Federal Court of Australia

Ba v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1271

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent's costs to be assessed on a lump sum basis by a registrar if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Mouhamadou Ba is a citizen of Mauritania. He arrived in Australia in 2008 on a humanitarian visa. In 2017 he applied for and was granted a resident return visa. In 2020 he was sentenced to 22 months imprisonment for an offence of causing bodily harm or danger. A few days later he was notified that his resident return visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth). He made representations to the Minister in support of the revocation of the visa cancellation by the exercise of the power to do so conferred by s 501CA. A delegate of the Minister determined not to revoke the cancellation. Mr Ba then sought review in the Administrative Appeals Tribunal. The Tribunal affirmed the delegate's decision. Mr Ba now applies to review the Tribunal's decision for alleged jurisdictional error. He advances four grounds.

2    For the following reasons, I am not persuaded that any of the grounds have been established. Therefore, the application must be dismissed with costs.

The proceedings before the Tribunal

3    Before the Tribunal, Mr Ba appeared in person. An interpreter was arranged to assist him at the hearing. When the hearing commenced it emerged that the interpreter previously had provided a support statement on behalf of Mr Ba. The matter was adjourned to the following day to see whether another interpreter could be found. The only other available interpreter was a personal acquaintance of Mr Ba.

4    When the hearing resumed, the Tribunal indicated to Mr Ba that it proposed to conduct the proceedings in English with the original interpreter to provide assistance 'only if you indicate that you can't understand'. It did so on the basis that his understanding of English was 'pretty good'. Thereafter, the interpreter did not interpret any part of the hearing.

5    The material before the Tribunal at the hearing included a statement that Mr Ba had submitted to the Minister in support of revocation of his visa cancellation. It included the following:

1/ There is no longer a refugee camp in Senegal where I was living until the time the Australian government rescued us from the horrible conditions we lived in that camp. The Senegalese government will not accept any person who has no civil status document to enter the country.

2/ The Mauritanian government consider officially, that all those who left the refugee camp and been accepted as a permanent resident in the others countries are no longer, welcome in Mauritania, and they have been warned that if they step in the country (Mauritania) they be considered has a part of the list of those who vilify and betrayed the country. Those refugees will be persecuted. Any Mauritanian refugee with Mauritanian civil status documents who will return to Mauritania will be considered as a traitor to the nation and will be purely and simply imprisoned for life on the territory.

3/ The Mauritanian government will not admit any refugees who have been admitted in Australia and other countries around the world as Mauritanian refugees. They will not be provided any civil status documents up front to see themself leaving in Mauritania.

4/ Your Honour my life is at high risk in Mauritania, and all black Mauritanian like me who lost everything in the country during the dark days of April 1989 are not welcome to Mauritania until now, as there is no democracy in Mauritania (as an example the 27 November 1990, to celebrate the Independence Day the Mauritanian government hanged 28 HALPULAAR soldiers from my ethnic group to glorify the celebration. Today in Mauritania this particular date is considered by the Halpulaar community as a date of national sadness.

6    For Mr Ba it was submitted that, by the above statement and certain other matters in evidence before the Tribunal (including aspects of Mr Ba's own oral evidence), specific non-refoulement claims were raised by him including a claim to the effect that he was at risk of physical harm. It is a submission that has particular significance for the first ground of his application. However, before considering the grounds, it is necessary to briefly explain the legislative context and the nature of the decision-making task entrusted to the Tribunal in a case like the present.

Direction No 90

7    Section 499 of the Migration Act provides that the Minister 'may give written directions to a person or body having functions or powers under this Act' if the directions are about the performance of those functions or the exercise of those powers. The person or body must then comply with the direction: s 499(2). A failure to comply with a direction made under s 499 may constitute jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6]; and Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at [65] (Bromwich J, Bromberg and Charlesworth JJ agreeing).

8    The Minister has made a written direction under s 499 concerning the exercise of the power conferred by s 501CA, namely 'Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under s 501CA' (Direction).

9    The Direction designates 'primary' and 'other' considerations to which a decision-maker is to have regard in exercising the discretion conferred by s 501CA in instances where the decision-maker is satisfied that the visa applicant does not satisfy the character test. It requires those considerations to be taken into account, where relevant: para 6. It also provides that primary considerations should generally be given greater weight than other considerations: para 7(2).

10    Relevantly for present purposes, the Direction makes the following provision concerning non-refoulement obligations (para 9.1(1)-(3)):

A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.

In making a decision under section … 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists …

11    As will emerge, the case for Mr Ba was framed by reference to aspects of the reasoning in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. However, the applicable direction at that time for the purposes of s 499 was an earlier version of the Direction. The earlier version contained different terms concerning the approach to international non-refoulement obligations. In particular it stated that where claims were made which may give rise to those obligations it was unnecessary to determine whether those obligations were owed for the purpose of determining whether a visa cancellation should be revoked: at [16]. Further, the decision under review was that of a delegate of the Minister. In that case, the answers to questions of law stated for determination were expressed in terms of what the Minister's delegate was required to do given the legislative context which included the earlier version of the Direction. The present case concerns a decision by the Tribunal on review.

The Tribunal's reasons as to non-refoulement

12    As to non-refoulement, in the present case the Tribunal reasoned as follows (at paras 138-145):

(1)    The part of the Direction concerned with non-refoulement obligations was quoted by the Tribunal.

(2)    Then, the Tribunal quoted submissions by the Minister to the effect that:

(a)    Mr Ba's principal claims were in respect of his fears if returned to Senegal;

(b)    in a statement to the Tribunal, Mr Ba had raised claims that refugees like him would be persecuted and would not be provided with civil status documents, that they are not welcome in Mauritania and that there is no democracy in Mauritania;

(c)    Mr Ba's claims were 'vague and unsubstantiated' and did not specify the harm he claims he was at risk of suffering if returned to Mauritania;

(d)    Mr Ba's claims did not appear to be in line with available country information particularly a 2020 United States Department of State Mauritania Human Rights Report (Report) that was said to raise a number of concerns but did not indicate that refugees returning to Mauritania would be persecuted;

(e)    Whilst the Tribunal must carefully consider 'any claims of substance cogently made which raise non-refoulement considerations', the evidence does not support a finding that Mr Ba is owed such obligations;

(f)    It is open to the applicant to apply for a protection visa, although the existence of that ability must not deflect the Tribunal from its task to properly consider the available evidence in respect of any claims raised in these proceedings; and

(g)    As the Report does raise some concerns, it may well be that Mr Ba would be able to marshal additional evidence or make more substantive claims in respect of any fears he may hold however 'given the vagueness and paucity of the claims currently before the Tribunal', it could not be satisfied that Mr Ba engages non-refoulement obligations.

(3)    Next, the Tribunal quoted the passage from Mr Ba's submission to the Minister (already set out above).

(4)    Then, the Tribunal reasoned:

The Applicant did not provide any supporting country information to corroborate the claims made above. The Applicant's claims in this respect (highlighted at the adjourned hearing on 1 February 2022 were explored further at the hearing on 2 February 2022. Briefly, he holds a subjective fear of harm in Mauritania because during the aftermath of a Military coup around 1988 his father was harassed and beaten by the incoming regime and the family were forced to seek asylum in Senegal. None of his family has returned to Mauritania since this time. The Applicant raised the fact that he has no official Mauritanian identity documents. At the resumed hearing on 2 February 2022, the Applicant confirmed that he had not attempted to obtain any Mauritanian documents because he had no desire to travel to that country.

Although not commenting on any protection claims the Applicant may choose to pursue should he elect to apply for protection in Australia, we note that nothing in his evidence to date articulates any sufficiently formed non-refoulement consideration with a degree of specificity or particularity that would give rise to a reasonable apprehension that he is owed international non-refoulement obligations in the event of his being unsuccessful in his application to revoke the visa cancellation decision.

(footnotes omitted)

(5)    Then, the Tribunal observed that the country information referred to by the Minister (namely, the Report) 'makes clear that, while circumstances for returning failed asylum seekers in Mauritania are problematic … Mauritania allows freedom of movement' with certain West African States including Senegal (a place to which Mr Ba had returned voluntarily in 2017 during which time he fathered a child).

(6)    In conclusion, the Tribunal said:

In the present case, we find that the non-refoulement consideration does not arise in the context of the decision to revoke the cancellation decision, given that the Applicant's return to Mauritania does not give rise to any non-refoulement obligations.

The Tribunal's reasons concerning Mr Ba's remorse for his offending

13    In a separate part of its reasons, the Tribunal dealt with whether Mr Ba was remorseful and sorry for his conduct that constituted the offence for which he had been sentenced to 22 months imprisonment (Offending Conduct). The Tribunal first dealt with that aspect at para 25 of its reasons in the course of recounting the reasoning of the sentencing judge. The Tribunal's reasons record that the sentencing judge took account of Mr Ba's early plea of guilt together with his 'perceived genuine remorse'. As to that aspect, the sentencing judge had said:

And I also accept that you are remorseful and sorry for you actions. I accept that because you don't have prior offences of violence, and because of your guilty plea, and because of what you told the pre-sentence report writer.

14    Later in its reasons, the Tribunal said (at para 67) that Mr Ba 'fails to squarely acknowledge his own culpability for or the full extent of his criminal offending'. The finding expressed in those terms was followed by a lengthy quote from the transcript of the hearing before the Tribunal in which statements by Mr Ba to the following effect were highlighted:

(1)    Mr Ba did not want to plead guilty to the Offending Conduct but did so because he was told the sentence would only be 2 or 3 months imprisonment;

(2)    the victim of the Offending Conduct was the one who started the attack;

(3)    Mr Ba was just scaring the victim;

(4)    the victim of the Offending Conduct 'already have some cuts before even we fight. She just put all of that just to blame on me, but I'm sorry we did fight';

(5)    in response to a question to the effect that he was not as remorseful as he maintained, Mr Ba said he was remorseful and then said that they were drunk and the victim was high on drugs and he did not want to fight; and

(6)    the victim wanted him in prison.

15    The Tribunal the referred to the above evidence in making the following finding (at para 71):

It appears from the evidence quoted at [67] above, that the Applicant is now effectively recanting from his previous guilty plea. It also appears from the foregoing that the Applicant's expressions of remorse for his offending conduct must be qualified as lacking personal insight. This, taken with his lack of substance abuse or domestic violence treatment while in either prison or immigration detention, satisfies us that the Applicant's risk of reoffending should be objectively assessed as being moderate.

The four grounds of review

16    The four grounds of review advanced by Mr Ba are to the following effect:

(1)    The Tribunal failed to comprehend the non-refoulement claims that Mr Ba advanced and that there was a failure to have regard to relevant material and facts supporting those claims.

(2)    The Tribunal failed to afford Mr Ba procedural fairness by refusing to communicate with Mr Ba using the available interpreter.

(3)    The Tribunal failed to afford Mr Ba procedural fairness by failing to afford him the opportunity to give oral evidence.

(4)    The Tribunal made a finding that the applicant was remorseful as to his offending which finding was contrary to a finding made by the sentencing judge which was beyond the authority of the Tribunal and was material to the Tribunal's ultimate finding.

Ground 1: alleged failure to comprehend non-refoulement claims

17    The precise character of ground 1 is somewhat unclear. It is not a claim expressed as a failure by the Tribunal to consider Mr Ba's claims based upon non-refoulement. However, a claim of that kind seems to be implicit in the ground as alleged because the alleged misunderstanding is said to have resulted in a failure by the Tribunal to consider the claims as advanced. Therefore, the ground appears to have two aspects, namely:

(1)    the Tribunal misunderstood the nature of the non-refoulement claims advanced by Mr Ba; and

(2)    the consequence of the misunderstanding was that there was a failure to have regard to certain material said to support those claims.

18    At times, it appeared that the ground was sought to be supported by submissions to the effect that some of the material (or evidence) before the Tribunal was not considered — irrespective of whether there was a misunderstanding of the nature of the non-refoulement claims. As to contentions of that kind, the task of assessing whether particular material is of sufficient relevance and significance to be brought to account in deciding whether the Tribunal is satisfied that there is another reason why the visa cancellation should be revoked is a matter that is entrusted to the Tribunal as the decision-maker: Plaintiff M1/2021 at [21] (Kiefel CJ, Keane, Gordon and Steward JJ, Gageler J agreeing). Further, it is not necessary for the Tribunal to refer to every piece of evidence and every contention advanced by the applicant: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 263 FCR 593 at [46]-[47] (French, Sackville and Hely JJ).

19    In order to demonstrate jurisdictional error as to performance of the fact-finding aspects of the deliberative task entrusted to the Tribunal, it is necessary to demonstrate some respect in which the way in which the fact finding process was undertaken exceeded the scope of that decision-making authority (or was a failure to perform the required decision-making task). For example, it may be claimed that the fact finding process was unreasonable or illogical or guided by a misapprehension of the law to be applied or that the consideration was so meagre or insufficient or formulaic that the required task had not been discharged. Save for one reference to illogicality (addressed below), no error of that kind was alleged.

20    A failure by the Tribunal to refer in reasons to particular evidence as to a matter that may bear upon the deliberative task may indicate that it was overlooked or it may indicate that it was not considered to be of persuasive significance: see KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 (Bromberg, Jackson and Feutrill JJ). A failure to have regard to evidence bearing upon a critical issue may support the drawing of an inference that the evidence was overlooked or ignored: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (Katzmann, Griffiths and Wigney JJ). The same type of reasoning may be applied where part of a document is referred to by the Tribunal but another part is not addressed in its reasons: see, for example, AYZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 429 at [61]-[69] (Beach J); and NZA v Minister for Immigration [2013] FCA 140 at [86]-[92] (Kenny J).

21    Also, the mere overlooking of relevant materials will not establish jurisdictional error. The failure must be of a character that enables the Court to conclude, on review, that the decision-maker was not performing the task conferred by the relevant statutory provision: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [97], [111] (Robertson J); apparently approved in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 42 at [13]; and Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26.

The first aspect: the alleged misunderstanding of the non-refoulement claims

22    For Mr Ba, it was submitted that he had advanced claims to the effect that as a sub-Saharan or black Mauritanian who was exiled from the country between 1989 and 1990, he would be persecuted, including through physical harm, but also exclusion from participation in civil society if he was now to be returned to Mauritania. Approaching the matter favourably to Mr Ba, it may be assumed that claims of that kind were advanced by him before the Tribunal (noting that it is a separate question as to whether there was evidence to support such claims).

23    A failure to consider a claim advanced by a party to a decision-maker is sometimes characterised as a failure to afford that aspect of procedural fairness which requires not only an opportunity for submissions to be advanced but for there to be regard to those submissions in the process of decision-making. In the present case, the ground was not articulated as a failure to afford procedural fairness. Further, the submissions for Mr Ba were premised on a view that the decision in Plaintiff M1/2021 meant that it was not mandatory for the Tribunal in the present case to have considered whether non-refoulement obligations were owed. On the basis of that particular view of the effect of Plaintiff M1/2021, it was not submitted for Mr Ba that there was jurisdictional error by reason of a failure to consider a matter to which the Tribunal was required to have regard given the terms of the Direction and the terms of s 499 of the Migration Act. Rather, the complaint was put on the basis that once the Tribunal embarked upon a consideration of the non-refoulement claim it was necessary for the Tribunal to properly understand that claim even though it had no obligation to have regard to that matter.

24    As has been noted, the Tribunal found that there was nothing in the evidence of Mr Ba that articulated any 'sufficiently formed non-refoulement consideration with a degree of specificity of particularity that would give rise to a reasonable apprehension that he is owed international non-refoulement obligations'. However, it did not leave matters there. As has been indicated, it proceeded to consider the claims of alleged persecution and inability to obtain identity documents. Therefore, it is not the case that the Tribunal failed to understand and consider the non-refoulement claims that are advanced as the basis for ground 1.

The second aspect: the alleged failure to have regard to particular material

25    Given the conditional way in which the second aspect was put, the conclusion that there was no misunderstanding of the nature of the non-refoulement claims is sufficient to conclude that ground 1 must be rejected. However, as I have indicated, it was not entirely clear whether there was a separate and independent claim that the Tribunal failed to have regard to part of the material that was relevant to the non-refoulement claims (even if it properly understood them).

26    It was submitted that the Tribunal 'ignored or overlooked' relevant material being the Report and the fact that a decision had been made in 2008 to grant Mr Ba an humanitarian visa on the basis that he would be subject to persecution if he was returned to Mauritania. This was said to be illogical and involved a failure to give 'proper consideration' to the issue of non-refoulement. I am unable to accept these characterisations of the way in which the Tribunal undertook its task. The Tribunal did have regard to the Report and to the issue of non-refoulement. The Tribunal was required to form its own view as to the matters in the Report and as to whether there was material to support the representation made by Mr Ba. It did so. It dealt with the Report and the evidence of Mr Ba (such as it was). The failure to bring to account the grant of the visa in 2008 was not a matter which, of itself, could found a conclusion that the Tribunal did not undertake its deliberative task. It was not explained how the circumstances that prevailed in 2008 (more than 12 years before the Tribunal was called upon to make its decision) might be sufficiently relevant that a failure to refer to those circumstances may support a conclusion that the Tribunal failed to undertake its task of evaluating the evidence.

27    Particular reliance was placed upon passages in the Report concerning the difficulties for people like Mr Ba in obtaining national identity documents with the consequence that such returnees were rendered stateless. It was said that the failure to refer to these passages meant that the Tribunal's reasoning to the effect that Mr Ba did not provide evidence to corroborate his non-refoulement claims must have been undertaken without a consideration of the whole of the Report. However, the Tribunal's findings were to the effect that the claims of persecution if Mr Ba was returned to Mauritania were not substantiated. The submissions for Mr Ba did not complain about this aspect of the Tribunal's reasoning. The reasoning by the Tribunal is consistent with a view that the material in the Report concerning the difficulty with obtaining identity documents was not a sufficient basis to give rise to a non-refoulement obligation. The reference to the ability of Mr Ba to move to Senegal from Mauritania was consistent with such an approach. Reasoning of that kind was open to the Tribunal. It did not suggest a failure to perform its deliberative decision-making task.

28    Significantly, the Tribunal did not find that there was no non-refoulement claim nor did it conclude that there was no evidence as to such a claim. Rather, it properly identified the claim as made and considered whether it was supported by the material before the Tribunal. It concluded that it was not so supported. Therefore, the aspect of ground 1 that alleged that certain material was 'overlooked' was no more than a complaint about the within jurisdiction exercise of the decision-making authority of the Tribunal to reach conclusions as to whether the representations made by Mr Ba were supported by the material.

29    For those reasons, I do not accept that the matters complained of support a conclusion that the Tribunal failed to have regard to facts and material advanced by Mr Ba to support his non-refoulement claims.

30    The real problem for Mr Ba was that he failed to advance material before the Tribunal to support a claim that he may face 'serious harm' if he was returned to Mauritania. Nor did he identify in his claims any particular matters that he might face of that kind. Adopting the definitions used in the Migration Act, it was only harm of that kind that might give rise to what is usually referred to as complementary protection. In the course of oral submissions, counsel for Mr Ba quite properly accepted that it was not possible to point to any independent country information before the Tribunal which goes to the extent that Mr Ba would face physical harm or is at a significant risk of physical harm if he were returned to Mauritania. The highest that the case was put was that there was a claim that Mr Ba would be denied the opportunity to participate in civil society if he was returned to Mauritania but the claim was not particularised beyond that and there was no material before the Tribunal to support or explain the claim (beyond the material concerning the inability to obtain papers). The Tribunal's reasoning reflects that position.

31    It follows that ground 1 has not been made out.

Ground 2: alleged failure to afford procedural fairness by refusing to allow Mr Ba to communicate using an interpreter

32    As has been explained, when the Tribunal hearing was convened it emerged that the interpreter had a possible conflict of interest. It arose by reason of the interpreter having signed a letter of support for Mr Ba. Ultimately, that led to the hearing being adjourned to the following day.

33    Nevertheless, on the first day, counsel outlined the position of the Minister, including as to the non-refoulement claims. In response to a question posed by Mr Ba with the assistance of the interpreter, the Minister's case as to persecution was summarised by the Deputy President in the following succinct terms: '… there is very little evidence put before the tribunal as to what the applicant says will happen to him if he is returned to Mauritania'. Mr Ba then began to explain his case with the assistance of the interpreter. The Deputy President then asked the interpreter to explain that Mr Ba would be sworn so that any statement that he made to the Tribunal would be evidence rather than just a summary of his case. The Tribunal also received the relevant materials as exhibits. It was at that point that the issue in relation to the letter of support emerged.

34    When the issue arose concerning the position of the interpreter, alternatives were canvassed within the time constraints imposed by the Migration Act. It imposed a strict time limit within which the Tribunal's decision was to be made failing which the legislation stated that the original decision was deemed to be affirmed: s 500(6L). The matter was adjourned to the following day.

35    When the matter resumed, the Deputy President indicated that the Tribunal had been unable to secure the services of another suitably qualified interpreter. In those circumstances, the Deputy President indicated: 'so I think we have little option but to proceed today, utilising the services of [the available interpreter]'. Then the following statement was made:

… the applicant has undertaken a number of English courses so his - and he has also been in Australia since 2008. So I think the - your understanding - this is really addressed to you, Mr Ba, your understanding of English is pretty good isn't it, and you have undertaken and put forward certificates of having completed courses in English.

So I think what we will do is we will conduct the proceedings in English and really only if you indicate that you can't understand what is being said, that we will use the services of the interpreter. But otherwise, I think we will have to utilise or conduct the hearing in English.

(emphasis added)

36    It can be seen that the Deputy President adopted a procedure whereby the hearing was to be conducted in English with use of the interpreter only if Mr Ba indicated that he could not understand. It was based upon the Tribunal's assessment that Mr Ba's understanding of English was 'pretty good'.

37    After that, the following was directed to Mr Ba:

Now, as [counsel for the Minister] just pointed out, it would be appropriate for you to indicate whether or not you have any issue with the [interpreter] continuing as the interpreter, mindful of the fact that in the time available, it's unlikely we're going to be able to get any sort of - an alternative interpreter.

38    Mr Ba then indicated that he wanted the interpreter to continue.

39    The Deputy President then commenced the second day of the proceedings by directing the following to Mr Ba:

So, Mr Ba, where we got to yesterday is that it is usual for the applicant to perhaps outline to the tribunal what generally the matters are you want the tribunal to take into account in looking at why the visa cancellation should be revoked or why you should be allowed to stay 40 in Australia, without necessarily going into evidence because that is a matter that will have to be the subject of examination, cross-examination and questions by the tribunal.

So before you actually start to formally give your evidence, is there anything you want to say to the tribunal as to why the tribunal should find that you cancellation of the visa should be revoked? In other words, you should be allowed to stay.

40    Mr Ba said that he wanted to say something and he proceeded to make a short submission. Then the statement that he had provided to the Tribunal was affirmed by Mr Ba and he was cross-examined. The cross-examination began with counsel for the Minister saying to Mr Ba:

COUNSEL: Mr Ba, can you hear me clearly?

MR BA: Yes, I can hear you. Yes.

COUNSEL: Okay … I have some questions for you. If you … don't hear my question clearly, can you please tell me and I will repeat it. If you don't understand my question, let me know and I will try and put it a different way.

WITNESS: Okay.

41    Thereafter, Mr Ba did not indicate at any point that he could not understand the proceeding and the interpreter provided no further assistance.

42    Mr Ba's affidavit evidence given in support of the present application in this Court insofar as it concerned the interpreter was as follows:

The next day (Day 2 of the hearing) the Tribunal told me that they wanted the hearing to be conducted in English. I understood that they did not want me to use the interpreter, even though he would still be there. Because of this, I avoided asking for the interpreter's help during the hearing, even though there were things I couldn't really understand well, and I sometimes got confused.

At the end of the hearing the Minister's lawyer gave a big speech. I understood about half of what he said, but the other half I didn't understand. At the end of the lawyer's speech I was given the opportunity to say something, but I didn't really know what to say because I didn't really know what had been said before.

43    As to this evidence, the Minister submitted that it was 'highly generalised and vague'. It was submitted that the contentions advanced for Mr Ba did not identify any particular misunderstanding or confusion on the part of Mr Ba or on the part of the Tribunal. It may be observed that the evidence did not challenge the propriety of the assessment by the Tribunal that Mr Ba's understating of English was pretty good. Rather, Mr Ba's evidence made general claims that there were 'things' that he couldn't really understand well, that sometimes he got confused and that he only understood about half of the closing submissions by counsel for the Minister. These are properly characterised as very generalised claims.

44    Reliance was also placed by the Minister upon the particular statutory context. It required Mr Ba to have articulated any new information that was to be presented to the Tribunal that was not before the Minister when the original decision was made not to revoke the visa cancellation at least two clear business days before the hearing: s 500(5H) and s 500(5J). This was said to limit the matters that may have been raised by submissions (because they had to be articulated in advance) and confined the evidence that may be advanced to that adduced through questions by counsel for the Minister or by the Tribunal itself.

45    The way in which ground 2 was put was to contend that the procedure adopted by the Tribunal as to the availability of the interpreter amounted to a failure to ensure that Mr Ba had access to an interpreter and therefore the process was unfair. It was alleged to be unfair because it was said that there were times when Mr Ba was confused as to what he was being asked and because he did not understand much of what was said in closing submissions. These matters were said to be sufficient to establish jurisdictional error.

46    As will emerge, the submissions advanced for Mr Ba not did not go so far as to maintain that there were specific instances or respects in which the conduct of the hearing without resort to the interpreter had a particular consequence. It was not said that the fact that questions were not interpreted resulted in answers to particular questions that were based upon a misunderstanding of the question such that the purport of the answer may be misapprehended by the Tribunal. Nor was it said that submissions that might otherwise have been made by Mr Ba as part of his closing submissions were not made by him.

47    Further, there was no claim that the assessment by the Tribunal that Mr Ba's understanding of English was pretty good was made without a proper foundation.

48    These aspects assume significance because there can be no failure to afford procedural fairness unless the procedures adopted have resulted in a 'practical injustice': Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] (Gleeson CJ); and SZMTA at [38] (Bell, Gageler and Keane JJ). Further, the requirements of procedural fairness are not fixed. The content and application of procedural fairness may vary according to the circumstances and requires practical judgments to be made having regard to the characteristics of the particular case: SZMTA at [34]; and SDCV v Director-General of Security [2022] HCA 32 at [53]-[54] (Kiefel CJ, Keane and Gleeson JJ), [141] (Gageler J), [174] (Gordon J), [269] (Steward J), noting the somewhat different expression of fairness not being a 'one-size-fits-all concept' as explained at [237] (Edelman J). Therefore, a procedure in relation to the provision of an interpreter that may satisfy a procedural fairness obligation in one instance may not do so in a different instance. Further, a failure to adopt a procedure whereby each question is interpreted (or it is clear that such an option is available) may be unfair in one case and fair in another. It is necessary to consider what was fair as a matter of procedure given the nature of the statutory power being exercised and the circumstances of the particular case.

49    In addition, a breach of any condition of the exercise of statutory power, including a requirement to observe procedural fairness in the exercise of the power, does not amount to jurisdictional error unless it exceeds the threshold of materiality in the sense that compliance with the requirement would have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]-[31] (Kiefel CJ, Gageler and Keane JJ). Materiality of any failure to afford procedural fairness is thus also essential to the existence of jurisdictional error: SZMTA at [45].

50    As I observed in Nathanson v Minister for Home Affairs [2019] FCA 1709 at [48], the requirements of practical injustice and materiality appear to reflect the fact that there are two aspects to the inquiry where there is a claim of jurisdictional error by reason of a failure to afford procedural fairness. First, whether there has been breach of the rules of procedural fairness. Second, whether that breach was material and therefore invalidating.

51    As procedural fairness is contextual, it does not require procedural steps to be taken that would be pointless in the particular circumstances. Therefore, the first aspect requires attention to be given to whether the alleged defect in the procedure had any practical consequence for the manner in which the relevant party was able to participate in the process. It stops short of any consideration of the outcome of the exercise of statutory power and the reasons for that exercise. It is concerned with whether there was a procedural consequence that flowed from an unfair procedure. So a failure to afford an opportunity to adduce evidence invokes no practical injustice if there was no evidence to lead. Materiality looks to the outcome and the reasons (how the decision that was in fact made was in fact made) and is concerned with the extent of the invalidating effect of a demonstrated failure to conform to the requirements of procedural fairness. Although the two aspects are conceptually distinct, in their practical application they tend to shade one into the other.

52    In cases where it is evident from the nature of the decision or the reasoning pathway supporting its exercise or some other evidence adduced by the party seeking review for jurisdictional error that as a matter of reasonable conjecture the decision could have been different then the requirement for materiality is met: see Nathanson v Minister for Home Affairs [2022] HCA 26 at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ), [45]-[47] (Gageler J), in respect of which I apply the same analysis that I undertook in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.

53    I do not understand any aspect of the above reasoning to have been called into question by the decision in Nathanson v Minister for Home Affairs [2022] HCA 26 which was concerned with what was required to satisfy the requirement of materiality in circumstances where a failure to afford procedural fairness had been established. The recent decision in SDCV required a consideration of such matters in a different context, namely the constitutionality of a law that required the courts in the exercise of substantive judicial power to adopt a particular procedure. The observations by some members of the Court concerning the terminology of 'practical injustice' appear to be directed to a different question, namely what is essential to preserve the judicial character of a decision-making process.

54    The distinction between the first and second aspects of the inquiry is of significance in the present case because it was not suggested that materiality had any role to play in respect of ground 2. The position of the Minister was that it had not been shown that the failure to resort to the interpreter had any real consequence for the evidence that was given or the matters raised by Mr Ba on his behalf before the Tribunal. Implicitly, if (contrary to the Minister's submissions) it did have that consequence then there was a material failure to afford procedural fairness. Equally, if that submission was upheld then that was a sufficient reason not to uphold ground 2.

55    In support of ground 2 reference was made to points in the transcript which were said to indicate some misunderstanding on the part of Mr Ba. It was said that many of those exchanges came to be quoted in the Tribunal's reasons. The key exchanges quoted concerned whether there was remorse on the part of Mr Ba. In those exchanges, Mr Ba was asked, in effect, about whether he accepted responsibility for the conduct for which he had been sentenced. As to those exchanges, it was accepted in oral submissions that the answers given by Mr Ba did not appear to be infected by the way the questions were being asked and they were the genuine statements of Mr Ba made at the time of the Tribunal hearing in relation to his views about his offending.

56    Reliance was also placed upon an exchange that occurred when counsel for the Minister was asking Mr Ba about when it was that he said he became sorry for the violence that had occurred between the victim and Mr Ba. The exchange began with the Deputy President observing to Mr Ba that it seemed that there were a number of times over a period of years when he had physical fights with the victim (with whom Mr Ba had been in a relationship). The Deputy President then put to Mr Ba: 'She was physically injured, you were physically injured. But you stayed in that relationship and it continued to be violent, is that correct?'. Mr Ba answered as follows:

Yes, correct. Because it's just I tried to run for her to go far from her but anyway she find me. She always find me, because I run from her for nearly a year and a half or when I come from Africa, a year and a half, I don't want to see her, just do my own thing, until you hear some of my friend been talking my name around her and she have to again come to find me, again come back to my life. But I been running her many, many times. I'm so sorry, I'm so sorry all these happen.

57    The Deputy President then asked: 'Just to be clear, when did you become sorry about the violence' which produced the answer 'No' from Mr Ba. Plainly, at that point, there was some misunderstanding on the part of Mr Ba as to what he had been asked. However, the Deputy President immediately expanded on the question to clarify what was being asked by posing the following further question:

When were you sorry about the violence? Were you sorry about the violence at the start, or after the second time or the third time, or just after you went into gaol?

58    It produced the following exchange:

MR BA: Yes, I think most of the time we just, me I just talk, we just agreeing in a talk and I left the house. Sometime I leave her there, I go on my own way. But she will have her way to find me again. She have a way to find me.

MEMBER: So, if she hadn't keep finding you, you wouldn't have hurt her, is that what you're saying?

WITNESS: Sorry, again? If she - - -

MEMBER: If she didn't keep finding you, you wouldn't have hurt her, is that what you're saying?

WITNESS: No.

MEMBER: It's her fault that you hurt her?

WITNESS: No, no, I said I been running for her, I run far away from her but she always come back to me and I sorry, ask her for forgiveness and I did. If I did then it's going to be same thing again and I go to her, ask forgiveness.

MEMBER: Is it before, you said that you were living with your boss and then you went to her house just before the violence with the broken wine bottle.

59    The reference to the 'violence with the broken wine bottle' is to the particular events that resulted in Mr Ba being convicted, sentenced and imprisoned with the consequence that his visa was cancelled. The question produced the answer 'Yes' from Mr Ba.

60    Then the Deputy President asked Mr Ba: 'Do you understand that that's confusing'.

61    It was submitted for Mr Ba, in effect, that the reference to the evidence being confusing demonstrated that Mr Ba was confused by the questions. However, it is apparent that what was being put to Mr Ba was that it was confusing to say that he was trying to get away from the person who was the victim of the offence but to also say that on the occasion that the offence was committed he was not living with her and he went to her house and it was there that the violence ensued.

62    The answer given by Mr Ba does not indicate any misunderstanding on his part as to what he was being asked or its significance. His answer was as follows:

Yes, because I didn't rent anywhere, I just come my boss give me a house with six room to live there, it's in the bush around Armadale. I work with him and he give me the house as I do have to look after what is in the house. Sometime, I took her, we go there, she sleep with me in that place and sometime I go to her house again, I sleep there. Yes, we eat together, we go together most of the time. Yes, but two days before our fight, I was with her in her house, two days, everything was good until she drunk, she find there another woman, she come (indistinct) and come angry. That bring - - -

63    There is no indication in these exchanges that there is some kind of fundamental linguistic misunderstanding that might give rise to an inference that Mr Ba was not understanding what he was being asked and that a difficulty of that kind affected the answers that he gave. On the contrary, they indicate that Mr Ba gave responsive answers and the concern was that those answers lacked consistency. His final answer indicated that he understood the purport of the question to the effect that his answers were confusing, namely that they were inconsistent.

64    In the result, the submissions advanced failed to identify matters which called into question whether Mr Ba understood what he was being asked in a respect that gave rise to uncertainty as to whether his answers were an accurate indication of the account which he wished to give or that his proficiency with English was such that the forms of expression he used could not be taken at face value. Further, it was not suggested that the Tribunal's assessment as to Mr Ba's grasp of English was flawed.

65    As to the matters that were advanced by way of submissions, the evidence of Mr Ba fails to indicate the practical injustice that followed from the difficulties that he had in following the submissions. His evidence in that regard is too truncated to determine whether his difficulties rose no higher than those faced by many litigants in person in following detailed legal argument. It was not suggested that there was some procedural step that was lacking as to the explanation of the Tribunal's process. Given the particular statutory context, Mr Ba was required to articulate the matters upon which he relied in advance of the hearing. It was not suggested that the procedure followed as to closing submissions led to some material aspect of Mr Ba's case not being put before the Tribunal or considered by the Tribunal in making its decision.

66    For those reasons, ground 2 has not been made out.

Ground 3: alleged failure to afford an opportunity to Mr Ba to give oral evidence

67    The claim made is that Mr Ba was not afforded an opportunity to give oral evidence as to matters that he wished to raise in support of his case before he was questioned by counsel for the Minister. By affidavit in support of his application in this Court, Mr Ba said that if had he been given an opportunity to give evidence (rather than answer questions from counsel for the Minister) he would have re-iterated and re-expressed the non-refoulement claims he had made in writing.

68    The submission advanced in support of ground 3 fails to give due regard to the statutory procedure stated in s 500(6H). It provides that 'the Tribunal must not have regard to any information presented orally in support of a 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 … in relation to the decision under review'. As has been noted, such a statement was provided and it was received into evidence at the outset of the evidence given by Mr Ba. It was not explained why, given the statutory requirement, Mr Ba could have given further oral evidence. In any event, he does not now say that he would have said anything more. He simply says that he would have re-iterated and re-expressed his non-refoulement claims. For reasons that have been given in relation to ground 1, they were considered by the Tribunal.

69    For the Minister it was submitted that Mr Ba was asked questions openly and Mr Ba was provided with an opportunity to explain and clarify the basis for the claims he made. He was asked about the circumstances he would face if returned to Mauritania and the basis for his understanding. It was said that he was thereby given an opportunity to explain his claims. These submissions were not disputed by Mr Ba. Rather, the case put for Mr Ba was to the effect that the Tribunal should have delineated between evidence given orally and oral submissions on the other. This is not to the point. This is not a case where Mr Ba's application was not accepted because he made submissions rather than advanced material before the Tribunal.

70    For reasons that have been given the claims that were made were considered by the Tribunal. Mr Ba was given an opportunity to state those claims and then was asked questions about them.

71    In those circumstances, Mr Ba has failed to demonstrate a denial of procedural fairness in the way in which his oral evidence was given.

Ground 4: finding as to lack of remorse alleged to be beyond the authority of the Tribunal

72    As has been noted, a factual finding of remorse was part of the foundation for the sentence imposed by the sentencing judge for the Offending Conduct. Further, the sentence imposed for the offence constituted by the Offending Conduct (and the duration of that sentence) gave rise to the operation of s 501(3A) and the cancellation of Mr Ba's visa on the basis that he did not satisfy the specified character test. Indeed, s 501(3A) required Mr Ba's visa to be cancelled in those circumstances. The imposition of the sentence and the imprisonment of Mr Ba was the foundation upon which the statutory requirement to cancel Mr Ba's visa operated. Parliament had determined that the existence of the sentence must lead to the cancellation of the visa (on the basis that the Minister must invite representations as to whether the cancellation should be revoked and a conferral of power upon the Minister to do so if the Minister was satisfied that there was reason to do so: see s 501CA(4)).

73    In those circumstances, it was not open to Mr Ba to assert that the factual finding of the sentencing judge concerning remorse was wrong: HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121 at [78]-[79] (McKerracher J), [194]-[196] (Colvin J). To do so would be to seek to invite the Minister to make a factual finding that was contrary to the finding on which the sentence was based in circumstances where it was the existence of that sentence that gave rise to the express statutory duty to cancel Mr Ba's visa. However, that is not what Mr Ba sought to do. His position before the Tribunal was that he was remorseful at the time of his sentencing and that continued to be the case before the Tribunal.

74    In the present case, it was the Minister who sought to dispute the remorse of Mr Ba in respect of the Offending Conduct. To do so was not to dispute the foundation upon which his visa had been cancelled. For that reason, the present case is different to HZCP. It is more in the category where the Tribunal has to consider whether it should reach a different conclusion for the purpose of the making of an administrative decision concerning conduct for which a sentence has been imposed to that which was reached by the sentencing court. For reasons that I expressed in HZCP, an administrative tribunal ought to be reluctant to make such a finding given the seriousness that attends the making of findings for the purpose of imposing a sentence of imprisonment. However, the administrative tribunal did not lack the authority to make such a finding.

75    For those reasons, the claim made by Mr Ba to the effect that the Tribunal had made a finding that he had no authority to make should not be accepted.

76    In any event, the Tribunal's findings as to remorse were not contrary to the finding of the sentencing judge as to remorse. The Tribunal's findings were not directed to any issue as to whether there was a proper foundation for the sentence that was imposed by the sentencing judge. Rather, the Tribunal's findings as to Mr Ba's remorse concerned the circumstances as at the time the Tribunal was required to consider his request for the revocation of the cancellation of his visa. They arose from the evidence that he gave in the course of a hearing where the Tribunal was required by the Direction to have regard to the risk to the Australian community of Mr Ba reoffending. It was relevant to that inquiry for the Tribunal to consider Mr Ba's then present attitude concerning the Offending Conduct. For that purpose, it was open to the Tribunal to make its own findings as to whether Mr Ba was remorseful at the time that he sought the revocation of his visa cancellation. To do so was not to call into question the factual findings on which the sentence had been imposed. In the same way, in a different case, the Tribunal might be invited by an applicant such as Mr Ba to make a finding of remorse at the time of the Tribunal hearing even though there had been a finding of a lack of remorse at the time of sentencing (which finding was not sought to be impugned before the Tribunal).

77    For those reasons ground 4 has not been made out.

Conclusion and costs

78    For the above reasons none of the grounds raised have been established and the application must be dismissed. It was common ground that costs should follow the event and there should be an order accordingly. In accordance with the practice of this Court, those costs should be assessed on a lump sum basis unless there is some particular reason why that should not occur. None has been raised. The costs order should provide for lump sum assessment by a registrar of required.

Associate:

Dated:    27 October 2022