THIS APPEAL
10 At the commencement of the hearing of the appeal, Mr Demillo sought leave to be represented by his migration agent who was present in court. On making further inquiries of the migration agent, it became apparent that the migration agent had simply attended court to observe proceedings. He had had no opportunity to contribute to arguments or consider arguments which might be made by Mr Demillo. Once again, the migration agent sought an adjournment in order to familiarise himself with the current position. In those circumstances, leave for the migration agent to represent Mr Demillo was refused.
11 The grounds of appeal assert, in 19 paragraphs, various errors of law by the primary judge and by the AAT. None of these grounds asserts, in terms, jurisdictional error by the AAT or a relevant error in the assessment of such a question by the primary judge. On a generous reading of the grounds of appeal the same issues are raised for consideration as those which were considered and assessed by the primary judge. However, even on such a generous reading there is no specific assertion of error by the primary judge in relation to those matters.
12 Mr Demillo presented his appeal argument by reading a document which focussed almost exclusively on his contention that he had reformed and would no longer be a risk to Australian citizens in relation to continued criminal conduct. He explained that he did not wish his daughter to grow up in a split family as he had done. He explained the background to his becoming involved in criminal activity including drug addiction. He explained how the Minister had relied upon a large bundle of documents at the AAT hearing without his having an adequate opportunity to consider the contents. He said that he had not had sufficient opportunity to provide evidence that he had reformed as he had been in prison and had no access to such evidence. He accepted, however, that in the 23 page submission prepared by the migration agent in consultation with him, he had said what he wanted to say about the further documents relied upon by the Minister and that a considerable effort had gone into formulating what he wanted to say in the document described by the primary judge as 'both detailed and thoughtful'. Although he did not specifically address the grounds of appeal, in the exchanges with Mr Demillo it became apparent that he accepted that the AAT had given him adequate opportunity to consider the material put against him by the Minister and to make submissions in response in writing on those matters. He also accepted that the two issues of prime concern to him had been contentions that he had experienced little contact with his daughter and that his behaviour while being in prison was an issue. He accepted, correctly, that the Minister had withdrawn both suggestions in that regard.
13 Not only was Mr Demillo unable to point to any additional material that he would have wished to put before the AAT, but he was unable to point to any prejudice sustained as a result of an adjournment not being granted. As a consequence, there was no basis for any conclusion that the decision of the AAT would have been otherwise had an adjournment been granted. Although no jurisdictional error has been contended or established, there was no assertion that the breach of natural justice had denied Mr Demillo 'the possibility of a successful outcome' as discussed in Stead v State Government Insurance Commission (1986) 161 CLR 141 (at 147) and Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82 (at [4], [80], [103] and [130]-[132]). No argument was made that the error could have made a difference to the outcome of the review: see Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 (213-214). See also SZRDW v Minister for Immigration and Citizenship (2012) 134 ALD 290 (at [62]) per Robertson J; and Yuen v Police (2012) 222 A Crim R 264 (at [93]) per White J.
14 As noted in Teuila v Minister for Immigration and Citizenship [2012] FCAFC 171 (at [14]):
A ground alleging a denial of procedural fairness by the Tribunal is ultimately to be founded upon the obligation set forth in s 39 of the Administrative Appeals Tribunal Act 1975 (Cth). That section expresses the requirement as a duty to "... ensure that every party is given a reasonable opportunity to present his or her case ...". The section, it has been said, "reflects the common law requirement of procedural fairness": Daw v Minister for Immigration & Citizenship [2012] FCA 705 at [3] per Edmonds J. Whether the requirement imposed upon the Tribunal by s 39 is co-extensive with the common law requirements is a question which may presently be left to one side. The section, it has long been recognised, does not require the Tribunal to ensure that a party takes the "best advantage" of the opportunity: Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], [2000] FCA 570; 60 ALD 737 at 748. See also: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 where Deane J (with whom Fisher J agreed) observed that "[n]either the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled". Appl'd: De Simone v Federal Commissioner of Taxation [2009] FCAFC 181 at [15], [2009] FCAFC 181; 51 AAR 161 at 167 per Sundberg, Stone and Edmonds JJ; Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26 at [45] per Keane CJ, Downes and Gordon JJ.
15 No error in the approach taken by the primary judge to his assessment of the issues before him has been demonstrated. In particular, the AAT did not make a jurisdictional error in its assessment of Mr Demillo's application to it or in the procedures which it followed. It may be accepted that a refusal to adjourn proceedings may, in some circumstances, amount to jurisdictional error: see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and Minister for Immigration and Citizenship v Li (2013) 297 ALR 225. However, the ruling of the AAT that an adjournment of the proceedings as a whole would not be granted did not amount to jurisdictional error for the reasons expressed by the trial judge in the passages set out earlier.
16 There was an adequate opportunity given to Mr Demillo's migration agent to make further submissions based on the material which the AAT had admitted into evidence. The independent significance of the material which was provided late was slight, having regard to the fact that no issue was taken with Mr Demillo's conduct in prison or the fact that he received regular visits from his young daughter. Those were the two matters which the migration agent wished to establish by reference to the documents.
17 Apart from the fact that Mr Demillo had sought time to arrange legal representation, there was no evidence before the primary judge that a failure to adjourn had deprived Mr Demillo of an opportunity for legal representation which he would otherwise have obtained. There had been ample opportunity prior to the hearing to secure such representation.
18 There was no jurisdictional error in not permitting unspecified oral evidence to be given by Mr Demillo's eight year old daughter: see Uelese v Minister for Immigration and Citizenship [2013] FCAFC 86 and Paerau v Minister for Immigration and Border Protection [2013] FCA 1119. In Uelese the Full Court followed an earlier Full Court decision in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 where Gray J (with whom RD Nicholson and Stone JJ agreed) said (at [25]):
The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business days' notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).
19 It is clear, as recognised by the primary judge that the AAT was obliged to comply with s 500(6H) MA. No error has been demonstrated.
20 The appeal must be dismissed with costs. The following orders are made:
1. The appeal is dismissed.
2. The appellant pay the costs of the first respondent to be taxed if not agreed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Greenwood, Buchanan and McKerracher.