Federal Court of Australia

King v Minister for Immigration and Multicultural Affairs [2025] FCA 1567

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    The decision of the Administrative Appeals Tribunal dated 11 October 2024 be set aside and the matter remitted to the Administrative Review Tribunal to be heard and determined according to law.

3.    The first respondent is to pay the costs of the applicant to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, a citizen of New Zealand, arrived in Australia in February 2004, aged 3 years old, on a Class TY Subclass 444 Special Category (Temporary) visa. On 30 January 2024, the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act), following his conviction for possession of methylamphetamine with intent to sell or supply, for which he was sentenced to 16 months’ imprisonment. On 26 July 2024, a delegate of the Minister refused to revoke the cancellation. The applicant sought a review by the second respondent (the Tribunal). On 11 October 2024, the Tribunal affirmed the delegate’s decision. This is an application for review of the Tribunal’s decision.

2    The hearing before the Tribunal on 1 October 2024 was held in South Australia and the applicant, who was in immigration detention in Western Australia, appeared via Microsoft Teams. The applicant represented himself before the Tribunal but is represented in this Court. The applicant advanced three grounds of review. First, a denial of procedural fairness. Second, the finding at [204] as to the applicant’s risk of reoffending was legally unreasonable. Third, the finding at [243], in relation to the best interests of the child consideration at 8.4 of Ministerial Direction 110 issued under s 499 of the Act (the Direction), was legally unreasonable.

3    For the reasons below, the application is granted.

Background

4    The applicant is a citizen of New Zealand, born in March 2001.

5    Between October 2019 and January 2024, the applicant was convicted of approximately 9 offences. Relevantly, in November 2020, he was sentenced by the District Court of New South Wales to an aggregate term of imprisonment of four years and three months. On 3 December 2020, the applicant’s visa was cancelled pursuant to s 501(3A) of the Act. On 2 November 2022, a delegate of the Minister revoked that cancellation decision.

6    On 18 January 2024, the District Court of Western Australia sentenced the applicant to concurrent terms of 16 months imprisonment and 8 months imprisonment. As noted above, on 30 January 2024, the applicant’s visa was again cancelled pursuant to s 501(3A) of the Act. On 26 July 2024, a delegate of the Minister refused to revoke the visa cancellation decision. On 2 August 2024, the applicant applied for a review of the delegate’s decision by the Tribunal. A hearing was held before the Tribunal on 1 October 2024. The matter was listed for two days but completed in one day. On 11 October 2024, the Tribunal affirmed the delegate’s decision.

7    In summary, the Tribunal found that the applicant had engaged in very serious criminal conduct, including violent and drug related offences. It concluded that there was “at least a moderate, if not high, risk of … reoffending”. These matters weighed very heavily against revocation. However, the applicant had strong ties to Australia, Child A (his partner’s son) may benefit from his continued presence in Australia, and he would find returning to New Zealand difficult. These matters weighed in favour of revocation. Overall, the Tribunal found that the factors in favour of revocation were collectively insufficient to outweigh the factors against revocation.

Consideration

Denial of procedural fairness: ground 1

8    The applicant advanced this ground on three bases. First, the Tribunal failed to inform the applicant that the absence of oral witnesses would be treated adversely. Second, the Tribunal reasoned that all the applicant’s evidence was unreliable, making an adverse credibility finding without providing prior notice to the applicant. Third, the hearing was reduced from two days to one day.

9    This ground appears to be directed to [8]-[9], and [13] of the Tribunal’s reasons. There is overlap in the applicant’s submissions in respect to the three bases. The transcript of the hearing was put before the Court by the respondent. The applicant relied on the exchange between he and the Tribunal at the commencement of the hearing as being insufficient for him to make an effective choice as to how to run his case, citing SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [59]. It was submitted that it was at that stage that the applicant should have been told about the significance of calling witnesses whose written statements had been tendered and put on notice of the risk the absence of the witnesses might pose to his case. It was also submitted the applicant was not put on notice of adverse credibility concerns the Tribunal had with his evidence, nor was he given an opportunity to respond. It was submitted this is in the context where the hearing was listed for two days but completed in one day.

10    The respondent submitted that no denial of procedural fairness has been established. The respondent referred to [7] and [13] of the Tribunal’s reasons. It was said the concerns expressed about the applicant’s evidence were reasonably open to the Tribunal, for the reasons it gave. It was obvious, from the nature of the proceeding, that the Tribunal would be assessing the applicant’s evidence, including his credit, and that the Tribunal might not accept all of his evidence. There was no obligation on the Tribunal to disclose or foreshadow to the applicant its potential views of his credibility or invite his comment upon that. The applicant did not call witnesses which was significant, because the absence of witnesses meant that the Tribunal could not itself hear from persons who had provided statements supporting the applicant, and test their evidence. That was not a denial of procedural fairness as it was an obvious matter that did not need to be put. The Tribunal squarely raised with the applicant whether he would be calling any witnesses. Following the Tribunal’s question, the respondent submitted that the applicant did not raise any confusion or indicate that he was unaware of his ability to call witnesses or claim that he wished to do so but had not (for whatever reason) taken that step. This is a case where the applicant simply decided not to call witnesses to attend the Tribunal hearing.

11    Many authorities were referred to which address the concept of procedural fairness which includes, inter alia, SZRUR. There, Robertson J at [37] recites the oft cited summary of the Court’s duty to unrepresented litigants from Hamod v State of New South Wales and Anor [2011] NSWCA 375 (Hamod) at [309]-[316]. That summary included at [311], that:

it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case.

12    The Court in Hamod thereafter explained the duty does not extend to advising as to how an unrepresented litigant should act. The passage concluded at [316] with the observation:

The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.

13    As is plain, what needs to be done will depend on the circumstances of the case.

14    It is well-established that procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject’s case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576  (Alphaone) at 590-591, quoting in part Lord Diplock in F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369.

15    In EXT20 v Minister for Home Affairs [2022] FCAFC 72; (2022) 291 FCR 55, a decision referred to by the respondent, Wigney J summarised the relevant principle 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 statue 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 (Snedden) at [176] (Middleton and Wigney JJ); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 (Palme) 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].

16    However, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Alphaone at 591; SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; (2018) 266 FCR 105 at [38]

17    Against that background, it is appropriate first to detail the commencement of the hearing.

18    The Tribunal marked as exhibits the tender bundle for each of the applicant and respondent. In the applicant’s bundle, the applicant tendered, inter alia, a letter of support from Ms S King (the applicant’s sister); a letter of support from Ms S. A (the applicant’s friend); and statement of Ms O.O (the applicant’s partner). The applicant was aware the Tribunal had the witnesses’ statements, as the Tribunal at that time described his bundle as containing his “submissions and various letters of support and so on”.

19    There the following exchange occurred:

SENIOR MEMBER:     Okay. Well, I'll receive all of those documents then, thank you. Now, Mr King, I understand you’re representing yourself in these proceedings. What we’re going to do, just so you’re aware of the process, we obviously have material provided by you which includes various statements you’ve made, letters and statements made by people supporting you and various other records, all of which we’ve got in front of you. So you know what we’re talking about. And what we’re going to do in a minute or two is for you to be sworn in. And then what’s going to happen is I’m going to invite Ms Tattersall to ask you some questions. At the end of that time – and you just do your best to answer her questions.

At the end of that time, it may or may not be that I still have some questions for you. And then there’ll be an opportunity for you to say anything or clarify anything that you think has been left unclear as a result of those questions that you've been asked. Does that make sense?

MR KING:         Yes. Yes, it does. Thank you. I understand.

SENIOR MEMBER:     Okay. And the other question I have for you is were you intending to call any witnesses, or you're just going to be dealing with the matter of giving evidence yourself?

MR KING:         I'll probably be dealing with the matter myself.

20    That exchange at the beginning of the hearing is notably brief. That topic of witnesses was not returned to again during the hearing.

21    Given the nature of the applicant’s submission, it is appropriate to recite the impugned paragraphs in context.

5.    The hearing was held on 1 October 2024 via Microsoft Teams. The Applicant was self­represented and the Respondent was represented by Ms Elle Tattersall of Minter Ellison.

6.    The Applicant gave evidence via Microsoft Teams from Yongah Hill detention centre. He presented as a courteous, neatly dressed, intelligent young man. His answers to questions were generally responsive and to the point. He provided information to the Tribunal that added additional context to his story. Some of this new information however, contradicted material previously provided by the Applicant and others. This will be discussed in more detail below, but some examples concern the nature and extent of his connection with a youth gang in Sydney and his relationships with his family, his partner and her son.

7.    I noted that when the Applicant was pressed on matters obviously relevant to the merits of his case, he tended to become evasive. He demonstrated limited insight and a propensity to blame others for his conduct. For example, he said that carrying a weapon such as a knife, or in his case a machete, was normal behaviour in western Sydney. He also demonstrated a reluctance to say anything at all concerning the identity of his gang friends or his drug contacts. This remained so even after he was assured that the Tribunal would not publish any names revealed by him. These were relevant questions because they may have assisted in understanding the Applicant's networks. This in turn is relevant to assessing his risk of reoffending, if he has maintained those contacts.

8.    The Applicant did not call any witnesses. In this case, this omission adds to my concern about the voracity [sic] of his statements. This failure denied the Tribunal the benefit of hearing from people who have provided supporting statements. It denied the Tribunal the opportunity of testing their evidence, and his.

9.    No explanation for this failure was offered.

10.    The Applicant places considerable emphasis on his relationship with his partner (O.O) and her son (Child A). He makes various claims about their wellbeing. He makes claims about the nature of their relationship and their plans for the future. She has provided written material, but she was not called. None of her family, with whom she lives, were called.

11.    The Applicant places considerable emphasis on his support for his immediate family and to a much lesser degree, his extended family in Ghana. He makes various claims about the wellbeing and financial status of his mother, his sister and his brother. None of his immediate family were called. His brother did not provide a statement.

12.    No independent expert evidence was called providing a current risk assessment. No expert or independent evidence was provided regarding the health, or financial circumstances of any of his immediate family, his partner, or her son.

13.    Having regard to all of the evidence, I have come to the view that the Applicant's evidence is unreliable. It contains convenient lacunas and misleading, if not false assertions. Unless his evidence is supported by independent sources, I generally do not accept critical assertions of fact made by the Applicant.

22    It may be accepted, as the respondent submitted, that the Tribunal made findings in respect to the reliability of the applicant’s evidence in [6] and [7] of its reasons. Indeed, the features of the applicant’s evidence described in those passages are well illustrated in the body of the Tribunal’s reasons.

23    It may also be accepted that the decision maker is not required to disclose during the hearing what they are thinking or minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision. In so far as the applicant suggests that generally he was entitled to be put on notice of any adverse findings, I do not agree. For example, the reasoning in [6] and [7] is no more than findings by the Tribunal from evaluating his evidence. That a Tribunal would evaluate what the applicant said when giving evidence, and that it may not accept it, would have been obvious to the applicant.

24    However, paragraphs [6] and [7] are not the extent of the Tribunal’s reasoning on the applicant’s evidence.

25    There are aspects of the reasoning in the passages recited above, of concern. These relate to the use that was made by the Tribunal of the applicant’s failure to call his witnesses. The failure of the applicant to call his witnesses (their statements having been tendered) was used adversely against him, in that it added to the Tribunal’s concerns about the applicant’s veracity. The Tribunal regarded that it had been put in a less than desirable position, being unable to test the other witnesses’ evidence and that of the applicant: at [8]. The Tribunal also relied on the fact the applicant provided no explanation for his failure to call the witnesses: at [9]. On the reasoning, at its core, is the failure to explain. At no stage during the hearing was the applicant asked for an explanation.

26    In that context, the respondent’s submission that the applicant did not raise any confusion or indicate that he did not know he could call witnesses, or that he wanted to call witnesses but had been unable for some reason to do so, fails to address the real issue with the conduct of the hearing. So too, the submission that the Tribunal did not need to put to the applicant the obvious matter that not calling witnesses meant it could not hear from those persons about the applicant or question them or test their evidence. Similarly, the respondent’s submission that the Tribunal was not required to inform the applicant what it was thinking.

27    Those submissions do not grapple with [9] of the Tribunal’s reasons and its use of the fact the applicant failed to provide an explanation for not calling his witnesses. This was in circumstances where the applicant was not asked for an explanation. Given the limited nature and content of the exchange at the commencement of the hearing, the applicant would not have known or been on notice of the fact the Tribunal might use his failure to provide an explanation for not calling his witnesses adversely against him. Nothing in the exchange suggests the need for an explanation or invites one. In the circumstances, this is not a topic which would have been known, or been obvious to a litigant in person, including that it was relevant to the evaluation of their evidence. The applicant was not provided an opportunity to provide an explanation. If the lack of an explanation was to be used adversely by the Tribunal, the applicant should have been put on notice of that. The Tribunal’s reliance on his failure to explain colours its conclusions in [8] and therefore impacts on the conclusion in [13].

28    The Tribunal also used the applicant’s failure to call his witnesses as adding to the concerns it held about the applicant’s veracity. That appears, at least in part, to be based on the “failure [having] denied the Tribunal the benefit of hearing from” those witnesses (i.e. to assess and test the evidence): at [8]. That appears to be a matter of a general nature. Even if the failure added to existing concerns the Tribunal had about the applicant’s evidence, there was nothing in the limited exchange at the commencement of the hearing that suggested to the applicant the Tribunal considered it a benefit to hear from the witnesses. Further, the exchange occurred in circumstances where the applicant was aware the Tribunal had his witnesses’ statements, as is clear in the description of the process by the Tribunal at the commencement of the hearing: extracted at [19] above. I accept that it would have been obvious to the applicant (who had been provided with the relevant material before the Tribunal), that his evidence would be assessed in light of that material. That said, given the content of the exchange, I do not agree that in the circumstances of this case, it would have been obvious to the applicant that the Tribunal would use his failure to call his witnesses adversely against him, on the basis that it had been denied the opportunity of testing his evidence and that of his witnesses.

29    I am satisfied the Tribunal’s reliance on the applicant’s failure to call his witnesses with no explanation for that failure, which was used adversely against the applicant in its assessment of his evidence involves, in the circumstances, a denial of procedural fairness.

30    That matter was taken into consideration in the Tribunal’s reasoning leading to the conclusion in [13], that the applicant’s evidence is unreliable.

31    I am satisfied that ground 1 is established.

32    The applicant must satisfy the court that the threshold of materiality is met in order to establish a jurisdictional error. For the relevant principles, it suffices for present purposes to refer to LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [14]-15]:

[14]    The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

[15]    What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

(emphasis in original and citations omitted)

And see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [58]-[60]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [33], [55]-[56], [63], [76].

33    The conclusion in [13] is infected by the error. That conclusion is then applied by the Tribunal in assessing the applicant’s application. That is, the Tribunal in assessing the relevant factors in the Direction, did so considering the applicant’s evidence in the manner described in [13]. This ground relates to a failure to put the applicant on notice of a fact or issue. Given the nature of the error in the circumstances of this case it can be inferred the error is material: LPDT at [15]. I am satisfied that the error established in this case is a jurisdictional error.

Conclusion

34    Ground 1 has been established and is a jurisdictional error. Therefore, it is not necessary to consider the remaining grounds. Accordingly, the application is allowed, with costs.

Associate:

Dated:    11 December 2025