DXJL v Minister for Immigration, Citizenship and Multicultural Affairs

grounds of application for review 7 In his amended application the applicant advanced the following grounds of review: 1. The Tribunal erred by failing to comply with Direction 90, paragraph 9.4.1 by failing to consider the impact of the decision on the non-citizen's immediate family members in Australia or further or alternatively, failed to consider relevant material. 2. The Tribunal erred by failing to comply with Direction 90, paragraph 9.4.1 when assessing the strength, nature and duration of the Appellant's social and family links to Australia or further or alternatively, failed to consider relevant material. 3. In assessing the best interests of the child, the Tribunal failed in its statutory task by failing to consider the mandatory factor set out in 8.3(4)(d) of Direction 90, namely the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways. 4. The Tribunal erred in finding that the Applicant being outside the boundaries of the detention centre constituted 'serious conduct', evidenced his 'lack of remorse' and lack of full rehabilitation and/or provided a basis for [the applicant] being a 'moderate risk that he would resume a life of criminal offending and serious misconduct' because: a) the Tribunal denied the applicant procedural fairness by failing to notify the Applicant adequately of the issues to which its reasoning processes were directed; b) further or alternatively, the Tribunal failed to comply with, or proceeded upon a misunderstanding or misapplication of Direction 90, particularly clause 8.1; c) further or alternatively, those findings were illogical, irrational or legally unreasonable. 8 At the hearing on 23 June 2023 the applicant abandoned ground 2. 9 For the reasons that follow I have determined that there has been a breach of the Tribunal's obligation to accord the applicant procedural fairness as alleged in ground 4(a), and that ground 4(a) must therefore succeed. The Tribunal's decision is affected by jurisdictional error and should be quashed. The Tribunal will be required to determine the application according to law. In these circumstances, and having regard to the fact that the Tribunal will hear the application again, it is unnecessary to consider the matters which are the subject of grounds 1, 3, and 4(b) and 4(c) of the application for review: Boensch v Pascoe (2019) 268 CLR 593 at 600-601 [7]-[8] (Kiefel CJ, Gageler and Keane JJ), 629-630 [101] (Bell, Nettle, Gordon and Edelman JJ). Although Boensch arose in the context of appellate review, it has also been held that this Court should confine itself to determining only those matters dispositive of the justiciable controversy to promote judicial efficiency in the exercise of original jurisdiction: DBB16 v Commonwealth of Australia [2022] FCA 783 at [17] (Raper J).

Ground 4 10 Ground 4 is concerned with findings made by the Tribunal in relation to the applicant's behaviour during a riot at the MITA on 26 December 2021. As the applicant submits, although there were several incident reports put to him about his alleged conduct while he was in immigration detention, the Tribunal only considered one of them and made and relied upon the following relevant findings: (a) his decision to be involved in the riot at the MITA by moving to an area outside of the permissible boundaries at the detention unit was "serious conduct"; (b) such conduct evidenced a lack of remorse for his earlier aggravated burglary offending because it showed "a disregard for law and order with the detention centre and a lack of respect for an important Government institution"; (c) this conduct showed that he had not "fully rehabilitated" or "reformed"; and (d) this conduct was one of the "reasons why the Tribunal considers that there is at least a moderate risk that [he] would resume a life of criminal offending and serious misconduct if released back into the Australian community". 11 These findings provide the basis for review grounds 4(a), (b) and (c).

Ground 4(a): The Tribunal denied the applicant procedural fairness by failing to notify him adequately of the issues to which its reasoning processes were directed 12 The applicant contends that the Tribunal, in making the findings outlined in paragraph [10] above without notifying him sufficiently of the issues to which its reasoning processes were directed, denied him procedural fairness. He submits that there were five ways in which this occurred: (a) first, the Minister never put these issues involving the MITA riot in issue, either by submission or by his questioning of the applicant; (b) secondly, the Tribunal questioned why the applicant's counsel was re-examining the applicant about the conduct the subject of the incident reports and suggested that such questions were not relevant or a "valuable" use of the Tribunal's time; (c) thirdly, the Tribunal appeared to accept that the alleged conduct the subject of the incident reports was "trivial in nature"; (d) fourthly, the applicant's counsel explained to the Tribunal that she understood the only relevance of the incident reports to be that the Minister would rely upon any alleged conduct accepted by the Tribunal to have occurred to suggest that he was more likely to offend; and (e) fifthly, the Minister's representative confined his submissions on the MITA 2021 incident report to the likelihood of the applicant reoffending, such that the applicant's counsel also limited her oral closing submissions to that same issue. 13 The applicant submits that the Tribunal knew that the relevance of his conduct during the MITA riot was not obviously known to him or his counsel on the material, and thus that the Tribunal had an obligation to notify him of these possible adverse conclusions. The failure to do so, the applicant submits, constitutes a breach of the Tribunal's obligation to accord him procedural fairness because he was denied sufficient opportunity to give evidence about these matters or make submissions about them: see s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 424A(1) of the Act; and also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160-166 [26]-[49]; (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); and EXT20 v Minister for Home Affairs [2022] FCAFC 72 at [42]-[75] (Mortimer J), [127]-[128] and [148] (Wigney J) and [175]-[176] (Snaden J). 14 The applicant contends that the Tribunal's failure to notify him of the significance of his conduct during the MITA riot in its deliberations meant that his counsel did not spend as much time explaining the circumstances of his involvement in the MITA riot as she otherwise would have done. He submits that during the hearing the Tribunal did not make it clear that it considered the fact that the applicant was outside the boundaries of the detention centre to be so important or relevant that it could constitute "serious conduct" or that it evidenced his lack of remorse for his previous offending. The applicant submits that the Minister's oral closing submissions suggested only that the incident reports were relevant to the likelihood of reoffending and that, as a result, the applicant's oral closing submissions were also limited to the same issue. 15 A critical aspect of the applicant's complaint in this regard is to be found in an exchange between the Tribunal and the applicant's counsel at pages 150-151 of the transcript, as follows: SENIOR MEMBER: He has denied his involvement in the matters that are addressed in those incident reports. I'm just wondering what you're now seeking to do in re-examination of the witness about that, he's denied them. He's denied his involvement in them. … He said that he was out of bounds but he wasn't on the roof. I'm just making sure that we're using the tribunal's time in a valuable way rather than getting stuck on some of the detail of which he's already denied. MS TADROS: Tribunal Member, if you don't wish to hear any more evidence on this that's fine. I understood that there were adverse inferences that were going to be relied upon by the respondent in relation to these incident reports, both in terms of him not responding - - - SENIOR MEMBER: I will ask Mr Turner to clarify. Is that the position of the Minister? …What does the Minister say the tribunal should make of the conduct that's referred to in these incident reports? MR TURNER: We have regard to the fact that the incident reports are a recount of … alleged incidents … So, that's what we wanted to put to the applicant to test the evidence. What we do accept is that the evidence, the oral evidence, before the tribunal is that the applicant has accepted that he was out of bounds in all those incidents, regarding throwing an object over the fence. We accept that those are the two incidents that the applicant responded to that that the tribunal can accept. (Emphasis added.) As to the other conduct referred to in the incident reports, the following was said: MR TURNER: We consider that the tribunal would have to make an assessment as to whether or not you would want to put weight on the applicant's oral evidence that these incidents didn't occur. We'll still be relying on them, but we consider it's up to the decision maker to make that assessment. SENIOR MEMBER: All right. Well, you can continue on then, on that basis, if he is suggesting the way that Mr Turner's put that, then I'm happy for you to question this witness. But I want us to be conscious of the time so that we're not going into the detail of alleged conduct that's in these incidents reports. That is - - - MS TADROS: I understand. SENIOR MEMBER: - - - from your own suggestions through the questions that you're asking is trivial in nature. MS TADROS: I understand. This is the last incident - question in relation to the incident reports. SENIOR MEMBER: I mean, I'd prefer you ask questions about the conduct that is the subject of the convictions … I mean that's really - that's the big - the big ticket items is what happened with the home invasion and what happened in 2020 with those further convictions. They are the big ticket items. And so - - - MS TADROS: Thank you for that indication, Senior Member. SENIOR MEMBER: Yes, all right. MS TADROS: I'll just finish this one last question and then I'll move on to that. (Emphasis added.) 16 Based on this exchange the applicant submits that the Tribunal effectively discouraged his counsel from dealing in a sufficiently comprehensive way with his conduct during the MITA riot and, instead, encouraged her to confine her examination of the applicant to his other conduct which had been the subject of criminal convictions. The Tribunal identified these matters as "the big ticket items", and in so doing the Tribunal communicated that the applicant's behaviour during the MITA riot was not front and centre in its deliberations. To put it another way, by its observations the Tribunal minimised the significance and relevance of the MITA riot during the hearing, but then made findings highly adverse to the applicant having regard to his conduct during the MITA riot. This is said to have been procedurally unfair, amounting to jurisdictional error. 17 The Minister contends in response that the applicant could not, or should not reasonably, have taken from this exchange that whether he was out of bounds during the riot was not an issue that would be relevant to the risk that he posed to the Australian community. It is said that this exchange represents no more than the Tribunal encouraging counsel to avoid becoming tied up in the minutia of parts of incident reports that the applicant had already denied and upon which the Tribunal ultimately placed no weight, particularly given the time constraints of the hearing. The Minister submits that the cross examination of the applicant by the Minister's representative, as well as the interspersed questions from the Tribunal, should have left no doubt that the applicant's conduct during the MITA riot was a relevant issue concerning the risk that the applicant posed to the community of further offending. The Minister refers to instances where the Tribunal put to the applicant that his conduct in the MITA riot was an example of him being led or influenced, and where the applicant was given an opportunity to respond to these matters. 18 The Minister also contends that the following excerpt from the transcript demonstrates that it was clear to the applicant that being out of bounds was relevant to a disregard for law and order (at pages 295-296 of the transcript): MS TADROS: The applicant gave evidence that he wasn't charged, that he wasn't spoken to after the incidents. That seems to be the only one that is relied on which is being out-of-bounds, that limited weight be given to that, especially since the incident involved a large number of people. That incident report went for four or five pages. His name was listed once and he wasn't spoken to after that and it should be questioned as to what that actually goes to. Does that actually go to the likelihood of him offending and committing sexual assaults. No. Offending and committing physical violence. No. Perhaps disobeying a - - - SENIOR MEMBER: Disregard for the law. MS TADROS: Disregard for the law, yes. But there's got to be specific - the finding of likelihood of reoffending has to be made on a proper basis and it has to be specific in terms of what that actually goes to. What the tribunal member can actually say that that gives effect. It doesn't necessarily mean that he is going to go and reoffend and commit another violent offence like aggravated burglary, which is a different type of offence. (Emphasis added.) 19 The Minister submits that there are a variety of ways that an applicant can be put on notice about the significance of a particular issue. Notice does not have to be in writing and can include during the course of questioning at a hearing: SZBEL at 165-166 [47]. Thus the Minister submits that the Tribunal did not need to put the applicant on notice of precisely the reasoning that it was going to employ about why being out of bounds meant that there was a risk of him reoffending. The Minister submits that these were the Tribunal's subjective thought processes, rather than being matters that were required to be put to the applicant to afford him procedural fairness: EXT20 at [141] (Wigney J). 20 Moreover, the Minister contends that the applicant's conduct in immigration detention was raised as a matter that was directly relevant to the applicant's likelihood of reoffending in the Minister's Statement of Facts, Issues and Contentions (SFIC). It is said that by the SFIC, and the clear terms of Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) specifying how a risk of reoffending was relevant, the applicant was sufficiently put on notice that his involvement in incidents in immigration detention was in issue as they related to the risk to and protection of the Australian community. 21 Having regard to all the circumstances, and despite the Minister's submission that the applicant had been given sufficient notice that his conduct while out of bounds during the MITA riot was an issue, I accept the applicant's submission that the Tribunal denied him procedural fairness by appearing to minimise the importance or significance of his conduct during the MITA riot in the course of the hearing (see especially as set out above in paragraph [15]). This intervention can fairly be regarded as having changed the landscape of the review hearing. It affected the way the applicant's counsel conducted the hearing as she was encouraged, in effect, not to explore aspects of the applicant's behaviour during the MITA riot and not to develop her arguments in a way which she might have done had she understood that the Tribunal might make of the applicant's conduct during the riot what it ultimately did make of that conduct. In my view it was not procedurally fair for the Tribunal to make the findings it made in relation to the applicant's involvement in the MITA riot in circumstances where its comments had effectively discouraged the applicant's counsel from exploring these matters and it had indicated that the home invasion and further convictions in 2020 were "the big ticket items" which were the focus of its attention. 22 It can be accepted that the Tribunal is not required to put an applicant on notice of its thought processes or the "existence of doubts, inconsistencies or the absence of evidence": see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 1196 [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). However, in this case, having regard to what had been said to the applicant's counsel, the Tribunal needed to inform the applicant of the significance of the MITA riot in its deliberations before making the findings which it made based on the applicant's involvement in that incident: namely that it regarded his conduct as serious and evincing his lack of remorse. This was required by s 424A(1) of the Act. These findings were the product of more than mere thought processes, or the existence of doubts, inconsistencies or the absence of absence. 23 On the subject of materiality, it may be accepted, as the Minister submits, that if the Tribunal did deny the applicant procedural fairness the error will be jurisdictional only if compliance could realistically have resulted in a different outcome: Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 at 741 [1] (Kiefel CJ, Keane and Gleeson JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 433 [3] and 445 [45] (Bell, Gageler and Keane JJ); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134-135 [30] (Kiefel CJ, Gageler and Keane JJ). The applicant bears the onus of proving that this is a realistic possibility: Nathanson at 741 [1]; SZMTA at 433 [4] and 445 [46]; BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1429 at [26]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at 514 [2]. 24 The Minister submits that the applicant gave evidence about his role in the MITA riot, and why he did what he did. Accordingly, the Minister contends, the applicant could not have said anything further on this point and thus any denial of procedural fairness should be regarded as immaterial. 25 I do not accept the Minister's submission in this regard. In Nathanson, Kiefel CJ, Keane and Gleeson JJ said as follows at 748 [33]: There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity… (Footnotes omitted.) (Emphasis added.) 26 Dealing specifically with the notice given by the Tribunal to the applicant in Nathanson, Gordon J observed as follows at 753 [62]: Mr Nathanson was on notice that domestic violence incidents were relevant to a different primary consideration, namely, "[t]he best interests of minor children in Australia". He was not on notice that the incidents were relevant to the primary consideration of the protection of the Australian community. In fact, he was misled by the Tribunal, which told him at the commencement of the Tribunal hearing that the changes resulting from Direction were "minor" and were of "minor relevance" to him. When it became apparent that the domestic violence incidents were in fact to be relied upon by the Minister in relation to the primary consideration of the protection of the Australian community, no step was taken by the Tribunal to remedy the situation. Then, without warning Mr Nathanson, the Tribunal relied upon the incidents in relation to that consideration in undertaking the evaluative decision-making process mandated by s 501CA(4). (Emphasis added.) 27 See, to similar effect, the observations of Gageler J at 752 [56]. 28 The situation is not dissimilar in the present case. Indeed, the procedural unfairness to the applicant here may be greater than that in Nathanson in the sense that here it formed no part of the Minister's case that being out of bounds constituted serious conduct and demonstrated a lack of remorse. The Tribunal found that it did, without having raised the matter and having discouraged the applicant's counsel from questioning the applicant further about the relevant incident report. 29 It is no sufficient answer to say, as was submitted for the Minister, that the present circumstances are different to those in Nathanson, where a Ministerial direction had changed and the Tribunal informed the applicant that this was not material. The vice is in the same dimension, and indeed its effect may have been more significant in this case. The Tribunal's observations to counsel for the applicant were such that she conducted the case on the basis that the matters which were the subject of the incident report were not significant in the Tribunal's assessment of the situation. However, in making its determination the Tribunal made findings on the basis of the incident report. Consistently with the authorities it must be accepted in these circumstances that the denial of procedural fairness was material. 30 Had the Tribunal not indicated that the applicant's behaviour at the MITA riot was not central to its consideration of his position then the applicant's counsel may have made different forensic decisions, questioned the applicant more comprehensively about his involvement in the riot, and made different submissions. In my view this is enough to reach the conclusion that the breach of the obligation to accord procedural fairness was material.

Conclusion 31 The denial of procedural fairness to the applicant on the basis of ground 4(a) having been established, there is no need to give further consideration to the applicant's remaining grounds of review. There will be orders that a writ of certiorari be issued quashing the Tribunal's decision of 24 October 2022. There will also be a writ of mandamus directed to the Tribunal requiring it to review the decision of the Minister's delegate made on 29 July 2022 according to law. 32 The Minister should pay the applicant's costs of this application. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.