant was granted a humanitarian visa and arrived in Australia. He remains in Australia. Between 22 June 2012 and 24 November 2017, the applicant was convicted of a number of criminal offences. On 16 January 2018, a delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Act. The applicant made representations for the cancellation to be revoked. On 21 September 2018, a delegate of the Minister (delegate) determined not to revoke the cancellation of the applicant’s visa.

6    On 27 September 2018, the applicant applied to the Tribunal for review of the delegate’s decision. It is not in contest that, as required by s 500(6F), the Minister lodged with the Tribunal copies of the documents in the Minister’s possession relevant to the making of the delegate’s decision which the Tribunal’s reasons refer to as the “G documents”. On 11 October 2018, the Tribunal made directions, including a direction that the applicant file submissions and any further evidence on which he proposed to rely at the hearing and serve a copy on the Minister by 22 November 2018. The applicant did not file any submissions, nor did he submit any further evidence prior to the Tribunal hearing held on 3 December 2018. However, immediately before the hearing commenced, the Tribunal was informed that the applicant’s partner and his former teacher were present and that the applicant, who was self-represented, wanted to call them as witnesses. The Minister did not object to the former teacher giving evidence on account of the fact that the documents before the Tribunal included a letter written by the teacher. Objection was taken, however, to the Tribunal receiving any evidence from the applicant’s partner. The Minister submitted to the Tribunal that s 500(6H) of the Act prevented the applicant from calling his partner as a witness because she did not provide a witness statement to the Minister two clear days prior to the hearing.

7    The Tribunal determined not to permit the applicant’s partner to give evidence.

8    In its reasons for decision at [27], the Tribunal gave some explanation of its reasons for refusing to permit the applicant’s partner to give evidence. After citing the statement of the Full Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at [25], the Tribunal said (emphasis added):

On this basis, the Tribunal deemed it appropriate in the circumstances to proceed with the hearing, as contemplated above by the Full Court, and to hear the evidence of the Applicant’s teacher, but not his partner. The Tribunal was mindful that the Applicant’s partner was likely to give evidence about his relationship with his step-children, which is a primary consideration for the Tribunal. The Tribunal sought to ensure that the Applicant gave evidence about his relationship with the children by asking its own questions of the Applicant, in addition to considering his written submissions in the G documents regarding the children. There were also other relevant materials before the Tribunal obtained under summons from the Western Australia Police, which contained information relevant to the best interests of the children.

9    In Goldie at [25], in the passage referred to and relied upon by the Tribunal, Gray J (with whom RD Nicholson and Stone JJ agreed) said this (emphasis added):

The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business days' notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).

10    The Tribunal’s refusal to permit the applicant’s partner to give evidence is not directly justified by either the terms of s 500(6H) of the Act or by the observations made in Goldie at [25] as to how that sub-section operates. What is precluded by s 500(6H) is the Tribunal having “regard to” particular information. It is not the reception of particular information which is precluded but regard or consideration being given by the Tribunal to such information once it is received. Subject to what follows, at least to that extent it may be said that the Tribunal appears to have misunderstood the preclusionary effect of s 500(6H) and accepted the Minister’s submission (the correctness of which the Minister does not seek to support on this application) that s 500(6H) of the Act prevented the applicant calling his partner to give evidence.

11    That is not to say that the preclusionary effect of s 500(6H) could not have justified the Tribunal’s decision to not allow the applicant’s partner to be called. It would have justified that decision if all of the evidence which the applicant’s partner was being called to give was information that, by reason of s 500(6H), the Tribunal could have had no regard to. In that circumstance there would have been no utility in permitting the evidence to be called and the Tribunal’s refusal to allow it may have been free of any error. However, the Tribunal determined to refuse to receive the proposed evidence of the applicant’s partner without making any assessment of its nature or content other than to assume that it was likely that the applicant’s partner may want to give evidence about the applicant’s relationship with his step-children. All that the Tribunal’s reasons reveal that was actually known to the Tribunal about that proposed evidence was that its reception was being opposed by the Minister “because a written statement outlining her evidence had not been provided to the Minister at least two business days before the hearing” (at [25]). In contrast, the Tribunal determined to receive the evidence of the applicant’s former teacher, “as the G documents contained a statement from the Applicant’s former teacher” (at [25]).

12    A fair reading of the Tribunal’s reasons suggest to me that the Tribunal construed s 500(6H) as requiring that it not have regard to any information given by a witness in support of an applicant’s case unless that information was set out in a written statement outlining the evidence of that witness which had been provided to the Minister at least two business days prior to the Tribunal’s hearing. I would infer that, as the Tribunal was satisfied that no such written statement had been provided to the Minister outlining the evidence of the applicant’s partner, the Tribunal determined that it could have no regard to the evidence to be given by the partner and that therefore the applicant’s partner should be precluded from being called at the hearing.

13    The issue for determination is therefore this: Does s 500(6H) require that the Tribunal must not have regard to information from a witness unless a written statement outlining the evidence of that witness has been provided to the Minister at least two business days prior to the Tribunal’s hearing?

14    If the answer to that question is yes, the Tribunal did not misconstrue s 500(6H) and its decision to refuse to receive the evidence of the applicant’s partner was free of error. Subject to the issue of materiality later discussed, if the answer is no, the Tribunal misconstrued s 500(6H) of the Act, denied the applicant procedural fairness and jurisdictional error would be established.

15    The applicant contended that the construction of s 500(6H) adopted by the Tribunal was somewhat narrower than that which I have found. The applicant submitted that the Tribunal had construed s 500(6H) as requiring a witness presenting information orally to have personally set that information out in a written statement, or, in other words, the written statement required to be provided to the Minister had to be a written statement made by the particular witness in question. Whilst that inference is arguably available given, in particular, the manner in which the Tribunal dealt with the reception of the evidence to be given by the applicant’s teacher, the better view is that, consistently with how it expressed itself, the Tribunal’s approach was broader and to the effect that “a written statement outlining [the] evidence” of the proposed witness would suffice even if the statement was not a statement made by the witness personally.

16    Although the Minister’s submission was based on a different analysis which it is not necessary to here recount, my conclusion is consistent with the Minister’s contention that the Tribunal did not proceed on the basis that the applicant’s partner was required to have personally provided a written statement of her intended evidence. In other words, an unsigned written statement of her intended evidence which identified her and outlined the content of her evidence would have sufficed.

17    The applicant submitted that the oral evidence of his partner should have been heard and taken into account to the extent that it substantively conformed to what had previously been set out in written statements provided to the Minister. The applicant referred to various information which the applicant’s partner could have addressed contained in the documents before the Tribunal (and of which the Minister had prior notice), including:

    descriptions of the applicant’s relationship with his partner and her children in the statement of personal circumstances in the applicant’s application to revoke the cancellation of his visa; and

    a record of an interview with the applicant describing his relationship with his partner.

The documentary materials before the Tribunal also included a personal statement from the applicant in which he expressed his remorse about his misconduct and the hurt caused to his family. On the applicant’s contention, each of those documents contained information set out in a written statement and provided to the Minister within the meaning of s 500(6H).

18    The applicant submitted that his interpretation of s 500(6H) was supported by the ordinary meaning of the word “statement” as defined in the Macquarie Dictionary (6th edition, Macquarie Dictionary, 2013), being “[a] communication or declaration in speech or writing setting forth facts, particulars, etc”. This definition was said to negate any support for the Minister’s interpretation that the word “statement” implies that it must be the statement of the person presenting oral evidence.

19    The applicant then referred to the observations of French CJ, Kiefel, Bell and Keane JJ on the interpretation of s 500(6H) in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [54]-[57] which are set out below at [34].

20    The applicant submitted that the High Court’s interpretation of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) obliges the Tribunal to adopt a procedure which permits the proper consideration of the matters before it and affords each party a reasonable opportunity to present its case. Thus the applicant contended that s 500(6H), read in the context of the AAT Act, should not be given the restrictive interpretation advanced by the Minister. That is especially so, the applicant said, where the provision does not include any express requirement that the statement must be specifically attributable to the relevant witness. In view of the numerous findings made by the Tribunal in respect of the applicant’s partner, the applicant observed that it would have been preferable for the Tribunal to hear her evidence to ensure that it gave proper consideration to the matters before it.

21    The applicant also emphasised the purpose or mischief which he said s 500(6H) was enacted to achieve or avoid. I will return to that matter later.

22    The Minister contended that s 500(6H) of the Act prohibits the Tribunal from having regard to “any information presented orally in support of the person’s case”. Referring to Uelese at [44], the Minister accepted that s 500(6H) does not apply to information elicited in cross-examination or in response to questions from the Tribunal.

23    The Minister accepted that the “written statement” in s 500(6H) need not be in any particular form. However, it was said that the statement must meet at least two criteria. First, it must be a “statement”, not just a collection of references to documentary evidence in relation to which the witness could give evidence. Second, the written statement must “set out” the oral information to be adduced “in support of the person’s case”. The Minister submitted further that the statement’s form may depend on the character of the information in question. To that end, the Minister said that in the case of oral evidence the statement could be in the form of an affidavit, a signed statement or an unsigned summary of the anticipated evidence.

24    To explicate this point further, the Minister referred to the following passage of SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 at [70] (Katzmann J):

The purpose of the scheme in s 500 is to prevent an applicant from changing the nature of the case, catching the Minister by surprise and forcing the Tribunal into adjourning the proceedings: Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at [25]; Uelese v Minister for Immigration and Citizenship (2013) 60 AAR 534; [2013] FCAFC 86 at [31]–[32]. If the oral evidence does not change the nature of the case and merely puts flesh on the bones, so to speak, it may be doubted whether it can be excluded. There seems to me to be no reason why a witness could not be called to speak to his or her statement, to correct any inaccuracies, to explain any ambiguities, or to elaborate upon certain matters as long as in so doing the witness does not stray outside the subject matter of the material covered in the statement.

25    The Minister also relied on the following passage from the appeal of that decision in SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129 at [26]-[27] (Rares, White and Gleeson JJ):

By s 500(6H) of the Migration Act, the AAT is precluded from having regard to any information provided orally in support of an applicant’s case unless that information is set out in a written statement given to the Minister at least two business days before the hearing. By s 500(6J), the AAT is similarly precluded from having regard to any document submitted in support of an applicant’s case unless a copy of the document is given to the Minister at least two business days before the hearing. No doubt the nine written statements had been marshalled and presented with these provisions in mind.

Sections 500(6H) and (6J) had the effect in this case that, had the nine witnesses attended at the hearing and given oral evidence, the evidence which the appellant’s counsel could have led from them could not have departed in a substantive way from the content of the written statements.

26    The Minister accepted that these decisions do not directly address the construction of s 500(6H) of the Act, but maintained that they describe its operation consistently with the requirement that the written statement identify the content of the witness’ evidence.

27    The Minister also accepted that a witness could elaborate on his or her written statement while giving oral evidence. However, the Minister submitted that it would not be sufficient to assert that the evidence of a witness would be consistent with some other information before the Tribunal or relevant to some other previously identified issue. Such an interpretation, the Minister said, would require the Tribunal to go over large volumes of material retrospectively in order to identify whether the oral evidence was supported by a written statement.

28    That interpretation was also said to be inconsistent with the purpose of s 500(6H) because it would not put the Minister on notice of the evidence in the case and could thus give rise to adjournments. In oral argument, the Minister submitted further that the need to avoid delay must be read in context of s 500(6L)(c) which requires that the Tribunal make its decision within 84 days after the applicant was notified of the decision under review or the Tribunal will be taken to have affirmed the decision under review.

29    In oral argument, the Minister advanced three further propositions in respect of the interpretation of s 500(6H) of the Act. First, the Minister said that the distinction between a “statement” in s 500(6H) and a “document” in s 500(6J) weighed in favour of an interpretation requiring that the written statement identify the relevant witness. Second, the Minister said that it can be fraught to interpret a statute by reference to words that Parliament chose not to include because Parliament may express itself however it chooses and that the absence of particular words should not be seen as a conscious choice. I understand that the Minister was here referring to the absence of words that would expressly clarify whether the term “statement” in s 500(6H) must identify the witness and the information he or she proposes to give orally.

30    Third, the Minister submitted that the interpretation of the word “statement” contended for was not unusual because the concept of a witness statement is not foreign to the procedures of a court or tribunal which s 500(6H) regulates. The Minister said that the reference to “information presented orally” draws attention to the fact that the provision addresses witness evidence. It followed, the Minister said, that information “set out in a written statement” must identify the witness and the oral evidence that will follow.

31    A further submission made by the Minister can be put aside. The Minister contended that the applicant’s ground (that the Tribunal misconstrued s 500(6H)) “proceeds on an evidential basis that has not been proven”. It was submitted that it was implicit in the applicant’s contention that the information to be given by the applicant’s partner was disclosed in material already before the Tribunal but that the applicant made no submission to the Tribunal to the effect his partner’s evidence was so disclosed in material already before the Tribunal.

32    Although I can understand why this submission may be of some relevance to the issue of materiality, the purported evidential gap relied upon by the Minister is of no relevance to the constructional issue here being considered.

33    It seems to me that at the heart of the dispute about construction is whether s 500(6H) of the Act requires that the Minister be given prior notice of the content of the “information [to be] presented orally” or whether prior notice must also, and always, be given as to the source of that information, that is, the identity of the person who will present it. The Tribunal construed s 500(6H) as requiring notice of both content and source. As I have found, the Tribunal proceeded on the basis that what was required by s 500(6H) was the prior provision to the Minister of a written statement (ie notice) outlining the evidence (ie content) of the particular witness (ie source). The Minister’s contentions about what s 500(6H) requires is also premised upon each of those three elements (notice, content and source) being satisfied. On the other hand, the applicant’s contention about the proper construction of s 500(6H) is premised on that provision only requiring prior written notice of the content of the information to be presented orally.

34    What is required by s 500(6H) in order for the Tribunal to have regard to “information presented orally in support of the person’s case” is to be construed by reference to the text, context and purpose of that provision. In Uelese, the High Court construed the “preclusionary effect” of s 500(6H). As to “[c]ontextual considerations”, French CJ, Kiefel, Bell and Keane JJ said this at [54] to [57] (emphasis added):

[54]    Section 500(6H) does not expressly limit the power of the Tribunal to conduct a review or authorise the Tribunal to give less than the “proper consideration of the matters before [it]” required by s 33 of the AAT Act.

[55]    Section 33(1) of the AAT Act provides generally that in a proceeding before the Tribunal the procedure of the Tribunal is within its discretion, that it is not bound by the rules of evidence, and that the proceeding is to be conducted with as little formality and technicality as, inter alia, a proper consideration of the matters before it permits.

[56]    Section 40(1)(c) of the AAT Act provides that, for the purpose of reviewing a decision, the Tribunal may “adjourn the proceeding from time to time”.

[57]    Section 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. Specific powers under the AAT Act that would be restricted in their operation on the Tribunal's understanding of s 500(6H) include: s 39(1), which obliges the Tribunal to “ensure that every party to a proceeding ... is given a reasonable opportunity to present his or her case”; s 33(1)(c), which allows the Tribunal to “inform itself on any matter in such manner as it thinks appropriate”; and s 33(2A)(a), which allows the Tribunal to “require any person who is a party to the proceeding to provide further information in relation to the proceeding”.

35    As to “[c]onsiderations of purpose”, their Honours said the following at [58] (emphasis added):

[58]    The apparent purpose of s 500(6H) was to prevent applicants from manipulating the system in an attempt to delay deportation. The Explanatory Memorandum to the Bill that led to the enactment of s 500(6A)-(6L) of the Act stated that:

“These amendments are necessary in order to expedite review of decisions made by a delegate of the Minister under the new character provisions. The amendments balance the Government's concern to expedite review of character decisions against the need to ensure that the [Tribunal] has relevant information and sufficient time to properly review a particular decision to refuse to grant or to cancel a visa on the basis of a person's character.”

36    The majority then (at [59]) referred to Goldie at [25] and the illustration there given of how the purpose of s 500(6H) would be undermined by a late (unnotified) change in the applicant’s case which required that the Minister be given an opportunity to answer the changed case, necessitating an adjournment and thus delaying the expeditious determination of the applicant’s application for review.

37    As the majority observed in Uelese by reference to context, s 500(6H) should not be construed in a way that would restrict the Tribunal from ensuring that procedural fairness be accorded to the parties before it “beyond what is required by its terms”: at [57]. Those observations echo what French CJ, Gummow, Hayne, Crennan and Kiefel JJ said in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [25] that the imposition of limitations upon or the extinguishment of the obligation to accord procedural fairness requires a clear expression of legislative intent.

38    The question then is whether a clear expression of a legislative intent that the source of the information be the subject of the written notice required by s 500(6H) is discernible from the text, context and purpose of the provision.

39    The text of s 500(6H) would have clearly demonstrated the intent in question if, instead of the provision using the broad and unqualified expression “written statement”, it had said “written statement of the person presenting the information orally” or had made some other qualifying link or connection to the person through whom the information is to be presented orally.

40    It might be said that, on a fair reading of the provision, that kind of link or connection is impliedly made. However, the fact that something less than an obvious implication is required to demonstrate the particular parliamentary intent in question undermines the proposition that a clear expression of that intent is demonstrated. As does the fact that a literal reading of the provision, utilising the ordinary meanings of the words “information” and “statement” would result in the expression “information set out in a … written statement” meaning a written communication asserting particular facts about a situation, person or event, without any necessary reference to the source of the information communicated.

41    I reject the Minister’s contention to the effect that “statement” should be read as though it means “witness statement” because the concept of a witness statement is not foreign to the procedures of the Tribunal. Witness statements may well be a common means by which prior notice of information presented orally is given before the Tribunal. However, that is not exclusively the case. The rules and procedures of the Tribunal do not confine the reception of information presented orally to which the Tribunal may have regard to evidence given by a witness. To the contrary, s 33(1) of the AAT Act provides that the Tribunal is not bound by the rules of evidence and encourages that proceedings before the Tribunal be conducted with as little formality and technicality as the consideration of the matter before the Tribunal permits.

42    In that context, I would not construe, as the Minister’s submission did, the reference to “information presented orally” as suggesting that s 500(6H) only addresses witness evidence. The procedures of the Tribunal encourage information to be presented informally, for instance, by a party from the bar table. There is no warrant for construing the broad phrase “information presented orally” as confined to information presented through a witness giving evidence. The other submissions made by the Minister are also not persuasive.

43    Although, of themselves, text and context do not suffice to demonstrate a clear legislative intent that notice of the source of the information to be presented orally be given, they may do if sufficiently supported by the legislative purpose of the provision.

44    The purpose of the provision is to avoid manipulation of the system of review by an applicant for the purpose of delaying prospective deportation. A circumstance sought to be avoided is the need for a hearing to be adjourned because of the failure of the applicant to provide the Minister sufficient notice of information to be relied upon by an applicant.

45    In some but not all cases, the failure of an applicant to give notice of the source of information to be presented orally will undermine the sufficiency of the notice which is given of the content of the information. In some cases, the source of the information will be critical to the capacity of the Minister to properly answer the case to be put without the necessity of an adjournment of the hearing. In other cases, however, the Minister’s prior knowledge of the content of the information to be presented orally, without notice of its source, will not hamper the Minister’s capacity to properly answer the applicant’s case. An example of the former circumstance would likely include a situation where lay opinion which the Minister has notice of is sought to be corroborated by an expert of which the Minister has had no notice. An example of the latter circumstance may be where the Minister has written notice of an alleged fact or facts known to the applicant which the applicant seeks to corroborate through the evidence of a second person with knowledge of those same facts.

46    The apparent purpose of s 500(6H) supports an implication that where prior notice of the source of the information to be presented orally is critical to the sufficiency of the notice necessary to be given to the Minister to avoid the Minister being forced into calling for an adjournment of the hearing, that notice is required to be given. However, the apparent purpose of s 500(6H) does not support an implication that prior notice of the source of the information to be presented orally is always required.

47    When the text and context of s 500(6H) is understood by reference to the purpose of that provision, in my view, a clear legislative intent is demonstrated that notice of the information to be presented orally provides sufficient notice to the Minister of the source of the information, but only where notice of that source is critical to the sufficiency of the notice given.

48    In this case, the Tribunal construed s 500(6H) as always requiring that prior notice of the source of the information to be presented orally be given and, consequently, that the Tribunal must never have regard to information from a witness unless a written statement outlining the evidence and identifying the witness as its source has been provided to the Minister. For the reasons given, s 500(6H) does not so provide. It follows that the Tribunal misconstrued s 500(6H) and that jurisdictional error is established.

49    I should mention one further consideration which arises from a submission made by the Minister. The Minister suggested that impracticality would arise on the applicant’s construction. The Minister said that on the applicant’s construction, the Tribunal would have to go over large volumes of material retrospectively in order to identify whether the oral evidence was supported by a written statement.

50    However, practically speaking, that scenario is highly unlikely. It is far more likely that the Minister will raise insufficiency of notice as an objection to the reception of particular information just presented or about to be presented orally. The information in contest will thus be brought to the Tribunal’s attention by the parties. The Tribunal will not be required to search for it because, unassisted by the parties, the Tribunal will not know whether a written statement was given to the Minister at least two business days before the hearing.

51    A construction of s 500(6H) which, in terms of the sufficiency of notice required to be given by an applicant to the Minister, provided a clear answer in all cases should be preferred if, taking into account all other constructional considerations, such a construction is available. However, neither of the constructions in contest provide a clear answer in all cases. On either the Minister’s construction or the construction which I prefer, where the Minister raises the insufficiency of the prior notice of information given, the Tribunal will be called upon to determine the sufficiency of the notice which has been given by reference to the particular facts and circumstances of the case, including (noting the observations made by the majority in Uelese at [69] to [77]) by determining whether the grant of an adjournment to enable any deficiency to be cured is appropriate as an alternative to the Tribunal having no regard to the information in contest.

52    As to materiality, a majority of the High Court recently affirmed in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 that the onus of proof falls on the applicant to establish that the error of the Tribunal involved a “realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred”: at [2] and [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ); see also SZMTA at [48] (Bell, Gageler and Keane JJ).

53    At the end of the hearing, the applicant sought leave to file an affidavit of the applicant’s partner about what evidence she would have given to the Tribunal. The Minister opposed leave but conceded that he would suffer no prejudice that could not be remedied by an order for costs. In those circumstances, I grant leave. The evidence, which I accept, established that the applicant’s partner would have given evidence about a broad range of matters, including her relationship with the applicant, her children and how they might be affected if he were deported. This, coupled with the written statements before Tribunal to which the applicant adverted to (see above at [17]), was sufficient to demonstrate a realistic possibility that the applicant’s partner would have given evidence that the Tribunal was entitled to have regard to. That putative evidence was likely to be relevant to issues raised through the applicant’s evidence about which the Tribunal expressed doubts. In my view, it follows that there was a realistic possibility of the Tribunal making different findings and a different decision if it had received the evidence of the applicant’s partner.

54    Finally, it remains for me to determine the application for an extension of time pursuant to s 477A(2) of the Act. I accept that the applicant’s delay has been substantial and that the only justification offered for the delay was that the applicant did not have legal advice. Nevertheless, the Minister conceded that a late application would cause no prejudice to him, although it should be noted that the absence of prejudice is not sufficient: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). In the present case, the absence of prejudice is coupled with the merit of the application, which weighs overwhelmingly in favour of the applicant. Although only an impressionistic assessment is required, I have determined that the applicant should succeed. Accordingly, notwithstanding the delay, I find on balance that the merit of the application and the absence of prejudice establish that it is in the interests of the administration of justice that an order extending the period in which the applicant may make an application be granted.

55    Accordingly, I will make the orders sought by the applicant including an order that the Minister pay the applicant’s costs of the application. It is not apparent that the Minister has suffered any additional costs caused by the lateness of the applicant’s reliance upon the affidavit of his partner. I will nevertheless give the Minister leave to make an application for any costs thrown away by reason of the late filing of that affidavit.

Associate:

Dated:    28 July 2021