Dang v Minister for Immigration, Citizenship and Multicultural Affairs

Extension of Time 13 The Tribunal's decision is dated 28 June 2024. The extension of time application was lodged on 15 August 2024, reflecting a delay of approximately two weeks. The applicant requires an extension of time pursuant to s 477A(2) of the Act. 14 The applicant filed an affidavit dated 14 August 2024 accompanying his extension of time application explaining the reasons for the delay. In his affidavit, the applicant notes his limited English, his lack of knowledge regarding what steps he was required to take, and the steps subsequently taken to obtain legal advice. 15 While the Minister contended that the extension of time ought to be refused due to the proposed grounds of review lacking sufficient prospects of success, the Minister did not take issue with the applicant's reasons for the delay and accepted that no relevant prejudice would be suffered by the Minister if an extension was granted. 16 In light of the matters accepted by the Minister, and the explanation provided for the delay, I will grant the extension of time.

Requirements for procedural fairness 17 What is sufficient and necessary for procedural fairness depends on, and varies with, the context in which the decision-maker acts, including any statutory or regulatory requirements or considerations: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26], [29] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [19] - [20] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 at [26], [30] (Rares and Jagot JJ). 18 The content is flexible and adaptable to the particular case and must be approached on the basis of what is reasonable and necessary to avoid practical injustice. An applicant is entitled to be made aware of, and have the opportunity to address, critical issues or factors on which the decision is likely to turn: Re Minister for Immigration and Multicultural and Indigenous Affairs v Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] - [38] (Gleeson CJ); Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [15] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). The Tribunal is not, however, necessarily required to disclose issues in respect of which an applicant is already on notice or information the substance of which is already known to an applicant: SZQHH at [30] (Rares and Jagot JJ)

Submissions 19 The applicant submits that the need to afford procedural fairness must be considered in the context that throughout the Tribunal's review of the delegate's decision, the applicant was unrepresented, in immigration detention, and required an interpreter to participate in the hearing. 20 The applicant submits that at the first day of the Tribunal hearing on 19 June 2024, with the assistance of an interpreter: (a) the senior member invited the Minister to provide a summary so that the applicant had "some idea of where we are going"; (b) in the course of the opening summary, the Minister referred to Direction 110 and submitted that primary considerations one (protection of the Australian community) and five (expectations of the Australian community) weighed in favour of refusing to exercise the revocation discretion. The Minister did not identify at that stage the effect of cl 7(2) of Direction 110; (c) the senior member identified for the applicant that there had been three different directions during the span of the applicant's cancellation matter with Direction 110 commencing on (the coming) Friday. The senior member said: (i) the applicant's submissions had been made under the previous direction; and (ii) it recently got updated submissions from the Minister and identified it would be applying Direction 110 when making a decision; (d) the senior member then said "there are some changes in emphasis, particularly around your ties to Australia" and that they would use the applicant's previous submissions "to the extent that I can within the new framework". In the course of its closing submissions, the Minister referred briefly to the requirement in Direction 110 that the first primary consideration (protection of the Australian community) generally be given greater weight. 21 The hearing before the Tribunal resumed on 24 June 2024. During the hearing, the Tribunal put to the applicant specific matters the Tribunal was required to address by Direction 110, as well as evidence going to those matters. Those matters included whether the applicant's offending was serious, his risk of re-offending, the need to consider the applicant's ties to Australia, whether he may apply for a protection visa in the future, and whether it would be difficult for the applicant to live in Vietnam. The applicant submits that at no stage did the Tribunal draw the applicant's attention to the significance of cl 7(2) of Direction 110. 22 As noted above, the applicant submits that cl 7(2) of Direction 110 created a new requirement that the protection of the community generally be given greater weight than the other primary considerations. Previously, primary considerations were simply to be given greater weight than other considerations, and this is the basis on which the applicant made his submissions. 23 The applicant submits that Direction 110 created a new issue in the review, and that the dispositive finding of the Tribunal was made on the basis of this new requirement and issue. 24 The applicant submits in the circumstances of this case, the procedure the Tribunal adopted was unfair, given that: (a) the applicant was unrepresented, in detention, and required an interpreter to participate in the hearing; (b) the Tribunal's explanation as to the effect of Direction 110 failed to refer to cl 7(2) and the significance of the clause; and (c) the Tribunal's references to Direction 110 failed to put to the applicant why, in his case, the direction in cl 7(2) should not be applied. 25 The applicant submits that the error was material as had the Tribunal ensured the applicant was in a position to appreciate the significance of cl 7(2) of Direction 110 in the circumstances of his review, he would have been able to make submissions as to how it should have applied to his case, including, potentially, obtaining further evidence.

Consideration 26 For the reasons that follow, the procedural fairness ground must be dismissed. 27 In my view, the Tribunal was not required to expressly bring the change in cl 7(2) of Direction 110 to the applicant's attention. 28 Firstly, no practical injustice arises if the Tribunal did not expressly bring the change to the applicant's notice. 29 The change to cl 7(2) in Direction 110 does not affect the substance of the consideration of the protection of the Australian community. It relates only to how that consideration is weighed and results in the protection of the Australian community "generally" being given greater weight than other primary considerations, rather than it being a primary consideration that can, in any given case, outweigh other primary considerations (as was the case under Direction 99). 30 I accept the Minister's submission that, from a practical perspective, being told specifically about the change would have no meaningful impact on the submissions an applicant may make, or evidence an applicant may provide. Under both directions, it is in an applicant's best interest to put forward why different primary and other considerations ought to outweigh the protection of the Australian community, given the applicant's previous criminal history. 31 It was not made clear how the applicant could have put its case differently so as to give rise to some level of practical injustice. There was no material put forward identifying any evidence that the applicant could have filed to address the change in Direction 110, nor any clarity around the particular nature of the submissions the applicant would have made, and which otherwise would not have already been made by the applicant in addressing the primary considerations under Direction 99. Although counsel for the applicant referred generally to the applicant making submissions to address why, in the applicant's case, the protection of the Australian community might be outweighed by other factors, the submission could not be made with any level of specificity. I am therefore not satisfied that any practical injustice arose if the Tribunal failed to expressly bring the change in Direction 110 to the applicant's attention. 32 Secondly, I do not accept the applicant's submissions that the change in Direction 110 was a "new issue". By reason of what was said in the delegate's decision, the applicant knew that the protection of the Australian community outweighed other primary considerations favourable to him. I accept the Minister's submission that the change to cl 7(2) in Direction 110 did not introduce anything new in this regard in relation to the applicant. The Minister's delegate specifically found that the need to protect the Australian community from criminal or other serious conduct weighed significantly against revocation of the visa cancellation, and that on balance, the factors weighing against revocation of the cancellation outweighed the factors in favour of revocation (such as the interests of the applicant's minor child, and the applicant's ties to Australia). 33 Although the delegate's decision was made under Direction 99, it was clear that a relevant issue before the Tribunal would be the relative weight afforded to the consideration of the protection of the Australian community, and that the applicant's submissions would need to address why other considerations should outweigh the protection of the Australian community. Again, no submission was made regarding the particular evidence or submissions that the applicant could have relied upon had the relevant change in Direction 110 been brought expressly to his attention, and which the applicant otherwise did not make in addressing the previous Direction 99. 34 Notwithstanding my findings above, even if procedural fairness required the relevant change in Direction 110 to be specifically brought to the applicant's attention, I accept the Minister's position that sufficient notice of the change was given to the applicant. 35 On 12 June 2024, 12 days prior to the last day of the hearing, the Tribunal conducted a directions hearing in relation to the new Ministerial Direction. At that hearing, the senior member stated that the new direction was coming into effect on 21 June 2024, that the new direction would provide the guidelines for the Tribunal's decision, and that the new direction would be sent to the applicant by email. No specific reference was made to cl 7(2) of Direction 110. On the same day, the Tribunal emailed Direction 110 to the applicant. The email stated, "the Senior Member will be guided by this direction when making his decision in your matter". 36 Subsequently, the Minister's Amended Statement of Facts, Issues and Contentions dated 17 June 2024 made express reference to the change in cl 7(2) at paragraph 17. It explicitly stated that under Direction 110, the protection of the Australian community is generally to be given greater weight than other primary considerations. The document was sent attached to an email which noted that the document had been revised to reflect the new direction. 37 Finally, in making closing submissions at the hearing on 19 June 2024, the Minister's representative: (a) stated in respect of protection of the Australian community that, "in accordance with Direction 110, which is the new ministerial direction that takes effect from this Friday the 21st, that this primary consideration is generally to be given greater weight than other primary considerations"; (b) reiterated that "this consideration… should generally be given greater weight than other primary considerations weighing against the applicant"; and (c) concluded that "primary considerations one and five - and they were relating to the protection of the Australian community and the expectations of the community - weigh against the applicant and actually outweigh any other considerations that might favour the applicant". 38 While appreciating the nature of the applicant's circumstances, in light of the matters outlined above, I consider that the applicant was on sufficient notice of the relevant change in Direction 110, even if the Tribunal did not expressly refer the applicant to the change in cl 7(2). 39 The applicant seeks to make submissions that the Tribunal, in effect, misled the applicant regarding the key nature of the change under Direction 110 by explaining that Direction 110 involved a change of emphasis, particularly in relation to ties to Australia, without also referring specifically to cl 7(2). The senior member's statement was correct, and did not indicate that the applicant's ties to Australia were the only relevant changes in emphasis. In the context of the matters discussed above, I do not consider that the applicant's submission supports a finding that the Tribunal's procedure was unfair.

disPosition 40 For the reasons outlined above, the applicant's amended originating application dated 25 October 2024 will be dismissed. The applicant will pay the Minister's costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.