Federal Court of Australia

Toalei v Minister for Immigration and Citizenship [2026] FCA 1672

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the First Respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

DOWLING J

Introduction

1    The applicant seeks judicial review of a decision of the Administrative Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Citizenship not to revoke the mandatory cancellation of the applicant’s Subclass 444 Special Category (Temporary) visa.

2    The applicant is a 40-year-old citizen of New Zealand and arrived in Australia at age 12. Between 2000 and 2016, the applicant was convicted of various criminal offences. Most relevantly, on 7 October 2016, the applicant was convicted of offences for which he pleaded guilty and received a total effective sentence of eight years and six months’ imprisonment. Those offences included armed robbery, kidnapping, false imprisonment, aggravated burglary, robbery, blackmail and theft.

3    On 24 January 2020, the applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). The applicant requested that the cancellation decision be revoked. On 17 February 2025, a delegate of the Minister determined under s 501CA(4) of the Act not to revoke the cancellation decision (non-revocation decision), with the applicant notified of this decision on 18 February 2025. On 26 February 2025, the applicant sought review in the Tribunal of the delegate’s non-revocation decision. That application was heard in the Tribunal on 5 and 6 May 2025.

4    On 12 May 2025, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of the applicant’s visa.

5    By his amended originating application, the applicant now raises one ground of review. He alleges that the Tribunal’s decision is affected by jurisdictional error because he was denied procedural fairness. The application particularises that allegation as follows:

a.    38 minutes prior to the commencement of his hearing on 5 May 2025, the applicant was served with an 81 page bundle of material received under summons from Corrections Victoria (Corrections Victoria Bundle).

b.    The Tribunal accepted the Corrections Victoria Bundle into evidence. The applicant was permitted to consider that bundle overnight, a second day of hearing having been listed for 6 May 2025.

c.    In concluding that the applicant constituted a high risk to the Australian community, the Tribunal placed “considerable weight” on one of the documents contained in the Corrections Victoria Bundle (a report of Ms Rachel Chan, psychologist): Tribunal’s Reasons (TR) at [76], [80]-[81], [91]. That conclusion on risk informed the weight that the Tribunal afforded to the protection of the Australian community, which the Tribunal found weighed heavily, and determinatively, in favour of affirming the decision under review: TR [82], [131], [133].

d.    As the Tribunal neither excluded the Corrections Victoria Bundle from evidence nor adjourned the hearing to ensure that the applicant had a reasonable opportunity to present his case or answer the case made against him, it denied the applicant procedural fairness. As a matter of law (Migration Act 1958 (Cth) ss 500(6H) and (6J)), the applicant could not make a fully responsive case to the Corrections Victoria Bundle and, as a matter of practicality, the time afforded to the applicant to consider and respond to that bundle was insufficient.

e.    The Tribunal’s error was material; had the applicant been afforded a reasonable opportunity to present his case, a different decision could have been made.

6    For the reasons explained below, that ground is not made out and the application is dismissed.

The background facts

7    As explained, the applicant sought review of the delegate’s decision in the Tribunal on 26 February 2025. The Tribunal made timetabling directions on 14 March 2025, which were varied on 27 March 2025 to list the matter for hearing on 5 and 6 May 2025.

8    After the applicant sought review in the Tribunal, the Minister issued summonses to entities including Victoria Police, the County Court of Victoria and the Department of Justice and Community Safety. By directions made on 17 April 2025, the Tribunal granted the parties leave to inspect the documents produced under those summonses. On the same day the Tribunal emailed to the parties a link to a secure file-share folder containing those documents. The email from the Tribunal to the applicant containing that link was not in evidence before me, but the applicant did not dispute that he received it.

9    On 5 May 2025 (the first day of hearing), prior to the hearing commencing, the Minister’s representative sent the following email to the Tribunal, copying in the applicant’s email address, at 9.22 am:

Dear Associate

I refer to the above matter which is listed for hearing today.

I attach 81 pages of relevant material returned in late April from the Victorian Department of Justice and Community Safety (of about 317 pages total), after the hearing book had been filed. I understand the Tribunal granted immediate and mutual access to the documents, which were provided by email to the parties. The attached documents contain a very detailed risk assessment undertaken by Rachel Chan for the purposes of the Serious Offenders Act 2018 in 2024 and this will be highly relevant to the any [sic] assessment of the applicant’s risk of reoffending.

The material also contains information about the applicant’s non-completion (or commencement) of violent offender rehabilitation courses.

In circumstances where this material was produced only recently (and the applicant may not have had time to consider it in depth) I propose to tender it today with a view to asking the applicant one or two questions about it on Tuesday, so that he may have today and this evening to consider the material (and provide any submissions he may wish, noting he has produced no submissions or evidence in this matter to date). I will also bring copies to the Tribunal.

Regards

(Emphasis added.)

10    That email was sent 38 minutes before the commencement of the hearing in the Tribunal. The bundle of 81 pages attached to it was a subset of the summonsed documents available for inspection from 17 April 2025.

11    I deal with the events during the hearing which relate to those 81 pages below.

The Tribunal’s reasons

12    Section 501CA(4)(b) of the Act provides that the Minister may revoke a decision to cancel a visa under s 501(3A) if the Minister is satisfied (i) that the person passes the character test; or (ii) that there is another reason why the original decision should be revoked. The applicant did not dispute before the Tribunal that he did not pass the character test on the basis of his criminal record. This finding is not challenged on the present application. The issue before the Tribunal was whether the delegate’s cancellation decision should be revoked for “another reason”.

13    In determining the application before it, the Tribunal was bound by s 499(2A) of the Act to comply with Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. That is a direction made by the Minister under s 499 of the Act. Direction 110 provides that a decision-maker must take into account the primary considerations and other considerations specified in Direction 110. The primary considerations 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 strength, nature and duration of ties to Australia; (4) the best interests of minor children in Australia; and (5) the expectations of the Australian community.

14    Paragraph 7 of Direction 110 provides that the primary consideration of protection of the Australian community at (1) above is generally to be given greater weight than other primary considerations, but that otherwise primary considerations should generally be given greater weight than the “other” considerations. The other considerations include, but are not limited to: (1) the legal consequences of the decision; (2) the extent of impediments if removed; and (3) the impact on Australian business interests.

15    Paragraph 8.1(1) of Direction 110 provides that when considering the protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government.

16    In considering the protection of the Australian community, the Tribunal was required to consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. In that section of its reasons, the Tribunal stated:

[76]     The Tribunal has given considerable weight to the opinion of Senior Psychologist Rachel Chan as outlined in the Saltie Detention and Supervision Order (DSO) Assessment Report, that the Applicant represents a high risk of reoffending in a violent manner as per Schedule 2 of the Serious Offenders Act 2018 (Vic), which the Tribunal notes includes offences such as homicide by firearm, causing serious injury intentionally in circumstances of gross violence, causing serious injury recklessly in circumstances of gross violence, causing serious injury intentionally, causing serious injury recklessly, and kidnapping.

…

[81]    The Tribunal finds the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct is high.

[82]    Having considered all the factors mentioned above, cumulatively, the Tribunal considers the protection of the Australian community weighs heavily in favour of affirming the decision under review.

(Emphasis added. Footnotes omitted.)

17    The Tribunal ultimately concluded that in the specific circumstances relating to the applicant, the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community weighed heavily in favour of affirming the decision under review: T[132]. The “other” considerations the Tribunal had regard to by reason of Direction 110 were either given no weight or given limited weight in favour of revoking the delegate’s cancellation decision: T[132].

18    It is apparent from the Tribunal’s reasons that the Tribunal gave “considerable weight” to the report of the senior psychologist, Ms Rachel Chan, from an organisation called SALTIE (the SALTIE report) in arriving at its view that the protection of the Australian community consideration weighed heavily in favour of affirming the decision: T[76]. That report comprised 57 pages of the 81 pages.

19    No allegation of a denial of procedural fairness was raised by the applicant before the Tribunal and that issue is not addressed in the Tribunal’s reasons.

Principles on jurisdictional error and procedural fairness

20    The Court must ascertain whether the error alleged by the applicant was a jurisdictional error. In most cases, for a jurisdictional error to be found, the error must have been material, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

21    Though it is “impossible to divine a rigid classification of the errors that constitute jurisdictional errors”, a failure by a statutory decision-maker to observe some applicable requirement of procedural fairness can result in jurisdictional error: LPDT at [3], [5].

22    In determining whether an alleged denial of procedural fairness amounts to a jurisdictional error, it is necessary to have regard to “the precise error alleged to have occurred in the decision-making process, having regard to any relevant statutory provisions within the applicable legislative framework”: LPDT at [12].

23    In addition to the common law principles of procedural fairness (see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [40] (Gaudron and Gummow JJ)), s 55(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) obliges the Tribunal in the following terms:

55 Right to present case

General rule

(1)    The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:

(a)    present the party’s case; and

(b)    access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and

(c)    make submissions and adduce evidence.

24    The parties agree that the obligation in s 55(1) in the ART Act reflects the position at common law: Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114 at [38] (Katzmann, Snaden and Raper JJ). As to what is a ‘reasonable opportunity’, the Full Court in NDBR referred to Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 159; 300 FCR 106 (Rares, Bromwich and Raper JJ) in which, at [31], the Full Court stated that the ‘reasonable opportunity’ provided for by s 39(1) of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) was “required to be a reasonable one, not necessarily an optimal one”.

25    Whether an opportunity was reasonable will depend on the specific facts of the case. That question is “highly fact-dependent”: NDBR at [39], citing Kamal at [18].

26    Relevant to the requirements of procedural fairness in this case are the constraints placed on the Tribunal and parties appearing before it under the Act. Pursuant to s 500(6L) of the Act, the Tribunal was required to make a decision on the review application within 84 days of the day on which the applicant was notified of the non-revocation decision (i.e. 18 February 2025), or else that decision would be taken to be affirmed. Section 500 of the Act relevantly states, further:

500 Review of decision

…

(6H)    If:

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

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

the ART must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the ART holds a hearing (other than a directions hearing) in relation to the decision under review.

(6J)    If:

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

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

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

27    The Minister does not dispute that if there was a denial of procedural fairness of the kind alleged by the applicant, it would be material and result in jurisdictional error. The Minister contends that, having regard to the statutory framework and all of the circumstances, the Tribunal did not deny the applicant procedural fairness.

Was there a denial of procedural fairness?

The submissions

28    The applicant submits that because the 81-pages were served on him 38 minutes prior to the commencement of the hearing, in circumstances where the Tribunal neither excluded the 81 pages from evidence nor adjourned the proceeding to ensure that he had a reasonable opportunity to present his case or answer the case against him, he was denied procedural fairness for two reasons:

(a)    the overnight opportunity in advance of the second day of hearing afforded to the applicant to digest, understand the relevance of, or provide responsive submissions or evidence to the 81-pages fell short of a reasonable opportunity; and

(b)    as a matter of law, the applicant was not permitted to lodge any documents in response to the 81-pages or present information orally in support of his case in response to those documents, by reason of ss 500(6H) and 500(6J) of the Act.

29    The applicant says that the overnight adjournment was an opportunity “of little substance”. At the time of the Tribunal hearing the applicant was in immigration detention and was transported to attend the hearing in person. The applicant deposes that after the conclusion of the first day of hearing, he had to wait at the Tribunal with the detention centre guards before being collected and returned to the detention centre, the journey taking around one hour. The applicant deposes that upon his return to the detention centre he felt drained from the day and car-sick from the drive. He says that he read the first three pages (of the 81 pages), and some other pages, after which he had a shower and dinner. After calling his sister for around 20 minutes, the applicant says he reread the first three pages. Between 6:30 and 7:00 pm, the applicant says that he went to the medical centre to take his medication which makes him “very sleepy”. The applicant says he was then able to read pages 4 to 6, before he felt “sleepy” from his medication and decided to go to bed.

30    The Minister submits that the applicant’s evidence, as set out above, “goes no further than demonstrating that the applicant failed to take best advantage of his opportunity to read the material”. The applicant submits that procedural fairness must be “assessed in a real-world context” giving consideration to the routine activities to which the applicant had to attend.

31    The parties agree that in assessing whether the opportunity was reasonable, the statutory context is a relevant consideration. That context includes the 84-day time limit within which the Tribunal was required to make a decision pursuant to s 500(6L) of the Act. I return to this below.

32    The applicant submits that the Tribunal had other options. He says that it was open to the Tribunal to exclude the 81 pages from evidence or adjourn the hearing until later in the week and either produce its written reasons for decision after the 84-day deadline or reconstitute if necessary. The applicant submits that an adjournment to the Friday of that week (being 9 May 2025) would have enabled the applicant to provide the Tribunal with any material he wished to put on, in order to avoid the operation of ss 500(6H) and 500(6J) of the Act. The applicant accepts, referring to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 and Another [2022] FCAFC 21; 289 FCR 499 (Mortimer, Halley and O’Sullivan JJ) at [23(d)], that he could have led new oral evidence in response to cross-examination or questions from the Tribunal in respect of the SALTIE report but says that the operation of ss 500(6H) and 500(6J) precluded him from advancing his own case in response to that document including by giving new oral evidence (in chief) or providing any responsive documents. The applicant says that the only way in which he would have been able to provide documents would have been if the Tribunal adjourned such that there were at least two clear business days before the resumption of the hearing.

33    In respect of that submission, the Minister refers to Umi v Minister for Home Affairs [2019] FCA 2148 in which at [57]–[58], Mortimer J said:

Second, the Tribunal was entitled to rely upon the need for it to complete its review within the 84 day time period, and a supervising Court should, as Kenny J found in NZA, take the existence of this time period into account in determining what does, and what does not, constitute a reasonable and meaningful opportunity for a person to be heard in the Tribunal’s review, and to put forward material to the Tribunal. Although the unstated premise of the applicant’s submissions was that there would have been no difficulty in the Tribunal adjourning the review for a minimum of two days, and then reconvening, there was no evidence at all to support such a premise.

…

The Tribunal was entitled to, and indeed it was appropriate for it to, plan to leave enough time after the review hearing to write its decision and deliver it within the 84 day time period.

Further background and events at the hearing

34    By the Tribunal’s directions of 14 March 2025, the respondent was required to file its material before the applicant. Those directions explained the operation of ss 500(6H) and 500(6J) of the Act and made provision for the applicant to provide any submissions or evidence in support of his review application by 11 April 2025. The Tribunal’s reasons at [11] noted, and it was not disputed before me, that the applicant did not provide any submissions, evidence or material in support of his application with the Tribunal in advance of the hearing. I return to this below.

35    As explained at [8] above, on 17 April 2025, the Tribunal gave leave to each party to inspect the documents produced under summons and emailed the parties a link to a secure file-share folder containing those documents. Included in those documents were documents forming the 81 pages that were put before the Tribunal. However, the 81 pages were a subset of the larger set of 317 pages produced by one of the summonsed entities, the Victorian Department of Justice and Community Safety, which itself was a subset of the summonsed material that also included documents from Victoria Police and the County Court of Victoria (the number of pages of which was not identified by the parties). The Minister’s Statement of Facts, Issues and Contentions (SFIC) did not refer to that summonsed material (noting the material was produced after the Minister’s SFIC was lodged).

36    As explained, on the first day of hearing the Minister emailed the 81 pages to the Tribunal and the applicant. That email is extracted at [9] above. The email directed attention to the SALTIE report and proposed that the applicant have that day and evening to consider the material before he was asked questions about it on the second day of hearing.

37    The transcript of the first day of the hearing before the Tribunal shows that, at its commencement, the Minister’s representative identified and explained the documents comprising the 81 pages to the applicant and the Senior Member:

The documents are risk assessments relating to the applicant, produced by various people in Corrections. The most important document is about halfway through – it’s by an organisation called SALTIE and a person called Rachel Chan who completed a very detailed, essentially risk report, on the applicant’s likelihood of reoffending violently.

The report was completed on 6 March 2024. So it is relatively recent. It is certainly the most recent assessment of risk before the tribunal. There was no formalised assessment of risk before the delegate. So this is new material that wasn't before the delegate and has a high degree of relevance for this tribunal’s assessment, and because it is so relevant, I must bring it to your attention, notwithstanding the unfortunate lateness of it.

The other documents that precede that document in this bundle are a couple of case notes. You’ll see the first page there, it’s a case note from the department, the forensic intervention services area of the department, as I understand it, talking about Mr [Toalei’s] non-completion of various violent offender programs that were recommended for him to complete by some of these risk assessments. And the second page of the bundle, you’ll see there’s another file noted [sic] there, about trying to get him into these programs. Then from about the third page of the bundle there’s a five page document called ‘level of service/risk need responsivity full report’

(Emphasis added.)

…

38    I note the transcript contains a number of transcription errors where some words have not been transcribed due to the quality of the audio of the hearing recording. The Minister’s legal representative went on to foreshadow the way he sought to rely upon the SALTIE report, saying:

And in those circumstances the proposal that I made in the email, of course subject to what the tribunal (audio malfunction), is to use the full two days of this matter, or at least part of both of those days, give Mr [Toalei] an opportunity to have a look at this material, digest it for himself, form any opinions he wants to about it. I have a couple of questions for him that I want to ask him about it tomorrow, and essentially those questions, I'm happy to reveal this will be, is it correct you haven’t done any of these programs, and do you accept that you are a risk of reoffending, and ask him to comment on that.

That would really be the extent of what I ask him about. There’s no point in me going through this chapter and verse with him. It’s an expert report. So that’s the proposal that I make to ameliorate any potential unfairness to Mr [Toalei], and noting that he’s a self-represented applicant, and he obviously needs assistance from both the tribunal and me as much as I can, putting his case.

(Emphasis added.)

39    The Senior Member asked the applicant if he had seen the documents in the 81 pages before and explained the proposal for him to have time to consider the documents. That exchange provided:

SENIOR MEMBER: Thank you. Mr [Toalei], (audio malfunction) this large document in a folder that you would have got a hard copy I’ve delivered to you. As these other documents that have been returned by way of summons, it appears a little clear at what point. But they would like to be able to tender them in evidence, which means that they will talk about them and ask you some questions about them. Mr Orchard has explained that, because these weren’t inside the hearing book, he’s suggested the [sic] we give some extra time today.

So if this matter would normally perhaps have finished in one day, we’ll give some extra time, perhaps tonight, for you to have extra time to look at these documents and perhaps come back tomorrow and talk about them. That will give you a little bit of extra time to think about them if you haven’t seen them before. Do you remember seeing any of these types of documents before, Mr [Toalei]?

MR [TOALEI]: Yes. I have them.

SENIOR MEMBER: […] So you’ve seen these documents before. Is that right?

MR [TOALEI]: Yes.

…

SENIOR MEMBER: Okay. Is there anything you’d like to say about them being tendered as evidence today?

MR [TOALEI]: No problem. No issue.

(Emphasis added.)

40    At the end of the first day, the Senior Member discussed procedural matters with the parties and confirmed what was to be expected during the second day of the hearing. That exchange was as follows:

SENIOR MEMBER: Remembering that we’re coming back tomorrow and we’re going to talk some more, but is there anything you’d like to add to today that we haven’t talked about?--- [Mr Toalei:] No, not at the moment.

Okay. Do you have any questions about what we’ve done so far or what you can expect tomorrow?--- [Mr Toalei:] I think I’m pretty familiar with it now.

Good. So that means that we’ll take a break soon. We’ll adjourn the hearing for today, and then we’ll get you to come back tomorrow and we’ll continue to talk about those things including the information that’s been provided in those new documents. Okay?--- [Mr Toalei:] Yes.

…I’m happy to proceed in that way. I think that makes sense given that I accept that Mr [Toalei] should have some time to contemplate that information in those documents that he was handed this morning.

….

SENIOR MEMBER: Just to ensure that Mr [Toalei] has an opportunity. So that’s about giving you an opportunity to look at these this afternoon and tonight, and see if there’s anything you’d like to say or make submissions on, is what we call it, in relation to the information tomorrow. And tomorrow I’m happy to talk to you about whether you require any further time to make any other comments on that document. There’s a tight timeframe on these types of applications that we mentioned at the telephone hearing, which means that […] I have to have this decision made and delivered by, I think it’s 13 May, which I think in my mind is next Tuesday. So we’re constrained on the amount of time. But I am happy to talk to you about that tomorrow if you think you would like some time after tomorrow to make any further written submissions given I’ll need to do that. […] But we can talk about that tomorrow as well. Okay?---[Mr Toalei:] Yes.

SENIOR MEMBER: … Any other questions that you might have of today or anything you’d like further? Anything you’d like to say further at the moment?---[Mr Toalei:] I can’t think of anything at the moment, Member.

SENIOR MEMBER: That’s all right. That means that we’ll give you some time this afternoon to have a think about and read those documents. I might just get the tribunal officer to check with the people who brought you here, the transport officers, to find out a way that those documents can travel with you so you’ve got them with you. We might do that after we close the hearing just to ensure that you’ve got them to take with you, so you’ve got them to look at. I don’t know what the travel arrangements are, but we’ll ask the officers to see whether they can travel with you so you’ve got them when you get to the – you’re in immigration detention at the moment?---[Mr Toalei:] Yes.

Okay. Then they’ll get you – they’ll bring you back tomorrow. Hopefully you’ll be able to travel with them. You can bring back - normally people can travel with documents. So you can bring back the documents that you’d like to refer to. And that will give you a chance to have a look at these. Okay? All right. So what I’m going to do now is adjourn the hearing, which means it’s closed for today. I’ll adjourn it until tomorrow. I think we’ve got a start time at 10 o’clock again tomorrow.

41    Upon the commencement of the second day of hearing the Senior Member asked the applicant whether he had been able to look at the documents he was provided on the first day. The applicant’s response appeared to suggest he had at least taken a look at them. That exchange was as follows:

SENIOR MEMBER: Thank you. All right. Mr [Toalei], is there anything you’d like to say, right at the start of today? Do you have any questions about what we’ll do?

MR [TOALEI]: No questions, Member.

SENIOR MEMBER: All right. Okay. You had an opportunity to take away those documents you were given today, sorry, yesterday, and have a look at them.

MR [TOALEI]: Yes.

42    During the second day of hearing the applicant was asked questions about the SALTIE report. Before asking the applicant questions about the SALTIE report, the Minister’s representative again summarised it saying:

Thank you, Mr [Toalei]. Just while we’re on this topic, Mr [Toalei], there’s one more item in these documents, the small bundle that I would like to just ask you to comment on, give you the opportunity to respond to [...] And it’s at page 44 of those, that smaller book, if you’d like to turn to that page, please. This is just for reference, Mr [Toalei]. This is a 2024 report, produced under the Serious Offenders Act, that was provided just before you were released from incarceration, before you went into immigration detention.

43    The questions about the SALTIE report included the following exchange:

MR ORCHARD: All right, Mr [Toalei]. One of the first things the tribunal will be concerned about, how you plan to manage it if you’re released. You’ve talked a little bit about it yesterday, about the conditions that you say that you have. In this report, the SALTIE report, at page 52, at paragraph 53, under the heading, ‘Psychiatric/psychological history’, the reviewer says:

During the assessment interview, Mr [Toalei] denied ever receiving a formal mental health diagnosis, being hospitalised due to mental health related issues, or making attempts to intentionally hurt himself or his life, and this is confirmed by the author’s review file material.

So we’ve got what is written here, which is that you’ve never been diagnosed, or that you say you’ve never been diagnosed formally with a mental health issue. But I think he said to the tribunal yesterday, that you had. If possible, can you just explain to the tribunal why is it here you’re saying you’ve never been formally diagnosed, and to the tribunal, yesterday you said, ‘Well, I’ve’, you know, ‘A doctor once told me that (audio malfunction)’, et cetera?—[Mr Toalei:] Because I was, that was before I went to Middleton. And when I went to Middleton, their doctors and their medical staff were more, like, they were more, like, when I’d speak, or spoke with them, I explained to them, they were more sort of, understanding. Like, but when I spoke with the other medical staff at other prisons, (audio malfunction), not really looking into my situation, if I can say it that way.

…

And particularly, so what these two pages show, are sources of information that the reviewer for this SALTIE report. One of the items on page 29, the second dot point from the top says, ‘Certificate of program completion, Talking Change Program’. Do you remember completing that?—[Mr Toalei:] Yes. That was part of the VIP program [Violence Intervention Program].

Okay. Sure. Do you want to tell the tribunal about that, at all, that program?— [Mr Toalei:] Yes. I did it at Fulham, and then I’ve been transferred from Fulham, to a new prison that had just opened up in the city, can’t remember at the moment.

And what about substance use? So you talked to us about ice in the lead up to your convictions in 2016, for kidnapping, et cetera. Have you completed any programs about ice, or drug prevention since being incarcerated?— [Mr Toalei:] No.

44    Finally, before the hearing concluded, the applicant was given another opportunity to make any submissions he would like to make, and the Senior Member prompted the applicant, sequentially, to say anything he would like to say in relation to each of the relevant primary and other considerations in Direction 110:

SENIOR MEMBER: Thank you. Mr [Toalei], this is now your opportunity to say anything further you’d like to say to the tribunal, specifically in relation to what Mr Orchard has been addressing the tribunal on. And so I can take you through those heads of considerations, to see whether there’s anything further you would like to say in relation to those. … one of the things, but primary considerations is something called, ‘The protection of the Australian community for [sic] criminal or other serious conduct’. You’ve heard what Mr Orchard said in relation to his submissions about that… it breaks down into things like the nature and seriousness of your conduct, as well as the risk to the Australian community, if you were to commit any further offences. Is there anything you’d like to say to me that we haven’t already talked about so far?

MR [TOALEI]: Yes. But you mentioned when I didn’t have my family. I did have family support, but I chose to stay in Melbourne. A good friend of mine gave me work, and that’s how I stayed off the substance abuse for about a month, month and one week. I was working, factory hand. And I stayed because my daughter was in Melbourne at that time. And I could have chosen to catch a train or flight to Sydney, to be with my family. But I told them that I wanted to stay in Melbourne, to stay in touch with my daughter. But then, yes, one night I got involved and got back into old ways, which I regret.

My other one was, trying to build ties back again with my daughter, if I am to be released. And also to seek help with my anxiety and depression. And also with some more working. Salvation Army, and to look up more about what I did say that I was going to do, was with the violence program. And I was, yes I was, because I was thinking about that yesterday, after the day after yesterday’s as he mentioned that I did not make a move on, you know, to seek help and refuge from my family, as well. I’ll be moving straight to Sydney if I am to be released.

…

SENIOR MEMBER: Is there anything else that you’d like to say to me today that we haven’t already talked about? We are coming close to the end of the hearing, so this is your opportunity now to say anything further that you’d like to say.

…

SENIOR MEMBER: Thank you Mr [Toalei]. Thank you Mr Orchard. Mr [Toalei] what will happen now is I’m going to close the hearing in a few minutes, that means we’ve finished talking. I’ve finished taking evidence and hearing from you and from Mr Orchard in relation to the decision that I have to make. That decision is required to be delivered by, I think I’m right in my calculations, it’s 13 May which is next Tuesday, so by the end of that day. The rule around that, basically, is if I don’t do that by that time then the decision that we are talking about, the decision to refuse to revoke the cancellation is affirmed, it stays in place. So that is why that time limit is quite specific. So you can expect to hear from me within that time period in relation to my decision in relation to this matter. Do you have any questions or anything else you’d like to say in relation to what is going to happen from here?

MR [TOALEI]: I understand, I understand.

Consideration

45    While the provision of the 81 pages to the applicant in the manner described above was less than optimal, the question for my assessment is whether the applicant was provided with a reasonable opportunity to present his case, to access documents and information to which the Tribunal had regard in reaching a decision in the proceeding, and to make submissions and adduce evidence. I do not consider there was a denial of procedural fairness for the following reasons.

46    First, it was open to the applicant in the ordinary course of the Tribunal proceedings to lead his own evidence about the matters the subject of the SALTIE report including the risk of reoffending. In considering the protection of the Australian community, the Tribunal was required to consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. That matter was unequivocally a consideration of importance and relevance in the circumstances of his application. While I accept that the SALTIE report was new material that was not before the delegate who made the decision under review, the applicant was not required to wait to obtain or understand the Minister’s evidence about the risk of reoffending before he put on his own to support his case. As explained, the applicant provided no new evidence, statements, or submissions to the Tribunal in advance of the hearing despite the allowance made in the Tribunal’s directions of 14 March 2025: T[11]. The only material supportive of his case that was before the Tribunal was the material he put before the delegate who made the decision under review. I reject the applicant’s submission that this fact can have no relevance to the assessment of the reasonableness of the opportunity afforded with respect to the 81 pages. Rather, it provides context around the extent to which the applicant utilised opportunities already provided to him to put his case (in accord with s 55 of the ART Act), which can properly inform the degree to which further opportunities were reasonably required to be provided in the circumstances (including the time constraints of the review proceedings).

47    Second, as explained the applicant was provided approximately 18 days before the hearing with the summonsed documents, part of which was a 317-page set from Corrections Victoria that included the 81 pages that were provided by the Minister on the day of the hearing. I accept that an assessment of that volume of material including to identify what was most relevant to the Tribunal’s decision, where the Minister’s SFIC did not refer to that material, was a challenging task for the applicant. Particularly as he was in detention and a self-described “self-represented party with a limited education”. Nonetheless, it is relevant that he was provided with that opportunity.

48    Third, when the 81 pages were provided to the applicant by the Minister by email on the day of the hearing the Minister identified that the 81 pages contained “a very detailed risk assessment undertaken by Rachel Chan for the purposes of the Serious Offenders Act 2018 in 2024 and this will be highly relevant to the any [sic] assessment of the applicant’s risk of reoffending”. Clearly enough, this identified the document to which his attention should be directed and its relevance to the question before the Tribunal. The applicant was not left to speculate about where to focus amongst the 81 pages. This is relevant to the reasonableness of the opportunity provided to him.

49    Fourth, at the commencement of the hearing the Minister again explained the particular documents to which the applicant should direct his attention. Again, it was explained “the most important document is about halfway through – it’s by an organisation called SALTIE and a person called Rachel Chan who completed a very detailed, essentially risk report, on the applicant's likelihood of reoffending violently”. The Minister went on “the report was completed on 6 March 2024. So it is relatively recent … and has a high degree of relevance for this tribunal’s assessment…” (Emphasis added.)

50    Fifth, the applicant was given overnight to consider the documents (having had his attention drawn in particular to the SALTIE report). My focus is not upon how that time was used, but whether, together with the other matters, it provided a reasonable opportunity. Again, the standard is not optimal or perfect, but reasonable. I accept that a day of a hearing in what would have been an unfamiliar environment would have necessarily been tiring for the applicant. I accept that there were matters to which he had to attend (as explained by his affidavit: see [29] above), but as explained I am to assess whether in all of the circumstances the opportunity provided to the applicant was reasonable. As to the applicant’s submission that the Tribunal could have reconstituted (rather than provide the time overnight), the Minister submits, and I accept, that such a course had obvious practical difficulties “including the ability to find a member with two free days to reconvene on a Friday or a Monday and then make a decision within a very short period of time and familiarise themselves with a hearing book that had over 1000 pages of material in it.” In any event, it does not follow that because the Tribunal could have adopted an alternative course, the approach it took was unreasonable or procedurally unfair.

51    Sixth, as explained, when the hearing recommenced on the second day, the applicant was asked whether he had been able to look at the documents he was provided with the day before. His response indicated that he had, and provided no indication that he had been unable to review or understand the substance of the 81 pages.

52    Seventh, the applicant was asked extensive questions about the SALTIE report by both the Minister’s representative and the Tribunal member. Before asking those questions the Minister’s representative again summarised the SALTIE report: set out above at [41]–[42]. I am satisfied the questions of the Minister’s representative and those of the Tribunal (set out at [43] above) presented the applicant with a reasonable opportunity to say what he wanted about the SALTIE report and his risk of reoffending more generally.

53    Eighth, also as explained, all of the above occurred in the context (accepted by both parties as relevant) that the Tribunal was required to complete its review in 84 days from the date on which the applicant was notified of the non-revocation decision. While I note that the listing of the hearing in close proximity to the expiry of the 84-day period was a matter not within the applicant’s control (see Finau v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 8 at [67] (Perry J)), the 84-day period was the statutory reality faced by the Tribunal and it informs my assessment of whether the applicant was afforded a reasonable opportunity to present his case.

54    Ninth, I do not consider the requirements of ss 500(6J) and (6H) sufficiently undermined the procedural fairness of the applicant. As explained at [32] above, the applicant accepts that he could have led new oral evidence in response to cross-examination or questions from the Tribunal in respect of the SALTIE report but says that the operation of ss 500(6H) and 500(6J) precluded him from advancing his own case in response to that document including by giving new oral evidence or providing any responsive documents. As explained, in respect of the provision of documents in response to the SALTIE report, the applicant says the only way he would have been able to provide documents would have been if the Tribunal adjourned the hearing to avoid the operation of s 500(6J). I refer to my conclusions at [50] and [53] above regarding the practical difficulty that would arise if the Tribunal was to have adjourned the hearing, and the relevant statutory framework.

55    Further, I am not satisfied that the applicant was relevantly precluded by ss 500(6H) and (6J) from advancing his own case (whether by submissions or documents) in answer to the SALTIE report. The Full Court in Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; 225 FCR 482 (Dowsett, Murphy and White JJ) considered the operation of ss 500(6H) and (6J) and said (at [96]):

We conclude that the words “in support of the person’s case” in each of subs (6H) and (6J) are words of qualification. They indicate that the prohibition relates only to information and documents presented as part of an applicant’s case-in-chief to support his or her own case, and not to information or documents which an applicant may wish to present in answer to the case presented by the Minister and which, at the least, the applicant could not reasonably have anticipated.

56    The Full Court went on to say at [102] that subss (6H) and (6J) do not operate with respect to submissions:

Neither [subss (6H) and (6J)] in terms operates with respect to submissions … it is not appropriate to regard the word “information” in subs (6H) as encompassing the submissions which an applicant may wish to make in respect of the evidence before the AAT. Further, the legislature should not reasonably be supposed to have intended that an applicant provide, at least two days in advance of a hearing, a written statement of all the submissions to be made in respect of evidence which, at that stage, the AAT has not received and about which an applicant may not yet be aware.

57    I am satisfied that the applicant was not prevented by subss (6H) and (6J) from relying on documents or making his own submissions in answer to the Minister’s reliance on the SALTIE report. Relevantly, the Minister’s representative in the communication which attached the 81 pages contemplated at least that the applicant would have an opportunity to provide written submissions addressing the report. That communication provided the applicant was to have the day and evening to consider the material “and provide any submissions he may wish”. Further, the transcript of the hearing before the Tribunal extracted at [40] above reveals that the Tribunal at the end of the first day of hearing invited the applicant to “talk … about that tomorrow if you think you would like some time after tomorrow to make any further written submissions”, and the applicant’s response indicated he understood this option was available to him (although this option was apparently not revisited on day two).

58    The same is true in respect to documentary evidence. The Senior Member gave the applicant repeated and reasonable opportunities to provide oral submissions and to “say anything else” he wished to (which included the opportunity to say he wanted to provide documentary evidence) or ask any questions about the procedure at the end of the hearing. While no explicit suggestion was made to the applicant that he could seek to tender documentary evidence responsive to the 81 pages if he wished or apply for an adjournment for that purpose, the applicant gave no indication at any point that he had documents which he could have responded with, or that he could have obtained such responsive documentary evidence if he was granted further time. Further, while the Tribunal did not explicitly tell the applicant he could object to the tender of the 81 pages on the first day, when it asked the applicant “Is there anything you’d like to say about them being tendered as evidence today?” he responded “No problem. No issue.” To that extent, I reject the applicant’s submission that he was ‘silent’ about the course the Tribunal adopted.

59    As explained, on the commencement of the second day of the hearing, the Senior Member asked the applicant whether there was anything he wanted to say and confirmed that the applicant had an opportunity to take away the documents he was given and have a look at them. Following the Minister’s closing submissions, the Senior Member repeatedly asked the applicant whether he wished to say anything further, including in relation to each of the considerations in Direction 110. The applicant made some submissions in response to those prompts (as extracted at [44] above), but at no point did he indicate that he needed more time to provide submissions or written material, in response to the 81 pages or otherwise.

60    In all of those circumstances, while the provision of the material to the applicant in the manner described above was less than optimal, I am satisfied the applicant was provided with a reasonable opportunity to present his case, to access documents and information to which the Tribunal had regard in reaching a decision in the proceeding, and to make submissions and adduce evidence. I do not consider there was a denial of procedural fairness.

Disposition

61    For those reasons, the application is dismissed. The applicant is to pay the costs of the Minister, to be agreed or taxed.

Associate:

Dated:    9 November 2026