Federal Court of Australia

Tabuarua v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 748

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to quash the second respondent’s decision of 23 May 2023 affirming the decision of the first respondent’s delegate not to revoke the cancellation of the applicant’s visa.

2.    A writ of mandamus issue requiring the second respondent to determine the applicant’s application for review according to law.

3.    The first respondent pay the applicant’s costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant is a citizen of New Zealand whose visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) following his conviction for offences of burglary and sexual assault with a circumstance of aggravation and sentencing to terms of imprisonment of two-and-a-half years and two years respectively.

2    A delegate of the first respondent (the Minister) then made a decision under s 501CA(4) of the Act to not revoke the cancellation decision. The delegate’s decision was affirmed by the second respondent (the Tribunal).

3    The applicant now seeks judicial review of the Tribunal’s decision pursuant to s 476A(1)(b) of the Act.

4    I will summarise the applicant’s grounds of review before turning to consider those grounds.

The grounds of review

5    At the hearing, the applicant did not rely upon the grounds in his Amended Originating Application, but instead relied on the grounds argued in his written submissions. The Minister took no objection to that approach. I interpret the grounds relied on in the written submissions to be as follows:

(1)    The Tribunal misunderstood and therefore failed to evaluate the applicant’s submissions and representations in respect of his New Zealand criminal and traffic history; or failed to take into account those submissions and representations; or made illogical findings.

(2)    The Tribunal’s conclusion that the applicant posed a “moderate” or “medium” risk of reoffending was legally unreasonable as there was no intelligible justification for that conclusion.

(3)    The Tribunal failed to consider the applicant’s submission that if he were removed to New Zealand away from family and other support, he would be at risk of a worse outcome in respect of his health conditions.

(4)    The Tribunal misconstrued para 9.4.1 of Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99) of the Act as only applying to, “delivery of a major project, or delivery of an important service”.

6    After the hearing, the applicant applied for leave to further amend his Amending Originating Application to add a fifth ground alleging that he was denied procedural fairness by the Tribunal. The application for leave to amend was not opposed by the Minister, and I consider that leave should be granted in view of the strong merits of the ground.

Ground 1: Whether the Tribunal misunderstood and therefore failed to evaluate the applicant’s submissions and representations; or failed to take into account those submissions and representations; or made illogical findings concerning the issue.

Ground 5: Whether the applicant was denied procedural fairness.

7    It is convenient to consider the applicant’s first ground together with the applicant’s new fifth ground of denial of procedural fairness.

8    The applicant’s first ground is concerned primarily with the Tribunal’s finding that the applicant had provided false or misleading information to the Minister’s Department (the Department) and the Tribunal by denying that he had a criminal history in New Zealand. That finding weighed heavily against revocation of the cancellation decision.

9    In its reasons, the Tribunal observed that in the sentencing hearing before the District Court of Queensland, the sentencing judge had remarked, “[y]ou are burdened with a criminal history, but it is ancient history”. The Tribunal inferred that the evidence of the applicant’s criminal history must have come from a statement of agreed facts before the sentencing judge.

10    The Tribunal went on to find that since the transcript of the sentencing hearing demonstrated that the applicant must have been aware he had a criminal history at that time, he had been deliberately dishonest when subsequently denying to the Department that he had such a history in New Zealand. The Tribunal found:

30.    The Applicant has been convicted of numerous offences in New Zealand, but has, in his dealings with the Department, until closely cross-examined at the hearing, steadfastly denied any convictions, before eventually acknowledging them. The Applicant’s denials are extraordinary, particularly having regard to the fact that the sentencing judge - drawing no doubt on the statement of agreed facts placed before him, but most unfortunately not placed before this Tribunal - made the following observation, which must be understood as referring to the Applicant’s New Zealand criminal history, as he had nothing of the sort in Australia. His Honour said:

‘You are burdened with a criminal history but it is ancient history.’

31.    This history was that in 1987 and 1989 the Applicant was convicted of alcohol related driving offences, and in 1990 he was convicted of driving when disqualified. He then moved to Australia, where he maintained an unblemished record. He then returned to New Zealand for employment, and whilst there, in 2005, he was convicted of refusing to provide a blood specimen to police, and in 2006 he was convicted of driving whilst disqualified. In 2007 he was convicted in New Zealand of Common Assault - Domestic. In 2008, he was convicted of operating a vehicle carelessly. In 2017, he completed an Incoming Passenger Card in which he denied conviction for any criminal offences. He made similar assertions to the Department in his Personal Circumstances Form (‘PCF’) and through his representatives. He claimed a person with a similar name was the culprit for certain offences. He also provided a letter from the New Zealand Ministry of Justice in support of these denials. That letter was written pursuant to New Zealand’s “Clean Slate” legislation - Criminal Records (Clean Slate) Act 2004 (NZ) (‘Clean Slate Act’) - which means some convictions are automatically concealed. Fingerprint checking arranged by Interpol later confirmed that the Applicant had been convicted in 2007 of “Common Assault - Domestic-Manually”. So much appears from Attachment A to the Respondent’s SFIC.

32.    There is no way that the statement of agreed facts put to his Honour would have been submitted to the court unless they had first been approved by the Applicant’s lawyers acting on instructions. Notwithstanding those instructions, the Applicant developed a sudden and severe amnesia in respect of his New Zealand criminal history between the time of sentencing, and his correspondence with the Department. The Tribunal accepts the Respondent’s submission that this course of conduct of concealment and misleading submissions provides the unavoidable impression that the Applicant has been deliberately dishonest in his dealings with the Department, and this Tribunal. This conduct is viewed extremely seriously, and weighs heavily against the Applicant.

(Footnotes omitted.)

11    The applicant had in fact been convicted of nine offences in New Zealand between 1987 and 2007. One of those offences was for, “Common Assault – Domestic (Manually)”. The other eight convictions were for what might be described as “traffic offences”, including driving under the influence of alcohol; driving while disqualified; refusing to provide a blood specimen to police; and operating a vehicle carelessly. It may be seen at [31] of the Tribunal’s reasons that the Tribunal regarded the applicant’s “criminal history” as comprising his traffic offences as well as the assault.

12    The Tribunal turned to consider Direction 99.

13    The first “primary consideration” under Direction 99 was, “Protection of the Australian community”. In dealing with that consideration, the Tribunal stated:

92.    Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

93.    As discussed above, in the course of his remarks, his Honour Judge Coker referred to the Applicant’s “criminal history” which was “ancient”. This history can only have been a reference to the Applicant’s New Zealand convictions, in line with the Statement of Agreed Facts, and which the Applicant soon after proceeded to assert did not exist in numerous communications to the Department both directly and via his legal representatives. In addition, he expressly denied criminal convictions in the Incoming Passenger Card. There is no plausible explanation for the Applicant to have admitted a criminal history before the Court, and denied it to the Department within a matter of months.

94.    In these circumstances, a consideration of sub-paragraph (f) of paragraph 8.1.1(1) weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.

14    The applicant contends that the Tribunal fundamentally misunderstood and, therefore, failed to evaluate the representations that the applicant made to the Tribunal in respect of its use of the applicant’s New Zealand “criminal history information”. The applicant takes particular issue with the Tribunal’s statement that the applicant, “until closely cross-examined at the hearing, steadfastly denied any convictions, before eventually acknowledging them”.

15    The applicant submits that the Tribunal’s statement was wrong because the applicant had not denied the convictions, but, rather, had long accepted that he had some traffic convictions he could not remember the details of and could not recall being convicted of any assault. The applicant submits that the Tribunal misunderstood him as denying that he had any committed any offences.

16    The applicant points out that before the Tribunal, the applicant had expressed confusion about whether “DUI” was a criminal offence. His legal representative had also submitted that the applicant may have been convicted of assault in absentia, reflected in an entry in the New Zealand police record, “to come up for sentence if called upon”. The applicant submits that the Tribunal did not engage at all with these representations. It is submitted that these representations were a central and well-articulated part of the applicant’s case which the Tribunal was obliged to consider: cf Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 214 CLR 496 at [24] and [95].

17    In oral submissions, the applicant also developed an argument that the Tribunal’s inference that the applicant had admitted in a statement of agreed facts that he had a criminal history and must have given instructions in respect of that admission was illogical or irrational. The applicant submits that there were other possibilities that may have provided an explanation, such as that he had not had the opportunity to carefully consider the matters he was giving instructions about, or had not heard the sentencing judge’s comment about his criminal history.

18    The applicant relies on Minister for Immigration v Viane (2021) 274 CLR 398, where the High Court held at [13] that the statutory scheme mandated by s 501CA of the Act, “necessarily requires the Minister to consider and understand the representations received”. In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021), the High Court observed at [24] that, “there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations”.

19    For the reasons that follow, I am not satisfied that the Tribunal misunderstood the applicant’s representations concerning his history of criminal and traffic offences, nor that the Tribunal failed to engage with aspects of the applicant’s representations, nor that the Tribunal’s findings were illogical.

20    It must be observed that when the factual basis for a claim (such as misunderstanding or failing to engage with the applicant’s representations) is founded in an inference to be drawn from the Tribunal’s reasons, the appropriateness of such an inference is to be evaluated according to the principle that reasons should not be read in an unduly critical manner: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [38].

21    The Tribunal observed that when the applicant was being sentenced in the District Court of Queensland on 27 January 2022, the sentencing judge had stated that the applicant, “was burdened with a criminal history, but it is ancient history”. The Tribunal inferred that the criminal history being referred to was in respect of offences committed in New Zealand, since the applicant had no other offending history in Australia. It is also evident that the Tribunal inferred that since the applicant was present during his sentencing, he had heard and was aware of the sentencing judge’s comment. These inferences were, in my opinion, logically available and not unreasonably drawn.

22    The Tribunal regarded the applicant’s “criminal history” as encompassing his convictions for the traffic offences referred to at [31] of the Tribunal’s reasons. In my opinion, it was open to the Tribunal to regard serious offences against traffic laws subject to punishment in a criminal court as criminal offending.

23    In 2017, the applicant had completed an incoming passenger card on his return to Australia from New Zealand. In response to the question, “[d]o you have any criminal conviction/s?”, the applicant had answered “no”.

24    On 24 February 2022, less than a month after his sentencing, the applicant made representations to the Minister seeking to have the cancellation decision revoked, writing, “I havent commited [sic] any criminal offence over there in New Zealand”. On 21 September 2022, his legal representatives confirmed that, “[o]ur client denies of [sic] having any criminal conviction in New Zealand”.

25    The Department obtained a New Zealand police criminal history report for the applicant which showed that he had been convicted of the nine offences referred to earlier. The report distinguished between the applicant’s offence of assault and his “Traffic Conviction History”.

26    The criminal history report was provided by the Department to the applicant’s legal representatives, who responded on 20 December 2022, saying that the applicant, “denies… having a criminal conviction in New Zealand other than minor traffic matters that he cannot recall the details”. The representatives produced a letter from the New Zealand Ministry of Justice indicating there were no convictions for either Waisea Tabuarua or Aisea Tabuarua, the applicant’s alias (it seems that this was because the Criminal Records (Clean Slate) Act 2004 (NZ) resulted in automatic concealment of spent convictions). To explain the discrepancy between the information obtained from the Department and the applicant’s position, his representatives pointed to the fact that the sentence date for one of the offences in the criminal history report (“Operated a Vehicle Carelessly”) was at a time when the applicant was not in New Zealand, and suggested (obviously on instructions) that the conviction related to a person with a similar name.

27    The Department subsequently ascertained that the applicant had been in New Zealand at the time of commission of the “Operated a Vehicle Carelessly” offence, although not at the time of sentencing for that offence. Inquiries with Interpol also revealed, on the basis of fingerprint records, that the applicant was in fact the person who was convicted of the common assault offence.

28    The applicant filed an additional statement before the Tribunal dealing with this evidence. The applicant stated that, “I recall having some traffic histories including drink driving in New Zealand, but nothing like assault or domestic violence”.

29    Before the Tribunal, the applicant’s oral evidence was that he did not deny having been convicted of assault, although he could not remember it. The applicant ultimately accepted under cross-examination, that the other traffic convictions were his. The applicant also said he was unsure whether the traffic convictions were considered to be criminal convictions.

30    The Tribunal at [30]–[32] of its reasons stated that the applicant, “until closely cross-examined at the hearing, steadfastly denied any convictions, before eventually acknowledging them”. That statement can be understood as referring to denials of both the criminal offence and some of the traffic offences in New Zealand. The applicant had expressly denied, in his correspondence with the Department, “having a criminal conviction in New Zealand other than minor traffic matters that he cannot recall the details”. The applicant had filed a statement in the Tribunal saying he had no recollection of having been convicted of common assault, but that did not clearly amount to a recantation of his denial that he had been convicted of assault. The applicant also said he recalled having some traffic offence history (including for drink driving), but did not expressly admit to having committed the other traffic offences. The Tribunal seems to have regarded the applicant as having continued to deny the more serious traffic matters before ultimately acknowledging them under cross-examination. In my opinion, it was open to the Tribunal to have regarded the applicant as having substantially maintained his denials of his criminal history up to and during part of the hearing.

31    The Tribunal regarded the applicant’s denials of a criminal history as, “extraordinary”, particularly having regard to the fact that the sentencing judge (“drawing no doubt on the statement of agreed facts placed before him”) had made the express statement that the applicant had a criminal history. The Tribunal went on to say that there was no way that the statement of agreed facts would have been submitted to the sentencing court unless first approved by the applicant’s lawyers acting on instructions. The applicant submits that the Tribunal’s reference to an agreed statement of facts reflects a misunderstanding of criminal procedure in Queensland, but, in my opinion, any such mistake was irrelevant. It was open to the Tribunal to infer that there was some form of evidence before the District Court indicating that the applicant had a criminal history in New Zealand (comprising the assault conviction and the traffic offences), and that his lawyers, on instructions, had not challenged the accuracy of that history. The precise form in which that evidence was before the District Court does not matter.

32    The finding then made by the Tribunal was, “the Applicant developed a sudden and severe amnesia in respect of his New Zealand criminal history between the time of sentencing, and his correspondence with the Department”. That was a finding rejecting the applicant’s claim that when he told the Department he had no criminal history in New Zealand, he had failed to recall that he had such a history. The Tribunal’s reasoning was that the applicant’s denials to the Department of having any criminal history were implausible since he must have known from the sentencing proceedings that he had such a criminal history (regardless of whether he remembered any court proceedings resulting in the convictions).

33    The Tribunal’s finding that the applicant had been deliberately dishonest in his dealings with the Tribunal seems to have been a finding rejecting the applicant’s evidence that he had no recollection of being convicted of the assault. It had been expressly put to the applicant by the Minister’s legal representative that he was being dishonest in saying he had no recollection of being convicted of the offence. It was plainly a matter for the Tribunal, having read the applicant’s material and having seen and heard him give oral evidence, to determine the credibility of the evidence he gave.

34    The Tribunal went on to find that the applicant had made misleading statements to the Department and that, consequently, paragraph 8.1.1(1)(f) of Direction 99 weighed heavily against revocation of the cancellation decision.

35    In my opinion, the Tribunal’s reasoning reveals no misunderstanding of the applicant’s case. The Tribunal understood the applicant’s case but dealt with it by rejecting the credibility of relevant parts of his evidence. Those findings were available to the Tribunal to make and were not illogical, irrational or unreasonable.

36    Further, I do not accept that the Tribunal overlooked any aspect of the applicant’s case. The Tribunal did not expressly deal with the applicant’s evidence that he was unsure whether the traffic convictions were criminal convictions, but it should be inferred that the Tribunal did not regard any such uncertainty as being of significance because it would not explain the denial of the conviction of assault to the Department. It can be inferred that the submission that the applicant may have been convicted in absentia was regarded by the Tribunal in the same way. The claims or arguments that the Tribunal is said to have failed to engage with can be regarded as having been subsumed by the Tribunal’s findings as to the applicant’s dishonesty: cf Plaintiff M1/2021 at [23]–[24].

37    In the course of oral submissions concerning the first ground, the applicant’s counsel referred to a passage from the transcript of the hearing before the Tribunal which appeared as though it may also have had wider significance. In his address to the Tribunal, the Minister’s legal representative had stated that:

The tribunal has made the point that an ordinary person with ordinary intelligence would probably not think about previous traffic convictions, and there’s a significant amount of force in that. But that’s where the distinction between the traffic offending and the assault is relevant. In my submission, no, while plenty [of] sensible person[s] might not think of traffic offending as being a criminal conviction in respect of which someone doesn’t have to check “yes” on the question, conviction for assault is very different. Very different. No one could think that that’s not criminal. The applicant was cross-examined about this assault and he said that he didn’t remember it. Again, in my submission, that’s not plausible.

It’s not plausible to suppose that you simply don’t remember being convicted of an assault, especially - and I appreciate that for the purposes of seriousness I’ve accepted that it was a long time ago, 2007 - but it’s not something you just forget about, forget ever having happened. In my submission, that doesn’t have the ring of truth about it. In my submission, that offending should have been disclosed. It was not disclosed, and that enlivens paragraph (f). So I don’t rely upon the traffic convictions really for that purpose. It is the assault.

(Underlining added.)

38    In that passage, the Minister’s legal representative disclaimed reliance on the applicant’s convictions for traffic offences in New Zealand for the purposes of assessing the applicant’s denials of having a criminal history in the application of para 8.1.1(1)(f) of Direction 99, which provided:

8.1.1    The nature and seriousness of the conduct

(1)    In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:

…

f)    whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending

39    Accordingly, while the Minister’s representative had contended before the Tribunal that the applicant had provided false or misleading information to the Department by not disclosing his conviction for assault, the representative expressly indicated that he was not contending that the applicant’s failure to disclose his traffic history involved the provision of false or misleading information to the Department.

40    As the Minister’s counsel correctly pointed out in oral submissions, the applicant had not sought to argue any denial of procedural fairness stemming from the Minister’s concession, and only relied upon the concession to argue that the Tribunal’s findings concerning the applicant’s credibility were illogical or irrational.

41    I gave the parties an opportunity to make further written submissions about the relevance of the concession. In his further submissions, the applicant again only argued that the concession made by the Minister’s representative was relevant to his argument that inferences drawn by the Tribunal were illogical and irrational. He argued that once the concession was made, “the relevance of the traffic history for [sic] evaporated”, and that the Tribunal improperly found that the applicant was dishonest in respect of the whole of his history.

42    One significant problem with the applicant’s submission is the underlying assumption that once the concession was made by the Minister, the Tribunal was prohibited from making findings that conflicted with that concession. That is not so. The Tribunal was required to form its own view as to the correct or preferable decision and, in doing so, was not bound by the way the parties presented the case: see Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59 (Korat) at [31].

43    Another difficulty is that, as I have discussed, it was not illogical or irrational for the Tribunal to find that the applicant had deliberately concealed his New Zealand convictions. The applicant’s submissions concerning illogicality and irrationality seem, in large part, to argue the merits of the Tribunal’s decision. However, the Court must be careful not to assume the Tribunal’s function of determining the merits of an issue: see MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [51]. The applicant’s arguments concerning illogicality and irrationality cannot be accepted.

44    After I had reserved my judgment, the Full Court delivered its judgment in Korat. I considered it appropriate to draw the case to the attention of the parties because of its legal and factual similarities with the present case.

45    At that point, the applicant applied for leave to add a ground alleging denial of procedural fairness arising from the Tribunal having acted contrary to the Minister’s concession without giving the applicant an opportunity to make submissions about why that concession should not be departed from. The proposed ground is as follows:

PROPOSED GROUND 5

The applicant seeks leave to raise the following ground.

5.    In conducting its review pursuant to s 500(1)(ba) of the Migration Act, the Tribunal denied the applicant procedural fairness.

PARTICULARS

a.    The Tribunal did not fairly or adequate [sic] put the applicant on notice as to the finding it would make that para 8.1.1(1)(f) was engaged in respect of the applicant's traffic history in New Zealand.

b.    The finding was not obvious having regard to: (1) the evidence before the delegate and the delegate’s reasons;·(2) the statements made by the Tribunal during the hearing; (3) the representations made by the Minister’s representative during closing addresses in the hearing.

c.    In making the finding (in particular (a)) the Tribunal reasoned based on an inference from a document which it did not have (the SOF) that the applicant had been ‘deliberately dishonest’ to both the Minister’s department and the Tribunal itself (TD [30]-[32]).

d.    The applicant was deprived of the opportunity to make submissions about why the finding should not be made (including why an inference from the SOF should not be used to make the serious deliberate dishonesty finding).

e.    The finding was material and infected the exercise of weighing the primary and other considerations in Direction no. 99. It breached an express condition on the exercise of its power: Migration Act s 499(2A).

46    The parties provided written submissions upon the question of leave to amend to add the additional ground and the merits of the proposed ground. The Minister did not oppose the grant of leave to amend, but argued that the ground should be dismissed. The parties agreed that I should determine the additional ground on the basis of the written submissions.

47    The Minister argues that the starting point is that decision-makers are not generally required to disclose their thought processes about the evidence before them except where a proposed finding is not, “obviously open on the known materials”. The Minister submits that even if a finding is not sought on the Minister’s case, it is for the Tribunal to ultimately make its own determination of the facts and issues. The Minister submits that consequently there is no basis to expect that the Tribunal will limit its inferences and findings to those advanced by the parties.

48    The Minister submits that the Tribunal’s findings that the applicant had concealed his traffic history for the purposes of para 8.1.1(1)(f) of Direction 99 cannot be described as findings that could not have been reasonably anticipated or “out of the blue”. The Minister also submits that any denial of procedural fairness was not material.

49    I will proceed to consider the applicant’s fifth ground.

50    The Tribunal’s findings in respect of para 8.1.1(1)(f) of Direction 99, that the applicant had provided false or misleading information to the Department, relied not only on the applicant’s denial of his conviction of assault to the Department, but also on his concealment of his traffic history.

51    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), the High Court at [29] cited the following passage from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591–592 with approval:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

(Emphasis added by High Court.)

52    In Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516, the Full Court held at [151] that the principle expressed in SZBEL is, “equally applicable to a finding by the Tribunal in the conduct of review of a decision under s 501CA(4) of the Act that the evidence of a witness giving critical evidence is not credible or embellished”.

53    In Korat, the Full Court confirmed at [31] that in conducting a review under s 500(1)(ba) of the Act, the Tribunal is required to afford procedural fairness. The Full Court observed at [32] that, “the Tribunal’s statutory function requires it to form its own view as to the correct or preferable decision”, and it is not bound by the way the parties present the case. However, the Full Court went on to hold that in circumstances where the Minister’s representative had conceded that a particular consideration under Direction 99 weighed in favour of revoking the applicant’s visa cancellation, but the Tribunal found that consideration weighed against revocation, without giving the applicant to make submissions against such a finding, the applicant had been denied procedural fairness.

54    In the present case, the Minister’s legal representative had submitted before the Tribunal that the applicant had provided false and misleading representations to the Department by denying that he had any criminal history in New Zealand. However, the legal representative then expressly conceded that he did not rely upon the applicant’s failure to disclose his traffic convictions in New Zealand in support of that submission. The basis for the concession was an acceptance that the applicant might reasonably have thought that his traffic offences were not criminal offences. The Tribunal, evidently rejecting the Minister’s concession, found that the applicant had provided false or misleading information to the Department by not disclosing his prior convictions for traffic offences, as well as his conviction for assault. This involved finding that the applicant was aware that his traffic offences were criminal offences and had deliberately concealed them from the Department.

55    In Korat, the Full Court held at [32]:

It was the Tribunal’s statutory function to form its own view as to the correct or preferable decision and, in undertaking that task, it was legitimate for the Tribunal to be guided by the parties as to the salient issues and to accept relevant admissions.

56    The Tribunal is not confined to the issues as they have been defined by the parties: Korat at [30]. That may be contrasted with adversarial proceedings before a Court where, “a judge tries the case before [them] on the evidence and arguments presented to [them] in open court by the parties or their legal representatives and by reference to those matters alone…”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 350 (Mason J). In Bushell v Repatriation Commission (1992) 175 CLR 408, Brennan J at 425 observed that in substance the review conducted by the Tribunal is inquisitorial. However, his Honour recognised at 424 that the review may have the appearance of an adversarial proceeding when the respondent appears to defend a decision.

57    Section 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) requires the Tribunal to ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present their case. In the review of a decision to refuse to revoke a cancellation decision under s 501CA(4) of the Act, the Minister may appear and can be expected to appear to advance a case that the decision of their delegate should be affirmed. The Minister may, at least generally, produce evidence, cross-examine witnesses and make submissions against an order setting aside the decision under review. Accordingly, the conduct of an application for review of a refusal to revoke a cancellation decision has many of the features of an adversarial process.

58    The Tribunal’s general practice (which was followed in the present case) is to order that each of the parties file and serve a Statement of Facts, Issues and Contentions, which functions in a broadly similar way to pleadings in a court proceeding. The objects of that procedure include allowing the issues between the parties to be defined for the benefit of the parties and the Tribunal. The definition of the issues benefits the parties and the Tribunal by allowing each of them to focus their attention on those issues. However, the parties are not strictly bound by their Statement of Facts, Issues and Contentions and there may be expansion or contraction of their identification of the issues as the application progresses.

59    In Jadidi v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1560, Logan J observed at [17]:

…[T]he place of the Tribunal in an administrative decision-making continuum provides a prism through which to scrutinise the way in which the Tribunal has come to deal with or, as the case may be, not deal with, or not deal with in any particular depth, particular issues which fall for determination. Sometimes issues which are initially adverted to in a claim, application or representation gain or lose emphasis, or are even abandoned, in the course of an administrative decision-making continuum.

His Honour’s analysis of the role of the “administrative decision-making continuum” in understanding the way the Tribunal deals or does not deal with particular issues is equally applicable to the Minister’s decisions to raise or abandon particular issues in the course of an application for review. It would be an unduly onerous task for the Tribunal in determining the correct or preferable outcome to proceed on the basis that it was required to give equal attention to every possible issue. The Tribunal may legitimately, and is generally, guided by the parties’ definition of the issues.

60    Although the Tribunal is not bound by a party’s concession of an issue, unless the Tribunal makes known to the parties that it might act contrary to that concession, the parties’ natural expectation will usually be that the Tribunal will act in accordance with their agreed position.

61    An analogy can be drawn with SZBEL, where the plurality held in respect of an application for review of a decision to refuse a protection visa:

35    The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision maker identified as determinative against the applicant.

62    Similarly, in the present case, the parties were entitled to assume that the dispositive issues would be those defined by the parties in the absence of some contrary indication by the Tribunal. The Minister’s representative had conceded he was not contending that the applicant’s failure to disclose his traffic history involved the provision of false or misleading information to the Department. In that way, the Minister had redefined the issues between the parties. A finding contrary to the Minister’s position was not then, “obviously open on the known materials”.

63    It was open to the Tribunal to find, contrary to the parties’ position, that the applicant had provided false or misleading information to the Department by failing to disclose his traffic history. However, procedural fairness required that the Tribunal give the applicant an opportunity to make submissions about why the Tribunal ought not find that his failure to disclose his traffic history did not involve the provision of false or misleading information. I hold that the applicant was denied procedural fairness.

64    If the potential for the Tribunal’s departure from the Minister’s concession had been communicated, the applicant’s legal representative would no doubt have made specific submissions to the contrary. The Tribunal’s reliance upon the concealment of his traffic convictions was significant because whereas his failure to disclose the conviction for assault might possibly be explained by the applicant not recalling the conviction, it was quite unlikely that the applicant could have forgotten the entirety of his traffic offending . One of the matters relied on by the Tribunal was the applicant’s statement on his incoming passenger card in 2017 that he had no criminal history. In respect of the incoming passenger card, applicant’s failure to disclose the traffic history seems to have assumed significance for the Tribunal. If the applicant had been given the opportunity to make or reiterate submissions that he did not understand the traffic convictions to be criminal convictions and that he did not deliberately conceal them, those submissions would have been, on their face, tenable, and might have been accepted by the Tribunal.

65    I find that the denial of procedural fairness was material because, if it had not occurred, the outcome of the review might realistically have been different: see Nathanson v Minister for Home Affairs (2022) 276 CLR 80 at [13]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT) at [15]–[16].

Ground 2: Whether the Tribunal’s conclusion that the applicant posed a “moderate” or “medium” risk of reoffending was legally unreasonable as there was no intelligible justification for that conclusion.

66    The applicant submits that there was no intelligible justification for the Tribunal’s finding at [117] of its decision that, “the Applicant’s risk of reoffending is low to moderate”.

67    The Tribunal was required to take into account para 8.1.2 of Direction 99, which provided:

8.1.2    The risk to the Australia community should the non-citizen commit further offences or engage in other serious conduct

(1)    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.

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

(a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.    information and evidence on the risk of the non-citizen re-offending; and

ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decision should not be delayed in order for rehabilitative courses to be undertaken).

(c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

68    The Tribunal commented that, except for the offending which led to his incarceration and visa cancellation, the applicant’s conduct in Australia had been close to exemplary, although he had failed to disclose convictions on an incoming passenger card and denied his offending to the Department.

69    The Tribunal found that in light of the nature and circumstances of the offending, “the seriousness of the potential harm which might flow from the Applicant’s further offending is so great that the Australian community’s tolerance for any such risk would be very low”.

70    The Tribunal observed that the sentencing judge appeared to have regarded the applicant’s offending as something of an aberration, and saw no need for rehabilitation. Later, the Tribunal stated that it did not share the sentencing judge’s optimism.

71    The Tribunal noted there was no expert evidence before the Tribunal as to the applicant’s likelihood of re­offending.

72    The Tribunal was not persuaded that alcohol or anger issues were causative factors in the applicant’s offending, and saw the courses he had undertaken (Lives Lived Well, Alcoholics Anonymous and two sessions with a psychologist) as having little bearing on the question of whether he had achieved any rehabilitation. The Tribunal also noted that the benefits of these courses had not been tested in the community.

73    The Tribunal noted that there had been no reports of any inappropriate behaviour by the applicant whilst in prison or in immigration detention, offering some support for the view that he required little in the way of rehabilitation.

74    The Tribunal stated that, notwithstanding that the applicant had been sentenced in part on the basis of his prior New Zealand criminal record, within two months he was denying such a record and had maintained such denials. The Tribunal stated that the applicant’s oral evidence had provided no reason to believe that the applicant had any real insight into his offending or that he had learned to be truthful when required by law to do so.

75    The Tribunal noted that although the applicant had an offer of future employment and the strong support of his children, former partners, and various friends, these factors were present at the time of his offending and did not prevent it.

76    The Tribunal concluded that, having regard to the totality of the evidence, the applicant’s risk of re-offending was low to moderate.

77    The applicant submits that the two reasons the Tribunal relied on were that: (1) the applicant had denied his criminal convictions at the hearing (which it misunderstood); and (2) family and employment links did not prevent his initial offending such that it would not prevent future offending. The applicant observes that the Tribunal acknowledged that it did not have some of the information that was before the sentencing judge.

78    The applicant submits that on the basis of no evidence at all (or wrongly understood evidence), the Tribunal formed a conclusion that was inconsistent with that of the sentencing judge. The applicant accepts that the Tribunal was not obliged to adopt the sentencing judge’s assessment, but submits that there was no intelligible justification for the Tribunal’s conclusion that the applicant’s risk of reoffending was as high as “moderate”.

79    It is true that an ultimate decision must have an, “evident and intelligible justification” for it to be reasonable: Minister for Immigration v Li (2013) 249 CLR 332 at [76].

80    I have already rejected the applicant’s submission that the Tribunal misunderstood the applicant’s case concerning denial of his criminal history.

81    The Tribunal took into account that the applicant’s family and employment links had not prevented his initial offending, so those factors were not a good indicator of lack of risk of offending in the future. However, I reject the applicant’s submission that this was the only other factor on which the Tribunal based its assessment of a “low to moderate” risk of offending. The Tribunal considered the nature of the offending and the surrounding circumstances, noting that the applicant’s offending arose, “through his inability to accept rejection”. It found that alcohol or anger issues were not causative factors to the offending, and, therefore, the courses on those subjects he undertook were of little use in preventing re-offending of a similar kind. It also found that the applicant’s oral evidence had provided no reason to believe that the applicant had any real insight into his offending.

82    In my opinion, those findings, together with the Tribunal’s finding concerning the applicant’s denial of his criminal history, provided an intelligible justification for its assessment that the applicant posed a “moderate” risk of re-offending.

83    The applicant’s second ground must be rejected.

Ground 3: Whether the Tribunal failed to consider the applicant’s submission that if he were removed to New Zealand away from family and other support, he would be at risk of a worse outcome in respect of his health conditions.

84    The Tribunal found that the applicant suffers from several health issues, including ischaemic heart disease and left ventricular thrombosis. The applicant argues that the Tribunal overlooked his submission that if he were to be removed to New Zealand away from family and other support, he would be at risk of a worse outcome in respect of his health conditions in its consideration of paras 8.3 and 9.2(1)(a) of Direction 99.

85    Paragraph 8.3 provided:

8.3    The strength, nature and duration of ties to Australia

(1)    Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)    In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(3)    The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(4)    Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

(a)    the length of time the non-citizen has resided in the Australian community, noting that:

i.    considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

ii.    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

iii.    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

86    Paragraph 9.2(1) provided:

(1)    Decision-makers must consider the extent of any impediments that the non­citizen 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.

87    The applicant submits that the Tribunal failed to consider the applicant’s representation that his health conditions ought to be considered in the context of the strength, nature, and duration of his ties to Australia. Before the Tribunal, the applicant had relied on an expert report of Leesa Smith, a registered nurse, indicating that health outcomes for people with chronic health conditions are improved with ties to familial support. The applicant submitted that the importance of family and social ties was demonstrated by an occasion when a close friend called emergency services when the applicant was suffering a heart attack.

88    The applicant accepts that the Tribunal considered the state of the New Zealand health system as required under para 9.2(1)(c), but submits that the Tribunal failed to consider the strength and nature of the applicant’s ties with regards to his health under paras 8.3(2) and (3) and 9.2(1)(a). The applicant contends that the Tribunal did not consider the therapeutic benefits of familial connection in managing chronic health conditions at all. The applicant further submits that the Tribunal did not take the impact on the applicant’s family members into account as was required under para 8.3(1).

89    I cannot see the relevance of para 8.3(1) of Direction 99 to the applicant’s submission that the Tribunal failed to take into account his argument that the Tribunal did not consider his submission concerning the therapeutic benefits of familial and social connections in managing chronic health conditions. Paragraph 8.3(1) requires decision-makers to consider any impact of the decision on the non-citizen’s immediate family members in Australia. However, the applicant’s submission and Ms Smith’s evidence were concerned with the impact of the applicant’s removal from Australia on the applicant’s health, not the health or welfare of the applicant’s family members and friends in Australia.

90    It is apparent that the Tribunal, at various points in its reasons, referred to adverse health impacts on the applicant, should he be removed from Australia. At [43] and [47] the Tribunal said:

43.    The Applicant will, if deported to New Zealand, be without the strong support of his family and friends who have provided statements on his behalf. The Tribunal accepts that this would probably adversely impact both his physical and mental health.

…

47.    The Applicant is not in good physical health. He suffers, among other things, ischaemic heart disease, and left ventricular thrombosis. He has two stents in his heart, and takes ongoing medication. It was submitted that whilst New Zealand has a comparable health system, if sent there he would be deprived of the support of close family and friends. He would have no one there to take him to hospital should he suffer a further heart attack, or to help him in his convalescence. There are also questions over his mental health as he is said to have attempted suicide.

91    Later, in the context of its reasons concerning, “The Strength, Nature and Duration of Ties to Australia”, the Tribunal stated at [139]–[141]:

139.    Even though some of the nominated family members did not specifically nominate any adverse impact which might flow to them as individuals, the Tribunal accepts that the deportation of any immediate family member in such circumstances involves great stress and anxiety, including the “knock on” effect of coping with the impact of that stress on other members of the family. The Applicant is clearly held in fond and high regard by members of his immediate family, particularly his children, who bought him a new suit for his appearance before the Tribunal, notwithstanding his transgressions, and there is a common thread of strong concern for his future physical and mental wellbeing. The Applicant gave evidence that he will not be able to earn as much in New Zealand as he has in Australia, and this will no doubt diminish his capacity to provide financial support for his daughter, and any others who have been the beneficiaries of his generosity.

140.    The Tribunal accepts that the Applicant’s deportation will make it extremely difficult, if not nigh impossible, for the Applicant’s children to carry out cultural and familial obligations, particularly as the Applicant gets older. They are his only family and are rightly concerned for him living in a country where he has no relatives at all to turn to. They are particularly concerned about his physical and mental health, and believe he needs the support of friends and family. Their emotional pain from his deportation appears likely to exceed that of other immediate family members. Although all family members will be able to remain in touch with the Applicant via the various means provided on the internet, physical visits will be limited by cost and opportunity.

141.    The Tribunal is mindful of the requirement in paragraph 8.3(2) that it should give more weight to the Applicant’s ties to his children in considering his ties to Australia, and does so.

(Emphasis added.)

92    The Tribunal considered para 9.2(1)(a) of Direction 99 at [166]–[172], saying:

166.    The Applicant is a 58 year old man. He has a range of very serious health issues. He has suffered three heart attacks, had two stents inserted in his heart, and he has attempted suicide. He suffers ischaemic heart disease, hypertension, and has a left ventricular thrombosis. He is on a range of medication. His age and state of health may prove problematic in terms of his relocation to New Zealand.

167.    It seems possible, and indeed probable that the emotional strain and trauma of forced relocation, and consequential ongoing separation from loved ones and support networks could adversely impact the Applicant’s physical and mental health. However, he acknowledged that he has previously been advised to make lifestyle changes, and it appears that he is in the process of doing so, hopefully with beneficial consequences.

168.    The Applicant has previously attempted suicide, although the specific circumstances of this attempt were not ventilated before the Tribunal. He is therefore aware that he has some mental health issue, and he would be wise to seek any necessary medication, counselling or other treatment to assist him in this regard. There is no reason to believe that such medication or counselling will not be available to him in New Zealand.

169.    It can be accepted that in New Zealand the Applicant will have access to health care comparable to what he would receive in Australia. What would be missing however, would be the immeasurable benefit of having close contact and support from friends, loved ones and other networks developed over decades to support him, particularly during times of emergency or convalescence. This will undoubtedly cause him significant hardship.

170.    He would be left to fare as best he could by himself conveying himself to and from hospitals and medical appointments. Should he suffer a further heart attack – which appears to be not at all outside the realms of possibility given his medical history – he may find it impossible to convey himself to a hospital.

171.    There has been no suggestion made that the Applicant’s age will be an impediment to his gaining employment for which he appears well qualified, and this lessens the weight which might otherwise be given to this consideration.

172.    The Tribunal finds that the Applicant’s age and health weighs in favour of revocation of the mandatory cancellation of his visa.

(Emphasis added.)

93    While the Tribunal did not expressly refer to the report of Ms Smith, I am unable to draw an inference that the Tribunal did not consider her evidence in light of the Tribunal having recognised the therapeutic benefits that would be provided through the applicant maintaining familial and social connections in Australia.

94    Accordingly, the applicant’s third ground must fail.

Ground 4: Whether the Tribunal misconstrued para 9.4.1 of Direction 99 as only applying to, “delivery of a major project, or delivery of an important service”.

95    The applicant alleges that the Tribunal misconstrued para 9.4(1) of Direction 99, and then failed to take into account relevant evidence.

96    Paragraph 9.4 provided that:

(1)    Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

97    At [181]–[182] the Tribunal found that:

181.    There is no evidence before the Tribunal that the Applicant’s deportation will, by itself, impact on Australian business interests in the manner contemplated by Direction 99, i.e. that the decision would “significantly compromise the delivery of a major project, or delivery of an important service in Australia.”

182.    This Other Consideration 9.4 is therefore given neutral weight.

98    The applicant contends that the Tribunal misconstrued para 9.4 as only applying to adverse effects on Australian business interests if they would significantly compromise, “the delivery of a major project, or delivery of an important service to Australia”. The applicant submits that because of this misconstruction, the Tribunal failed to have regard to the evidence of a witness, Dan Singh, to the effect that the applicant had an impeccable employment record and that Mr Singh’s company (which appears to be a small business) would re-employ him after he served his term of imprisonment.

99    The applicant’s argument is that the Tribunal failed to consider whether Mr Singh or his company would be deprived of the opportunity to retain the applicant as an employee, thereby affecting Australian business interests. Therefore, the Tribunal could not have complied with s 499(2A) of the Act in properly applying Direction 99.

100    The Minister submits that the highest the evidence went to was to suggest that the business might lose the ability to employ a previously good employee, and that there was nothing to suggest that if this did not occur there would be a material adverse effect on the business. The Minister submits that therefore any error that occurred was not material.

101    The applicant is correct in its submission that para 9.4 of Direction 99 is not confined to compromise of the delivery of a “major project”, or delivery of an “important service” in Australia: see Singh v Minister for Home Affairs [2019] FCA 905 at [10]; Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 (Arachchi) at [71]; Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1179 at [35]; JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 370; [2023] FCAFC 168 at [31]. Although those cases were decided under Directions that have since been superseded by Direction 99, the critical language of para 9.4 has remained largely unchanged and its meaning has remained unchanged.

102    I accept that the Tribunal misconstrued para 9.4 as applying only where removal of the relevant person from Australia would significantly compromise the delivery of “a major project” or “an important service” in Australia. The Tribunal was instead required to, “consider any impact on Australian business interests”: Arachchi at [71]. Whether any such impact compromises the delivery of a major project or an important service in Australia is a matter affecting the weight to be given to that consideration, not a prerequisite for its application. Accordingly, where there is a clearly articulated submission that the removal of the person from Australia will have an impact on even a small business, the Tribunal is required to consider any such impact.

103    However, an error will only be jurisdictional if the error was material to the decision: see LPDT at [7]. Mr Singh’s evidence was:

The Company still has a delivery job available. If Waisea wishes to come back and work for the Company, Waisea will be employed once again given Waisea’s previous records and achievements at the Company.

104    As the Minister correctly identified, the highest that the evidence went was to suggest that Mr Singh’s business might not have the benefit of re-employing a previously good employee.

105    The applicant advanced no submission before the Tribunal that Mr Singh’s business would be adversely affected if the applicant were to be removed from Australia. There was simply no evidence of any potential adverse impact on Australian business interests.

106    As the Tribunal’s misconstruction of para 9.4 of Direction 99 could not have affected the decision, the error was immaterial.

107    The applicant’s fourth ground must be rejected.

Conclusion

108    I have concluded that the Tribunal denied the applicant procedural fairness and the error was material to the outcome of the review. However, each of the applicant’s other grounds has failed.

109    I will order that a writ of certiorari issue to quash the Tribunal’s decision affirming the Minister’s delegate’s decision not to revoke the cancellation of the applicant’s visa, and that a writ of mandamus issue to require the Tribunal to determine the application for review according to law.

110    I will order that the first respondent pay the applicant’s costs of the application.

Associate:    

Dated:    10 July 2024