Demillo v Minister for Immigration and Border Protection

INTRODUCTION 1 The appellant (Mr Demillo) is a Philippine citizen who is 37 years old. He was born on 12 January 1976 and has been resident in Australia since the age of 14. Between March 1995 and April 2010 he was convicted of over 150 offences on more than 25 separate occasions, including assault, larceny, possessing housebreaking implements, custody of a knife, shoplifting and (on numerous occasions) driving an unregistered and uninsured car whilst disqualified. His more recent offences concerned use of false names and documents to obtain money by deception. On 1 July 2011 Mr Demillo was sentenced to imprisonment for three years and seven months after being in custody on remand for about one year and two months. As a result of his criminal record Mr Demillo fails the 'character test' stated by s 501(6) of the Migration Act 1958 (Cth) (MA). As a further result he became liable to the cancellation of the visa which permits him to reside in Australia. On 21 August 2012 a delegate of the Minister decided to cancel his visa.

first challenge 2 Mr Demillo then applied to the Administrative Appeals Tribunal (AAT) for review of the delegate's decision. On 16 November 2012 the AAT affirmed the delegate's decision. The deliberations of the delegate and the AAT were subject to the provisions of Ministerial Direction No. 55 issued under s 499 MA. That Direction specifies a number of 'primary' and 'other' considerations which must be taken into account in deciding whether to exercise the discretion to cancel a visa on the grounds that a person fails the character test. The primary considerations are (1) the protection of the Australian community from criminal or other serious conduct; (2) the strength, duration and nature of the person's ties to Australia; (3) whether Australia has international non-refoulement obligations to the person; and (4) the best interests of minor children in Australia. 3 The AAT was satisfied that Mr Demillo's 'continual law-breaking [made] it appear that the risk of re-offending [was] very high and the type of recent offences [were] socially corrosive, increasing in incidence and likely to foster other kinds of crime' (at [36]). The AAT found that only a minor degree of weight should be given to the likelihood of detriment to Mr Demillo's daughter (who was born in 2004) having regard to: the long periods of absence, lack of actual parenting behaviour, the fact that [the child] has a constant and caring mother, the likelihood that [Mr Demillo] will re-offend and be absent from the relationship in the future, and the dubious nature of the quality of parenting that [Mr Demillo] would be able to provide if he were to remain in Australia. 4 The other considerations which the AAT was required to take into account, namely, the strength, duration and nature of his ties to Australia and Australia's international non-refoulement obligations, did not assist Mr Demillo.

Adjournment application in the AAT 5 During the procedural steps up to and during the hearing before the AAT, a migration agent who had been appointed by Mr Demillo sought an adjournment of the proceedings. After first hearing argument on the adjournment application, the AAT declined to adjourn the proceedings. At the hearing itself the migration agent also indicated that he wished to call Mr Demillo's daughter to give evidence. That course was not permitted because s 500(6H) MA precluded Mr Demillo from relying on evidence which had not been set out in a written statement to the Minister at least two business days before the substantive hearing. The proposed evidence had not been foreshadowed. At the hearing, however, the AAT indicated that the migration agent could have some further time to respond to materials put before the AAT by the Minister. A period of four days was, at the end of the hearing, provided to submit further written argument. The migration agent did not seek an opportunity to make further oral submissions and in fact elected to file written submissions rather than make oral submissions. A written submission of 23 pages was filed in the time allowed. No further request for an adjournment was made. No request for additional time to file the written submission was sought. 6 These procedural matters are relevant to a consideration of the next phase in the history of the present matter.

JUDICIAL REVIEW 7 After the AAT affirmed the delegate's decision to cancel Mr Demillo's visa, Mr Demillo sought judicial review of the AAT's decision in this Court. As the decision of the AAT was made under s 500 MA it was a 'privative' clause decision pursuant to s 474 MA. Jurisdiction to review the decision of the AAT was therefore dependent upon, and was confined by, s 476A MA. In particular, it was necessary for Mr Demillo to demonstrate that the decision of the AAT was affected by jurisdictional error in order to succeed in his application for judicial review and achieve a re-examination of his application to the AAT for review of the delegate's decision. The grounds relied upon by Mr Demillo in his application for judicial review did not assert any jurisdictional error by the AAT. However and in favour of Mr Demillo, the primary judge construed some of the grounds as raising allegations that Mr Demillo was denied natural justice. Those matters were summarised (at [12]) as follows: 12 The main complaints raised by the applicant in his grounds were essentially as follows: • The Tribunal excluded evidence which was critical to the decision under review (Grounds 2 and 4). • The Tribunal failed to consider evidence which was critical to the decision under review (Ground 3). • The Tribunal permitted the Minister to deliver a large volume of documentary material (consisting of approximately 575 pages of subpoenaed material which became Exhibit R2, and the Minister's Statement of Facts, Issues and Contentions) without allowing the applicant sufficient time to consider or respond to such material (Grounds 5 and 6). • The Tribunal failed to allow the applicant additional time to seek legal advice (Grounds 9 and 10). Other grounds relied upon by the applicant may be put aside on the basis that they do no more than complain about the merits of the Tribunal's decision or the applicable law (Grounds 12, 13 and 14), quibble with the Tribunal's evaluation of factual matters (Ground 1), or complain in a general way about the Tribunal's approach to fact finding (Ground 7) and matters of practice and procedure (Grounds 8 and 11). 8 The primary judge set out the procedural history in the AAT in more detail than in these reasons. The potential jurisdictional complaints were assessed by his Honour in this way: 29 The first matter to be considered is whether the applicant was denied procedural fairness. The relevant principles were recently considered by the High Court in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225. That case concerned the refusal of an adjournment by the Migration Review Tribunal (MRT) pursuant to the exercise of its statutory power to adjourn the review of a decision under s 363(1)(b) of the Act. It was recognised that an unreasonable refusal by the MRT to grant an adjournment could result in jurisdictional error if it was established that the Tribunal did not conduct a review in the manner required by the Act: see Hayne, Kiefel and Bell JJ at [77]-[87]. 30 There was nothing unreasonable about the Tribunal's decision to refuse the adjournment sought by the applicant in this matter. The concession obtained by the Tribunal from the Minister concerning the content of Exhibit R2 and the additional time given to the applicant within which to make submissions accommodated all of the applicant's concerns regarding the late service of Exhibit R2. Indeed, no attempt was made before me to demonstrate that the late service of any of this material or the late service of the Statement of Facts caused the applicant any genuine prejudice. 31 A related matter concerns the failure of the Tribunal to adjourn the hearing so that the applicant could be represented by a solicitor instead of a registered migration agent. There was nothing unreasonable in the Tribunal proceeding to hear the applicant's application for review in circumstances where he was not represented by a solicitor. The applicant had ample opportunity to arrange to be represented by a solicitor at the hearing on 25 October 2012. He was first notified of the hearing date on or about 6 September 2012. 32 The final matter to be considered is whether the Tribunal committed a jurisdictional error by failing to permit the applicant to call oral evidence from his daughter. In my view there is no substance to this complaint. As the Tribunal noted at the time Mr Khalsa informed it that the applicant proposed to call A, the Tribunal's hands were tied by s 500(6H) of the Act because no written statement had been given to the Minister in accordance with the requirements of that provision. Moreover, Mr Khalsa did not say what evidence he wished to elicit from A. As the Tribunal asked rhetorically: "I don't know … why you would want an eight year old girl to be giving evidence in a case such as this [?]". Both the applicant and his partner gave evidence as to the applicant's relationship with his daughter, none of which was challenged. In particular, both gave evidence directed to showing that A's interests would be best served if the applicant was not deported. Even so, it seems clear that the Tribunal was heavily influenced by the significant amount of time the applicant had spent away from his daughter while he was in prison coupled with what the Tribunal assessed to be a very high risk of the applicant re-offending ... (emphasis added) 9 As a result of these conclusions Mr Demillo's application for judicial review was dismissed: Demillo v Minister for Immigration and Citizenship [2013] FCA 629. It is from the order dismissing his application for judicial review and the order that he pay the Minister's costs that Mr Demillo has brought the present appeal.

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.