Federal Court of Australia

Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 945

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    The decision of the second respondent made on 13 November 2020 is set aside.

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

4.    The first respondent must pay the applicant's costs of the application for judicial review on a lump sum basis.

5.    On or before 4.00 pm on 25 August 2021, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the applicant's costs.

6.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the applicant's costs is referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant's Child (Subclass 802) Visa. The issues raised by the application are whether the Tribunal misunderstood the effect of s 500(6H) of the Act when it declined to hear evidence from the applicant's daughter at the hearing and, if so, whether that error was material to the Tribunal's decision and so a jurisdictional error.

2    For the following reasons, the Tribunal did, with respect, misunderstand the effect of s 500(6H), and that misunderstanding was material to the outcome. The decision must be set aside and the matter remitted to the Tribunal for determination according to law.

Background

3    The applicant, Mr Holloway, has lived in Australia for over twenty years, but has never become an Australian citizen.

4    In 2019 the first respondent (Minister) was required by s 501(3A) of the Act to cancel Mr Holloway's visa because he had a substantial criminal record and was serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against the law of a State.

5    Mr Holloway made representations in accordance with an invitation made to him under s 501CA(3) as to why the original decision to cancel the visa should be revoked. The representations referred to his two daughters in Australia, both of whom were (and are) under 18 years of age. Mr Holloway said that he planned to go back to Perth to be with the children and his partner, who is their mother. The representations described the impact on the children of any decision not to revoke the cancellation as being that they would be without a father, and said that they 'need their dad and have already been affected by my mistakes' (quote edited with minor corrections).

The Tribunal hearing

6    In 2020 a delegate of the Minister decided under s 501CA(4) of the Act not to revoke the cancellation decision. Mr Holloway applied to the Tribunal for review of that decision. On 26 and 27 October 2020 the Tribunal held a hearing. At the hearing, Mr Holloway gave evidence about his relationship with his daughters.

7    Mr Holloway relies on a passage from the transcript which, he says, shows that the Deputy President who was conducting the hearing misunderstood s 500(6H) of the Act. The passage was, in effect, part of Mr Holloway's evidence in chief, which the Deputy President elicited as Mr Holloway had no legal representation. The passage concerned a former employer of Mr Holloway named Passan Atooi. One of the criminal offences in Mr Holloway's record was breaking and entering a workshop owned by Mr Atooi and stealing some tools. In the course of some questioning from the Deputy President about the offence, Mr Holloway said that he had Mr Atooi's phone number and seemed to suggest that the Deputy President could contact him. The point of doing so, according to Mr Holloway, would be to establish that the tools stolen were not worth $60,000. That suggestion was based on a misunderstanding of the charge, which in fact was that the goods stolen were worth less than or equal to that amount.

8    Later, during Mr Holloway's cross-examination, the Deputy President asked for Mr Atooi's phone number. Mr Holloway gave it to him. The Deputy President indicated that his associate would make inquiries to see whether Mr Atooi would be available to be asked some questions. Counsel for the Minister before the Tribunal referred to 'the two day rule that does prevent the Tribunal taking into account information that wasn't provided in advance of the hearing'. This appears to have been a reference to s 500(6H) of the Act, which provides as follows:

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.

9    Counsel for the Minister described the effect of the section to the Tribunal as follows:

The tribunal must not have regard to any oral information submitted in support of an applicant's case unless the information was given to the minister in writing at least two business days before the hearing.

10    In response to that, the Deputy President said, 'All right. Well there's probably not much point ringing Mr Passan [sic] then. I wasn't aware of that particular provision of the Migration Act'.

11    Later, towards the very end of the hearing, after counsel for the Minister had finished her closing submissions, Mr Holloway said:

One thing I've got to ask, Deputy President, is my daughter has just contacted me, and she asked if she - if you wanted to speak to her?'

Mr Holloway's uncontested evidence in this court is that the daughter he was referring to was his eldest daughter, whom I will call K. She was at that time 15 years of age.

12    The Deputy President who was conducting the hearing replied:

No, unfortunately because of the provisions of legislation I can't take into account anything that - of which there hasn't been 48 hours' notice in writing.

The Tribunal's decision

13    By force of s 499 of the Act, Ministerial Direction No. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Cth) required the Tribunal, in deciding whether to revoke the cancellation, to treat the best interests of minor children in Australia as a primary consideration and to make a determination about whether revocation was in the best interests of the child: paras 13(2)(b) and 13.2. The Tribunal did so in its written reasons for decision of 13 November 2020. Before doing so it considered the question of the protection of the Australian community, as it was required to do under paras 13.1(1) and (2) of the Direction. The Tribunal found his offending to be very serious including assaults against women in situations of domestic violence: para 36. On the subject of the risk to the Australian community, the Tribunal accepted that Mr Holloway is now genuinely remorseful for his behaviour (para 40) and that there were prospects of rehabilitation, although because of Mr Holloway's imprisonment, those prospects had not been tested in the broader Australian community: para 44. It acknowledged a range of matters that lowered the risk of reoffending (para 54), although it also set out matters which tended to indicate increased risk: para 55. The Tribunal concluded that there remained an ongoing risk that Mr Holloway would reoffend, including offences of violence and domestic violence, which could result in harm to members of the Australian community: para 56.

14    Then, after setting out Mr Holloway's oral evidence about his relationship with his children, which was given in cross-examination, the Tribunal made the following findings about their best interests:

61.    As can be seen from the evidence set out above, the Applicant has had very little to do with his children until July of this year and that contact has been by remote means and could continue on the same basis from Canada.

62.    The eldest child lives in Perth with her boyfriend and the yougest [sic] lives in Perth with her mother and aunt. The Applicant stated [sic] would leave the living arrangements as they are, at least in the short term, although he notes that they could live with his father.

63.    However, to date the relationship has been fragmented and of limited duration.

64.    Bearing in mind that it is only three and six years before the children turn 18 and neither would be living with the Applicant, at least in the short term, I find that the Applicant would play a limited parental role which although potentially positive could degenerate should he recommence his substance abuse.

65.    It is difficult to gauge the effect upon the children of any separation, especially as no evidence was provided by the children or their mother. However, contact could be maintained in the same manner as it has been since he regained contact with his children.

66.    As has been the case for many years, care is provided for the children by other members of a large and extended family.

67.    Despite the fact that the Applicant had very little to do with his children for many years, there now appears to be a strong bond between them and also with the Applicant's parents.

68.    In the Applicant's submission to the delegate, he indicated that he intended on residing with his children but this appears to be impractical at least in relation to the eldest child.

69.    However, considering all the matters set out above, on balance I find it is in the best interests of the Applicant's two minor children for the decision to be revoked.

15    The Tribunal's observations on the primary consideration of the expectations of the Australian community were brief and to the effect that despite Mr Holloway's apparently genuine remorse and good intentions, in view of Mr Holloway's history of domestic violence against women, the Australian community would expect that he should not be allowed to remain in Australia: para 72.

16    The Tribunal also considered, as an 'other consideration' made mandatory by the Direction, the strength, nature and duration of Mr Holloway's ties to Australia. It found that he and his family would experience emotional hardship should he not be allowed to remain in the country: para 79.

17    In its ultimate conclusion, the Tribunal decided that Mr Holloway presented an unacceptable risk of harm to the Australian community and that the primary considerations of the protection of and expectations of the community outweighed the best interests of the children and other relevant considerations. Hence the Tribunal affirmed the delegate's decision not to revoke the cancellation of the visa.

The ground of judicial review

18    Mr Holloway seeks judicial review of the Tribunal's decision on the sole ground that it made a jurisdictional error by failing to complete its statutory task due to a misunderstanding of s 500(6H) of the Act. The misunderstanding is said to have resulted in the Tribunal refusing to hear K's evidence and so failing to consider her best interests, which, Mr Holloway says, could realistically have resulted in a different decision.

19    Counsel for the parties were agreed on the proper framework of analysis for this ground. The first issue is whether the Tribunal did misunderstand the preclusory effect of s 500(6H), specifically whether the Deputy President thought that the absence of any written statement of K's evidence precluded the Tribunal from eliciting evidence from K, as distinct from Mr Holloway eliciting that evidence himself. In reliance on Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203, Mr Holloway submitted that, in so directing itself, the Tribunal went further than the prohibition in s 500(6H). The Minister did not dispute Mr Holloway's submission as to the effect of Uelese but, as will be seen, he did dispute its applicability to the proper characterisation of the circumstances in this case.

20    Mr Holloway's counsel drew an analogy between the misunderstanding he alleged in this case, and the one which the Full Court found affected the decision of the Assistant Minister in Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12. In Ibrahim, the Assistant Minister incorrectly thought that s 501BA(3), which provides that the rules of natural justice do not apply to a decision made under s 501BA(2), obliged him not to accord natural justice. In fact, while he was not required to accord natural justice, he could provide it if he wished, relevantly by inviting the applicant to make a submission. Significantly for the present case, the Full Court rejected an argument that the capacity to invite submissions was 'extra-statutory', and so did not need to be considered in deciding whether there had been a constructive failure to exercise the decision making power under s 501BA(2). The Full Court characterised it, rather, as an incident of the decision making power under that provision: see Ibrahim at [23]-[26].

21    Similarly, here, the Tribunal's capacity to speak to K, if it wished, was an incident of its decision making power under s 501CA(4). Counsel for the Minister here did not dispute the analogy with Ibrahim and I accept that it is apt. So I will proceed on the basis that if the Tribunal did approach the review with a misunderstanding of the law about whether it could speak to K, that would be a jurisdictional error, if material.

22    That takes the analysis to the second issue before the court, concerning materiality in the sense explained in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17. As will be seen, counsel for the Minister broke the materiality analysis down into four parts. But for the moment it is enough to say that the ultimate question for the court on this issue, assuming the first issue is resolved in Mr Holloway's favour, is whether there was a realistic possibility that if the Tribunal had understood that it was able to receive evidence from K, its decision could have been different: SZMTA at [48]-[49].

The parties' cases in this application for judicial review

23    Before considering the parties' respective positions on these issues, it is convenient to record three matters that were not in issue before the court. The first is that Mr Holloway did not contend that the Tribunal had an obligation to elicit evidence from K. His counsel accepted that it may have been open to the Tribunal to decide, in controlling its own procedures, that it should not do so. It is enough, in counsel's submission, that there was a realistic possibility that it could have decided to elicit the evidence. The second matter not in issue, related to the first, is that Mr Holloway advanced no case that, in declining to speak to K, the Tribunal failed to make an obvious inquiry about a critical fact and so failed to discharge its statutory duty to review: cf. Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]. The third matter not in issue is that Mr Holloway did not advance any case that the Tribunal erred by failing to adjourn the hearing so as to give him time to submit a written statement of K's evidence at least two business days before the reconvened hearing.

24    Mr Holloway's case in this court is that the Tribunal declined to hear any evidence from K because it misunderstood the extent to which s 500(6H) prevented it from having regard to such evidence. The essential basis of that submission is that the Tribunal's statement that it could not take into account anything of which there had not been 48 hours' notice in writing was incorrect. Section 500(6H), according to Mr Holloway, only precludes the Tribunal having regard to evidence elicited 'in chief' in support of an applicant's case.

25    Mr Holloway's counsel sought to bolster the inference that the Tribunal was mistaken by reference to some additional factors. He pointed to the Deputy President's comment (quoted at [10] above) in relation to the possibility of speaking to Mr Atooi that he, the Deputy President, had not been aware of s 500(6H). And he relied on the Tribunal's acknowledgement in its reasons that it was difficult to gauge the effect of separation on the children since they had given no evidence, this betraying no awareness of the possibility that the Tribunal could have elicited the evidence itself.

26    As to materiality, Mr Holloway relied on the same acknowledgment which, he submitted, indicated that the Tribunal would have been willing to elicit such evidence itself if it had correctly understood that it could do so. Mr Holloway pointed out that the Tribunal had been willing to contact Mr Atooi, before being persuaded that it could not. And that was in relation to an issue of less importance than the interests of Mr Holloway's children, namely whether the tools which Mr Holloway stole were worth $60,000. So if the Tribunal had not misunderstood the position in relation to the more important evidence of K, it would probably have been willing to speak to her. And if it had, it was possible that her evidence would have made a difference to the outcome. Mr Holloway relied on an affidavit from K in which she said that she was willing and able to give evidence at the Tribunal hearing. According to the affidavit, had she given evidence she would have said, in several different ways, that she and her younger sister needed their father in their lives and that separation from him would be devastating. Mr Holloway submitted that the Tribunal would have been likely to have placed weight on that evidence, given that it would have been elicited by the Tribunal itself.

27    The Minister did not contend that s 500(6H) precluded the Tribunal from eliciting evidence from K itself. But he submitted that this was not the correct characterisation of what Mr Holloway was proposing when he invited the Tribunal to speak to K. Rather, Mr Holloway was proposing to put forward the evidence of K in support of his case; something that s 500(6H) did preclude. He was prompting the Tribunal to call K as a witness, and so asking to lead evidence in support of his case. So this case is different to Uelese, where the information to which the Tribunal failed to have regard came out during cross-examination of one of the applicant's witnesses. Also, as counsel for both parties pointed out, in its reasons the Tribunal did rely on evidence elicited from Mr Holloway in cross-examination, and so it did not commit the particular error which was the subject of Uelese.

28    The Minister submitted that to permit an applicant to put forward a witness in this way would be to circumvent the purpose of s 500(6H). That is so even acknowledging that the effect of Mr Holloway's statement as quoted at [11] above was to relay a question from K as to whether the Tribunal wanted to speak to her. It would still have been, to use the words of the section, 'information presented orally in support of [Mr Holloway's] case'. Properly understood, it was not the Tribunal calling K of its own motion. And it was evidence which might take the Minister by surprise and require an adjournment so that he could deal with it. So, the Minister submitted, in declining the invitation the Tribunal did not proceed on any misunderstanding of the section. Similarly, the Minister submitted, the earlier proposal to speak to Mr Atooi came from Mr Holloway, so the Tribunal should not be taken to have misunderstood s 500(6H) in concluding that it could not speak to him.

29    As for materiality, the Minister submitted that the nature of the evidence which K said in her affidavit she would have given was no different to the evidence that Mr Holloway himself had given, namely that he had reconnected with his daughters and that it would be an emotional burden on them if the cancellation of his visa was not revoked. The Minister said that K's evidence was general in nature. The Tribunal's ultimate conclusion on the best interests of the children was that they weighed in favour of revoking the cancellation of the visa. Taking into account the Tribunal's findings about the serious nature of Mr Holloway's crimes and the best interests of the Australian community, there was no realistic possibility that K's evidence could have led to a different outcome.

Did the Tribunal fall into error?

30    The first issue is whether the Tribunal fell into error by misunderstanding the preclusory effect of s 500(6H). As has been explained, if it did, and if that was material, it would be a jurisdictional error.

31    The error is asserted to appear principally from things said at the Tribunal hearing. It is necessary to construe those statements objectively, in all their context, to determine whether they do disclose error, either expressly appearing on the face of the transcript or inferred. The material points which emerge from the description of the hearing given above are:

(1)    The Deputy President had been willing to accede to a suggestion from Mr Holloway that evidence be received from Mr Atooi. But when counsel for the Minister put to the Deputy President a paraphrase of s 500(6H) which was largely accurate, the Deputy President said there was not much point telephoning Mr Atooi then, and said he had not been aware of that provision of the Act.

(2)    The subject of speaking to K was raised after the Minister's closing submissions and just before the Deputy President, in effect, invited Mr Holloway to say anything in reply. Mr Holloway raised the subject by relaying K's question as to whether the Deputy President wanted to speak to her.

(3)    The Deputy President responded in the negative and expressed the reason in broad terms to the effect that the legislation prevented him from taking into account 'anything … of which there hasn't been 48 hours' notice in writing' (emphasis added).

32    Taking all these circumstances together, I infer that the Deputy President, having previously been unfamiliar with s 500(6H), having reached the conclusion that it precluded the Tribunal contacting a different witness itself, and having stated the preclusory effect of the provision in wide terms, considered that s 500(6H) did prevent the Tribunal from speaking to K, because no written statement setting out her evidence was given to the Minister at least two business days before the hearing. And yet Mr Holloway's question, which in fact passed on a question from K, did not necessarily entail (to adapt the words of the section) that the information that would have been presented orally would have been in support of Mr Holloway's case. It was more open ended that that, and its ordinary meaning was to suggest that the Tribunal speak to K for the purpose of eliciting such information from her as it considered relevant and appropriate.

33    While it may be inferred that Mr Holloway expected that information to be favourable to his case, it would not necessarily have been so. For example, the Tribunal could have asked K whether she had been adversely affected by the incident of domestic violence against K's mother of which Mr Holloway had been convicted and which he did not dispute. K's answers may have been unfavourable to Mr Holloway's case. This possibility exposes the fallacy of any assumption that K's evidence as elicited by the Tribunal would necessarily have been 'information presented orally in support of the person's case' within the meaning of s 500(6H).

34    It is, however, necessary to assess that view in light of the Minister's submission that to characterise Mr Holloway's request as a mere invitation to the Tribunal to use its own power to elicit information would be to permit s 500(6H) to be circumvented. This is not, in the end, a submission about the factual conclusion reached about the meaning of the exchange between Mr Holloway and the Deputy President about speaking to K. It is a submission about the scope of the words from s 500(6H) which I have just quoted. It is to the effect that when an applicant for revocation of the cancellation of a visa invites the Tribunal to speak to a witness with the expectation that the witness's evidence will be favourable to the applicant's case, the evidence that results is 'information presented orally in support of the person's case' within the meaning of s 500(6H).

35    Determining whether that is so requires close attention to Uelese, where the High Court elucidated the meaning of the key phrase from s 500(6H). As counsel for the Minister submitted, the facts in that case were different to this matter. Mr Uelese's case before the Tribunal had been put on the basis that he was the father of three minor children but, in the oral evidence of the mother of those children, it emerged that he was also the father of two younger children by a different mother. The Tribunal considered that s 500(6H) precluded consideration of the interests of those children. In determining that this was an error, French CJ, Kiefel, Bell and Keane JJ (at [5]) summarised their conclusion as being that the section 'does not preclude the consideration of information which is not presented by or on behalf of an applicant for review as part of his or her case'. In the case before their Honours, the information had been elicited by questioning during cross-examination. Whether it was elicited by questions from the Minister's representative or from the Tribunal was not clear, but not considered material: Uelese at [22].

36    Their Honours held (at [43], emphasis in original) that s 500(6H) was 'directed, in terms, at information presented orally in support of an applicant's case. It is not directed at any information, however that information may come before the Tribunal'. At [44] their Honours drew a contrast between 'the active presentation of the case propounded by an applicant for review' and 'the process of eliciting information under cross-examination' and observed that:

It is distinctly to strain the language of s 500(6H) to say that 'information presented orally' in support of the case made by an applicant for review includes information elicited by the Minister's representative or by the Tribunal itself in the course of cross-examination of a witness called by the applicant.

37    Excluding information that is elicited after a suggestion by a potential witness, where that suggestion is communicated by the applicant, may not strain the language as much. But in my view other aspects of the joint judgment in Uelese indicate that if the Tribunal were to proceed to elicit such information after a suggestion of that kind, it would not circumvent the effect and purpose of s 500(6H). The joint judgment noted (at [54]) that s 500(6H) does not expressly limit the power of the Tribunal to conduct a review or authorise it to give less than the proper consideration of the matters before it that is required by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Their Honours held (at [57]) that the section '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' and implicitly eschewed a construction which would limit specific powers of the Tribunal found in the Administrative Appeals Tribunal Act, including s 33(1)(c), which allows the Tribunal to 'inform itself on any matter in such manner as it thinks appropriate'.

38    Turning to the apparent purpose of s 500(6H), their Honours said (at [58]) that it was 'to prevent applicants from manipulating the system in an attempt to delay deportation'. But at [59] they held (footnote removed):

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

It may be that in the context of the facts before the High Court, the reference to 'inquiry by the Tribunal itself' is a reference to inquiry made during cross-examination. But in the last sentence their Honours are making a broader point, that the imperative of preventing an applicant from manipulating the review process does not prohibit the Tribunal from eliciting such information as it considers appropriate.

39    The joint judgment went on to hold (at [70]) that s 500(6H) does not fetter the power of the Tribunal to grant an adjournment to ensure that its review is conducted thoroughly and fairly. In the course of explaining that conclusion, their Honours held (at [72]) that the section 'does not, on any view of its language, deny an applicant an 'entitlement' to rely upon evidence adduced by the Minister or elicited by the Tribunal itself, if that evidence happens to be supportive of the applicant's case'. At [73] they held that '[n]othing in the text of s 500(6H) warrants the imposition of a rigid limit upon the otherwise flexible power of the Tribunal to ensure that the proceedings before it are conducted fairly to all parties'.

40    At [75] their Honours said of concerns about the tactical approach that applicants might take:

It was argued by the Minister that applicants for review might cynically withhold oral evidence in order to have it presented later in the course of a hearing so as to precipitate an adjournment with its attendant delay. It may be noted immediately that delaying tactics of this kind would expose an applicant to the risk of a deemed affirmation of the decision under review by operation of s 500(6L). Section 500(6L) provides that, if the Tribunal has not made a decision upon the review within eighty-four days after the day on which the applicant was notified of the decision under review, the Tribunal is taken, at the end of that period, to have decided to affirm the decision under review.

41    And at [77] their Honours said:

Section 500(6H) should not be given an operation beyond that warranted by its language in order to pre-empt the hypothetical possibility that the Tribunal might grant adjournments, supinely or unreasonably, to an applicant seeking to take cynical advantage of surprises occasioned by information introduced late in support of his or her case.

42    Nettle J gave a concurring judgment.

43    Uelese shows that any concern that an applicant might seek to circumvent the effect of s 500(6H), by withholding information until after their case has been presented and then prompting the Tribunal to elicit that information, is misplaced. That concern does not provide a firm foundation for reading the section so as to prevent the Tribunal from acting on invitations of the kind which Mr Holloway made to the Deputy President here. It is true that if the Tribunal does act on such an invitation, it will not be acting entirely of its own initiative: cf. Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482 at [101]. But whatever evidence is elicited in answer to questions by the Tribunal will not be information presented by the applicant as part of his case in chief: see Jagroop at [101].

44    In Uelese the joint judgment was at pains to make it clear that s 500(6H) does not limit the obligations and ordinary procedural powers of the Tribunal in the conduct of its hearings, beyond the limitations required by its text. That includes the Tribunal's power to inform itself on any manner as it thinks fit: s 33(1). The Tribunal is equipped to deal with suggestions that it inform itself by speaking to a particular person in the manner that is appropriate in all the circumstances, just as it is equipped to deal with requests for adjournments.

45    It follows that I am satisfied, with respect, that in appearing to direct itself that s 500(6H) prohibited it from taking into account anything of which there had not been 48 hours' written notice, the Tribunal conducted its review on the basis of a misunderstanding of the applicable law. If that misunderstanding was material, the Tribunal fell into jurisdictional error.

Was the error material?

46    Counsel for the Minister broke the materiality analysis down into four matters which Mr Holloway was required to establish. They were:

(1)    If the Tribunal had not made the error, it could realistically have called K to give evidence.

(2)    If that step is made out, it could realistically have occurred that K would have given the evidence she says in her affidavit that she would have given.

(3)    That evidence could, realistically, have affected the assessment of the best interests of K (or, I would add, the interests of her younger sister).

(4)    That assessment of the best interests of the children could, realistically, have affected the ultimate outcome.

47    Counsel for Mr Holloway did not dispute the way his opponent broke the analysis down, so I will approach the question of materiality on that basis. However, counsel for the Minister correctly disavowed any suggestion that the probabilities had to be assessed iteratively in a mathematical way at each of those four stages. He accepted that ultimately the task of the court is to make a qualitative evaluation as to whether there was, in all the circumstances, a realistic possibility that the ultimate outcome of the review could have been different. He also accepted, correctly, that Mr Holloway does not have to establish on the balance of probabilities that the Tribunal would have received evidence from K had it proceeded on a correct understanding of the law or that this would have led the Tribunal to a different outcome. All he has to establish is that the error was material in the sense just explained, because if the Tribunal had not misunderstood the effect of s 500(6H), that could realistically have resulted in a different decision: see SZMTA at [45].

48    In MZAPC at [38], the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) described how the materiality of a breach of a statutory condition is to be determined (footnotes removed):

The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred - as distinct from what would have occurred - had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

49    The first part of this analysis - determining how the Tribunal's decision was in fact made - is not in issue here. The Tribunal made findings about the best interests of K and her sister without receiving any evidence from them or their mother about the impact of separation from Mr Holloway. The absence of that evidence was sufficiently significant to the process of the Tribunal's decision to be expressly mentioned in its formal reasons, albeit the Tribunal immediately went on to say that Mr Holloway could maintain contact with the children if he was removed: see para 62 quoted at [14] above. Nevertheless, the Tribunal was able to find that there was a strong bond between Mr Holloway and the two children and that it was on balance in the best interests of the children to revoke the decision to cancel the visa. As has been described above, the other primary considerations outweighed this in the Tribunal's conclusion.

50    As for the counterfactual, several matters indicate that there was a realistic possibility that each of the four steps articulated above could have happened. The Deputy President had been willing to speak to Mr Atooi, a witness of only peripheral significance, before he was persuaded that s 500(6H) precluded that. It can be inferred that it is quite possible that he would have spoken to K, a witness able to give evidence going directly to the primary mandatory consideration of the best interests of Mr Holloway's minor children. A desire to do so is also implicit in the explanation the Deputy President gave for declining K's inquiry as to whether he wanted to speak with her. The Deputy President gave no reason other than his understanding that the section meant that he could not take any evidence from her into account.

51    As for the evidence that K would have given, that would have depended in part on what the Deputy President asked her. But her affidavit sets out a number of things relevant to the Tribunal's decision which she would have said, she was not cross-examined on the affidavit, and there is no reason to doubt that at least some of those things would have come out in questioning from the Tribunal. That means there is no need for conjecture as to the second of the four steps articulated by counsel for the Minister.

52    The third and fourth steps call for more difficult evaluative judgments. Could K's evidence, realistically, have affected the assessment of her best interests or those of her younger sister? I am ultimately persuaded that it could have. It is true, as the Minister submitted, that the factual content of what K could have said was not greatly different from evidence which Mr Holloway had himself given. But that is not the end of the matter. The Tribunal was required to make an assessment of the likely emotional and psychological impact of separation from Mr Holloway on K and her sister. There was a real chance that hearing about that from K herself, in her own words, could have impressed the Tribunal with a greater appreciation of the weight to be placed on the interests of the children than it in fact took away from the evidence of the father who, admittedly, had been absent for much of their lives.

53    That could have led to one of the primary considerations having greater weight in the Tribunal's deliberations. This takes the analysis to the fourth of counsel's steps: could that realistically have affected the outcome? In my view it could. While the Tribunal found Mr Holloway's offending to be very serious, it also accepted that his remorse was genuine, that there were prospects for rehabilitation, that there were factors which reduced the risk of reoffending, and that he had real bonds of affection with his family in Australia. To the extent that the Tribunal placed weight on any single factor, it did not do so in emphatic terms. The court must not itself weigh up the different factors but it can find that, in light of the way the Tribunal did approach them, there was a realistic possibility that eliciting evidence from K could have led to a different outcome. I am satisfied of that in this case.

Conclusion

54    It follows that the Tribunal fell into jurisdictional error and its decision must be set aside. Mr Holloway sought a direction that the matter be remitted to a differently constituted Tribunal, but there is no suggestion in the evidence, or in the nature of the error, that the deliberations of this particular Deputy President will be affected by bias if he is seized of the matter again. The constitution of the Tribunal on remitter is a matter for the Tribunal. The Minister must pay Mr Holloway's costs of the application for judicial review. It is appropriate to fix those cost on a lump sum basis.

Associate:

Dated:    12 August 2021