Federal Court of Australia

YYZQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 919

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

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

REASONS FOR JUDGMENT

KATZMANN J:

1    The applicant is an Indian national who has lived in Australia for the past 14 years. Most recently he held a Bridging C (Class WC) (subclass 030) visa until it was cancelled on 9 December 2020 by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) because the delegate was satisfied that the applicant did not pass the “character test” due to his “substantial criminal record”, having previously been sentenced to a term of imprisonment of 12 months and because at the time of the decision he was serving a sentence of imprisonment on a full-time basis in a custodial institution. A delegate of the Minister was not persuaded to revoke the cancellation decision and the Administrative Appeals Tribunal affirmed the delegate’s decision.

2    This is an application for judicial review of the Tribunal’s decision. The applicant seeks an order that the Tribunal’s decision be quashed, a writ of mandamus directed to the Tribunal to require it to determine his application according to law, an injunction restraining the Minister or his Departmental officers, delegates or agents from making any future decision or taking other action the subject of the proceedings, and an order that the Minister pay his costs.

3    For the reasons that follow, the application must be dismissed.

Background

4    The applicant arrived in Australia in 2008 on a student visa. He was 22. His father and younger sister live here. His mother and brother remain in India. Since August 2010, he has held a series of bridging visas. While living in the community, he sourced employment as a meat packer, truck driver and Uber driver.

5    In 2011 the applicant married a Christian woman in 2011. The marriage ended in divorce. He met his second wife, who is an Australian citizen, in mid-2018. They married in 2019. She gave birth to a daughter in January 2020. The applicant and his second wife have since separated and are engaged in family law proceedings.

6    The applicant has been convicted of several offences while in Australia.

7    On 8 November 2018, he was convicted in the Local Court of New South Wales of a high range drink driving offence and was sentenced to a term of imprisonment of 12 months to be served by way of an ICO. He had previously been convicted of the same offence in 2010.

8    On 12 September 2019, the applicant was convicted in the Local Court of “Destroy or damage property (DV)” and was sentenced to a 12 month conditional release order (CRO) without a conviction being recorded. The applicant breached the terms of the CRO and on 12 November 2020 it was revoked and he was re-sentenced to a four-month community correction order.

9    Also on 12 November 2020, he was convicted in the Local Court of four counts of contravening an apprehended violence order (AVO), one count of common assault (domestic violence), and one count of “[s]talk/intimidate intend fear physical etc harm (domestic)”. He was sentenced to an aggregate term of eight months imprisonment. According to the magistrate’s sentencing remarks, these offences were committed against his second wife and all were “alcohol related incidents”.

10    On 9 December 2020, while the applicant was serving his term of imprisonment, a delegate of the Minister cancelled his visa under s 501(3A) of the Act. As noted above, this was because the delegate was satisfied the applicant met both s 501(3A)(a) and (b) because of his offending. Ten days later, the applicant made representations to the Minister’s department (Department) in support of the revocation of the cancellation decision.

11    On 20 April 2021 and 17 May 2021 the applicant was invited to make further representations addressing, amongst other things, the sentencing remarks, the refusal of his protection visa, and the considerations contained in the new Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 90). The applicant made representations in response to these invitations in June and July 2021.

12    On 21 September 2021 a delegate refused to revoke the cancellation decision. The delegate was not satisfied the applicant met the character test or that there was “another reason” why the decision should be revoked for the purposes of s 501CA(4).

13    On 26 September 2021 the applicant lodged an application for review of the delegate’s decision with the Tribunal.

The legislative scheme

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

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.

15    A person will not pass the “character test” if the person has a substantial criminal record: s 501(6)(a). “Substantial criminal record” is relevantly defined in subs (7)(c) to mean “the person has been sentenced to a term of imprisonment of 12 months or more”. “Imprisonment” is defined in subs (12) to include “any form of punitive detention in a facility or institution” and “sentence” is defined to include “any form of determination of the punishment for an offence”.

16    The rules of natural justice do not apply to a decision under s 501(3A): s 501(5).As soon as practicable after a decision is made under s 501(3A), however, the Minister must give the person a written notice that sets out the original decision and particulars of the relevant information and invite the person to make representations to the Minister about revocation of the original decision: s 501CA(3).

17    Section 501CA(4) provides:

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.

18    The Minister’s power under s 501CA(4) is a broad discretionary one: Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 94 ALJR 897; 383 ALR 194 at [36] (Nettle, Gordon and Edelman JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 96 ALJR 13; 395 ALR 403 at [12] (Keane, Gordon, Edelman, Steward and Gleeson JJ). What is “another reason” is a matter for the Minister and there are a “few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii)”: Viane at [13]. Where, however, the representations are clearly articulated or clearly arise on the materials, the Minister must “read, identify, understand and evaluate” them: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24]–[25] (Kiefel CJ, Keane, Gordon and Steward JJ).

19    The Minister must also have regard to the primary and other considerations set out in Direction 90. This direction was made under s 499 of the Act and must be complied with by a person (such as a delegate of the Minister) or body (such as the Tribunal) exercising powers under s 501CA: s 499(2A).

20    Clause 8 of Direction 90 provides that the primary considerations for a decision maker exercising powers under s 501CA(4) are: the protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the best interests of minor children in Australia; and the expectations of the Australian community. Clause 9 provides that the “other” considerations are: international non-refoulement obligations; the extent of impediments if removed; the impact on victims; and the links to the Australian community, including the strength, nature and duration of ties to Australia and the impact on Australian business interests.

21    In applying the considerations, the primary considerations should “generally be given greater weight than the other considerations” and “[o]ne or more primary considerations may outweigh other primary considerations”: Direction 90, cl 7(2) and (3).

22    Applications for merits review of a decision made by the Minister under s 501CA(4) may be made to the Tribunal: s 500(1)(ba).

23    Sections 500(6A) to (6L) set out an expedited review process to be conducted by the Tribunal for former visa holders in the migration zone. The former visa holder must lodge an application for review with the Tribunal within nine days of being notified of the decision:  500(6B). Within 14 days of being notified of that application, the Minister must lodge with the Tribunal a copy of every document in the Minister’s possession or control which was relevant to the making of the decision: s 500(6F).

24    Commonly referred to as the “two day rule”, s 501(6H) and (6J) provides that the Tribunal may not have regard to any oral evidence or document submitted in support of an applicant’s case unless the document (or in the case of oral evidence, a written statement setting out the information) is provided to the Minister at least two business days before the hearing.

25    In reviewing the decision, the Tribunal may exercise all the powers and discretions that are conferred on the Minister under s 501CA(4) and may decide to affirm, vary or set aside the decision under review: Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), s 43. That is, the Tribunal must “stand in the shoes” of the Minister and “determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers”: Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ).

26    If, within a period of 84 days after the former visa holder was notified of the decision, the Tribunal has not made a decision, s 500(6L) deems the decision under review to have been affirmed.

27    There is no right to appeal from a Tribunal decision: s 474. The applicant is limited to seeking judicial review under s 39B of the Judiciary Act 1903 (Cth) and the relief he seeks can only be granted if he can persuade the Court that the Tribunal fell into jurisdictional error.

The Tribunal’s decision

28    The matter was heard by the Tribunal over two days in November 2021.

29    The Tribunal noted that, at the commencement of the hearing, the applicant drew attention to emails which had been sent to the Department but had apparently not been included in the bundle of documents provided by the Minister under s 500(6F) (at [5]). The material consisted of emails and attachments sent to the Department by the applicant’s sister in June and July 2021. The hearing proceeded on the basis that the Minister had, in fact, received the materials at the time and therefore the Tribunal was not restricted from considering that evidence under the “two day rule” under s 501(6J) of the Act (at [6]).

30    The applicant also sought to rely on other material at the hearing, including an affidavit of his solicitor and material relating to his family law proceedings. The Tribunal did not admit this evidence on the basis that it fell foul of the two day rule (at [7]).

31    The Tribunal was satisfied that the applicant did not pass the character test on the basis that he had been sentenced to a 12-month term of imprisonment, albeit not involving a sentence of imprisonment in a custodial institution, applying Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 and Ali v Minister for Home Affairs (2019) 269 FCR 340 (at [32]). The Tribunal referred, in particular, to the observation of Rares J in Brown at [7]:

The structure of s 501 recognises that there are varying degrees of punishment sufficiently serious to amount to a substantial criminal record for the purposes of ss 501(6)(a) and (7). The definitions of “imprisonment” and “sentence” in s 501(12) are in the inclusive form; that is, each definition elucidates but does not limit the ordinary and natural meaning of the word. A sentence of imprisonment for not less than 12 months that is wholly suspended is a very serious penalty. The focus of ss 501(7)(c) and (d) is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be, or subsequently may be, served.

32    That was uncontroversial.

33    In applying the primary considerations under Direction 90, the Tribunal found that the domestic violence offences (including breaching the AVO and the property damage offence) were very serious, particularly as his wife was pregnant at the time of the assault (at [48]–[49]). The Tribunal also considered the drink driving offences to be serious (at [53]).

34    The Tribunal considered the report of a forensic psychiatrist and evidence regarding rehabilitation programs the applicant had engaged in, but considered there to be a moderate chance of him engaging in violent conduct in future, and more than a reasonable chance of future drink driving (at [70]–[71]). The Tribunal therefore found that the protection of the Australian community weighed strongly against revocation (at [78]).

35    The Tribunal also found that the consideration relating to “family violence committed by the non-citizen” weighed heavily against revocation (at [86]), as did the expectations of the Australian community (at [108]). The Tribunal found that the best interests of the child weighed slightly in favour of revocation, but gave this consideration limited weight given the applicant’s limited involvement in the lives of his child and nephews and the fact of his separation from his wife (at [100]).

36    In relation to the “other” considerations under Direction 90, the Tribunal gave neutral weight to international non-refoulement obligations, noting that the applicant had made an application for a protection visa which had been refused and there was an application for review pending before the Migration and Refugee Division of the Tribunal (at [123]).

37    The Tribunal found that the extent of impediments if the applicant were removed and the strength, nature and duration of his ties to Australia weighed slightly in favour of revocation (at [134] and [145]).

38    Balancing these considerations, the Tribunal was not satisfied there was another reason the cancellation decision should be revoked, and affirmed the decision under review (at [153]).

The application for review

39    The applicant’s grievances relate to the Tribunal’s treatment of two classes of documents. The first consisted of the documents that the Tribunal refused to receive, which I shall call the excluded documents. The second consisted of documents to which the applicant alleges the Tribunal did not have regard. Those documents were provided to the Department before the delegate’s non-revocation decision and emailed to the Tribunal on the morning of the hearing but which had not been put before the delegate. I shall call these documents the non-excluded documents.

A preliminary and insuperable obstacle

40    Before addressing the applicant’s grievances, it is necessary to confront a fundamental problem with the application itself.

41    Section 477A(1) of the Act stipulates that an application to this Court for a remedy to be granted in the Court’s original jurisdiction under s 476A(1)(b) or (c) in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision. The Court’s jurisdiction in this case is conferred by s 476A(1)(b). The Tribunal’s decision is a “migration decision” within the meaning of that term in s 5(1).

42    The Tribunal’s decision is dated 15 December 2021. Consequently, the 35 days elapsed on 19 January 2022. The applicant’s originating application was sent to the Court by email and received shortly after 5.01 pm on that day.

43    Rule 2.25(3) Federal Court Rules 2011 (Cth) relevantly provides:

(3)     If a document is … sent by electronic communication to a Registry, the document is, if accepted by a Registry under subrule (1), taken to have been filed:

(a)     if the whole document is received by 4.30 pm on a business day for the Registry—on that day; or

(b)     in any other case—on the next business day for the Registry.

44    The effect of this rule in the present case is that the applicant’s originating application was filed on the day after it was lodged – 20 January 2022. That means that it was filed outside the 35 day period (albeit only by 31 minutes and six seconds). The Minister pointed this out in his written submissions. He noted that the applicant requires an extension of time to seek judicial review and that none had been sought. He advised that the Minister would consent to time being extended under s 477A(2).

45    Section 477A(2) provides that:

The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

46    The matters set out in paras (a) and (b) are preconditions to the exercise of the power and the Court cannot exercise its discretion unless both conditions are met: Singh v Minister for Home Affairs [2018] FCA 1596 at [38]-[40] (Perry J). The Act does not allow the Court to dispense with either of them. The difficulty for the applicant is that, even after he was alerted to the problem by the Minister’s submissions, he did not apply (in writing or otherwise) for an order that the period be extended. In those circumstances, regardless of the attitude of the Minister of, for that matter, the merits of his case, the Court has no power to grant an extension and the application for judicial review must be dismissed as incompetent.

47    As it happens, the application is in any event without merit.

The grounds of review

48    The application contained the following four grounds of review (without alteration):

1.    The minister and Tribunal engaged in Jurisdictional error by denying the applicant procedural fairness.

2.    The Minister and Tribunal engaged in Jurisdictional error by making a significant or substantial finding in the absence of evidence and/or filing to take into account relevant consideration.

3.    As I did have multiple matters going alongside( Family Law, Criminal, Protection and AAT hearing) and due to my mental health circumstances, I did request for extention of time for the AAT hearing so I could send additional evidences but my request was not accepted and I could not send additional evidences related to family law matter. When it was mentioned in the hearing, I was told it is unfortunate but Tribunal cant consider additional evidences.

4.    On the day of AAT hearing, there was confusion regarding an email evidence already sent but them not received and reviewed by AAT. It was sent by my sister ([JK]) again during the AAT hearing. There was a short break in the hearing and I feel everything was not looked at and considered fairly.

The applicant’s contentions

49    Although orders were made requiring submissions to be filed, the applicant filed no submissions. Instead, he filed an affidavit in which, with one qualification which relates to ground 3, he merely affirmed the allegations in his application. He appeared in person by video-link at the hearing of the appeal. Although a Punjabi interpreter was provided at his request, as things transpired he was content to speak without her assistance.

50    It was apparent at the hearing that the applicant’s complaint that he had been denied procedural fairness (contained in ground 1) related to the matters he described in ground 4 of his application. In other words, ground 4 effectively contained the particulars in support of ground 1. At the hearing the applicant submitted that the Tribunal did not have regard to the evidence because the Tribunal member had already made up his mind “not to give [the applicant] the visa”.

51    The applicant was unable to provide a coherent explanation of ground 2. When I asked him what he was trying to say there, he replied:

I think this was been told by the lawyer, the lawyer I had on the day that the Minister and the tribunal – they made a jurisdictional error. I’m not sure about the – any – like, not law, some class or anything related with the law. I’m not aware of that. That was, I think, like, told by the – my lawyer, and we just added it up and presented it in the court.

52    When I asked him what was “the significant or substantial finding” that was made in the absence of evidence, he replied:

There was all – everything is very significant. Like, it’s very important for me. I’ve been living here past 14 years, and if the court is deciding their decision for the offence – and I was guilty. I served the jail sentence. I admitted everything. And I think the – I don’t know, like, how to explain this. But it was very significant. I had my child here. I had the house, which has been sold now.

And they’re making – tribunal making the decision, you know, in a short time. Normally, like, every court – like, even your Honour: you come to the court, you have been served the documents like that in your hand, you will go through those maybe one day before or in the morning or sometime, but when you are in the middle of the court and you have been served some – sent some emails on your screen or laptop or papers and you go through those, even if it’s in a rush, when you already made up your mind – like, I’m saying just as an example.

53    When I pressed him to explain why he says there was no evidence to support the decision, he replied:

And obviously there was some evidence which was sent to the tribunal in the – not in the morning. Like, it was sent to the tribunal before the case – and those have not been in knowledge of any of the board members – any of the tribunal members – any of, like, the tribunal lawyers. And they were going on my case from – I think we had a hearing for two days and had a hearing first day: they didn’t know. Second day, we had a hearing, I have not ..... So second day, before the decision, they find out – we find out – that those – we put some important notes about my personal life and also about my family life. So it’s not like there have been absence of evidence. Obviously, the evidence was provided and the court and the jury, they saw the evidence, but I mean to say that – we mean to say that – it was only not satisfactory that in a short time they decided to cancel my – to revoke the visa.

54    With respect to ground 3, the applicant argued that the Tribunal erred by not taking into account the additional evidence he submitted in relation to his family law matter and contended that he had asked for an adjournment but the Tribunal refused his request.

Consideration

55    In any application for judicial review the applicant bears the onus of proving jurisdictional error: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] (Gummow J); [91] (Heydon J); [92] (Crennan J).

56    Having regard to their interrelationship it is convenient to deal with grounds 1 and 4 together.

57    The question expressly raised by ground 1 is whether the Tribunal denied the applicant procedural fairness by not considering the non-excluded documents.

58    The non-excluded documents the subject of ground 1 consisted of the applicant’s responses to two letters from the Minister’s Department dated 20 April 2021 and 17 May 2021. In the first letter the applicant was invited to comment on additional information received by the Department and on Direction 90, which replaced the previous Direction 79 on 15 April 2021. The additional information consisted of sentencing remarks from the Local Court on 8 November 2018 and 12 November 2020 and an incoming passenger card dated 22 February 2016 on which the applicant did not declare his criminal convictions. The applicant was informed that his failure to declare his previous convictions might be found to show a disregard of Australian laws such that the decision maker might find that there was a risk he would reoffend. The second letter invited the applicant to comment on further information received by the Department, consisting of the notification of refusal of the application for a protection visa and the record of the delegate’s decision to refuse the application.

59    The applicant supplied documents to the Department on three occasions.

60    On 29 May 2021 the applicant made representations in response to the second letter. The invitation to comment on Direction 90 was not accepted. The applicant’s representations attached the letter from the Tribunal inviting him to appear at a hearing about his protection visa application; the Tribunal’s acknowledgment of the application; and a letter from his sister supporting his application for a protection visa. The representations and attachments, together with a covering email, were received into evidence in the Tribunal and marked Exhibit A1.

61    On 1 June 2021 the applicant made representations in response to the first letter. Annexed to those representations were: a Wikipedia article concerning violent protests in India in February 2016; a letter from NSW Roads & Maritime Services relating to his driver’s licence; a statutory declaration from the solicitor who had acted for the applicant when he was sentenced in November 2020 explaining the circumstances in which he pleaded guilty, challenging some of the conclusions reached by the sentencing judge and attesting to the applicant’s good character; a letter from the applicant solicitor dated 20 September 2020 addressed to the presiding judge at the Local Court, Mount Druitt; a letter from the Commonwealth Bank dated 28 April 2021 declining the applicant’s request for hardship assistance in connection with a home loan. The representations and attachments, together with a covering email, were admitted into evidence and marked Exhibit A2. The letter from the Commonwealth Bank was marked Exhibit A4.

62    On 2 July 2021 the applicant’s sister forwarded an email to the Department. In the email she expressed her concern for her brother’s welfare and urged the Minister to give her brother “some sort of visa and revocation” so that he can emerge from detention, access the right medical treatment and stay with his family. She pleaded that he was vulnerable, his mental state was worsening, and he was in need of the love and support of his family and proper medical care. She said that she had recently given birth to a child and was “very limited to support him” while her brother remained in detention. She said that, if her brother were released, he would stay with her and she could support him “24/7”. Her email attached screenshots of an email from the applicant to his solicitor in the family law proceeding, in which the applicant said that he did not want to live anymore, and the responses from the solicitor attempting to reassure him and disparaging his estranged wife.

63    The Tribunal observed that “the material did not raise substantially new information not previously been considered by the original decision maker, with the majority of attachments comprising material already submitted” (at [6]).

64    A failure by an administrative decision maker to consider relevant material can, in some circumstances, give rise to jurisdictional error. Whether or not it does depends on the importance of the evidence to the Tribunal’s function and therefore the seriousness of the error. See, for example, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111] (Robertson J); Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ).

65    Further, a denial of procedural fairness can also amount, or give rise, to jurisdictional error: see, for example, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. A failure by a decision maker to respond to “a substantial, clearly articulated argument relying upon established facts” is at least a failure to accord natural justice: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389 at [24] (Gummow and Callinan JJ), [95] (Hayne J). It might also be characterised as a constructive failure to exercise jurisdiction: Dranichnikov at [25], [32], [95]. While the Tribunal was bound to read, identify, understand and evaluate the representations, the weight to be afforded to them was a matter for the Tribunal. It was not obliged to make “actual findings of fact as an adjudication of all material claims” made by the applicant. See Plaintiff M1 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ).

66    The Minister submitted that, to the extent that the non-excluded documents contained evidence or argument the Tribunal considered were relevant to findings on matters it regarded as material, it referred to their contents. The Minister pointed, by way of example, to the references in the Tribunal’s decision to the fact that the applicant’s sister had recently given birth to a child (at [88]) and to the statement in the applicant’s protection visa application that he was “inclined towards Christian religion” during his first marriage and that there was friction with his family over a broken promise to marry ([112]). Otherwise, the Minister submitted that the material canvassed well-trodden ground, such as the applicant’s non-refoulement claims (which were rejected in 2016) (CB 757-759), the circumstances surrounding his offending (CB 770-771, 781-785), his relationship with his former spouse and his daughter and his substance abuse and mental health issues, (CB 763-767, 786-791), and his character (CB 792-793). He argued that the documents did not raise any new “substantial, clearly articulated claims relying on established facts” with which the Tribunal was required to engage. While the submission dated 1 June 2021 contained a response to an invitation from the Department on 20 April 2021 to comment on his failure to declare his criminal convictions on an incoming passenger card dated 22 February 2016 (CB 768-769), that was not a matter on which the Tribunal placed any weight in affirming the delegate’s decision.

67    The Minister also submitted that, insofar as the Tribunal did not refer to particular aspects of the non-excluded documents, the Court should not infer that the documents were overlooked. Rather, the proper inference is that it did not consider them to be relevant to the questions it regarded as material.

68    The applicant did not engage with these submissions. Indeed, he had no answer to them. His complaint was based on the fact that the documents came to the Tribunal’s attention on the first day of the hearing by which time, he contended, the Tribunal member had already made up his mind to dismiss his application. That contention cannot be accepted. It amounts to an allegation of bias through prejudgment. The applicant bore a heavy onus in this regard: Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106 (French J). An allegation of this nature must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] (Gleeson CJ and Gummow J); at [127]–[128] (Kirby J); at [176] (Hayne J). The applicant’s allegation was neither distinctly made nor clearly proved.

69    The Minister’s submissions should be accepted. Section 43(2B) of the AAT Act only required the Tribunal to set out findings of fact which in its opinion are material: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] (Hill and Allsop JJ). It follows that, if the Tribunal does not mention something in its reasons it does not necessarily follow that it failed to consider it. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] McHugh, Gummow and Hayne JJ said of s 430 of the Act, which is in substantially similar terms as s 43(2B) of the AAT Act, that “[t]he provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material”.

70    In any event, the applicant did not establish that any failure by the Tribunal to consider the non-excluded documents could realistically have led to a different outcome. In the circumstances, this ground must fail: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4], [45], [49] (Bell, Gageler and Keane JJ).

71    The second ground of review is unsustainable. There is nothing to it and the submissions did not speak to it.

72    Ground 3 cannot succeed in the face of s 500(6J).

73    The documents the Tribunal declined to receive consisted of a “Further Amended Initiating Application (Family Law)” filed in the Family Court of Australia on 25 October 2021 in which the applicant applied for parenting and financial orders and an affidavit in support sworn by the applicant on 17 August 2021. The reason the Tribunal gave was that the documents had not been provided within the statutory period.

74    The Tribunal had no choice in the matter.

75    Section 500(6J) relevantly provides that:

If:

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

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

the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review …

76    Since the documents were not given to the Minister at least two business days before the hearing, the Tribunal was not authorised or entitled to have regard to them. Indeed, it was required to disregard them.

77    In his affidavit in this proceeding the applicant deposed that he had asked the Tribunal for “an extension of time for the hearing” so that he could send the additional evidence but his request was “not accepted”. What he was saying, in effect, was that he had asked for an adjournment but his request was declined.

78    In his written submissions the Minister dismissed what the applicant said in his affidavit as “a claim, unsupported by evidence”. That submission cannot be accepted. What the applicant said in this respect was evidence. Moreover, it was neither challenged nor contradicted. That said, the applicant did not allege that the Tribunal’s refusal to adjourn the hearing was unreasonable or otherwise affected by jurisdictional error, let alone propound any argument in support of such an allegation.

79    Without more, the fact that an application for an adjournment was made and refused is insufficient to establish a jurisdictional error.

80    In any event, I accept the Minister’s submission that, even if the excluded documents had been received, there was no realistic possibility of a different outcome. That circumstance alone is fatal. As the Minister submitted, the Tribunal was aware from other sources of the matters the subject of those documents and took them into account. Its reasons show that it was aware that there were pending family law proceedings between the applicant and his second wife in which orders were sought in respect of their daughter (at [67], [90], [98]). The Tribunal accepted that the daughter would benefit from knowing her father and having contact with him (at [97]). The Tribunal considered that it was reasonable to assume that ongoing access was a likely outcome although its nature and extent were unknown (at [98]). The Tribunal was also aware that the applicant denied some of the allegations of family violence made against him (at [44]). Once again, the applicant carried the onus of proving that the outcome could have been different if the Tribunal had accepted receipt of the excluded documents. But he did not point to anything in those documents that could have taken the matter any further. In those circumstances he has not discharged his onus of proof.

Conclusion

81    The application for judicial review must be dismissed, with costs. There will be orders accordingly.

Associate:

Dated:    11 August 2022