Federal Court of Australia
HBMH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 275
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
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.
KATZMANN J:
Introduction
1 The Migration Act 1958 (Cth) gives the responsible Minister the power, personally or through a delegate, to cancel a visa of a non-citizen on character grounds. If the Minister is satisfied that certain non-citizens do not pass the character test, the Minister is obliged to cancel their visas. Those non-citizens include those who have been convicted of criminal offences and sentenced to terms of imprisonment of 12 months or more and those who have been convicted or found guilty of one or more sexually-based offences involving a child, in each case in circumstances in which they are serving full-time custodial sentences for offences against an Australian law. That is the effect of ss 501(3A), 501(6) and 501(7) of the Act. In any case in which the Minister is so satisfied, s 501CA gives the non-citizen a right to make representations to the Minister to revoke the cancellation decision and the Minister the discretion to revoke the decision.
2 The applicant is a citizen of the United Kingdom. He is currently 71 years of age. He spent the first two years of his life in the UK and, apart from a brief period in his childhood, has never returned. He arrived in Australia at the age of nine and has lived in Australia for over six decades. He has four children and eight minor grandchildren, all of whom are Australian citizens.
3 On 15 December 2020 the applicant was sentenced to prison terms of 15 months, 6 months and 12 months, to be served concurrently, having been convicted of three counts of “indecently deal[ing] with a child over 13 [and] under 16”. The child in question was his 13 year old granddaughter. Four months later, on 19 April 2021, the Minister cancelled his visa pursuant to s 501(3A). The applicant made representations to the Minister seeking to have the cancellation decision revoked but the Minister, by his delegate, declined to do so. The applicant then applied to the Administrative Appeals Tribunal for merits review but the Tribunal affirmed the delegate’s decision. This is an application for judicial review of the Tribunal’s decision.
The representations
4 In his initial revocation request, included in the form supplied by the Minister, completed on 4 May 2021 while he was still in prison, the applicant identified eight reasons for requesting revocation. They were that:
(1) he had lived in Australia since the age of nine;
(2) he honestly believed he was an Australian citizen;
(3) he had devoted his life to Australia;
(4) he had no friends or family in the UK and would be isolated if required to return there;
(5) all his children and grandchildren live in Australia;
(6) he owns a house in Australia and is settled here;
(7) all his friends are in Australia; and
(8) he served in the Australian Army in 1975.
5 Various documents were attached to the request, including a letter of support from a family friend and several statutory declarations attesting to his good character.
6 In his statutory declaration the applicant maintained his innocence of the crimes of which he was convicted, pointed to his good behaviour in prison, and emphasised his ties to Australia and his lack of connection to the UK. In his Personal Circumstances Form, dated 4 May 2021, he assured the decision-maker that there was no risk that he would “reoffend”.
7 The submissions prepared by the applicant’s solicitor addressed the various considerations contained in the Ministerial Direction issued under s 499 of the Migration Act (Direction no. 90) which both the delegate and the Tribunal were required to take into account.
The mandatory cancellation requirement and the power to revoke a cancellation decision
8 Section 501 gives the Minister a suite of powers to cancel (and refuse) a visa if the visa-holder does not pass the character test set by s 501(6). Section 501(3A) imposes an obligation on the Minister to cancel a person’s visa in certain circumstances. Those circumstances relevantly include where the Minister is satisfied that the person has been sentenced to a term of imprisonment of 12 months or more or has been convicted of one or more sexually-based offences involving a child and the person is serving a full-time custodial sentence for an offence against a law of the Commonwealth, a State or a Territory.
9 Section 501CA(4) provides that the Minister may revoke a decision to cancel a visa made under s 501(3A) if the person makes representations in accordance with the invitation the Minister is required to give and the Minister is satisfied that the person passes the character test or “there is another reason why the original decision should be revoked”.
Direction No. 90
10 Direction no. 90 applies to decisions by Ministerial delegates and the Tribunal under both s 501 (to refuse or cancel a visa on character grounds) and s 501CA. The purpose of the Direction, stated in the preamble, is to guide decision-makers in the performance of their functions or the exercise of their powers. The framework within which the decision-makers should approach the decision-making task is contained in a set of principles, listed in para 5.2. Those principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
11 These principles are also reflected in the primary considerations decision-makers are required to take into account in making their decisions, including a decision whether or not to revoke a cancellation decision under s 501CA. Those considerations are set out in para 8 of the Direction. They are:
(1) the protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia; and
(4) the expectations of the Australian community.
12 When considering the protection of the Australian community, decision-makers are directed to have particular regard to the first principle (para 8.1). They are also directed to give consideration to the nature and seriousness of the non-citizen’s conduct to date as well as the risk to the Australian community if the non-citizen were to commit further offences or engage in other serious conduct. In considering the nature and seriousness of the non-citizen’s conduct, decision-makers are directed to have regard to the fact that, among other things, sexual crimes are amongst those the Australian Government and the Australian community views “very seriously” (para 8.1.1). In assessing the risk to the Australian community, decision-makers must have regard to the nature of the harm and the likelihood of reoffending or engaging in other serious conduct, taking into account information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2).
13 Paragraph 8.1.2(1) provides that:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(Emphasis added.)
14 Decision-makers are also required to take into account certain “other considerations”, where relevant (para 9). The other considerations include, but are not limited to:
(a) international non-refoulement obligations;
(b) the extent of any impediments, if the non-citizen were removed;
(c) the impact of the decision on victims;
(d) the non-citizen’s links to the Australian community, including the strength, nature and duration of their ties to Australia and the impact of the decision on Australian business interests.
15 Primary considerations are generally to be given greater weight than the other considerations (para 7).
The Tribunal’s decision
16 The applicant accepted that the Tribunal would not be satisfied that he passed the character test. It follows, as the Tribunal recognised, that the question it was required to determine was whether there was another reason why the cancellation decision should be revoked. The Tribunal acknowledged that the question was to be determined having regard to the principles laid down in Direction no. 90 and the considerations it prescribes insofar as they were relevant.
17 The Tribunal identified three primary considerations and two other considerations as being relevant to its decision. The primary considerations were the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. The other considerations were the extent of any impediments which the applicant might face if returned to the UK and the applicant’s links to the Australian community.
18 With respect to the protection of the Australian community, the Tribunal referred at length to the sentencing remarks (at [92]), expressing its concerns at the “opportunistic” and “brazen” way the offences were committed and the “gross abuse of trust” involved (at [98]–[100]).
19 The Tribunal noted that the applicant continued to deny that he had committed any such offence, a matter which gave the Tribunal “little faith that he had accepted his offending conduct is of a very serious nature ...” (at [101]). It was “particularly troubled” by the applicant’s lack of remorse and his descriptions of the charges laid against him as “crap”, “bullshit” and “trumped up” (at [102]). It concluded that the applicant’s conduct should be viewed as “very serious” (at [104]).
20 The Tribunal found that the risk of harm to the Australian community if the applicant were to engage in further criminal or other serious conduct was objectively high (at [111]). It considered that the nature of the applicant’s offending “demonstrates a degree of recklessness toward the well-being of the Australian community” which could not be tolerated or dismissed (at [112]) such that any risk of reoffending was “unacceptable”, referring to para 8.1.2(1) of the Direction.
21 In considering the expectations of the Australian community the Tribunal returned to this subject. It referred again to the serious nature of the offending, involving as it did a vulnerable member of the community, and “the unacceptable risk of him committing further offences” (at [143]–[145]). It also remarked on his “lack of engagement with rehabilitation efforts” (at [145]).
22 The Tribunal found that the protection of the Australian community and the expectations of the Australian community both weighed strongly against the revocation of the cancellation decision.
23 The Tribunal found, contrary to the applicant’s submissions, that the best interests of his minor grandchildren weighed against the revocation of the cancellation decision.
24 With respect to the other considerations the Tribunal found that:
(1) The applicant would likely face significant emotional hardship if he were to return to the UK but the difficulties he would face in re-establishing himself there would only be temporary such that this consideration only weighed slightly in favour of the revocation of the cancellation decision.
(2) Although the applicant has reasonably strong ties to Australia and a strong familial connection with his sister (who resides here), none of the letters and statements provided by his friends and family to evidence these ties demonstrates an understanding of the nature and extent of the applicant’s offending. For this reason the applicant’s links to the Australian community only weighed moderately in favour of the revocation of the cancellation decision.
25 After weighing these considerations in the balance, the Tribunal concluded that there was not “another reason” to revoke the cancellation decision.
26 For good measure, the Tribunal added (at [184]):
For completeness, the Tribunal considers that even if the number of considerations weighing in favour of revocation had been greater than those weighing against revocation, the Tribunal would have nonetheless reached the same conclusion given it’s [sic] exceptionally strong view that, due to:
(a) the unacceptable risk of harm to the Australian community; and
(b) the seriousness of the Tribunal’s concerns regarding there being any risk at all of the Applicant reoffending in a similar way,
the protection of the Australian community from future harm (from either the Applicant’s future offending, or other serious conduct) is a primary consideration which, in addition to the expectations of the Australian community, outweigh any considerations weighing in the Applicant’s favour.
(Original emphasis.)
The application for judicial review
27 The scope of the application is narrow. It is common ground that the applicant may only succeed if he can demonstrate that the Tribunal’s decision was affected by jurisdictional error. Two grounds are pleaded.
28 The first is that the Tribunal failed to consider a legal consequence of its decision, namely, that following a decision not to revoke the cancellation decision, the applicant would be detained for “a prolonged or indefinite period”.
29 The second is that the Tribunal denied the applicant procedural fairness by giving no weight to four witness statements because the authors were not made available for cross-examination in circumstances in which neither the Minister nor the Tribunal asked that they be made available for cross-examination and it is not the practice in the Tribunal that every person who makes a witness statement also gives oral evidence.
The issues
30 It follows that the application raises the following questions:
(1) Was it a legal consequence of the Tribunal’s decision that the applicant would remain in immigration detention indefinitely or for a prolonged period?
(2) If so, did the Tribunal fail to take that into account?
(3) Did the Tribunal deny the applicant procedural fairness by giving no weight to four statements submitted by him in support of his application?
Did the Tribunal fail to take into account the legal consequences of non-revocation (ground 1)?
Background
31 The first ground was based on the factual circumstances referred to in the applicant’s written statement to the Tribunal in an account of his time in immigration detention at Yongah Hill in Western Australia.
32 The applicant reported having received an injury in August 2021, about a week after his arrival there, when he fell over on a slippery floor and scratched his leg, resulting in a bacterial infection from which he said he was still recovering. The fall was originally considered minor. He was examined by a doctor who told him he had not broken any bones. By the end of the month he became very sick and had to spend about three weeks in Royal Perth Hospital. He said the doctors at the hospital told him he had “flesh eating bacteria” in his leg and they had to “cut out” some of his leg in order to save his life. He said the cut was “deep and wide” and that is why it was taking so long to heal. On his return to immigration detention, he was told by one of the guards that he suffered a seizure. He returned to Royal Perth Hospital on three occasions, twice to have the wound cleaned and once for a skin graft to stop the wound from leaking and, at the time of his statement, he was attending another hospital, Northam, three times a week to have his wound dressed. On 30 March 2022 he was taken to Northam Hospital because his legs were so swollen he could not bend his knees and he was in a lot of pain. He was later transferred to Midland Hospital where he received a blood transfusion and five litres of fluid were drained. He continued:
238. Before coming to Yongah Hill, I took seven tablets a day. I now take 20, but I do not know what they are all for. I also do not know how it became like this.
239. The doctors at Yongah Hill are constantly changing. I believe they are all prescribing me different things and changing the pills the previous doctor prescribed.
240. There has also been no doctor at Yongah Hill for a few weeks now.
241. When I ask the people who give me the medicine what all the pills are for, they do not tell me.
…
243. There is no job I could sign up to do; no library and no chapel.
244. I go outside to walk around, but that is all I am able to do because my movement is now limited by my leg injury. I need a Zimmer frame to walk around.
245. If I need to be taken somewhere, I am now put in a wheelchair and transported there.
246. I have a carer, Sue. He helps me with all the things I cannot do on my own, such as showering, making the bed and washing my clothes.
247. I cannot shower on my own because I cannot get my bandage wet. I cannot make my bed or take my clothes to the laundry because I cannot carry things around as I need my hands to hold my Zimmer frame.
33 These matters were referred to in the applicant’s Statement of Facts, Issues and Contentions as creating impediments to his removal to the UK. In his response to that document, the Minister submitted:
To the extent that it was not practicable to remove the applicant to the United Kingdom whilst he is suffering the acute effects of his injury, the applicant would not be removed [footnoting s 198 of the Migration Act]. There is no evidence before the Tribunal to suggest that the applicant’s need for a carer will continue after his wound has healed.
34 With respect to these matters, the Tribunal said at [156] of its decision:
The Tribunal acknowledges the Applicant’s particular concern regarding the healing of his wound and given the lack of medical evidence regarding the Applicant’s prognosis and future treatment of this injury, notes further that if he were to be removed to the UK, this would not occur until he is no longer suffering the acute effects [footnoting s 198].
Was it a legal consequence of the Tribunal’s decision that the applicant would remain in immigration detention indefinitely or for a prolonged period?
35 Once the applicant’s visa was cancelled, he became an “unlawful non-citizen” within the meaning of the Migration Act. If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer is obliged to detain the person (s 189(1)). As an unlawful non-citizen detained under s 189, the applicant was required to be kept in immigration detention until he was removed from Australia under s 198 or granted a visa (s 196(1)).
36 At the time of the Tribunal’s decision s 198 of the Migration Act relevantly provided:
(2B) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and
(b) since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c) in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i) the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).
37 “Officer” is defined in s 5 to include certain officers of the Minister’s Department, police officers and various other designated persons.
38 The effect of the operation of s 198 in the applicant’s case is that, if the Tribunal (which, for the purpose of the merits review application, stands in the shoes of the Minister) decides not to revoke the cancellation decision, the applicant must be removed from Australia to the UK as soon as reasonably practicable.
39 The Minister did not dispute that, in considering whether to revoke the cancellation of a visa on character grounds, the Tribunal was bound to consider the legal consequences of a decision to decline to do so (NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [9]–[10] per Allsop CJ and Katzmann J; [153] per Buchanan J), that is to say the “direct and immediate statutorily prescribed consequences of the decision in contemplation”: Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [84] per Kenny, Flick and Griffiths JJ.
40 In NBMZ indefinite detention was a legal consequence of the Minister’s decision to refuse the applicant a protection visa because it “flowed from Australia’s obligation of non-refoulement and the terms of the Act” (at [10]).
41 In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463, upon which the applicant relied, Kenny and Mortimer JJ observed at [122] that, “whether indefinite detention remains a possible legal consequence of a non-revocation decision may … depend on what precisely is meant by the term ‘indefinite detention’”. Their Honours noted that non-refoulement was only one possible reason and that “there may be a myriad of factual reasons why it is not objectively ‘reasonably practicable’ to remove a person at a particular point in time”. Their Honours went on to say at [123]:
If the interaction between executive policy and the giving of a direction to an officer for the purposes of s 198 of the Act in fact results in an individual being held in immigration detention for a period where the end point of the detention cannot be reasonably predicted or ascertained, then by reason of the combined effect of ss 189 and 196 (and subject to the arguments in AJL20) this extended period of detention remains a legal consequence of the cancellation or refusal decision, whether or not the label “indefinite” is attached to it, as Wigney J also recognised in MNLR at [93]-[94]. … As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
42 Here, the applicant did not claim to be entitled to a protection visa. He made no representations to that effect and no such claim arose on the material before the Tribunal. Nor did he suggest that the UK would not receive him. The Tribunal considered that he would not be removed to the UK “until he [was] no longer suffering the acute effects [of the injury he had sustained in August 2021]” (at [156]), footnoting s 198, presumably on the basis that removal was not practicable at that time.
43 The period of his detention was therefore not indefinite, it was defined by the end of the acute effects of his injury. No evidence was proffered to the Tribunal to indicate that the end point of his detention could not reasonably be predicted or ascertained. Nor was there any evidence about the likely duration of his detention. The medical evidence was silent on the question.
44 Consequently, it is at least questionable whether indefinite or prolonged detention was a legal consequence of the decision not to revoke the cancellation decision in this case. While there was “no fixed chronological end point”, I find it difficult to accept that the end point of his detention could not be ascertained. To the contrary, the applicant did have a way of ascertaining when he might regain his freedom. He could have sought medical advice on when the acute effects of his injury were likely to resolve, if at all.
Did the Tribunal fail to take into account the prospect of indefinite or prolonged detention?
45 If the Tribunal’s conclusion that he would not be removed to the UK until the acute effects of his injury had resolved is to be taken as a finding that there was a prospect of indefinite or prolonged detention, I am not satisfied that the Tribunal failed to take it into account.
46 In determining whether the decision-maker (in this instance the Tribunal) committed a jurisdictional error by failing to take into account a relevant consideration, the representations made to the decision-maker are of critical importance. In Minister for Home Affairs v Omar (2019) 272 FCR 589 the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) observed at [34](g):
The representations play a central role in the relevant statutory regime. The Minister’s statutory power to revoke (and therefore “undo”) the mandatory cancellation of a person’s visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the Minister’s determination of whether he or she is satisfied that there is “another reason” why the cancellation should be revoked. As Colvin J said in Viane at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed. Of course, this does not mean that every matter raised in representations is itself a mandatory relevant consideration. As Colvin J said in Viane at [69]:
All of which does not mean that each matter in the representations is a mandatory relevant consideration such that a failure to bring the consideration to account in performing the statutory task (that is, in forming the required state of satisfaction) would be a jurisdictional error. Such an approach would elevate a requirement to consider significant matters raised in representations to an obligation to form the required state of satisfaction by giving weight to each of the considerations raised in the representations.
(Emphasis added.)
47 In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497; 400 ALR 417 at [22]–[25] Kiefel CJ, Keane, Gordon and Steward JJ said (footnotes omitted):
22 Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision‑maker to revoke a decision to cancel a visa held by a non‑citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision‑maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23 It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24 Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25 It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Emphasis added.)
48 Whether a claim clearly arises on the material is a matter of judgment. A court may be more inclined to decide that it does where the claimant is unrepresented. But such a finding is not to be made lightly. It is not enough that it might be said to arise. Consideration must be given to the way the applicant’s claims are presented. See AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ) and the cases referred to there.
49 In the present case, no submissions were made to the Tribunal to the effect that remaining in detention for a prolonged period of time was a factor which favoured revocation of the cancellation decision. Rather, the applicant’s state of health was raised in the context of his submissions about the impediments he would face if he had to return to the UK. That is evident from his Statement of Facts, Issues and Contentions, the questions asked of him and his witnesses, and his lawyer’s oral arguments.
50 As the Tribunal put it in its summary of the applicant’s arguments (at [86](d)):
The Applicant’s age and his poor health would be a significant impediment to his being returned to the UK and weighs in favour of revocation.
51 The Tribunal returned to the matter in the context of the consideration to which these matters were directed. That is to be found in para 9.2(1) of Direction No. 90 which reads:
Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
52 The Tribunal noted at [152] of its decision that the applicant’s argument that the impediments he would face if removed to the UK were “significant” and heavily favoured revocation of the cancellation decision for various reasons, including that:
(a) [G]iven his age, he also faces an increased incidence of morbidity, which will be compounded by his declining mental health and his other physical medical conditions.
(b) His declining health. Namely, his requiring carer assistance for daily tasks, his inability to walk without a Zimmer frame or carry things, his ongoing heart condition following his heart surgery, his requiring medication for gout, heart disease, hypertension and diabetes and his continued and indefinite wound care following his fall at the Yongah Hill detention centre. The Applicant contended he would not have anyone to assist him with these tasks and needs in the UK, whereas in Australia he can rely on JF [his sister] and NF [his brother-in-law].
53 In oral argument in this Court, the applicant conceded that his representations did not include a clearly articulated claim that the prospect of indefinite or prolonged detention was a reason to revoke the cancellation decision. He argued, however, that a claim to this effect clearly arose on the materials before the Tribunal because evidence had been given about “the deleterious effect of detention on [him], none of which was relevantly considered”. He pointed to the evidence that:
he had had a fall while in immigration detention, followed by a bacterial infection requiring hospitalisation and a blood transfusion, and had suffered a seizure;
witnesses other than the applicant had commented on his change of appearance since being in immigration detention, including significant weight loss and depression; and
Dr Lorraine Sheridan, a psychologist retained to assess his risk of reoffending, had remarked on the applicant reporting to her that he felt depressed “as a result of his situation” (which she attributed to “the continued uncertainty about his future”).
54 I am unable to accept the argument for two reasons.
55 First, I am not persuaded that the contentions advanced by the applicant in the Tribunal or the references to the particular matters in the evidence before the Tribunal (or both) amount to a claim that the prospect of indefinite or prolonged detention was a reason to revoke the cancellation decision.
56 The only references to his ill-health in the applicant’s Statement of Facts, Issues and Contentions were at [10.1]–[10.12] and [10.17], in the context of submissions as to impediments to him resettling in the UK. The only reference to his mental health was made in the same context. It was put in these terms (at [10.12]):
The Applicant’s mental health is also likely to significantly decline if he were to be deported to the UK. He is reliant on his social supports and his routines and believes that he would fade away and die if he were deported.
57 The references to his ill-health in the Statement of Facts, Issues and Contentions in Reply, including to the chronic nature of his wound, were in the same context, under the heading “Other considerations: Extent of Impediments if Removed”.
58 In examination-in chief the applicant was asked about his injury and treatment but he was not asked a single question about his how he felt about the prospect of indefinite or prolonged detention. The closest was a question about “how … the wound affected [his] day-to-day living in the detention centre” to which he replied:
Well, I live in the health care too, in a room at the health care which is – I’ve got a carer, four hours a day and she helps me shower, does my clothes, helps me with my room.
59 A good deal of the evidence elicited in chief from other witnesses about the applicant’s state of health was directed to how he was likely to fare if removed to the UK. That included the evidence elicited from Dr Sheridan, who was asked to elaborate on her written opinion that the applicant’s mental health would decline significantly if he were to be deported to the UK.
60 Neither in opening nor closing submissions did the applicant’s lawyer advert to the possibility that the applicant might remain in immigration detention indefinitely or for a prolonged period if the Tribunal were to affirm the delegate’s decision, let alone to the impact that might have on the applicant.
61 The fact that the applicant had an injury while in immigration detention and his recovery has been complicated does not mean that, in substance, if not in form, he should be taken to have made such a claim, particularly when he was legally represented. No such claim “clearly emerged” from the materials before the Tribunal.
62 Second, if the period referenced in the Tribunal’s decision at [156] is to be taken as indefinite or prolonged, on the basis that it was unknown when the acute recovery phase would come to an end, I am not persuaded that the Tribunal overlooked the matter. Its failure to discuss it in any greater detail reflects the way in which the applicant’s case was put and the content of the statutory obligation to give reasons.
63 Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) was the operative provision in the present case. It provides:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
64 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]-[69], McHugh, Gummow and Hayne JJ said of s 430 of the Migration Act (which relates to Part 7 reviewable decisions but was in relevant respects to the same effect as s 43(2B) of the AAT Act), all the section requires is that the Tribunal set out its findings on those questions of fact it considers to be material to the decision it made and to the reasons it had for reaching that decision. In these circumstances a court is entitled infer that, if the Tribunal did not refer to a particular matter, it did not consider that matter to be material to its decision. While that may disclose a jurisdictional error, that is not invariably the case. Similarly, if particular evidence is not mentioned in the Tribunal’s reasons, that does not necessarily mean that the evidence was overlooked; the Tribunal might have considered it but given it no weight and therefore not relied on it to reach its findings of material facts: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [34] (Katzmann, Griffiths and Wigney JJ). See, too, Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [31] (French CJ and Kiefel J).
65 In the present case, on the assumption that there was a prospect of indefinite or prolonged detention, I am not satisfied that the Tribunal failed to take it into account. To the contrary, I am persuaded that the Tribunal took it into account in its deliberations (at [156]) but gave the matter the weight it considered was warranted, having regard to nature of the representations and the dearth of medical evidence concerning his prognosis and future treatment. In so doing, I am not persuaded that it committed a jurisdictional error.
Was the applicant denied procedural fairness (ground 2)?
66 This ground is concerned with an aspect of the Tribunal’s reasoning concerning one of the “other considerations” in para 9.4.1 of Direction no. 90. This paragraph relevantly required the Tribunal to consider the both the impact, if any, of its decision on the applicant’s immediate family members who are Australian citizens, permanent residents or otherwise entitled to remain in Australia indefinitely and the strength, nature and duration of any family or social links with other people who meet any of these descriptions.
67 The Tribunal concluded that this consideration “weighs moderately in favour of revocation”.
The evidence before the Tribunal
68 The evidence before the Tribunal included witness statements and statutory declarations from 10 people, in addition to the applicant. The Tribunal referred to the witnesses by their initials or random letters of the alphabet. I will do the same.
69 AB and CD are daughters of the applicant, PJ a close friend. It was common ground that “MJ” should read “MD”. MD is friend of the applicant who had lived near him before he was taken into custody. Both MD and PJ have known the applicant for many years. All expressed support for his application, shock and disbelief at the charges that led to his convictions and sentence, and concern for his health and wellbeing if he were to be “deported” to the UK.
70 MD and PJ provided two statutory declarations each. AB and CD each provided statements in letters addressed to the Tribunal. None of them gave oral evidence.
71 MD said she would have liked to attend the Tribunal hearing but considered it would be difficult for her to take time off work to do so. PJ said he would have liked to attend the Tribunal hearing but could not do so as he would be in Thailand on holiday at the time. AB said nothing on the subject. Nor did CD, but CD lives in Europe.
72 In her statement AB said that, after moving out of home at 21, she maintained contact with the applicant but they were not particularly close (a matter to which the Tribunal referred at [53] and [169] of its reasons). She would catch up with him on Father’s Day or for Christmas and would call him on his birthday. He would come up to her house around 6 to 8 times a year for breakfast and would visit on her children’s birthdays. She said that her children enjoyed seeing him and that she had no concerns about him being around them. She said she was shocked by the allegations levelled against the applicant because she did not think that he was capable of doing what he was alleged to have done and believed that such behaviour was completely out of character. She was surprised that her sister (EF), the mother of the child he was convicted of abusing, had contacted the police before confronting the applicant. She expressed concern about the applicant being deported to the UK because of his health and the lack of support for him in that country. She noted that her aunt and uncle would be able to provide the applicant with support in Australia, but said, in effect, that, if the cancellation decision were revoked, she would not permit him to visit her because she was concerned it would upset her relationship with EF and her mother.
73 CD left Australia permanently in her early 20s and has lived overseas for about 20 years, first in London, then Germany, and now Croatia. Since having children she has only returned to Australia twice, once in 2008 (when her eldest child was a baby) and again 2018 (when the applicant suffered a heart attack). Whilst overseas, she would talk to the applicant on the phone once every couple of months for about half an hour or so. She found the allegations against the applicant “odd” since EF had not confronted him first. Even after he was charged, she thought that he would be “let off” because she could not believe that he would have committed the crimes of which he was convicted. Since the applicant was charged by the police, she has only had one conversation with him. She considered that deporting him to the UK would be a “death sentence” and did not believe that he would last more than one week alone in the UK. She said that he has “no one and nothing in the UK” and claimed that the National Health Service was “wholly inadequate”.
74 MD declared that she had known the applicant for about 20 years. She worked for him for a few years and they became friends. She described him as “a very good employer”, “always happy to help” and “easy to get along with”. Later they both joined a bowling club. She said he was popular at the club, would do chores for disabled or elderly club members, was always willing to help anyone in need and gave examples of occasions when she witnessed him doing so. She offered her opinions about the applicant’s relationship with EF and his grandchildren. She said she was “very surprised” to hear that he had been charged with indecently assaulting his granddaughter because it was “totally out of character” and said she agreed with the applicant that the charges against him were “a set-up”. She helped the accused pay his bills while he was in gaol and collected his mail and said she was happy to support him on release and remains willing to help him.
75 PJ declared that he had known the applicant for about 16 years, having met him at the bowling club. They appear to have developed a close friendship. They saw each frequently. They often babysat PJ’s grandchildren together which was of no concern to PJ. He said the applicant had many good friends at the bowling club but he believed the applicant considered him his best friend. Like MD, he said he was quick to help those in need. PJ was unaware the applicant had been charged with any criminal offence, beyond being aware that he had “some issues with the police”, until after the applicant had been imprisoned and telephoned him to tell him that he had been convicted of, in PJ’s words, “fiddling with his granddaughter”. He, too, expressed the view that this was entirely out of character. He did not believe he committed the crime. He said he would be very upset if the applicant were deported and believed that “it would kill him”. On the other hand, were he allowed back into the Australian community, he would be able to help look after him.
76 In closing argument the Minister submitted to the Tribunal that no weight should be given to the statements of AB, CD, MD or PJ because they were not made available for cross-examination.
77 The five other lay witnesses, who were made available for cross-examination, were JF, the applicant’s sister, her husband (NF); and three of the applicant’s friends (DG, DI and RS). The material before the Tribunal included witness statements from each of them, other than DG, prepared for the Tribunal and statutory declarations all five of them had made in support of the applicant’s representations to the Minister. Each of these witnesses gave similar evidence and their evidence was similar to the evidence of the four who were not made available for cross-examination. In fact, in some respects it was even stronger than the evidence of the four.
78 In his evidence before the Tribunal, the applicant described his relationship with JF as “very close”, “very important” and “the best relationship I’ve got”. He said he relied on her “a lot”. JF testified that over the previous 15 years she had had “fairly regular” contact with her brother, on average once a fortnight. She said she accepted that the court had found her brother guilty but insinuated that the charges were trumped up by the victim’s mother and her husband. She said she did not believe that he committed the offences of which he was convicted. On this basis she did not believe that the applicant would reoffend. She told the Tribunal that she wanted the applicant to live with her because he could not really look after himself anymore and “certainly couldn’t cope with going back to England” as there was “nothing there for him”. She said that after he went to prison she could not get in touch with him and became very distressed. She had no concerns about him interacting with her children or grandchildren.
79 NF has known the applicant for around 48 years. The extent of their contact varied over the years but from around 2005 until about 2018 they saw each other every two to three weeks. He was shocked to learn that he had been incarcerated and then placed in immigration detention. When he became aware that he was gaoled for molesting his granddaughter, he had trouble accepting it. NF said that over the years the applicant had interacted with NF’s grandchildren and there had “never been any issues”. He said he trusted the applicant with his grandchildren. He described the applicant as “a good hardworking man”, who was very caring. He did not consider him a threat to the Australian community. He expressed the belief that there was “no chance” the applicant would reoffend on the basis that the applicant “did not do it”. He said he would be devastated if the applicant were deported to the UK. He undertook to support the applicant “any way [he could]”. He said he was aware that the applicant’s friends from the bowling club would also support him.
80 DG has known the applicant for over 40 years. They first met during basic training in the Australian Army in 1975. He described him as “a great friend”. He could not believe it when he heard that the applicant had been convicted of “sexually interfering with his granddaughter”. He considered him a person of good character, despite his conviction and testified that he did not think the applicant could have committed the offences. It was for that reason that he did not think he would reoffend.
81 DI told the Tribunal that he has known the applicant for around 40 years. They met when the applicant supplied his family’s supermarket with meat. They became friends and would catch up once or twice a month for a beer. He said the applicant was well liked and he had never heard anyone say a bad word about him. He found it hard to believe that he could have committed the offences. Like DG, he said he believed the applicant to be a person of good character, “despite his conviction [sic]”. He said they would continue to be friends if he were released into the community and he would “be there to provide him with support as a friend”. He testified that he did not know what would happen to the applicant if he had to return to the UK but, based on what the applicant had said to him, he thought he would be “very depressed”.
82 At the time of the Tribunal hearing RS had known the applicant for 20 years. He was the bar manager of the bowling club when the applicant became a member and remained in contact with the applicant after he retired. He described him as “generous, kind, honest, and reliable”. He said he was very popular with club members and “got along with everyone”. RS also said that he “did the lawnmowing run for members of the Club”, especially the elderly and those not able to attend to their lawns themselves. In his witness statement he said he was always prepared to help anyone who needed it. In his oral evidence he spoke of the applicant’s willingness to help whenever a call went out for volunteers. Before RS retired, they would go “out and about together”. After he retired, they would see each other two or three times a week and their friendship became closer. RS was very surprised to hear that the applicant had been arrested and to learn of the accusations made against him. He said he could not see how the applicant would survive in the UK. He considered there was no risk the applicant would reoffend because the applicant had told him that he was convicted on “a trumped up charge”. He also testified that the applicant would have the support of members of the bowling club and friends if he were able to stay in Australia because “they do not believe he’s done anything”.
83 All these witnesses spoke of the deterioration in the applicant’s appearance since they had seen him and their concerns for his welfare and/or safety if he were required to return to the UK.
84 An old friend of the applicant, GJ, provided a statutory declaration to the Minister which was included in the G documents received into evidence by the Tribunal. GJ was not called to give oral evidence although he was present at the hearing. At the request of the applicant, the Tribunal allowed GJ to attend to support him.
The Tribunal’s reasons
85 The Tribunal accepted that the applicant’s ties to Australia, especially his familial ties, are “reasonably strong” and long-lasting (at [165]). It also accepted that the applicant has a “strong familial connection” with his sister (JF), that she would offer him support should he remain in Australia, and that he also has a close relationship with her husband (at [166]). It acknowledged that his offending began 20 years after he arrived in Australia and accepted that he had made “positive contributions” to the Australian community through his employment and “club pursuits” (at [167]). It also acknowledged the supportive letters and statements from friends, family and social club members (at [168]). However the Tribunal considered that none of the letters revealed an appreciation of the nature and extent of the applicant’s offending. And, in the paragraph to which the second ground of appeal relates, the Tribunal said (at [169]):
Further, in respect of AB’s, CD’s, M[D]’s and PJ’s statements, the Tribunal can afford no weight to these where they were not made available for cross-examination as their evidence remains untested. Even if the Tribunal were to afford weight to AB’s statement, her evidence is that she has not been in contact with the Applicant for some time, she would not allow the Applicant in her home upon his release and she may seek to re-establish contact at a later time, but not immediately.
The evidence in this Court
86 The applicant relied on an affidavit sworn on 21 December 2022 and one paragraph of an affidavit sworn on 6 February 2023 by his solicitor, Lester Eng Seong Ong of Munro Doig, who represented him in the Tribunal and appears to have acted for him ever since he was notified of the cancellation decision.
87 Mr Ong deposed that he has practised as a “migration lawyer” since 2002 during which time he has conducted matters in the Tribunal’s General Division, including in relation to “character matters”, and in its Migration and Refugee Division as well as its predecessor, the Migration Review Tribunal. His affidavit was silent on the number of such matters, as the Minister highlighted in his written submissions. But in his second affidavit, filed after the Minister’s submissions, Mr Ong said that he had appeared in or instructed on more than 20 matters in the Tribunal’s General Division and had appeared in the Migration and Refugee Division over 100 times. Mr Ong submitted that, to the best of his knowledge and based on his experience, a witness who provides a written statement in support of an application in the Tribunal is not required “as a matter of law or custom” to attend the hearing and he knew of no practice direction containing any such requirement.
88 Mr Ong was not required for cross-examination.
89 The Minister relied on an affidavit affirmed on 31 January 2023 by Ellen Tattersall, the solicitor in the firm retained by the Minister with the carriage of the matter. She deposed that on 4 July 2022 the Tribunal sent an email to Mr Ong, copied to her, requesting “an updated witness schedule” and that Melissa Phan, another lawyer with Munro Doig, replied the same day with a list of the witnesses the applicant intended to call and the approximate times they were scheduled to appear. One of those witnesses, DG, was scheduled to appear by phone and a mobile phone number was supplied.
The applicant’s argument
90 The applicant submitted that it came as a surprise to him that the Tribunal gave no weight to the four statements for the sole reason that the makers of the statements were not made available for cross-examination when he had had no notice that any of them were required for cross-examination. He noted that the Tribunal’s General Practice Direction contemplates that not all witnesses will give evidence at the hearing. He also relied on Mr Ong’s evidence and the Minister’s Statement of Facts, Issues and Contentions in the Tribunal in which no suggestion was made that the weight to be given to the statements should depend upon them attending to give oral evidence.
91 He submitted that to surprise the applicant in this way was “a basic denial of procedural fairness”, which was material because the evidence these witnesses gave was “plainly capable of affecting the weighing exercise under Direction 90”. He claimed that, in effect, he had “swathes of his evidence rejected altogether on a basis not able to be anticipated by him”.
92 The only authority upon which he relied to support his submission was Kunz v Commissioner of Taxation (1996) 41 ALD 533.
93 That case concerned an appeal from the Tribunal’s decision to affirm three decisions of the Commissioner of Taxation increasing the K’s assessable income tax, based on the increase in his assets. K had argued that the increase in his assets was principally due to large receipts of money from gambling and also from the sale of chattels bequeathed to him by his mother. The Tribunal found the applicant’s testimony to be “virtually worthless” for various reasons.
94 On appeal to this Court, K relevantly alleged that he had been denied procedural fairness by the Tribunal’s refusal to grant an adjournment of the hearing to enable a witness (Beljajev) to be called who could corroborate his evidence. At the hearing the Tribunal raised with counsel for K the prospect that he might wish to apply for an adjournment at the end of his case. Counsel said he did not and, in answer to a direct question from the Tribunal, indicated that he was happy to proceed without corroborative evidence from the witness. Shortly before K’s case was closed, however, counsel tendered a statement from Beljajev which the Tribunal received into evidence (as Ex AK) over the objection of the Commissioner’s counsel. In the Tribunal’s reasons the Tribunal said:
During the heat of battle, I decided to accept the tender, mindful that I am not strictly bound by the rules of evidence and that “Hamlet’s ghost” may shed some light on the events. On more mature reflection, I believe I should have rejected it. Right or wrong, having now looked at this exhibit, I am satisfied that, in any event, I can give no weight to its contents, if only because it contains matters which, as a matter of procedural fairness, should be subjected to cross-examination. For good measure, the statement contains critical allegations which were not raised in evidence.
95 In his judgment on the appeal, Jenkinson J said at 537–8:
It seems likely, but I am not certain, that the “procedural fairness” the tribunal had in mind was fairness to the respondent. Whether that be so or not, to deny Ex AK evidentiary significance because the statements it contains should have been, in the tribunal’s opinion, the subject of cross-examination, and not to reconvene the hearing and inform the applicant’s counsel of that conclusion, was in my opinion to deny the applicant procedural fairness in the circumstances of this case. When the document was received in evidence no application was made by counsel for the commissioner that the maker of the statement by [sic] made available for cross-examination. The applicant and his counsel were in those circumstances entitled to expect that Ex AK would not be denied evidentiary significance for the reason stated by the tribunal. If the tribunal considered that for that reason the document should be denied evidentiary significance, procedural fairness to the applicant required that the hearing be reconvened and the applicant’s counsel informed of that conclusion, so that the applicant could consider whether to apply for leave to re-open his case, in order to adduce other evidence, tending to establish the existence of the facts stated in the exhibit, whether by Mr Beljajev or by another or others.
The extent of what procedural fairness would have required of the tribunal would not in my opinion have enabled the applicant to adduce evidence of facts not comprehended by the statements in Ex AK. The applicant by his counsel had made his case, and was not entitled to expect that, because of the opinion which the tribunal had formed, he would be free to enlarge or vary that case. What he could expect – as he could have expected if tender of the document had been rejected – was that he would be entitled to essay proof of the statements of fact contained in the document by the oral testimony of Mr Beljajev or of other witnesses. (That is of course not to deny the existence of a discretionary power in the tribunal, if the hearing had been reconvened for the purpose for which I have held that it should have been reconvened, to permit the applicant to essay proof of other facts, nor to deny the existence of a discretionary power to set a limit to the time within which Mr Beljajev must be available to give evidence).
96 His Honour went on to hold that the Tribunal’s failure to reconvene the hearing for this purpose was an error of law which vitiated the Tribunal’s decision and, in addition, a failure to give the applicant a reasonable opportunity to present his case was in contravention of s 39 of the AAT Act. Accordingly, he ordered that the decision of the Tribunal be set aside and the matters for review remitted for rehearing before a differently constituted Tribunal.
The content of the obligation to afford procedural fairness
97 It well established that “the statutory framework within which a decision‑maker exercises statutory power is of critical importance when considering what procedural fairness requires” and that “the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
98 It follows that, in answering the question raised by ground 2 of the applicant’s application, it is necessary to begin with the statutory framework.
99 A number of aspects of the statutory framework are relevant here.
100 First, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that, among other things, is “fair, just, economical, informal and quick” (AAT Act, s 2A).
101 Second, proceedings before the Tribunal are to be conducted with “as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit” (AAT Act, s 33(1)(b)).
102 Third, the Tribunal is not bound by the rules of evidence (AAT Act, s 33(1)(c)).
103 Fourth, the Tribunal’s powers include the power to take evidence on oath or affirmation and to adjourn a proceeding (AAT Act, s 40) and to take evidence by telephone or other electronic means (AAT Act, s 33A).
104 Fifth, subject to certain provisions of the AAT Act, not presently relevant, the Tribunal is bound to ensure that “every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case …” (AAT Act, s 39(1)).
105 Sixth, for the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by any relevant enactment and shall make a decision in writing affirming, varying or setting aside the decision under review and making a decision in substitution or remitting the matter for reconsideration (AAT Act, s 43(1)).
106 Seventh, s 500(6L) of the Migration Act relevantly provides that, if the Tribunal has not made a decision under s 43 of the AAT Act in relation to the decision under review within a period of 84 days after the day on which the applicant was notified of the decision, the Tribunal is taken, at the end of that period, to have made a decision under s 43 to affirm the decision under review.
107 It is important to note, too, that the review the Tribunal was conducting was a review of the Minister’s decision not to revoke the cancellation decision. As Wigney J explained in EXT20 v Minister for Home Affairs (2022) 291 FCR 55 at [133]:
[T]he statutory scheme … involves the person whose visa has been revoked making representations about why the cancellation of his or her visa should be revoked and the Minister forming the relevant state of satisfaction based on those representations. It is for the person whose visa has been cancelled to put before the Minister, by way of representation, what the person wants the Minister to consider: Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643; [2018] FCAFC 216 at [48] (Rares and Robertson JJ). The Minister’s duty or obligation is to “consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations”: Omar at [34(g)] (emphasis added). The Minister is not necessarily obliged to ask the person for further or more detailed representations, or to make any further inquiries into the facts or circumstances contained in the representations: Maioha at [48]; see also Navato v Minister for Home Affairs [2019] FCAFC 135 at [100] (Middleton, Moshinsky and Anderson JJ); Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] (Davies, Derrington and Colvin JJ).
108 Finally, it is also well established that procedural fairness does not require decision makers to disclose what they are minded to decide or to give a party a running commentary upon what it thinks about the evidence that is given: SZBEL at [48].
109 In EXT20 one question was whether, in an application for revocation of a cancellation decision, procedural fairness required the Minister or his Department to notify the applicant that his claims might not be sufficiently particularised or substantiated, and afford him an opportunity to address that issue and supplement his representations accordingly (see EXT20 at [111] per Wigney J). The Full Court, by majority, held that there was no such requirement. Wigney J observed at [141]:
While procedural fairness requires a decision-maker to advise a person likely to be affected by the decision of any “issue critical to the decision which is not apparent from its nature or the terms of the [statute] under which it is made”, as well as any “adverse conclusion which has been arrived at which would not obviously be open on the known material”, it does not require the decision-maker to “expose his or her mental processes or provisional views to comment before making the decision in question”: Alphaone at 591-592; see also Snedden v Minister for Justice (2014) 230 FCR 82 at [176] (Middleton and Wigney JJ); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [22] (Gleeson CJ, Gummow and Heydon JJ); SZBEL at [29]-[32] and [48]; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; 235 ALR 609 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J); Viane at [32].
Did the Tribunal deny the applicant procedural fairness by giving no weight to four statements he submitted in support of his application?
110 I am not persuaded that the Tribunal denied the applicant procedural fairness in the circumstances.
111 The submission that the applicant was caught by surprise is unsupported by evidence. Notwithstanding his evidence as to the practice in the Tribunal, in neither of his affidavits did Mr Ong say that he was surprised at all either by the Tribunal’s reasons at [169] or by the submission made on behalf of the Minister which the Tribunal accepted at [169].
112 The submission that the applicant was caught by surprise is also inconsistent with Mr Ong’s behaviour at the hearing when the Minister invited the Tribunal to give no weight to the statements because their authors were not available for cross-examination.
113 At the time of the Minister’s submission, Mr Ong did not object to the course proposed by the Minister. Nor did he indicate to the Tribunal that he was caught by surprise by the submission. Moreover, when the Tribunal invited him to respond to any points made by the Minister’s representative, he did not cavil with the Minister’s submission. Nor did he indicate that, if the Tribunal were inclined to accept the submission, he should be allowed to reopen his case so as to enable the witnesses in question to be made available for cross-examination – by telephone if necessary.
114 In oral argument, Mr Guo, who appeared for the applicant, sought to attribute Mr Ong’s conduct to the lateness of the hour and the fact that the matter had only been listed for hearing for a day. In the absence of any evidence from Mr Ong to explain his silence, however, this was no more than speculation. On the face of things, Mr Ong’s conduct at the Tribunal hearing and his failure to explain it in his evidence in this case undermines the applicant’s argument that the Tribunal’s treatment of the four witness statements came as a surprise to him. In any case, neither the lateness of the hour nor the fact that the matter had only been listed for a day would explain the failure to object to the Minister’s submission or preclude Mr Ong from seeking an additional day on which to take their oral evidence.
115 The applicant also submitted that, if the Tribunal thought that the evidence “wasn’t good enough”, it could have summonsed the authors of the statements to attend by telephone or Teams link. That is true, but it is beside the point. The point is that the applicant carried a persuasive onus of satisfying the Tribunal that the cancellation decision should be revoked. It was up to the applicant to put his best case forward: EXT20 at [154] (Snaden J). The Tribunal did not direct the Minister to notify the applicant of the witnesses he required for cross-examination. Any of the witnesses who had signified in their statements that they were unable or reluctant to appear in person could have given evidence by telephone or, if necessary, under summons. The applicant made a forensic decision to make some witnesses available for cross-examination although the Minister had not required him to do so.
116 While the applicant might have entertained an expectation that some weight would be attributed to the evidence of witnesses who had provided statements which were admitted by consent and who had not been required for cross-examination, the weight to be attached to the evidence of any witness was always going to be a matter for the Tribunal — as any lawyer would know.
117 Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [34] that:
[T]he creation of an expectation may bear upon the practical content of [the obligation to afford procedural fairness]. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.
118 Later (at [37]), in a passage cited with approval by Hayne, Crennan, Kiefel and Bell JJ in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [156], his Honour remarked that:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
119 In Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220, Gaudron J said:
As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given “a reasonable opportunity to present his case” and not that the tribunal ensure “that a party takes the best advantage of the opportunity to which he is entitled.” And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue…
120 In the present case, I am not persuaded that any practical injustice was occasioned to the applicant. He was not denied a reasonable opportunity to present his case. No evidence was adduced that he was misled into thinking that the Tribunal would give weight to the evidence of AB, CD, MD and PJ although they did not present themselves for cross-examination. Mr Ong did not go so far as to say that the Tribunal’s practice led him to believe that it would. As the Minister submitted, at all times the applicant’s representative ought reasonably to have apprehended that a potential issue could arise as to what, if any, weight should be given to the four statements in circumstances where the makers of the statements were not made available for cross-examination and that position did not change when the Tribunal admitted the documents into evidence without flagging that it might not give them any weight. The mere fact that the Minister did not object to the admission of the evidence on the basis that the authors of the statements were not being made available for cross-examination is neither here nor there. The Minister invited the Tribunal in his closing submissions to give no weight to the statements. If notice was required that the Tribunal might not give weight to the statements, the Minister’s submission to that effect was sufficient notice. The applicant, through his legal representative, was afforded an opportunity to respond to the submission. In the circumstances, there was no denial of procedural fairness.
121 Kunz is distinguishable on the facts. The statement in that case was admitted into evidence over objection on the basis that the maker of the statement was not made available for cross-examination. As the Minister submitted, by admitting the statement into evidence over the Commissioner’s objection, the Tribunal was implicitly indicating that it would give some weight to the statement and no doubt that was what Jenkinson J was referring to when he said that in the circumstances of that case, the applicant was “entitled to expect” that the statement “would not be denied evidentiary significance for the reasons stated by the tribunal”. Here, however, there could be no such expectation, particularly when the Minister had made a submission that the statements in question should not be given any weight and the applicant’s legal representative was given an opportunity to respond to the submission and did not submit that that course was not open to the Tribunal.
122 Finally, even if it could be said that there was some procedural unfairness, I am not persuaded that the error was material in this case. It is true that the threshold for establishing materiality is not onerous: Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737; 403 ALR 398. All the applicant must prove is that there is a realistic possibility that a different decision could have been made if the procedural unfairness had not occurred: Minister for Immigration and Border Protection v Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ). This requires a counterfactual or backward-looking analysis: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441; 390 ALR 590 at [37]–[38] (Kiefel CJ, Gageler, Keane and Gleeson JJ). But it is difficult to see how giving the applicant the opportunity to make the four witnesses available for cross-examination could have made a difference to the outcome. After all, the evidence they gave was to the same effect as the evidence given by other witnesses who in some cases had known the applicant for longer, the Tribunal accepted that the applicant had strong ties to Australia, especially familial ties, acknowledged the positive contributions he had made to the community through his employment and his “club pursuits”, and the evidence of the four witnesses who did not appear before the Tribunal showed no greater understanding of the nature and extent of the applicant’s offending than did the evidence of the other witnesses.
123 Moreover, the Tribunal made it clear at [184] that, no matter how strong any of the considerations in favour of revocation may have been, its conclusion would have been the same.
Conclusion
124 The application should be dismissed with costs.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann. |
Associate:
