Aporo v Minister for Immigration and Citizenship - [2009] FCA 79 - FCA 2009 case summary — Zoe

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Aporo v Minister for Immigration and Citizenship

[2009] FCA 79

Federal Court of Australia|2009-02-12|Before: Bennett J

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Court

Federal Court of Australia

Decision date

2009-02-12

Before

Bennett J

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

The Application 33 The application to the Court is made under s 476A of the Act and s 39B of the Judiciary Act 1901 (Cth). 34 The grounds of the further amended application are: 1. The decision of [the Tribunal] made on 18 July 2008 was vitiated by actual or apprehended bias. Particulars The Tribunal's conclusions in paragraphs [enumerated] were in substantial respects unreasoned and mere assertion lacking rational or reasoned foundation and selective of material going one way. 2. The decision of the Tribunal was vitiated by the Tribunal's failure to accord the applicant procedural fairness. Particulars (a) The Tribunal's conclusions in paragraphs [enumerated] were not natural and obvious conclusions and the applicant was not afforded an opportunity to respond to those conclusions. (b) The Tribunal's conclusions in paragraphs [enumerated] were arbitrary and based on speculation. (c) The Tribunal's conclusions in paragraphs [enumerated] were based on the Tribunal's observations, expertise or experience and the applicant was not given an opportunity of commenting on those matters. 3. The decision of the Tribunal was vitiated by the failure of the Minister's delegate and Tribunal to inquire as to the: (a) provenance of the documents relied upon by the Minister and his delegate; or (b) training, study, experience and methodology upon which opinion evidence relied upon by the Minister and his delegate was based; or (c) basis for the opinion expressed in the opinion evidence, in circumstances where it was unreasonable for it to either: (i) ignore readily available material as to those matters; or (ii) not make a straightforward administrative inquiry as to those matters.

[2]

[3]

ground ONE 38 To summarise Mr Aporo's submissions on the first ground, he relies upon a number of circumstances to establish that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the resolution of the question to be decided (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]). 39 Mr Aporo submits that: (a) the material before the delegate and the Tribunal was unverified and untested and neither the delegate nor the Tribunal inquired as to its provenance. Specifically: 1. the criminal record and sentencing reports are not certified and contain discrepancies; 2. Mr Murdoch's reports do not contain an explanation of his training, study or experience. They do not explain how the conclusion was reached that Mr Aporo was at a "high risk" of recidivism; 3. there was no material before the Tribunal as to the provenance of the statement of facts taken into account by English DCJ. The applicant speculates that 'it is entirely conceivable' that the statement of facts was prepared by the prosecution and tendered in committal proceedings and was accepted notwithstanding that the facts may have been incorrect. (b) The Tribunal's findings are in a number of respects perverse, in the sense of being mere assertion, lacking rational foundation and selective of material going only one way. Specifically, he submits that:

the preference for Mr Murdoch's assessment as to the risk of recidivism over that of Dr Banks was unexplained and contrary to the weight of the material on this issue. Mr Murdoch's assessment was not based on specialised knowledge or training and there is no obvious basis for his conclusion. Conversely, the opinion of Dr Banks is based on specialised knowledge. The Tribunal gave Dr Banks' report little or no weight because it did not contain an estimate of the likelihood of recidivism;
the weight given by the Tribunal to those parts of Mr Aporo's evidence concerning his childhood are without any basis. A similar approach was taken with respect to Mr Aporo's relationship with Ms Kara;
with respect to the likelihood of recidivism, the Tribunal drew inferences from material before it that were neither natural nor obvious. There was no intellectual engagement with the material which indicated that Mr Aporo has responded to drug and counselling programs and the conduct of the Tribunal indicates that it was not open to persuasion;
The Tribunal dealt with the material before it in a selective manner.

[4]

The provenance of the material relied upon 40 Mr Aporo says that the failure of the Tribunal to inquire into the provenance of the material before it indicates bias or apprehended bias on the part of the Tribunal. The alleged obligation concerning the provenance of the material is also raised as a separate ground in the application. Other matters are also the basis of more than one ground. This has led to a degree of repetition in these reasons for judgment. 41 The Tribunal referred to Mr Aporo's extensive criminal history. Before the Tribunal was a printout of a Criminal History-Bail Report ('the Bail Report') purportedly in respect of the applicant, under the name of "Myta Greg Aporo". The Bail Report noted that the particulars in the printout were the result of a name check and not verified by finger prints and that, therefore, there was no guarantee that the record referred to the person of interest. The record itself listed different dates of birth against the names listed, from 9 July 1969 to 9 July 1973. It also listed various "alias names": Mita Greg Aporo, Mita George Aporo, Mita Taupopoki George Aporo and other variations on the spelling of these names. There were also names that do not, immediately, seem to concern the applicant: James Smith, Grant Tenint and George Sith. Associated names included Myta Greg Sith. Mr Aporo submits that the Tribunal was obliged to satisfy itself as to the correctness of each of those entries and that each entry referred to the applicant. 42 Also before the Tribunal was a Department of Immigration and Citizenship document containing a request for sentence administration printouts. The resulting printout of the Record of Conviction, Sentences and Appeals ('the Record') for "Myta George Aporo" lists the following aliases: Mita Taupopoki George Aporo born 9 July 1973, Mita George Aporo born 9 July 1973, Myta Greg Aporo born 9 July 1969 and Myta Greg Aporo born 9 July 1973. There is no suggestion that any submission was put to the Tribunal that any of these aliases did not refer to the applicant. 43 The sentencing remarks of English DCJ in the District Court were also before the Tribunal. Judge English noted that Mr Aporo's correct date of birth is 9 July 1973. Her Honour observed that he had a criminal history and that an examination of his criminal record 'discloses that he is no stranger to violence. He has been dealt with in a variety of ways including bonds, fines, periodic detention, and imprisonment'. Her Honour went on to observe that '[t]his man has not been deterred by previous sentences, and leniency has not touched him'. Judge English also commented that Mr Aporo had supplied false names and addresses and dates of birth. 44 Mr Aporo contends that the Tribunal was obliged to go behind the Bail Report, the Record and the statement of facts as recorded by English DCJ to satisfy itself that the contents were correct. I do not accept that contention. The Tribunal was entitled, in the absence of any assertion that the Bail Report, the Record or the statement of facts was incorrect, to accept the accuracy of those documents and the District Court record. 45 In relation to Mr Aporo's submissions about Mr Murdoch's report, I note that no challenge was made in the Tribunal as to Mr Murdoch's training, study or experience. His report was accepted by both parties as emanating from Mr Aporo's parole officer. Mr Aporo did challenge Mr Murdoch's assessment of his risk of recidivism and the Tribunal accepted this criticism. 46 There was no challenge to the material and no dispute as to the provenance of the material which the Tribunal was required to address. It follows that I do not accept that the failure of the Tribunal to verify and test for itself the factual material in the reports regarding Mr Aporo's criminal history and in the material from the District Court supports a reasonable apprehension of bias on the part of the Tribunal. Similarly, I do not consider that the failure to inquire about Mr Murdoch's training, study or experience indicates a reasonable apprehension of bias, where both parties appeared to accept that the report was one emanating from Mr Aporo's parole officer and admissible.

[5]

Dr Banks' report 47 Mr Aporo emphasises Dr Banks' qualifications and experience and submits that the Tribunal erred in not giving sufficient weight to Dr Banks' report and in preferring the report of Mr Murdoch who was not similarly qualified. This is not presented as a complaint about the weight given to each report but as an error that vitiates the Tribunal's decision, as evidencing a lack of rational or reasoned foundation on the part of the Tribunal with the Tribunal being 'selective of material going one way', and as a basis for bias or apprehended bias on the part of the Tribunal. 48 These assertions are unfounded. The Tribunal recorded the effect of Dr Banks' evidence. Dr Banks' opinion, in substance, was that Mr Aporo was a suitable candidate for treatment, especially in the areas of substance abuse and anger management and that this would likely decrease the possibility of recidivism. Dr Banks expressed the view that, had these matters been addressed earlier, Mr Aporo's recidivism rate may have decreased. Dr Banks' view was that assessments indicated that Mr Aporo should be considered for relatively intense rehabilitative treatment to help him overcome the problems which put him at risk. Dr Banks recommended that Mr Aporo should continue with the interventions he was then receiving in Australia. Dr Banks did not suggest that he guaranteed that rehabilitative treatment would ensure that Mr Aporo would not re-offend. He simply did not give an assessment of the likelihood of re-offending, with or without a rehabilitation program. That is what the Tribunal pointed out. On the other hand, Mr Murdoch did assess the likelihood, or report the assessment of a likelihood, of re-offending. The Tribunal did not accept that assessment and, in Mr Aporo's favour, substituted the one that Mr Aporo said had been the result of his assessment at Villawood. 49 I see no reason for criticism of the Tribunal's consideration of Dr Banks' report and Mr Murdoch's report, or of the way the Tribunal came to a conclusion based upon those reports, together with Mr Aporo's own evidence and submissions, to determine the likelihood of recidivism. There is no basis for a suggestion that in doing so the Tribunal did not have an open mind or that it was selective without rationale or reason.

[6]

The reports of Mr Murdoch and Dr Banks 50 As noted above, Mr Aporo submits that a number of Tribunal findings were perverse, including the preference for the report of Mr Murdoch over that of Dr Banks. Mr Aporo emphasises the comment that Dr Banks did not provide an estimate of the likelihood of recidivism. He submits that, for that reason, the Tribunal did not give the report any weight. 51 That is simply not the case. It is true that Dr Banks did not provide an estimate in the sense that Mr Murdoch's report did, but the Tribunal did accept Dr Banks' conclusions, insofar as they went. 52 Mr Aporo submits that the circumstances warranted a further inquiry by the Tribunal and that it was incumbent on the Tribunal further to explore the assessment of Dr Banks who had offered further assistance, or to investigate the basis for Mr Murdoch's report. The Tribunal was not under such an obligation. 53 Mr Aporo also attacks the finding that Mr Murdoch's report did provide an estimate of the likelihood of recidivism. He says that there was no obvious basis for that conclusion and that no reasoning supporting the conclusion, nor was there an explanation of the relevant testing. He seems to be attacking Mr Murdoch's report as an expert report. 54 It is correct that the testing methodology was not contained in Mr Murdoch's report and that there was no explanation of the conclusion but, again, the Tribunal did not simply accept Mr Murdoch's estimate as to the likelihood of recidivism. The Tribunal accepted Mr Aporo's contention as to the correct estimate and there is no suggestion that a submission was made to the Tribunal that all such predictions should be rejected or that the subject matter could not be properly tested or that Mr Murdoch's report was inadmissible. 55 Mr Aporo says that the Tribunal was not obliged to consider an estimate of the likelihood of recidivism as a criterion under Ministerial Direction No 21 (at [2.10]). He submits that, in circumstances where expert evidence as to the risk of recidivism is inadequate, it was unreasonable for the Tribunal not to hold a further inquiry of readily available information regarding that issue (Luu v Renevier (1989) 91 ALR 39 at 47-8 and 50). 56 The Tribunal had before it Mr Murdoch's report, the Villawood assessment as outlined by Mr Aporo, as well as comments by Grove J concerning recidivism. There was, unlike Luu, a foundation for the Tribunal's conclusion. Dr Banks' report discussed the general question of recidivism which the Tribunal also took into account, although he did not give a present estimate of likelihood. In those circumstances, the Tribunal was not obliged to make a case for Mr Aporo (Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60]). 57 Mr Aporo submits that it would have been a "simple step" for the Tribunal to have pursued the avenues of inquiry offered by the availability of Mr Murdoch and Dr Banks to resolve any conflict in the material (SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22 at [29]). It is not a question of whether it would have been a simple step for the Tribunal to pursue the avenues of inquiry. There was no conflict in the material before the Tribunal, as Dr Banks did not give an estimate. Rather, the Tribunal was unable from Dr Banks' report to draw a conclusion as to the likelihood of recidivism or the effect of rehabilitative steps on that likelihood, even if Mr Aporo were to undertake them. Even if there were a conflict, the Tribunal is not obliged whenever there is a conflict in the evidence presented to conduct its own investigation to resolve that apparent conflict if it is able to give reasons for preferring or giving more weight to some evidence over other evidence or preferring one opinion over another. It is not simply a question of whether or not Dr Banks had provided an estimate in the sense of some mathematical analysis. The resolution of a conflict in the evidence is not the taking of the sort of step of embarking upon the Tribunal's own inquiries as to the underlying facts, which then imports further obligations (SZIAI at [29]). The obligation on an administrator to make its own inquiries is strictly limited (SZIAI at [25]). 58 Mr Aporo now criticises the Tribunal for accepting his statements in respect of the Villawood assessment and criticises the Tribunal for accepting the evidence from a witness, namely himself, who had a 'demonstrated propensity to fabricate evidence'. Mr Aporo relies upon the Tribunal's acceptance of his own evidence as indicating a capriciousness in the decision making process and a failure to act judicially in the sense of being based on 'instinct, a hunch or a gut-feeling' (WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [20] and following; Sharp v Wakefield [1891] AC 173 at 179). 59 The Tribunal was entitled to accept so much of Mr Aporo's evidence and submissions as it determined was acceptable. Further, there is a difference between submissions and the result of an assessment and evidence of criminal history. 60 Mr Aporo says that there was insufficient material before either the delegate or the Tribunal to support a conclusion regarding the likelihood of recidivism adverse to Mr Aporo. The Tribunal was entitled to take account of the evidence and submissions before it and come to a conclusion based upon that evidence and those submissions. That is what occurred. The Tribunal was not obliged to conduct an independent investigation, or to conduct its own assessment of the likelihood of Mr Aporo's recidivism.

[7]

The weight given to Mr Aporo's evidence 61 Mr Aporo submits that the weight given by the Tribunal to his evidence concerning his childhood was without any basis in the material before the Tribunal. An example is given of [102] of the Tribunal's reasons. There, the Tribunal said the following in discussing Mr Aporo's evidence of his childhood: 'As regards his childhood, I take it into account but note that neither his mother nor his half-brother supports his claims, nor in fact do they mention any childhood problems he may have had at all'. Mr Aporo submits that this was no proper basis for impugning the credibility of his evidence as to his childhood because of a lack of corroboration as the Tribunal failed to take into account that Mr Aporo only joined his mother in Australia when he was 16 years old and there was no evidence that his half brother lived with him during his childhood. 62 I accept that there was an explanation as to why Mr Aporo's mother and half-brother would not be able to corroborate Mr Aporo's account of his childhood. However, this lack of corroboration did not form the basis of the Tribunal's conclusions. The Tribunal recorded Mr Aporo's childhood and said that it took it into account. The comment about the lack of corroboration was an observation that did not, on a reading of the whole of the Tribunal's reasons, have any effect on the conclusions reached. 63 Mr Aporo also challenges the Tribunal's conclusion with respect to Mr Aporo's relationship with Ms Kara. The Tribunal found (at [159]) that there was no significant continuing relationship between them. In coming to that conclusion the Tribunal acknowledged that Mr Aporo said that he had been in a continuing relationship of five years' standing with Ms Kara, who lived in Melbourne and was taking care of her ailing mother. It documented his evidence as to their continuing contact and acknowledged Mr Aporo's evidence that she was his fiancée. The Tribunal did comment on the fact that neither Mr Aporo's half-brother nor his mother had mentioned such a relationship but it accepted (at [156]) that, at some stage, Mr Aporo did have a relationship with Ms Kara. The Tribunal expressed doubt as to whether the relationship still subsisted and, as part of its reasoning process, expressed the opinion that it would have expected Ms Kara to have contributed some information as to her views if indeed they were engaged to be married. Ms Kara gave no evidence at either the first or second Tribunal hearing and there was no letter or note of a telephone call from her in the documentary evidence. Further, in his telephone interview, Mr Aporo spoke of the relationship in the past tense. Mr Aporo says that these matters were not specifically raised with him in the course of the Tribunal hearing. He complains that the Tribunal disregarded his evidence that he tended to push his loved ones away and that he had verbal, analytical and problem solving difficulties. 64 The Tribunal was not obliged to give Mr Aporo a running commentary of its thought processes. Nor was it obliged to set out each and every possible fact that could possibly have related to a conclusion that it drew. It is not clear that counsel in the Tribunal relied upon the matters now sought to be introduced by Mr Aporo or drew them together in the way counsel presently appearing for Mr Aporo seeks to do. The Tribunal gave reasons for its conclusion as to the relationship between Mr Aporo and Ms Kara. The conclusion was open on the evidence before the Tribunal. I see no error on the part of the Tribunal in coming to that conclusion.

[10]

ground two 71 The criticism is that the Tribunal's conclusions were not natural and obvious conclusions and that Mr Aporo was not afforded an opportunity to respond to them. 72 I reject each aspect of that submission. The conclusions were based upon the facts and reasoning set out in the decision, and followed that reasoning. There was no indication that Mr Aporo was not afforded an opportunity to respond to the submissions against him or to make submissions. The Tribunal set out in some detail Mr Aporo's submissions as made by counsel and dealt with each one. 73 Mr Aporo complains that the following matters, which he says were collectively determinative of his claims, were not raised at the hearing by the Tribunal or by the Minister: (a) the provenance of the documents before the delegate and the Tribunal; (b) that his driving offences would be considered significant in considering whether his visa should be cancelled; (c) that Dr Banks did not estimate the risk of recidivism; (d) that his claims as to his abuse as a child were not supported by his mother or half-brother; (e) that his recollections as a 36 year old of his state of mind at 16 and 23 and his answers given during his telephone conversation with Ms Hunt would form the basis of an assessment of the likelihood of his recidivism; (f) that the statement of facts referred to in English DCJ's sentencing decision would be interpreted as findings of fact probative of his credit; (g) that his statements about the Villawood assessment would be preferred to those of Dr Banks and Mr Murdoch; (h) that, notwithstanding that he had lived in Australia since the age of 16, was illiterate and dyslexic, was at risk of self harm and had little familial support in New Zealand, the Australian community would expect that he would not experience difficulties upon being deported; (i) that the submissions of the Minister that he had had numerous chances to rehabilitate but had repeatedly re-offended would be accepted without any consideration of the reports which indicated that he was responsive to rehabilitation programs; (j) that the conclusions were corroborated by the first Tribunal decision which was quashed by orders of this Court; (k) that his relationship with his nieces and nephew was not as close as he claimed because he could not remember their birthdays or ages; (l) that his nieces and nephew would not be traumatised by the deportation of their uncle because such events are not normally traumatic; (m) that he was not in a significant continuing relationship with Ms Kara because she had not submitted any statement in support of him and he had a propensity to fabricate evidence; (n) that he displayed no real understanding of the seriousness of his offences; (o) that there were no compassionate circumstances weighing against visa cancellation. 74 Mr Aporo's submissions are, in summary, as follows:

the principles of natural justice must be applied flexibly and the demands of natural justice are dependent upon the factual circumstances of each case (Kioa v West (1985) 159 CLR 550at 612);
Mr Aporo was at a distinct forensic disadvantage due to his illiteracy and dyslexia. The hearing was the only opportunity for him to address adverse inferences that could be drawn from his criminal record and history of drug addiction;
the Tribunal was aware of his disability and did not read to him excerpts from any of the documents that formed the basis of its appraisals. He was thereby denied a reasonable opportunity to address the documents and inferences drawn from them;
the issues that were collectively determinative of his claims, as summarised above at [73], were not raised at the hearing by the Tribunal or the Minister;
in those circumstances, it was procedurally unfair to Mr Aporo for the Tribunal in its findings to attribute weight selectively to documentary material in a manner that was 'in substantial respects unreasoned, perverse and in respect to the witness statement, plainly misconceived'. 75 Mr Aporo takes each comment and finding made by the Tribunal, together with the criticisms he raises in his application and complains that they were not raised with him at the hearing and were collectively determinative of the Tribunal decision. The matters so relied upon are individually very different. Some are factual findings of the Tribunal, some are observations of the Tribunal, some are criticisms raised by Mr Aporo now cited as established fact. 76 I deal with these matters elsewhere in these reasons where they are repeatedly raised. In summary: · the Tribunal was not obliged to make Mr Aporo's case for him, nor was it required to give him a running commentary on his evidence or to put its reasoning processes to him for comment; · Mr Aporo was represented by competent counsel who presented evidence and made submissions to the Tribunal and who was not, at least not to the knowledge of the Tribunal, illiterate or dyslexic; · counsel addressed the Tribunal as to the matters to be taken into account in its decision, which the Tribunal took into account; · the provenance of the documents before the delegate and the Tribunal was not in issue; · there was no objection to the admissibility of the evidence relied on by the Tribunal; · Dr Banks' report was relied upon by the Tribunal as to the matters with which the report dealt; · the Tribunal was entitled to base its conclusions on the evidence before it; · the Tribunal was entitled to prefer the evidence of one witness over another; · a number of matters on which the Tribunal commented in its reasons were not determinative, individually or collectively, of the Tribunal's decision. Further, they do not found jurisdictional error. These include the matters referred to in (b), (d), (e), (k), (l) and (m) in [73] above. 77 Mr Aporo had a reasonable opportunity to ascertain and respond to the determinative issues that arose (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591). Indeed, the Tribunal makes it clear that it addressed the evidence put forward by Mr Aporo in relation to each of the issues. The Tribunal's findings of which he complains were findings upon matters advanced by Mr Aporo to the Tribunal. The Tribunal did not make findings of fact as to which there was no evidence advanced by Mr Aporo or no submissions made. It follows that Mr Aporo was given the opportunity to address the issues. 78 Mr Aporo complains about the inferences and conclusions drawn from his evidence. This does not amount to a denial of procedural fairness. Mr Aporo does not point to material that had been supplied by or known to the Tribunal from which a conclusion was drawn that was not open on that material, even if he did not like the conclusion reached (Alphaone at 591-2). Mr Aporo's reliance again on the 'distinct forensic disadvantage due to his illiteracy and dyslexia' is answered by the fact of legal representation. The Tribunal was entitled to assume that counsel was properly instructed and, indeed, it is not suggested that this was not the case. 79 Mr Aporo says that the Tribunal's conclusions were arbitrary and based on speculation. As I read the decision, the Tribunal's conclusions were based upon the evidence that it set out and were responsive to the submissions made. 80 Mr Aporo says that the Tribunal's conclusions were based upon its own observations, expertise or experience. That allegation is not made out. The Tribunal based its conclusions on the evidence and on the reports which were before it. There was apparently no challenge in the Tribunal to Mr Aporo's criminal record.

[11]

ground THREE 81 Mr Aporo says that the decision of the Tribunal was vitiated by the failure of the Tribunal to inquire into the provenance of the documents relied upon, the qualifications of the persons giving opinions and the bases for the opinions. 82 Mr Aporo submits that it would have been 'a simple administrative task' for either the Minister or the Tribunal to confirm the provenance of some or all of the documents, in particular the Bail Report, the Record, the statement of facts before English DCJ and the report of Mr Murdoch. He also says that the need for such an inquiry was heightened by Mr Aporo's inability to challenge the provenance of the documents because he was illiterate, dyslexic and had verbal, analytical and problem solving difficulties. Mr Aporo contrasts what he accepts was a consideration of "the provenance" of Dr Banks' report and the lack of inquiry into the provenance of other documents. Mr Aporo discounts the fact that he was represented by counsel and solicitor before the Tribunal. He says that the determinative issues and adverse inferences that arose from the documents were not raised at the hearing, other than the statement of facts before the District Court and the report of Mr Murdoch dated 27 May 2007. Despite the fact that he was legally represented in the District Court and before the Tribunal, Mr Aporo now says that the statement of facts was not read to him at the Tribunal hearing and should have been. 83 Mr Aporo relies on SZJBA v Minister for Immigration and Citizenship (2007) 164 FCR 14 at [53]-[56]. In that case Allsop J considered a circumstance in which the Tribunal relied upon the fact that an appellant failed to submit a response to the invitation to make submissions when in fact the Tribunal had received a cover sheet stating that submissions were enclosed even though, apparently by mistake, they were not. The appellant submitted that in those circumstances the Tribunal should have made inquiries about the missing enclosure and the comments the appellant intended to make, as it was on notice that the enclosure had been forwarded. Justice Allsop accepted the 'straightforward recognition' that no duty to inquire about evidence arises from the terms of s 427 of the Act (at [46]). His Honour noted that in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437, Gummow and Heydon JJ (with whom Gleeson CJ agreed) said, in the context of explaining how detailed the questioning of an applicant was required to be, that '[t]he Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on'. However, Allsop J concluded that that reference had nothing had to do with the specific circumstances of the case before him. Justice Allsop concluded that the giving of an invitation to comment carries with it an obligation under the Act to deal with a communication in response to that invitation in a reasonably business-like way, including the reading of any response to the invitation. The question in SZJBA was not whether the Tribunal should have undertaken some evidence gathering task (at [59]). The failure 'was to take a simple administrative step of an office or housekeeping nature'. The obligation does not rest on some positive duty of inquiry. It is only in exceptional cases that a failure to make an inquiry may ground a finding of jurisdictional error (at [60]; see also Le at [60] per Kenny J). 84 In my opinion the steps proposed to Mr Aporo to confirm the provenance and contents of the documents were far more than 'a simple administrative task'. Mr Aporo submits that the need for inquiry by the Tribunal was heightened by the fact that Mr Aporo himself was unable to challenge the provenance of the documents because he was illiterate, dyslexic and had verbal, analytical and problem solving difficulties. There is no evidence that those characteristics were the reason for the absence of challenge in the Tribunal as to the provenance of the documents. Mr Aporo had legal advisers. It is not suggested that they were other than properly instructed. Mr Aporo concedes that the documents and their contents were not challenged in the Tribunal. Mr Aporo now submits that that should not be "held against" him because there was no evidence that the matters were discussed with him and the determinative issues and adverse inferences arising from the material were not raised with him at the hearing. In the absence of any evidence to suggest otherwise, I am not prepared to accept that Mr Aporo's previous legal advisers were not properly instructed. During the proceedings before the Tribunal the applicant and his legal representatives had copies of all the material the provenance of which is now complained of. The time to make these complaints was during the Tribunal hearing. 85 It was reasonable for the Tribunal to rely upon the parole officer's assessment concerning the risk of recidivism in circumstances where Dr Banks did not venture an opinion about this matter and in circumstances where the objective evidence and Mr Aporo's own evidence pointed to a serious risk of recidivism. Mr Aporo himself accepted that there was a risk and simply challenged the degree of that risk. Mr Aporo challenged Mr Murdoch's assessment as to his risk of recidivism and the Tribunal accepted the challenge. Specifically, it accepted Mr Aporo's submission that he should have been assessed as a "moderate to high" risk of recidivism. There was no other real controversy for the Tribunal to resolve. The Tribunal was entitled to consider the issue and come to a conclusion and to resolve any controversy, without embarking upon an inquiry. 86 Where no challenge was made to the provenance of or admissibility of the documents or the facts asserted therein, the Tribunal was not obliged to go behind the documents and the statement of facts to satisfy itself in some sort of mini-trial that the facts were correct.

[12]

Further criticisms of the Tribunal decision 87 The references by the second Tribunal to the first Tribunal decision, such as an observation that the first Tribunal had noted 'that the applicant's evidence of his relationship with his daughter "was slightly confusing and at times contradictory"' were of no moment and were referred to by way of background. The Tribunal did not rely upon the first Tribunal decision. It noted (at [138]) that its conclusions in relation to Mr Aporo's relationship with his daughter were "not inconsistent" with those reached by the first Tribunal in the part of its reasons where the Tribunal was considering the history of such relationship. The Tribunal proceeded at [139] and following to consider what the evidence showed as at the time of the hearing in the second Tribunal. Those observations as to the first Tribunal were by way of background and were not determinative of the Tribunal decision. 88 Mr Aporo complains about what he now describes as "the unfairness" of his interview with Ms Hunt because he was not forewarned as to the consequences of that interview. I note that Mr Aporo did not assert a lack of warning in the Tribunal and there was no suggestion that the interview should not have been taken into account. 89 On 28 March 2007 the Department sent to Mr Aporo a Notice of Intention to consider cancellation of his visa under subs 501(2) of the Act. The letter set out various matters and invited a response and also contained a warning that it was possible that Mr Aporo's visa would be cancelled. A further letter was sent on 10 May 2007 again referring the possible cancellation of the visa. On 22 May 2007 Ms Hunt noted that she had had a telephone call with Mr Aporo who confirmed that he had received the notice of 28 March 2007. He said that he was in the process of completing the form and submitting a response and that the reason he had not submitted it was that he was dyslexic and had to wait for his mother to return to help him to read and understand and complete the form. Ms Hunt acknowledged that Mr Aporo was dyslexic and may have some difficulties in responding in writing to the notice. Therefore, instead of requiring him to complete the form, she conducted a phone interview with Mr Aporo where she asked him the questions from the form, recorded his responses and then forwarded to him a copy of the completed form so that he could confirm or deny the answers or information. 90 The phone interview was conducted on 1 June 2007 and the answers reduced to writing. Mr Aporo's complaint is that the officer should, on each occasion on which she spoke to him, have read the warning to him. I do not accept that there was such an obligation. Mr Aporo acknowledged that he had assistance to read and understand written forms. Ms Hunt also gave Mr Aporo the benefit of a telephone interview rather than requiring the matters to be put in writing. She was reasonably entitled to assume that he was aware from the correspondence of the reason for that correspondence and the interview. There was no reason for her to assume that he had not understood it at all. In any event, even if there had been such a problem there was no doubt that by the time the second Tribunal conducted a merits review Mr Aporo was well aware of the possibility that his visa would be cancelled. 91 It is not apparent that the Tribunal formed a view that the interview of Mr Aporo by Ms Hunt was unfair, nor that she was required to warn Mr Aporo of the consequences of the interview. Nor was it put to the Tribunal that this was somehow determinative of Mr Aporo's application to the Tribunal. It follows that it cannot have been procedurally unfair on the part of the Tribunal not to have thought of an argument on Mr Aporo's behalf, put it to him as a possibility and then come to a conclusion on that matter in his favour. 92 In Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345 the Full Court dealt with a case where it was common ground that, because of convictions for a number of criminal offences, the appellant did not pass the character test. The issue there, as here, was whether the exercise of discretion by the Tribunal in its task of reviewing on the merits the decision of the Minister's delegate, miscarried. The Full Court pointed out at [4] that the Court's jurisdiction is derived from s 476A(1)(b) and (2) of the Act which have the effect of conferring on the Court jurisdiction the same as that of the High Court under s 75(v) of the Constitution in relation to, in this case, a decision of the Tribunal of the kind in question by reason of s 483 of the Act. In order to succeed the applicant has to demonstrate jurisdictional error on the part of the Tribunal. Even if the Tribunal were in error in respect of the minor matters relied upon by Mr Aporo, such as whether or not his half-brother and mother supported his claims of childhood abuse, such error did not go to the jurisdiction that the Tribunal was exercising in relation to s 501 of the Act. 93 As in Cockrell, there was nothing to suggest that the Tribunal misunderstood the scope or ambit of the statutory jurisdiction or power, or misunderstood any statements or directives in Ministerial Direction No 21. The Tribunal determined for itself the factors necessary to make a decision in Mr Aporo's case. There was nothing to indicate that the Tribunal misunderstood its task or made an error of any significance in the way in which it approached its task. In reading the Tribunal's decision as a whole, it is apparent that the Tribunal correctly considered the question before it and the nature of the discretion it was called upon to exercise.

Parties

Applicant/Plaintiff:

Aporo

Respondent/Defendant:

Minister for Immigration and Citizenship

Legislation Cited (2)

Judiciary Act 1901(Cth)s 39B

Migration Act 1958(Cth)ss 476A, 483, 501

Cases Cited (10)

introduction 1 Mr Aporo was born in New Zealand in 1973. He moved to Australia in 1989 to live permanently with his mother. From September 1994, he has held a Transitional Special Category Visa (Subclass TY 444). 2 On 15 March 1999 in the District Court of NSW Mr Aporo pleaded guilty to and was convicted of two counts of assault, one count of Assault Officer in Execution of Duty (Police Officer) and one count of Intimidate Witness. The sentencing judge, English DCJ, had regard to a statement of facts, apparently without objection. Mr Aporo was legally represented. On appeal, Mr Aporo was sentenced to two years imprisonment with a non-parole period of one year and six months. 3 On 11 March 2005, at Manly Local Court, Mr Aporo was convicted of two counts of Assault Occasioning Actual Bodily Harm and one count of Common Assault. He was sentenced to 12 months imprisonment with a nine month non-parole period. 4 On 12 March 2007, at Central Local Court, Mr Aporo was convicted of seven counts of Shoplifting and sentenced to 12 months imprisonment with a nine month non-parole period, which was to commence from 20 June 2006. 5 On 19 March 2007, Mr Aporo was released from Silverwater Correctional Centre. 6 On 28 March 2007, by way of a letter, Mr Aporo was put on notice that the Minister for Immigration and Citizenship ('the Minister') intended to consider cancelling Mr Aporo's visa under s 501(2) of the Migration Act 1958 (Cth) ('the Act'). This section provides that the Minister may cancel a person's visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the test. The letter referred to the fact that included in the information that would be relied upon to assess whether to exercise the discretion to cancel the visa were Mr Aporo's Australian Federal Police Criminal History dated 16 March 2007, his Record of Conviction, Sentences and Appeals, a report from his parole officer, Mr Murdoch, a Pre-Sentence report and English DCJ's sentencing remarks in the District Court. Enclosed with the letter was a copy of Ministerial Direction No 21. Mr Aporo was informed that he had the opportunity to comment and provide further information. He was told to ensure that his response addressed each and every topic that he felt was relevant to his circumstances. A further letter was written on 10 May 2007 in which Mr Aporo was again told of the opportunity to provide comments and any further information. 7 It is apparent from documents dated 22 May 2007 and 31 May 2007 that Ms Hunt from the Department of Immigration and Citizenship spoke to Mr Aporo. Mr Aporo confirmed receipt of the 28 March 2007 letter and said that he was in the process of completing the personal details form and submitting a response. He said that he had not submitted it because he is dyslexic and had to wait for his mother to return from overseas to help him read, understand and complete the form. Ms Hunt spoke to Mr Murdoch who also said that Mr Aporo was dyslexic and may have difficulties completing the form. 8 Ms Hunt advised Mr Aporo that instead of him completing the form, she would conduct a phone interview where she could ask him the questions on the form, record his responses and then forward him a copy of the completed form to confirm or deny the answers and information. She also advised him that he had the opportunity to provide any additional information. The interview was conducted on 1 June 2007 over one hour and 15 minutes. Ms Hunt enclosed the completed personal details form with a letter to Mr Aporo dated 1 June 2007. That letter also gave Mr Aporo the opportunity to provide any additional information to be taken into consideration by the Minister when deciding whether or not to cancel Mr Aporo's visa. 9 Mr Murdoch told Ms Hunt on 30 May 2007 that he would submit his report 'in the next couple of days' and that Mr Aporo was due to come to his office the next day. Mr Murdoch subsequently submitted a report dated 29 May 2007. Relevantly, in that report, Mr Murdoch described Mr Aporo's risk of re-offending in the following terms: Using the Level of Service Inventory-Revised instrument utilised by the Department, Mr Aporo has been assessed as presenting a high risk of re-offending. His raw score is 42. Key factors include high number of previous offences, drug dependence and poor employment history. 10 In July 2007, a delegate of the Minister decided to cancel Mr Aporo's visa under s 501 of the Act on the basis that he did not pass the character test. Mr Aporo was advised of this decision on 26 July 2007. Mr Aporo applied for review of the delegate's decision, which the Administrative Appeals Tribunal ('the Tribunal') affirmed ('the first Tribunal'). Mr Aporo appealed to the Federal Court which made orders in the nature of certiorari and mandamus quashing the decision of the first Tribunal and remitting the matter to the Tribunal to be heard and determined according to law (Aporo v Minister for Immigration and Citizenship [2008] FCA 102per Rares J). 11 The hearing by the Tribunal ('the second Tribunal') on remittal took place on 1 July 2008. Mr Aporo was represented by experienced counsel. The decision to cancel his visa was affirmed by the second Tribunal on 18 July 2008.

(2008) 171 FCR 345

(1994) 49 FCR 576

(2006) 149 FCR 558

(1985) 159 CLR 550

(1989) 91 ALR 39

(2007) 164 FCR 151

(2001) 179 ALR 425

(2003) 201 ALR 437

(2007) 164 FCR 14