The alleged denial of procedural fairness
28 The appellant's contention is that the finding to which I have referred at [12] above, was a finding made by the delegate involving a denial of procedural fairness to him. I did not understand the appellant to dispute the fact that he had told the Department he was living with his brother in Sydney. Rather, he submits that he was given no opportunity to address the delegate, either orally or in writing, about whether there was, in fact, any other family support for his sister provided by his other brother.
29 It appears from a document in evidence before the Court, which is described as a "submission to delegate" that the delegate was informed, through this submission, that:
Departmental records indicate that the client is residing with his brother.
30 There does not appear to be any further information provided to the delegate beyond this statement. I note that the departmental "submission" is drafted as if it is a set of reasons for decision (even to the extent of using the first person in places), and the decision record ultimately produced by the delegate reflects almost verbatim all of the substantive parts of this "submission". Thus, the "submission" appears to be some kind of briefing note to the delegate.
31 Aside from what the appellant said in the waiver application itself, the material before the delegate consisted of a letter from the appellant's sister's treating doctor, although this letter actually related to the appellant's sister securing support from another sibling: a sister, whose application for a visitor visa was refused. Nevertheless, I infer the point of submitting it was to show the needs of the appellant's sister. The letter was capable of performing that function. The letter did not mention the appellant's brother. There was then also a letter from a Social Work Team Leader at Westmead Hospital, Western Sydney Local Health District, again in relation to the appellant's sibling rather than himself. However, it also emphasised the needs of the appellant's sister. Again, it was capable of supporting his waiver application. It also did not mention any support which could be offered by the appellant's brother. The appellant disclosed the fact that these letters referred to his sister in his own application.
32 The decision record refers in general terms to the fact that the delegate had regard to "other relevant information held on departmental files" but does not specify what that information was. The Court is entitled to proceed on the basis that the material which has been produced in the appeal book is the material to which the delegate had regard, in accordance with the Minister's obligations as a model litigant to ensure that such material is before the Court on judicial review, particularly where at first instance on judicial review the appellant was unrepresented. The Minister did not submit there was any other material, in the face of a submission by the appellant that there was no evidence or information about the appellant living with his brother, or about his brother, outside the statement extracted at [29] above.
33 Accordingly, I accept there was no other material before the delegate about where the appellant was living and with whom, nor about the appellant's brother. I am also satisfied that the delegate did not himself look at the "departmental records" which suggested, according to the "submission" made to the delegate that the appellant was living with his brother. In other words I am satisfied that the delegate relied on this statement in the "submission", and went no further than that. I am comfortable in drawing that inference particularly because the delegate has adopted, word for word, much of what is in the "submission", and the decision record does not on its face appear to be the product of a separate assessment of departmental records by the delegate.
34 In Yaacoub at [30]-[33] the Full Court proceeds, I infer, on the basis that there is attached to an exercise of power concerning a waiver of a visa condition, an obligation to afford procedural fairness to an applicant for the waiver. The content of that obligation need not be fully developed out in these reasons because for the purposes of this appeal it is sufficient to return to first principles, in circumstances where there is no basis in the legislative scheme to see an obligation of procedural fairness as excluded.
35 As McHugh J stated in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 311-312 (in dissent but in a passage approved by McHugh and Gummow JJ in Re Minister for Immigration & Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [81]-[83]):
In the absence of a clear contrary legislative intention, those rules require a decision-maker "to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that [she or] he may have an opportunity of dealing with it".
36 A majority of the Full Court in Comcare v Wuth [2018] FCAFC 13 at [101] also referred to this passage from Teoh with approval (Perry J, Siopis J agreeing).
37 Where an obligation to afford procedural fairness is expressly or impliedly imposed, the general question is whether a person has been denied an opportunity to be heard on a matter which she or he ought fairly to have been given in the totality of the circumstances: Minister for Immigration & Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [55] (Gageler and Gordon JJ). The plurality at [42] also emphasized the following (citations omitted):
As was said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs:
It is … not to the point to ask whether the [decision-maker's] factual conclusions were right. The relevant question is about the [decision-maker's] processes, not its actual decision.
38 Another often cited expression of the general principle is in Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [83]:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
39 The footnote to that proposition refers, amongst other authorities, to Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576, which I discuss below. It is the last feature ("the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person") which is of relevance in the current appeal.
40 The Minister sought to rely on the Full Court's well known passage in Alphaone at 591-592:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (my emphasis)
41 I do not consider the qualification expressed in Alphaone, accepting it has been endorsed on many occasions, affects the outcome of this appeal. While it may be assumed that the fact the appellant has a brother is, of course, a finding "obviously open on the known material", the finding that the brother could provide the support and assistance needed by the appellant's sister is not of such a character. The "known material" included nothing at all about the appellant's brother's circumstances. That is what makes the delegate's finding unexpected, as well as affected by jurisdictional error. The circumstances of families are many and varied, and no stereotypical assumptions can be made about whether a family member is able (and willing) to provide assistance of the kind the material suggested the appellant's sister and her children needed.
42 Finally, in terms of principle, it is well established that the Court must be satisfied the appellant was denied the possibility of a different outcome - the threshold for relief is no higher than this. In WZARH at [60] Gageler and Gordon JJ said that:
denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.
43 See also Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; 253 FCR 21 at [69]. I discuss the application of these principles in the context of a particular submission by the Minister below.
44 I find that the delegate's reliance on the fact that the appellant and his sister had another sibling in Australia who the delegate found could provide support to the sister, was a material finding made in reaching the conclusion that the precondition to the exercise of the discretion to waive Condition 8503 (the need for "compelling circumstances") was not made out. It would appear the delegate used the finding about the existence of another sibling in Sydney as a material contributing factor to his decision that there was nothing in the appellant's circumstances that was "driving or forceful" in the sense of "compelling" for the purposes of reg 2.05(4), because there was another sibling who could support the sister.
45 Yet, in his waiver application, the circumstances on which the appellant relied were premised on the proposition that there was no other appropriate family support to his sister and her children. That was indeed the position put forward in the Westmead Hospital letter:
In my experience of working with families with multiple birth infants, the first year can be a very challenging time, even when there are no problems with settling and sleeping. [Name redacted] and her husband state that they have no family support in Sydney available to assist them at this time.
46 As the Federal Circuit Court noted in its reasons, the visitor visa application of the appellant's other sister (to whom the statements by health service providers were directed) had been refused.
47 There was thus a direct conflict between the way in which the delegate proposed to use a single statement, reported to the delegate through a "submission" in a way which was adverse to the appellant's interests, and the premise of the appellant's waiver application.
48 In circumstances where the delegate formed a view about a fact, which had been discovered through a perusal of departmental records, and considered that fact to be material in the exercise of the waiver discretion, the delegate was in my opinion obliged to raise that matter with the appellant and to give him an opportunity to deal with it. There may have been reasons, or there may not, about whether the appellant's brother was able to support their sister. The appellant was not confronted by the question, so this critical matter remains unknown. More importantly, the delegate was deprived of this information which was clearly material to any conclusion on whether the appellant's circumstances were "compelling".